Young v Legal Profession Complaints Committee
[2022] WASCA 52
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: YOUNG -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2022] WASCA 52
CORAM: QUINLAN CJ
BUSS P
BEECH JA
HEARD: 13 SEPTEMBER 2021
DATE OF FINAL
SUBMISSIONS : 27 OCTOBER 2021
DELIVERED : 24 MAY 2022
FILE NO/S: CACV 40 of 2020
BETWEEN: NICOLE ANNE YOUNG
Appellant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: JUDGE T SHARP, DEPUTY PRESIDENT
MS L EDDY, SENIOR MEMBER
MR J MANSVELD, MEMBER
Citation: LEGAL PROFESSION COMPLAINTS COMMITTEE and YOUNG [2020] WASAT 29
File Number : VR 230 of 2018
Catchwords:
Professions and Trades - Legal practitioner - Disciplinary proceedings before State Administrative Tribunal - Findings of professional misconduct and unsatisfactory professional conduct - For the professional misconduct the Tribunal ordered that the appellant not be granted a local practising certificate for a period that expired before the date of the order - For the unsatisfactory professional conduct the Tribunal ordered that the appellant be publicly reprimanded - The Tribunal ordered the appellant to pay the respondent's costs fixed at $20,000 - Whether the Tribunal has power to make an order that a local practising certificate not be granted to a practitioner before the end of a specified period with retrospective effect - Whether the Tribunal made a material error in relation to the application of s 55 of the State Administrative Tribunal Act 2004 (WA) to relevant correspondence and other documents - Whether delay by the respondent in investigating, commencing and litigating a complaint and the impact of the delay on a practitioner can bear on the Tribunal's determination of the appropriate penalty and the issue of costs - Whether acts or omissions including misconduct by the respondent during the period of investigating, commencing and litigating a complaint and the impact of the acts or omissions on a practitioner can bear on the determination of the appropriate penalty and the issue of costs - The ambit of the Court of Appeal's power to make substitutive orders under s 105(9) of the State Administrative Tribunal Act
Legislation:
Legal Profession Act 2008 (WA), s 39, s 42, s 44, s 401, s 402, s 403, s 405, s 428, s 431, s 438, s 439, s 441, s 555, s 557
Legal Profession Conduct Rules2010 (WA), r 6(1)(b), r 6(2)(c)
State Administrative Tribunal Act 2005 (WA), s 16, s 51A, s 52, s 54, s 55, s 87, s 105
Result:
The appellant has leave to amend her grounds of appeal
Leave to appeal in respect of grounds 1A, 1, 2, 3, 4, 5, 7 and 8 granted
Leave to appeal in respect of ground 6 refused
Orders 2 and 3 of the Tribunal's orders made on 9 March 2020 set aside
Substitutive orders made in relation to penalty but not as to costs
Appellant publicly reprimanded for the professional misconduct which the Tribunal found was proved
Category: A
Representation:
Counsel:
| Appellant | : | Mr S M Davies SC |
| Respondent | : | Ms P E Cahill SC & Ms C E Moss |
Solicitors:
| Appellant | : | McNally & Co |
| Respondent | : | Legal Profession Complaints Committee |
Case(s) referred to in decision(s):
Commissioner for Consumer Protection v Carey [2014] WASCA 7
Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545
Development Consent Authority v Phelps [2010] NTCA 3; (2010) 27 NTLR 174
Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015] WASC 60
Field v Commissioner for Railways (NSW) [1957] HCA 92; (1957) 99 CLR 285
Gandini v Legal Profession Complaints Committee [2013] WASCA 168 (S)
Guss v Law Institute of Victoria Ltd [2006] VSCA 88
Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Khosa v Legal Profession Complaints Committee [2017] WASCA 192 (S)
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390
Leeda Projects Pty Ltd v Zeng [2020] VSCA 192; (2020) 61 VR 384
Legal Profession Complaints Committee v Detata [2012] WASCA 214
Legal Services Commissioner v Rallis (Legal Practice) [2009] VCAT 1445
Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32
Ofulue v Bossert [2009] 1 AC 990
Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320
Panegyres v Medical Board of Australia [2020] WASCA 58
Papps v Medical Board of South Australia [2006] SASC 234
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Quinlivan v Legal Profession Complaints Committee [2012] WASCA 263 (S)
Quinn v Law Institute of Victoria Ltd [2007] VSCA 122; (2007) 27 VAR 1
Re Maraj (a legal practitioner) (1995) 15 WAR 12
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72
Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368
Stirling v Legal Services Commissioner [2013] VSCA 374
Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298
Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (NSW) [2011] HCA 41; (2011) 245 CLR 446
The New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177
TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175
Victorian Legal Services Commissioner v McDonald [2019] VSCA 18; (2019) 57 VR 186
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
Yokogawa Aust Pty Ltd v Alstom Power Ltd [2009] SASC 377; (2009) 262 ALR 738
Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279
TABLE OF CONTENTS
QUINLAN CJ & BEECH JA:
Preliminary observations
The Tribunal fell into legal error - the appeal must be allowed
What further orders should this court make?
Professional misconduct on 7 April 2016
Costs
BUSS P:
The proceedings before the Tribunal and the Tribunal's reasons for decision
The submissions made by the parties to the Tribunal concerning the backdating of any 'preclusion order'
The Tribunal's orders made on 9 March 2020
The relevant framework under the LP Act
The relevant provisions of the Legal Profession Conduct Rules 2010 (WA)
The relevant framework under the SAT Act
The decisions of the Tribunal challenged in this appeal
The grounds of appeal
The appellant's orders wanted in the appeal
The appellant's submissions
The Committee's submissions
The jurisdiction of this court under s 105(1) read with s 105(2) of the SAT Act
Divergence between the appellant's stated questions of law and the appellant's stated grounds of appeal
The organisation of the balance of these reasons
Ground 1A:did the Tribunal err in law in finding that it had power pursuant to s 439(b) of the LP Act to make an order that a local practising certificate not be granted to the appellant before the end of a specified period with retrospective effect, the whole of which period predated the making of the order?
Ground 1:does s 55 of the SAT Act prohibit the Tribunal from admitting evidence of a thing said or done in the course of a compulsory conference or mediation at a later stage of the proceeding where the evidence is led for the purpose of seeking to establish that a party failed, at some relevant time, to meet its disclosure obligations in relation to the proceeding?
Grounds 2, 3, 4, 5, 7 and 8: can:
(i) delay in investigating, commencing and litigating a complaint and the impact of the delay on a practitioner bear on the determination of the appropriate penalty?
(ii) delay in investigating, commencing and litigating a complaint and the impact of the delay on a practitioner bear on the issue of costs?
(iii) acts or omissions by the Committee during the period of investigating, commencing and litigating a complaint and the impact of such acts or omissions on a practitioner bear on the determination of the appropriate penalty?
(iv) acts or omissions by the Committee during the period of investigating, commencing and litigating a complaint and the impact of such acts or omissions on a practitioner bear on the issue of costs?
Ground 6:
(i) is the Tribunal required to provide reasons for imposing a penalty greater than the penalty contended for by the Committee in its submissions at the hearing?
(ii) where the Tribunal is considering imposing or intending to impose a penalty greater than the penalty contended for by the Committee at the hearing, must the Tribunal give notice to the parties and/or an opportunity to be heard?
The orders this court should make in the appeal
Conclusion
QUINLAN CJ & BEECH JA:
We have had the advantage of having read Buss P's reasons. We adopt, without repeating, what his Honour has set out as to the background facts and circumstances, the statutory framework, the Tribunal's reasons, the grounds of appeal and the contentions of the parties.
We agree with Buss P, for the reasons that he gives, that the appeal should be upheld and orders 2 and 3 of the Tribunal's orders should be set aside. We write separately to explain our views as to what orders this court should make consequent upon the upholding of the appeal.
To put those views in context, we begin by outlining some background.
Preliminary observations
Regrettably this matter has a long and sorry history.
In December 2018, the respondent (Committee) brought disciplinary proceedings against the appellant under the Legal Profession Act 2008 (WA) in relation to events in April and May 2016. There were, ultimately, two matters in relation to which the appellant accepted that she was guilty of professional misconduct and unsatisfactory professional conduct, respectively (as those expressions are defined in the Legal Profession Act):
(a)that on 7 April 2016 the appellant sent an email to the District Court of Western Australia that was, to her knowledge, misleading and deceptive; and
(b)that on 5 May 2016 in a telephone call and text message to a Mrs A, the appellant conducted herself in a manner that was rude, offensive, insulting, intemperate, provocative and discourteous.
Ultimately, on 9 March 2020, the Tribunal made the following orders:
1.The Tribunal upon its finding that the [appellant] is guilty of unsatisfactory professional conduct orders that pursuant to s 439(d) of the Legal Profession Act 2008 (WA), the [appellant] is publicly reprimanded.
2.The Tribunal upon its finding that the [appellant] is guilty of professional misconduct orders that pursuant to s 439(b) of the Legal Profession Act 2008 (WA), the [appellant] is not to be granted a local practising certificate for a period of 6 months commencing on 7 August 2019.
3.Pursuant to s 87(2) of the State Administrative Tribunal Act2004 (WA), the Tribunal orders that the [appellant] must pay the [Committee's] costs fixed at $20,000 within 30 days of the date of this order or as otherwise agreed between the [appellant] and the [Committee].
As will be apparent order 1 of the Tribunal's orders related to the finding of unsatisfactory professional conduct (the conduct referred to at [5(b)] above) and order 2 related to the finding of professional misconduct conduct (the conduct referred to at [5(a)] above).
As will also be apparent, Order 2 purported to preclude the appellant from being granted a practising certificate retrospectively (i.e. for a period that had already elapsed). The appellant had not been practising during that period. Whether the order was valid or not, it could have no practical effect; it was entirely symbolic.
The appellant appealed to this court on eight grounds. As Buss P explains, despite - or perhaps in part because of - their considerable length, the grounds of appeal did not comply with the Supreme Court (Court of Appeal) Rules 2005 (WA) in stating the questions of law necessary to enliven the court's jurisdiction. At the hearing of the appeal, the appellant applied for leave to amend her grounds by adding a ninth ground, ground 1A.
The appellant's 'Orders Wanted' sought orders that orders 1, 2 and 3 made by the Tribunal be set aside. Other than the costs of the appeal, the appellant sought no further orders in the appeal; neither a remitter to the Tribunal nor orders in substitution of the orders made by the Tribunal. The effect of the orders sought, if granted, would have been as if the proceedings before the Tribunal had never been brought. That would, at the very least, have been a surprising conclusion to a proceeding in which the appellant accepted that she had committed professional misconduct and unsatisfactory professional conduct.
At the hearing of the appeal, following exchanges with the court, the appellant ultimately accepted that a public reprimand was an appropriate sanction for her conduct. For this reason the challenge to order 1, relating to the unsatisfactory professional conduct, fell away. That left order 2, the retrospective preclusion, relating to the professional misconduct and order 3, the order for costs against the appellant.
For its part, the Committee's position on the appeal was that the Tribunal lacked the power to make order 2 and that it was, in effect, a nullity. This was despite the fact that the Committee had submitted that it was the appropriate penalty before the Tribunal.
The Tribunal fell into legal error - the appeal must be allowed
We agree with Buss P, for the reasons that he gives, that order 2 of the Tribunal's orders of 9 March 2020 was beyond the powers conferred by s 439(b) of the Legal Profession Act 2008 (WA). The Tribunal has no power to order that a practising certificate not be granted to an applicant before the end of a specified period with retrospective effect.
In summary, two features of the Legal Profession Act compel this conclusion.
First, the natural and ordinary reading of the text supports the conclusion. The tense in which s 439(b) speaks - that a practising certificate 'not be granted' - prima facie speaks prospectively.
Secondly, as Buss P explains, an order under s 439(b) is, in effect, directed to the Board. Given that, as his Honour has demonstrated, the Board has no power to issue a practising certificate retrospectively beyond the specific express powers conferred as identified by Buss P, it would make no sense and would serve no purpose if s 439(b) encompassed the making of an order that was retrospective in its effect.
Consequently, order 2 of the Tribunal's orders must be set aside.
To our mind, the natural starting point is that, the primary substantive penalty order having been set aside, the consequential costs order (i.e. order 3) must be set aside and the question of the costs of the proceedings in the Tribunal revisited. The substantive orders made following a hearing always bear significantly on the exercise of discretion as to the costs of the proceedings. Prima facie, where an appellant demonstrates that a substantive order made by a primary court or tribunal has been made in error and must be set aside, consequential orders as to costs will fall with that substantive order. Ordinarily at least, no further error in making the costs order need be identified, before the appeal court sets aside the costs order and substitutes its own order. That will be particularly so where, as here, the substantive order to be set aside was one that the Tribunal had no power to make and one which the Committee advanced to the Tribunal as the appropriate primary penalty.
For these reasons, we would also set aside order 3 on the basis of the success of ground 1A.
Further, we agree with Buss P that grounds 1 and 2, as they relate to the Tribunal's costs order, should be upheld to the extent identified by his Honour. Thus, order 3 must be set aside in any event.
That leaves in place order 1, the public reprimand in relation to the appellant's unsatisfactory professional conduct on 5 May 2016.
That brings us to the question of the further orders that should be made in consequence of orders 2 and 3 being set aside.
What further orders should this court make?
Orders 2 and 3 being set aside for the reasons we have given, the question arises as to what further orders this court should make: what orders, if any, should be made respecting the appellant's misconduct on 7 April 2016 and what order, if any, should be made in relation to the costs of the proceedings before the Tribunal?
The starting point in relation to those questions is the recognition of the function of this court in an appeal under 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).[1] The terms of s 105 are set out in Buss P's reasons. As is well established, the jurisdiction conferred by s 105(1) is confined to appeals on questions of law, with the result that proceedings are in the nature of judicial review.[2]
[1] Appeals within the ambit of s 105(13) such as Khosa v Legal Profession Complaints Committee [2017] WASCA 192 are materially different, but may be put to one side for present purposes.
[2] Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [19]. This passage has been applied to s 105 of the SAT Act in many decisions of this court.
Section 105(9) does not enlarge the court's jurisdiction. It confers powers on the court in aid of the court's exercise of that jurisdiction.[3]
[3] Osland v Secretary to the of Department of Justice [19].
Buss P has comprehensively outlined the principles informing the exercise of power under s 105(9) and cases illustrating the exercise of those principles: see [295] to [313]. We agree with what his Honour has said.
We turn to the application of those principles to the present appeal.
Professional misconduct on 7 April 2016
In relation to the appropriate disciplinary response to the professional misconduct in the particular circumstances of this case, we are satisfied that this court should make the order proposed by Buss P, namely to issue a public reprimand. We consider that to be the only disposition available on a reasonable exercise of the penalty discretion.
We reach this conclusion, in essence, from a combination of two circumstances. The first is the long history of the matter, which resulted in the Committee's appropriate concession at the hearing of the appeal that nothing more than a public reprimand is appropriate. The second is the seriousness of the appellant's conduct,[4] which requires that a public reprimand be ordered to mark the court's disapproval of such conduct.
[4] As to which, we agree with what Buss P says at [316].
Thus, this court should correct the Tribunal's legal error in making order 2, by making what is now the only appropriate order: that the appellant be publicly reprimanded for the Tribunal's finding that the appellant is guilty of professional misconduct.
Costs
We are not, however, satisfied that, consistent with the restraint explained in Osland, this court should now make an order for costs in favour of the Committee. In particular, as matters now stand, we are not satisfied that there is a sufficient factual basis for this court to determine whether a costs order should be made in favour of the Committee on the basis of uncontested evidence and primary facts found by the Tribunal and, if so, for what amount.
For the reasons we have given, in our view, the costs order made by the Tribunal (order 3) was vitiated by the conclusions that the Tribunal had acted without power and that the Tribunal's substantive order in relation to the appellant's professional misconduct must be set aside. In those circumstances, the question of costs, in our view, arises afresh. The hearing before the Tribunal having miscarried in the way that it did, while this court can act upon unimpugned findings of fact made by the Tribunal, we do not consider that, in exercising the costs discretion, this court could leave in place broader evaluative elements of the Tribunal's reasoning that led to it making the order that the appellant must pay the Committee's costs.
In this case the appellant's position was that the Tribunal ought to have ordered that there be no order as to costs because of what she submitted were unexplained delays and other conduct of the Committee in conducting the proceedings of which she was critical. In that regard, before the Tribunal and again before this court, the appellant invited a number of factual conclusions as to the conduct of the proceedings by the Committee and its officers. Those matters are summarised by Buss P at [106] and [107]. A number of those allegations made by the appellant are themselves serious (including non-disclosure and intimidation by officers of the Committee).
In our respectful view, those matters cannot all be said to be immaterial to the exercise of the discretion as to costs, particularly in light of the new 'starting point', namely that the substantive order that was made beyond power was one advanced to the Tribunal by the Committee. Bearing in mind the nature of this appeal and this court's function, in our view it would not be appropriate for this court to embark upon a determination of whether any such findings should be made. Moreover, as the substantial debate on the topic before us demonstrated,[5] in light of the new starting point there is an unresolved factual issue as to the parties' respective responsibilities for the Tribunal's erroneous choice of penalty. That itself is a matter which may bear on the discretion as to the costs of the tribunal proceedings, in particular as to whether any costs order should be made in favour of the Committee. Notwithstanding the undoubted desirability of this court resolving all outstanding issues in a case such as this, in our respectful view, the matters to which we have referred render it inappropriate for this court to exercise the costs discretion.
[5] See for example appeal ts 77 - 82.
In our view, the only way the findings referred to in [33] and [34] could be made, and the discretion as to costs then properly addressed, would be to remit the matter to the Tribunal for reconsideration. In the ordinary course, that is the order that we would make, namely to remit the remaining issue of costs to the Tribunal for further consideration.
Ultimately, however, this court in exercising its powers under s 105(9) must make such orders as it considers appropriate, to fulfil what is in essence the supervisory jurisdiction conferred by the SAT Act, to do justice between the parties and to do what is in the interests of the administration of justice generally. And, in the particular circumstances of the present case, having set aside order 3 as a consequence of the success of the appeal generally, in our view the appropriate course is to make no order in substitution of that order: that is, for this Court neither to make a further costs order itself nor to remit the issue to the Tribunal.
We appreciate that, at a practical level, this might be regarded as being equivalent to our having accepted the appellant's position that the conduct of the Committee is such that it should, in the exercise of the Tribunal's discretion, be deprived of its costs. It should not be so regarded. It is not an exercise by this court of the Tribunal's powers under s 87 of the SAT Act. Rather, it is, and should be regarded as, the exercise, by this court, of its powers under s 105 of the SAT Act to do what is in the interests of justice generally.
We will explain why, in the particular circumstances of this matter, we have taken the view outlined in [36] above.
First, by the public reprimands issued to the appellant for both her unsatisfactory professional conduct and her professional misconduct, the public purposes of the proceedings have been (belatedly) achieved. It is in the interests of the parties, and in the interests of justice generally, that this matter be brought to a final conclusion. A further hearing will achieve no aspects of the public interest that the Legal Profession Act is intended to promote.
Secondly, the only contentious issue outstanding is the issue of costs. As we said at the commencement of these reasons, this matter has a long and sorry history. The record reveals a series of allegations and counter-allegations by both parties as to the conduct of the proceedings. As Buss P's reasons thoroughly explain, while the conduct of a disciplinary body may in certain circumstances be relevant to the outcome of disciplinary proceedings, the Tribunal does not have statutory oversight of the Committee. Disciplinary proceedings before the Tribunal should not be regarded as convenient occasions for a
general inquiry into the conduct of regulatory bodies, particularly where those proceedings are confined to consequential matters such as costs. The history of these proceedings suggests that there will be considerable difficulty in preventing any remitter to the Tribunal in the present case becoming of that nature.
And, thirdly, it is difficult to see what end would be served by remitter in this case. To remit the matter to the Tribunal will only occasion further cost to the parties and to the public generally. The history of this matter does not suggest that any remitted hearing, even though confined to the question of the Tribunal's discretion to award costs under s 87 of the SAT Act, will be inexpensive and uncomplicated. There is good reason to think that this may be one of those matters in which there will be a gross disproportion between the amounts in issue and the costs of pursuing them.
Finally, while there is a long established practice in the Tribunal to exercise its discretion as to costs in favour of a regulatory body in relation to successful disciplinary proceedings,[6] the Tribunal is nevertheless generally a 'costs-neutral' jurisdiction (SAT Act, s 87(1)). For this court to set aside order 3 made by the Tribunal and make no order in substitution, would ultimately reflect, and be consistent with, that statutory starting point.
[6] As to which see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [35] – [36].
For these reasons, we would make orders in terms of pars (a) to (e) of the orders proposed by Buss P in [335] of his Honour's reasons. We would hear from counsel in relation to the costs of the appeal.
BUSS P:
The appellant, who is a legal practitioner, has applied for leave to appeal against decisions of the State Administrative Tribunal (the Tribunal) in relation to disciplinary proceedings brought by the respondent (the Committee) against the appellant.
On 4 December 2018, the Committee lodged an application with the Tribunal in which the Committee sought from the Tribunal:
(a)an order embodying a finding that the appellant had engaged in unsatisfactory professional conduct, further or alternatively
professional misconduct, within s 438(1) of the Legal Profession Act 2008 (WA) (the LP Act);
(b)other orders under s 438(2) of the LP Act; and
(c)an order that the appellant pay the Committee's costs pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act).
The grounds upon which the Committee sought those orders under the LP Act were as follows:
(a)on 7 April 2016, the appellant sent an email to the email address [email protected], with the salutation 'Dear Registrar', containing a representation which the appellant knew was misleading and deceptive; and
(b)the appellant, in a telephone call with Ms A, further or alternatively in a text message she sent to Ms A, conducted herself in a way that was 'intemperate, threatening, intimidating and/or discourteous, and had the potential to bring the profession into disrepute'.
On 9 March 2020, the Tribunal decided that:
(a)for the professional misconduct, the appellant was not to be granted a local practising certificate for a period of 6 months commencing on 7 August 2019;
(b)for the unsatisfactory professional conduct, the appellant was publicly reprimanded; and
(c)the appellant must pay the Committee's costs fixed at $20,000.
The appellant's application for leave to appeal is in respect of the Tribunal's decision on penalty for the professional misconduct and the Tribunal's decision on costs. The appellant has not applied for leave to appeal in respect of the Tribunal's decision on penalty for the unsatisfactory professional conduct.
I would grant leave to appeal in respect of both of the decisions challenged by the appellant in the appeal. The appeal should be allowed in respect of both decisions. The decisions must be set aside. This court should make substitutive orders in respect of the penalty for the professional misconduct and in respect of the costs of the proceedings before the Tribunal.
The proceedings before the Tribunal and the Tribunal's reasons for decision
On 19 December 2018, the Tribunal referred the Committee's application to mediation. A mediation was held on 6 February 2019, but did not resolve the matters in issue between the parties.
By letter dated 25 March 2019, the Committee informed the Tribunal that:
The parties have agreed a minute of consent orders and Schedule A agreed facts in respect to the conduct only. The matters of penalty and costs are not agreed and programming for a hearing in respect of those matters will be required.
The minute of consent orders referred to by the Committee in its letter dated 25 March 2019 contained two findings which the parties had agreed that the Tribunal should make. The proposed findings were as follows:
(a)On or about 7 April 2016, the appellant engaged in professional misconduct, within the meaning of s 403 and s 438 of the LP Act, by preparing and sending to a Registrar of the District Court of Western Australia, an email from her work email address seeking access to 'decisions' made by the District Court in relation to an offender, Mr B, who was sentenced on 4 April 2016, as well as a copy of the sentencing decision. The email represented that the appellant was making the request in the course of her practice of the law in respect of matters concerning the admissibility of DNA evidence. The appellant knew that the representation was misleading and deceptive, but the appellant nonetheless intended that the Registrar should rely on the representation.
(b)The appellant engaged in unsatisfactory professional conduct, within the meaning of s 402 and s 438 of the LP Act, in that her conduct in a telephone call with Ms A, further or alternatively in a text message she sent to Ms A, fell short of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and was intemperate, threatening, intimidating and/or discourteous, and had the potential to bring the profession into disrepute.
The Schedule A agreed facts referred to by the Committee in its letter dated 25 March 2019 reads:
1.At all material times, the practitioner:
1.1.was an Australian legal practitioner within the meaning of the [LP Act];
1.2.prior to 29 April 2016, practised in criminal and employment law at HHG Legal Group, Perth (firm);
1.3.as at 5 May 2016, was not practising, but intended to practise, and in fact on 9 May 2016, commenced practice, at the Aboriginal Legal Service of Western Australia (Inc), in Perth, Western Australia.
2.The practitioner's father and brother practised together as real estate agents in an area of Perth.
3.Ms A (Ms A), who was also a real estate agent in the same area of Perth as the practitioner's family, competed for listings with the practitioner's family and lived next door to the practitioner's father and in the same street as the practitioner's brother.
4.The practitioner had known Ms A and her husband (Mr B) since 2011, having herself previously lived next door to them (at her father's home) for a period of time at about that time.
5.Sometime in or about April 2016, the practitioner's family and Ms A were engaged in a corrosive personal dispute, in which, relevantly, each family was alleging the other to be making defamatory remarks against them in the local community.
6.Between 16 and 23 February 2016, Mr B stood trial before a jury in the District Court on an indictment alleging historic offences from 25 years prior, namely:
6.1.one count of breaking and entering of a dwelling with intent to commit an offence;
6.2.one count of deprivation of liberty;
6.3.one count of sexual penetration without consent; and
6.4.two counts of aggravated unlawful and indecent assault,
which charges arose from a cold case investigation in which the DNA available from evidence obtained at the time of the offences in 1992 was later matched to Mr B (together, the criminal matters).
7.During the course of the trial of the criminal matters, Ms A gave alibi evidence in defence of Mr B to the effect that she and Mr B were living in their home at a certain suburb at the time of the alleged offences and where the alleged offences were said to have been committed on a Thursday night, she and Mr B would have been shopping together as was their custom (Ms A's alibi evidence).
8.Following the trial, Mr B was:
8.1.acquitted of the offence of sexual penetration without consent; and
8.2.convicted of:
(a)one count of breaking and entering of a dwelling with intent to commit an offence;
(b)one count of deprivation of liberty; and
(c)two counts of unlawful and indecent assault (absent any circumstances of aggravation).
9.On 4 April 2016, following sentencing submissions made that day, Mr B was sentenced to imprisonment for a period of five years and six months with eligibility for parole after having served a period of three years and six months' imprisonment.
10.On around 5 April 2016 following being informed by her father that he had heard on the radio that a person of the same name as Mr B had been convicted of a 1992 "rape" and sentenced to imprisonment, the practitioner then had regard to an online news article about the sexual assault conviction, following which the practitioner, at all material times, suspected that the alleged offender was in fact Mr B.
11.On 7 April 2016 the practitioner prepared and sent from her work email address "[email protected]", using the signing clause of "Nicole Young Associate", and the HHG Legal Group corporate logo, an email to the email address "[email protected]" addressed to "Registrar" in which she stated:
"I am interested in obtaining access to the decisions made in relation to [name of offender] who was sentenced on 4 April 2016.
I am only aware of the decision due to this news article [ … ]
I am interested to research any argument and subsequent ruling about the admissibility of the DNA evidence that seems to have been key to the conviction. I do not know which hearing would be most relevant to the inquiry.
I would be very grateful if you could indicate which hearing would be most relevant.
I would also like a copy of the sentencing decision delivered on 4 April 2016.
Can you please indicate what the costs of obtaining these transcripts will be?
Lastly, I do have access to the PLEAS database at the Supreme Court library however I do not think that this decision is likely to be put into that database. If I am incorrect about this please let me know as I can wait if the information will eventually be available."
(the transcript application email)
12.Non-parties may apply to the Court for leave to inspect or obtain a copy of the record or certified transcript of any proceedings in a case pursuant to Rule 51 of the Criminal Procedure Rules 2005, which relevantly at:
12.1.subrule (2A) provides that (in the practitioner's circumstances as a non media organisation) the application must be made in writing to the court and must set out the grounds of the application;
12.2.subrule (4A) provides that a judge or a registrar may deal with a written application; and
12.3.subrule (5) provides that a judge or registrar dealing with a written application, if satisfied the applicant has sufficient cause to be granted leave, may grant the application.
13.The transcript application email represented that the practitioner was making the request in the course of her practice of law in respect of matters concerning the admissibility of DNA evidence (Representation), which Representation was made in part by the practitioner's use of her work email address ("[email protected]"); her work signing clause "Nicole Young Associate"; the presence of the HHG Legal Group corporate logo; and her reference to having access to the PLEAS database when making the request.
14.The Representation was misleading and deceptive in that the practitioner was not motivated to seek the Decisions for the stated purpose but was motivated to seek them for the purpose of confirming that the identity of the offender was in fact Mr B, the husband of Ms A, which the practitioner failed to disclose in her email.
15.The practitioner knew that the Representation was misleading and deceptive.
16.By sending the transcript application email, the practitioner intended the Registrar to rely on the Representation.
17.The practitioner was recklessly indifferent as to whether the Registrar would be misled or deceived by the Representation.
18.Further, the practitioner did nothing to correct the Representation to the Registrar.
19.In making the Representation in the circumstances set out in paragraphs 14 to 18 above, the practitioner's conduct:
19.1.fell short, by a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence;
19.2.would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence;
such that her conduct is professional misconduct within the meaning of sections 403 and 438 of the LP Act.
20.Sometime after 21 April 2016 but on or before 5 May 2016, the practitioner read and considered the transcript, from which she was able to inform herself about the criminal matter, including:
20.1.the identity of the offender, being Mr B;
20.2.the charges for which Mr B was tried;
20.3.the charges of which Mr B was convicted;
20.4.the charge of which Mr B was acquitted;
20.5.the evidence that Ms A gave during the course of the trial; and
20.6.the factual basis upon which Mr B was sentenced.
21.A copy of the transcript, redacted to remove references that would disclose the identity of Mr B or Ms A, has been provided to the Tribunal.
22.The transcript recorded that, in the course of making his sentencing remarks on 4 April 2016, the sentencing judge:
22.1.re-stated the jury's verdicts following the trial of the criminal matter, including that "the jury acquitted you of count 5 on the indictment, being the offence of aggravated sexual penetration without consent".
22.2.summarised Mr B's evidence that he denied that he knew the victim and denied committing any of the offences charged by way of the Indictment;
22.3.summarised Ms A's alibi evidence as outlined in paragraph 7, above;
22.4.stated that the jury was instructed that if they accept Mr B's evidence or thought as a reasonable possibility that it might be true then they should acquit; but
22.5.did not make any findings as to the credibility of Ms A or her evidence; and
22.6.did not comment any further in relation to Ms A's evidence given during the course of the trial of the criminal matter.
23.On 5 May 2016, the practitioner received a telephone call from her father, who reported to the practitioner that an exchange had taken place between him and Ms A by telephone earlier that day along the lines that:
Ms A: "I know what you have been doing - telling everyone my husband is a rapist."
Practitioner's father: "Well he is [Ms A] - he is"
Ms A: "No he isn't and you will be getting a letter from my lawyer. You want war - you've got war!"
Practitioner's father: "Is that a threat [Ms A]?"
Ms A: "Yes it is."
Practitioner's father: "Well what does it even mean?"
Ms A: "You'll find out."
24.On 5 May 2016, the practitioner telephoned Ms A, but did not reach her, and left a message requesting that Ms A return her call.
25.Later on 5 May 2016, in circumstances where Ms A had not returned her call, the practitioner again telephoned Ms A and had a brief conversation with her (the telephone conversation), during which the practitioner made the serious allegation that: Mr B was "a rapist".
26.In the telephone conversation, the practitioner conducted herself in a manner that was rude, offensive, insulting, intemperate, provocative, and discourteous to Ms A by communication with her using words in effect as follows:.
Practitioner: "Hello is that [Ms A] ?"
Ms A: " Yes"
Practitioner "Hi [Ms A], my name is [Practitioner]. I am actually [practitioner's father]'s daughter"
Ms A: "Oh yes?"
Practitioner: "[Ms A], my father has called me this morning very distressed after receiving a call from you in which you apparently made some threats?"
Ms A: "Yes, that's right."
Practitioner: "O.K. Well what's this all about [Ms A]?"
Ms A: "He has been defaming me - going around saying despicable things about my husband that are just not true, trying to ruin my business and cost me money."
Practitioner: "Well, hang on as I understand it [Ms A], all my father has been saying is that your husband is a rapist and is in jail."
Ms A: "Yes - and he is not!"
Practitioner: "Wait are you saying he is not a rapist or not in jail?"
Ms A: "Both. You should get your facts straight. I know you [Practitioner]. I know you are a lawyer and you are just as foul and stinking as your father and brother. Your whole family is vile. You'll hear from my lawyer."
Practitioner: "OK - you have a lawyer do you? What is his name?"
Call truncated by Ms A.
27.Following the telephone conversation, on 5 May 2016 (at approximately 3.05pm) the practitioner sent a text message to Ms A as follows:
"Further to our conversation a moment ago I repeat that I am concerned that you are making verbal threats to my father and have made harassing and offensive remarks by calling my brother and myself "foul and stinking". Further you have threatened "war" - whatever that means and outright lied by stating that your husband is not a rapist and not in jail. You are a liar [Ms A] and your husband is a rapist. You are a very poor judge of character. We are aware you have attempted to discredit my father and brother publicly notwithstanding your criminal associations. A normal person would hang their head in shame not lie on the stand to protect a rapist. We look forward to your letter from an unknown lawyer and suggest you ensure you do NOT make any further threats lest we are forced to seek the protection of the Courts. Luckily your rapiat (sic) husband IS locked up [Ms A]. But you are not (yet). Seek some legal advice and in yhe (sic) mean time any further telephone contact with my father or brother should immediately cease. I represent them. Have your lawyers call me. Oh and think about a divorce. He raped a woman [Ms A]. While he was married to YOU. Horrific that you continue to deny that and slander MY family" (the text message).
28.In the text message, the practitioner stated that:
28.1.Mr B was "a rapist",
28.2.Ms A was "a liar" in asserting that Mr B was not "a rapist";
28.3.Ms A had lied on oath at the hearing of Mr B;
when the practitioner was recklessly indifferent as to whether or not there were reasonable grounds to make those allegations.
29.In the text message, the practitioner conducted herself in a manner that was rude, offensive, insulting, intemperate, provocative, and discourteous to Ms A.
30.In both the telephone call and the text message, on 5 May 2016, the practitioner purported to act, and held herself out as acting, for her father and brother.
31.The practitioner, in the telephone call and the text message, engaged in unsatisfactory professional conduct within the meaning of sections 402 and 438 of the LP Act in that her conduct fell short of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and was intemperate, threatening, intimidating and/or discourteous, and had the potential to bring the profession into disrepute.
32.Further, the content and tone of the telephone call and the text message to Ms A was offensive, intemperate, provocative, intimidating and discourteous and in breach of the practitioner's obligations under rule 6(1)(b) of the Legal Profession Conduct Rules 2010 (Conduct Rules).
33.Further, the practitioner's conduct in the telephone call and the text message was such that it may bring the profession into disrepute in breach of Conduct Rule 6(2)(c).
On 7 August 2019, the matter came before the Tribunal. The Tribunal had listed the matter for that date to inform the parties that the Tribunal would make orders in terms of the minute of consent orders. However, at the beginning of the hearing, the appellant sought an adjournment. The appellant's counsel told the Tribunal that the appellant anticipated withdrawing her consent to the making of orders in terms of the minute. The basis on which the appellant anticipated withdrawing her consent included the Committee's failure to disclose relevant documents to her before she consented to the making of those orders (ts 12 ‑ 13, 18 ‑ 19, 29 ‑ 31). The Tribunal adjourned the hearing to 20 August 2019.
On 16 August 2019, the appellant, through her counsel, informed the Tribunal by email that she no longer intended to withdraw her consent to the making of orders in terms of the minute of consent orders.
On 12 September 2019, the Tribunal made orders in terms of the minute of consent orders.
On 12 September 2019 and 11 December 2019, there was a hearing before the Tribunal on the issue of penalty and costs.
In par 2 of its substituted written submissions on penalty and costs dated 29 July 2019, the Committee submitted to the Tribunal, relevantly, that the appropriate orders in relation to penalty were that the appellant be reprimanded, pursuant to s 439(d) of the LP Act, for her unsatisfactory professional conduct and that a local practising certificate not be granted to the appellant for a period of 3 months, pursuant to s 439(b) of the LP Act, for her professional misconduct.
On the issue of penalty, the Tribunal made findings as follows:
(a)In December 2003, the appellant was admitted to practice [23].
(b)Since 1 July 2018, the appellant has not held a practising certificate in Western Australia [23].
(c)Since 5 January 2018, the appellant has not practised as a legal practitioner in Western Australia [23].
(d)No disciplinary findings have previously been made against the appellant [24].
(e)The appellant's professional misconduct and unsatisfactory professional conduct arose in respect of 'a matter which was of personal interest to [the appellant] and … her conduct may be viewed as being limited to the specific circumstances of her dealings with Ms A' [26].
(f)A legal practitioner's duty is not limited to dealings with judicial officers, but extends to other court officers engaged in the administration of justice [26].
(g)The appellant's conduct was prejudicial to, and diminished public confidence in, the administration of justice and had the potential to bring the legal profession into disrepute [27].
(h)The Tribunal was not persuaded that, even if the appellant genuinely thought she was entitled to have the transcript, but chose to give the Registrar a different reason for obtaining the transcript, that lessened in any way the seriousness of the appellant's conduct [32].
(i)The appellant had acknowledged and accepted that the email she sent to the Registrar should have stated what was motivating the appellant to seek the transcript and ought to have included all of the reasons for her request. That acknowledgement and acceptance, and the appellant's agreement to the Tribunal making the findings of professional misconduct and unsatisfactory professional conduct, indicated to the Tribunal that the appellant had insight into her wrongdoing and, consequently, the risk of recurrence of the conduct was small [33].
(j)The Tribunal was not persuaded that the fact that the appellant was 'conducting herself personally' in making the telephone call and sending the text message made any difference to the seriousness of the appellant's conduct or to the determination of the appropriate penalty [35].
(k)There was 'some delay' caused by the Committee in the course of its investigation and its determination to commence proceedings in the Tribunal [38]. However, there was no evidence before the Tribunal in relation to the cause of that delay [38].
(l)The Tribunal noted the appellant's complaint that the Committee had failed to disclose relevant and significant documents that were capable of assisting the appellant's case until after it had secured the appellant's agreement to the minute of consent orders. The appellant submitted that the Tribunal should have regard to documents she had given to the Tribunal which revealed the course of negotiations between the parties. The appellant argued that the documents should be taken into account by the Tribunal in determining the relevance and weight to be given to the Committee's failure to make disclosure before it had secured the appellant's agreement to the minute of consent orders [39]. The Tribunal rejected the appellant's submissions for two reasons. First, pursuant to s 55 of the SAT Act, evidence of anything said or done in the course of mediation is not admissible at any later stage of the proceedings unless one of three specified exceptions apply. In the present case, none of those exceptions applied. The Tribunal was prohibited from having regard to the documents which the appellant had provided to the Tribunal [40]. Secondly, after the parties had completed negotiations and agreed to the minute of consent orders, and after the Committee had disclosed the documents to the appellant, the appellant was given an opportunity to withdraw her consent. She decided not to do so [41].
(m)The Tribunal noted the appellant's submission that one of the Committee's officers, while investigating the initial complaint against the appellant, was 'inappropriately pejorative and intemperate and this … caused [the appellant] to suffer adverse consequences' [43]. The Tribunal responded to that submission by deciding that it did not have any 'statutory authority or oversight of the Committee' [45].
(n)The Tribunal accepted that, in some circumstances, delay by a regulating body may cause 'resultant proceedings to be oppressive and unfair so as to allow for a stay of any such proceedings to be granted' [45]. However, as the issue of whether 'an unexplained and inexplicable delay [by a regulating body] can impact on the appropriate penalty' was not fully ventilated in the proceedings, the Tribunal did not consider that it was appropriate in the appellant's case to determine 'whether the personal impact on a practitioner of an unexplained delay in bringing a complaint against the practitioner is a factor relevant to determining an appropriate penalty' [46].
The Tribunal decided that, for the appellant's unsatisfactory professional conduct in her dealings with Ms A, the appellant should be publicly reprimanded, pursuant to s 439(d) of the LP Act [49].
The Tribunal decided that, for the appellant's professional misconduct by making the misleading and deceptive representation to a Registrar of the District Court, a local practising certificate should not be granted to the appellant for a period of 6 months, pursuant to s 439(b) of the LP Act [50]. As to that penalty, the Tribunal said [51] ‑ [52]:
(a)Given the significant impact on the appellant's mental health (in relation to which the Tribunal had independent evidence) of the Committee's delay in commencing the proceedings in the Tribunal, the appellant's voluntary exclusion from practising in the legal profession since January 2018 and her early admissions in relation to her professional misconduct, the penalty should commence on 7 August 2019, being the date when the hearing on penalty and costs was first scheduled to take place.
(b)The Tribunal did not accept the Committee's submission that an order should also be made that the appellant have a condition imposed on her practising certificate, when granted, that she be mentored for one year. The Tribunal explained that the appellant had already shown insight into her professional misconduct and, consequently, the Tribunal did not consider that the imposition of this condition was necessary or appropriate.
On the issue of costs, the Tribunal noted [59] ‑ [60]:
(a)the Committee sought an award of costs in the amount of $20,000;
(b)the Tribunal accepted that this amount did not include any costs of the Committee itself and was limited to only some of the amount disbursed by the Committee in counsel fees;
(c)the Tribunal accepted that the amount of $20,000 represented a significant discount on the fees actually incurred by the Committee;
(d)the parties reached agreement in relation to the appellant's professional misconduct and unprofessional conduct at a relatively early stage in the proceedings, but they could not reach agreement about the appropriate penalty;
(e)the appellant was responsible for wanting an oral hearing and the appellant lodged and served a voluminous number of documents;
(f)after the first hearing on penalty was adjourned, the hearing was adjourned on a number of other occasions largely because of the appellant's late lodgement of documents; and
(g)the appellant's counsel used most of the time allocated for the penalty hearing.
The Tribunal decided that, in all the circumstances, it was fair and reasonable that the appellant pay the Committee's costs in the amount of $20,000 [60].
The submissions made by the parties to the Tribunal concerning the backdating of any 'preclusion order'
At a hearing on 5 March 2019, Judge Sharp noted that the appellant had not applied for a practising certificate for some time and commented, in effect, that it may be appropriate for the penalty sought by the Committee for the appellant's professional misconduct (namely, that a local practising certificate not be granted to the appellant for a period of 3 months (see [58] above)), if made by the Tribunal, to be 'backdated to a certain date' (ts 16).
In par 30.5 of its substituted submissions on penalty and costs dated 29 July 2019, the Committee accepted that if the Tribunal decided that the appellant should be 'precluded from applying for a grant of a local practising certificate for 3 months' then 'it would be open to the Tribunal to make the preclusion order effective from the date of the Consent Orders between the parties - namely 22 March 2019'. The Committee said 'it would not be inappropriate for any preclusionary period ordered to have effect from that date'.
In her outline of submissions dated 12 September 2019, the appellant said:
If the [Committee] persuades the Tribunal that it is necessary that a 'preclusion' order be part of any disposition of the matter, then [any] such order ought be framed so as to achieve the result that the commencement of any period of preclusion imposed by the order be 1 July 2018 [being] the date the [appellant] last held a [practising] certificate, or alternatively, and at the latest, be 22 March 2019.
At the hearing on 12 September 2019, the Tribunal sought confirmation from counsel for the Committee (who was not counsel for the Committee in the appeal) that, if the Tribunal decided to make a 'preclusion order' in relation to the appellant, the Committee did not oppose the backdating of the start date for the preclusion order (ts 35). The following exchange occurred between Judge Sharp and counsel for the Committee:
HOWARD, MR: … The tribunal, I think, can take it that if the tribunal is minded to impose a preclusion order, the [Committee] accepts that it would be appropriate for it to run from the date of those orders - or the signing of them, which was 22 March of this year.
THE D. PRESIDENT: So she will be back to applying for a practising certificate pretty much straight away?
HOWARD, MR: Yes (ts 35).
The Tribunal's orders made on 9 March 2020
On 9 March 2020, the Tribunal made orders as follows:
1.The Tribunal upon its finding that the [appellant] is guilty of unsatisfactory professional conduct orders that pursuant to s 439(d) of the Legal Profession Act 2008 (WA), the [appellant] is publicly reprimanded.
2.The Tribunal upon its finding that the [appellant] is guilty of professional misconduct orders that pursuant to s 439(b) of the Legal Profession Act 2008 (WA), the [appellant] is not to be granted a local practising certificate for a period of 6 months commencing on 7 August 2019.
3.Pursuant to s 87(2) of the State Administrative Tribunal Act2004 (WA), the Tribunal orders that the [appellant] must pay the [Committee's] costs fixed at $20,000 within 30 days of the date of this order or as otherwise agreed between the [appellant] and the [Committee].
The relevant framework under the LP Act
The LP Act is an Act to provide for the regulation of legal practice in Western Australia, to facilitate the regulation of legal practice on a national basis and for other related purposes.
In s 3 of the LP Act the term 'local practising certificate' is defined to mean a practising certificate granted under the LP Act.
Part 5 of the LP Act is headed 'Legal practice by Australian legal practitioners' and comprises s 34 to s 80.
Section 37(1) provides that practising certificates may be granted by the Legal Practice Board (the Board) under pt 5.
Section 39 is concerned with the duration of a local practising certificate. By s 39, relevantly:
(1)A local practising certificate granted under this Act is in force from the date specified in it until the end of the financial year in which it is granted, unless ‑
(a)the certificate is sooner suspended or cancelled; or
(b)an earlier date is specified in the local practising certificate as the date on which it ceases to be in force.
(2)A local practising certificate renewed under this Act is in force until the end of the financial year following its previous period of currency, unless ‑
(a)the certificate is sooner suspended or cancelled; or
(b)an earlier date is specified in the local practising certificate as the date on which it ceases to be in force.
(3)If an application accepted by the Board for the renewal of a local practising certificate that ceases to be in force at the end of a financial year has not been finally determined by the following 1 July, the certificate ‑
(a)continues in force on and from that 1 July until the application has been finally determined or the holder withdraws the application for renewal, unless the certificate is sooner cancelled or renewed; and
(b)if renewed, is to be taken to have been renewed on and from that 1 July.
Section 42 is concerned with the making of an application for the grant or renewal of a local practising certificate. By s 42(1), an Australian lawyer may apply to the Board for the grant or renewal of a local practising certificate if eligible to do so under s 42. By s 42(6):
An Australian lawyer who ‑
(a)engages in legal practice solely or principally in this jurisdiction during a financial year; and
(b)reasonably expects to engage in legal practice solely or principally in this jurisdiction in the following financial year,
must apply for the grant or renewal of a local practising certificate in respect of the following financial year.
Section 44 is concerned with the timing of an application for the renewal of a local practising certificate. By s 44, relevantly:
(1)An application for the renewal of a local practising certificate must be made within ‑
(a)the period prescribed by the legal profession rules as the standard renewal period; or
(b)the later period prescribed by the legal profession rules as the late fee period.
(2)Those periods must be within the currency of the local practising certificate being sought to be renewed.
(3)The Board may reject an application for renewal made during the late fee period, and must reject an application for renewal made outside those periods unless the Board accepts the application under subsection (4).
(4)The Board may accept an application made within 6 months after the late fee period (even after the expiry of the local practising certificate being sought to be renewed) if satisfied the delay was caused by reasons beyond the control of the applicant or other special circumstances warranting acceptance of the application.
(5)For an application accepted under subsection (4) after the expiry of the local practising certificate on 30 June in the year concerned, the certificate ‑
(a)is taken to have continued in force on and from the 1 July immediately following its expiry until the Board renews or refuses to renew the certificate or the holder withdraws the application for renewal, unless the certificate is sooner suspended or cancelled; and
(b)if renewed, is taken to have been renewed on and from that 1 July.
Part 13 of the LP Act is headed 'Complaints and discipline' and comprises s 401 to s 469.
Section 401 states that the purposes of pt 13 are as follows:
(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;
(b)to promote and enforce the professional standards, competence and honesty of the legal profession; and
(c)to provide a means of redress for complaints about lawyers.
Section 402 provides that, for the purposes of the LP Act:
unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
Section 403(1) provides that, for the purposes of the LP Act:
professional misconduct includes ‑
(a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
By s 403(2), for the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in s 403(1), regard may be had to the 'suitability matters' (as defined in s 8 of the LP Act) that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.
By s 405(b), pt 13 applies to an Australian legal practitioner in respect of conduct to which pt 13 applies, and so applies whether or not the practitioner holds a local practising certificate.
The Legal Profession Complaints Committee (that is, the respondent in this appeal) was established under s 555 of the LP Act. The functions of the Committee include supervising the conduct of legal practitioners; inquiring into any conduct on the part of a legal practitioner or matters relating to legal practice for the purpose of determining whether it may constitute unsatisfactory professional conduct or professional misconduct; and, if the Committee considers it appropriate to do so, to institute professional disciplinary proceedings against a legal practitioner in the Tribunal. See s 557 of the LP Act. If the Committee determines that a matter concerning the conduct of an Australian legal practitioner should be heard by the Tribunal, the Committee is empowered by s 428(1) to refer the matter to the Tribunal.
By s 431, it is the duty of the Committee to deal with complaints as efficiently and expeditiously as is practicable.
By s 438(1), the Tribunal has jurisdiction to make a finding that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct.
By s 438(2), if, after it has completed a hearing in relation to a referral under pt 13 in respect of an Australian legal practitioner, the 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) (s 438(2)(a)); or
(b)make any one or more of the orders specified in s 439, s 440 and s 441 (s 438(2)(b)).
By s 439, the Tribunal may, under s 438(2)(b), make one or more of the following orders:
(a)an order that the practitioner's local practising certificate be suspended for a specified period or cancelled;
(b)an order that a local practising certificate not be granted to the practitioner before the end of a specified period;
(c)an order that ‑
(i)specified conditions be imposed on the practitioner's practising certificate granted or to be granted under this Act; and
(ii)the conditions be imposed for a specified time; and
(iii)specifies the time (if any) after which the practitioner may apply to the Tribunal for the conditions to be amended or removed;
(d)an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner.
It is unnecessary to refer to s 440.
By s 441, the Tribunal may, under s 438(2)(b), make any one or more of the following orders:
(a)an order that the practitioner pay a fine to the Board of a specified amount not exceeding $25 000;
(b)an order that the practitioner undertake and complete a specified course of further legal education;
(c)a compensation order;
(d)an order that the complainant pay the amount of legal costs in dispute or that the amount of legal costs be reduced by a specified amount (not exceeding the amount in dispute);
(e)an order that the practitioner provide specified legal services to the complainant either free of charge or at a specified cost;
(f)an order that the practitioner undertake a specified period of practice under specified supervision;
(g)an order that the practitioner do or refrain from doing something in connection with the practice of law;
(h)an order that the practitioner's practice, or the financial affairs of the practitioner or of the practitioner's practice, be conducted for a specified period in a specified way or subject to specified conditions;
(i)an order that the practitioner's practice be subject to periodic inspection for a specified period;
(j)an order that the practitioner undergo counselling or medical treatment or act in accordance with medical advice given to the practitioner;
(k)an order that the practitioner use the services of an accountant or other financial specialist in connection with the practitioner's practice;
(l)an order that the practitioner seek advice in relation to the management of the practitioner's practice from a specified person;
(m)an order that the practitioner not apply for a local practising certificate before the end of a specified period.
The relevant provisions of the Legal Profession Conduct Rules 2010 (WA)
Rule 6(1)(b) of the Legal Profession Conduct Rules 2010 (WA) provides that a legal practitioner must 'be honest and courteous in all dealings with clients, other practitioners and other persons involved in a matter where the practitioner acts for a client'. The term 'matter' is defined in r 3, but it is unnecessary to set out the definition.
Rule 6(2)(c) provides that a practitioner must not engage in conduct, in the course of providing legal services or otherwise, which 'may bring the profession into disrepute'.
The relevant framework under the SAT Act
The proceedings between the appellant and the Committee came within the Tribunal's original jurisdiction.
By s 16(1) of the SAT Act, in exercising its original jurisdiction the Tribunal is to deal with the matter in accordance with the SAT Act and the enabling Act (that is, in the present case, the LP Act). By s 16(2), the enabling Act may modify the operation of the SAT Act in relation to a matter that comes within the Tribunal's original jurisdiction.
Section 51A(1)(a) of the SAT Act provides that the Tribunal may direct that any aspect of any proceedings be heard and determined separately.
Section 52 of the SAT Act is concerned with compulsory conferences. Section 52(1) provides that at an initial directions hearing or at any other time before any other hearing in a proceeding, the Tribunal may require parties to the proceeding to attend a compulsory conference. By s 52(3), the purpose of a compulsory conference is 'to identify and clarify the issues in the proceeding and promote the resolution of the matters by a settlement between the parties'. Section 52(6) provides that if a settlement appears to be reached at a compulsory conference, the Tribunal member presiding may reduce the terms of settlement to writing and make any orders necessary to give effect to the settlement.
Section 54 of the SAT Act is concerned with mediation. Section 54(1) provides that at an initial directions hearing or at any other stage of a proceeding, the Tribunal may refer the matter, or any aspect of it, for mediation by a person specified as a mediator by the Tribunal. By s 54(4), the purpose of a mediation is 'to achieve the resolution of the matters by a settlement between the parties'. Section 54(8) provides that if the mediator is a Tribunal member and a settlement appears to be reached at the mediation, the mediator may reduce the terms of settlement to writing and make any orders necessary to give effect to the settlement.
Section 55 of the SAT Act is concerned with evidence of anything said or done in the course of a compulsory conference or mediation. Section 55 provides:
Evidence of anything said or done in the course of a compulsory conference or mediation is not admissible at any later stage of the proceeding unless ‑
(a)all parties agree to the admission of the evidence; or
(b)it is evidence of directions given or orders made at a compulsory conference or mediation or the reasons for those directions or orders; or
(c)it is relevant to ‑
(i)a proceeding for an offence in relation to the giving of false or misleading information; or
(ii)a proceeding under section 100; or
(iii)a proceeding in relation to an order made under section 53(b)(i).
Section 87 of the SAT Act is concerned with costs. Section 87 provides, relevantly:
(1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2)Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
(3)The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
Section 105 of the SAT Act is concerned with appeals from the Tribunal's decisions. Section 105 provides, relevantly:
(1)A party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal.
(2)The appeal can only be brought on a question of law.
…
(9)The court dealing with the appeal may -
(a)affirm, vary, or set aside the decision of the Tribunal; or
(b)make any decision that the Tribunal could have made in the proceeding; or
(c)send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate,
and, in any case, may make any order the court considers appropriate.
(10)If the court sends the matter back to the Tribunal under subsection (9)(c), it is to give directions as to whether or not the Tribunal reconsidering the matter is to be constituted by the member or members who made the original decision.
…
(13)Despite subsection (2), if the Tribunal's decision -
(a)is made under a relevant Act or in a proceeding for the review of a decision made under a relevant Act; and
(b)has the effect of depriving a person of the person's capacity to lawfully pursue a vocation,
an appeal under this section may be brought on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact.
(14)In subsection (13) -
relevant Act means -
(a)an Act specified in Schedule 1, if it is an enabling Act; or
(b)an enabling Act prescribed by the regulations for the purposes of subsection (13).
In s 3(1) of the SAT Act the term 'decision' of the Tribunal is defined to include 'an order, direction, or determination of the Tribunal'.
The LP Act is specified in Sch 1 of the SAT Act. The LP Act is therefore a 'relevant Act' as defined in s 105(14) of the SAT Act.
The decisions of the Tribunal challenged in this appeal
As I have mentioned:
(a)section 105(1) of the SAT Act confers a right of appeal, subject to leave being given, from a 'decision' of the Tribunal; and
(b)section 3(1) of the SAT Act defines the term 'decision' to include 'an order, direction, or determination of the Tribunal'.
In the present case, the 'decisions' of the Tribunal in respect of which the appellant applies for leave to appeal comprise the Tribunal's order that the appellant be publicly reprimanded; the Tribunal's order that the appellant not be granted a local practising certificate for a period of 6 months commencing on 7 August 2019; and the Tribunal's order that the appellant pay the Committee's costs fixed at $20,000.
The grounds of appeal
Prior to the commencement of the hearing of the appeal, the appellant relied upon eight grounds of appeal.
Ground 1 alleges, in essence, that the Tribunal erred in law in finding that s 55 of the SAT Act prohibited the Tribunal from having regard to evidence that showed that, when the Committee lodged the application with the Tribunal, the Committee was in possession of material that was inconsistent with the case the Committee had filed and that the Committee did not disclose the material in question until after it had secured the appellant's agreement to the minute of consent orders which recorded the appellant's earlier admissions of liability.
Ground 2 alleges, in essence, that the Tribunal erred in law in failing to hold that:
(a)delay by the Committee in investigating, commencing and litigating a complaint and the impact of the delay on a legal practitioner; and
(b)acts or omissions by the Committee during the period of investigating, commencing and litigating a complaint and the impact of those acts or omissions on a legal practitioner,
can bear on the determination of the appropriate penalty and the issue of costs.
Ground 3 alleges, in essence, that, as to the Committee's delay in investigating, commencing and litigating the complaint against the appellant, the Tribunal ought to have found that:
(a)the appellant accepted liability for the matters the subject of the complaint within a short time of the matters being raised by the Committee;
(b)the time taken by the Committee to investigate, commence and litigate the complaint was about 3 years 6 months, being from about 12 May 2016 to 11 December 2019;
(c)the time taken by the Committee to investigate and commence the complaint was about 2 years 6 months, being from about 12 May 2016 to 4 December 2018;
(d)section 431 of the LP Act imposed on the Committee a statutory duty to deal with the complaint as efficiently and expeditiously as was practicable;
(e)on various occasions during 2016, 2017 and 2018 the appellant contacted the Committee and requested that the matter be progressed, but the Committee did not do so;
(f)the Committee conceded that its delay from 8 December 2016 to 15 March 2018 was unexplained;
(g)the Committee did not place before the Tribunal an explanation in respect of that part or any part of the time taken by the Committee to investigate, commence and litigate the complaint;
(h)in the circumstances, the Tribunal should have concluded that at least, alternatively about, 2 years of the 2 year 6 months taken to investigate and commence the complaint was delay by the Committee and was unjustifiable; and
(i)the adjournment of the penalty hearing on 7 August 2019, following the Committee's disclosure of material on 24 July 2019, 6 August 2019 and 7 August 2019 (the Disclosure Material) caused delay in the litigation of a period not capable of being fully ascertained, but including at least the period from 7 August 2019 to 12 September 2019.
Ground 4 alleges, in essence, that, as to the Committee's acts or omissions that could bear on the determination of the appropriate penalty and the issue of costs, the Tribunal ought to have found that:
(a)in putting the complaint to the appellant on 24 May 2016, the then Law Complaints Officer acted in ways that intimidated the appellant;
(b)on various occasions during 2016, 2017 and 2018 the appellant contacted the Committee and requested that the matter be progressed, but the Committee did not do so;
(c)at all material times the Committee declined to provide the appellant with a copy of Ms A's complaint or, if the complaint was expressed orally, the Committee's record of the complaint as made;
(d)at all material times the Committee declined to provide the appellant with copies of written communications between Ms A and the Committee, including written submissions received by the Committee from Ms A in response to the appellant's written account of the interaction between the appellant and Ms A;
(e)in or about June 2017, the then Law Complaints Officer stated to the appellant that the complaint was being held back so that it could be considered with another complaint and there was nothing the appellant could do about it;
(f)the Committee had not placed before the Tribunal any explanation for that decision, if that in fact occurred;
(g)there was no evidence that another complaint against the appellant was considered at the same time and date as the subject complaint, namely 21 August 2018;
(h)the other complaint was not connected to the complaint and, in any event, the Committee had not proceeded with the complaint;
(i)on 4 December 2018, the Committee filed an application in the Tribunal that was inconsistent with material then in the Committee's possession;
(j)the parties signed a minute of orders as to liability and agreed facts on 22 March 2019;
(k)the hearing on penalty and costs was listed on 7 August 2019;
(l)on 22 July 2019, the Committee filed a written outline of submissions that departed from an undertaking given by the Committee when the minute of orders dated 22 March 2019 was agreed;
(m)on 24 July 2019, the Committee, having previously advised the appellant that it did not intend to lead evidence, served on the appellant an affidavit of Cassandra Paterson (an employee of the Committee) annexing certain documents not previously disclosed to the appellant (those documents being part of the Disclosure Material);
(n)on 29 July 2019, the Committee filed substituted written submissions and sought, unsuccessfully, to uplift the written submissions dated 22 July 2019 from the Tribunal's file;
(o)on 6 August 2019, the Committee disclosed certain further documents not previously disclosed to the appellant (such documents being a further part of the Disclosure Material);
(p)on 7 August 2019, objection having been taken on the grounds that the affidavit was inadmissible in form and otherwise of no evidentiary weight, the Committee disavowed reliance on the affidavit of Ms Paterson and the affidavit was not read on the application;
(q)the Committee did not disclose the Disclosure Material prior to or at the time it secured the appellant's agreement to a minute of orders as to liability and agreed facts; and
(r)the timing and the form of the affidavit of Ms Paterson, the error made in relation to the Committee's written submissions and the timing of the provision of the Disclosure Material was the cause of the adjournment of the penalty hearing on 7 August 2019.
Ground 5 alleges, in essence, that the Tribunal ought to have found that:
(a)the delay the subject of ground 3 and the acts and omissions the subject of ground 4 were contributors in the cause of serious stress and anxiety suffered by the appellant, a period of cessation of practice by the appellant and a material diminution in the appellant's financial circumstances to the point that the appellant had no financial resources; and
(b)the delay the subject of ground 3 and the acts and omissions the subject of ground 4 and the effect of those matters on the appellant were circumstances that ought to be taken into account in determining the appropriate penalty and the disposition of the Committee's application for costs.
Ground 6 alleges, in essence, that the Tribunal:
(a)having made the errors the subject of grounds 1 and 2 and having failed to make the findings that it ought to have made as alleged in grounds 3, 4 and 5 or any of them, erred by proceeding to impose on the appellant a penalty of 6 months' preclusion from practice and by making a costs order against the appellant;
(b)erred by providing no, or alternatively no adequate, reasons for the imposition of a penalty of 6 months' preclusion from practice; and
(c)further or alternatively, imposed a penalty of 6 months' preclusion from practice which was manifestly excessive.
Ground 7 alleges, in essence, that the Tribunal, having made the errors the subject of grounds 1 and 2 and having failed to make the findings that it ought to have made as alleged in grounds 3, 4 and 5 or any of them, erred by proceeding to make a costs order against the appellant.
Ground 8 alleges, in essence, further and alternatively, that the Tribunal's exercise of discretion in relation to costs miscarried as a consequence of the Tribunal failing to take into account relevant matters and taking into account irrelevant matters, namely:
(a)failing to take into account that the delay the subject of ground 3 and the acts and omissions the subject of ground 4 were contributors in the cause of serious stress and anxiety suffered by the appellant, a voluntary period of cessation of practice by the appellant and a material diminution of the appellant's financial circumstances to the point that the appellant had no financial resources;
(b)failing to take into account at all the financial circumstances of the appellant;
(c)failing to take into account that due to her means the appellant would be unable to pay the costs order;
(d)failing to take into account that the effect of s 431 of the LP Act as it is construed by the Committee is to preclude an application for a practising certificate if a costs order is outstanding;
(e)taking into account that the appellant wanted an oral hearing, in the circumstances of this case;
(f)taking into account that the appellant filed what the Tribunal characterised as a 'voluminous' number of documents, in the circumstances of this case;
(g)erroneously finding that the hearing was adjourned a number of times after 7 August 2019 because of the appellant's late lodgement of documents and taking that finding into account;
(h)failing to take into account that the timing and the form of the affidavit of Ms Paterson, the error made in relation to the Committee's written submissions and the timing of the provision of the Disclosure Material was the cause of the adjournment of the penalty hearing on 7 August 2019;
(i)taking into account that the appellant's counsel had taken up most of the time allocated over the two days of hearing, in the circumstances of this case;
(j)failing to take into account the Committee's admission that counsel appearing and whose costs were being sought had been retained by the Committee due to the history of the matter (which was a reference to, at least, the Committee's delay in investigating, commencing and litigating the complaint and the impact on the appellant) and the criticisms the Committee apprehended (correctly) would be made of it in consequence at the hearing;
(k)taking into account as a matter favouring an award of costs and on the issue of quantum that the $20,000 sought by the Committee represented what the Tribunal characterised as a 'significant discount of the fees actually incurred by the [Committee]', in the circumstances of this case.
In Legal Profession Complaints Committee v Detata,[35] this court allowed an appeal by the Committee against the Tribunal's imposition on the respondent (who was a legal practitioner) of a reprimand and a condition on his practice certificate as the penalty for professional misconduct. Section 105(13) of the SAT Act did not apply to the appeal. The court (Martin CJ, Pullin and Murphy JJA) allowed the appeal on the basis that the penalty imposed by the Tribunal was manifestly inadequate [66]. Martin CJ (Pullin JA relevantly agreeing and Murphy JA agreeing) made these comments in relation to whether the court should remit the issue of penalty to the Tribunal or the court should make a substitutive order under s 105(9)(b) [69]:
It would be open to the court to remit the matter to the Tribunal for reconsideration in the light of these reasons. In cases of professional regulation where the Tribunal has greater experience in the regulation of the relevant profession than the court, that will often be the more appropriate course. However, the considerations pertinent to the regulation of the legal profession are well known to the court, which has a significant role to play in the regulation of that profession. Given that the proceedings against Mr Detata have already been somewhat protracted, there is no particular advantage in remitting the question of penalty to the Tribunal for further consideration. Instead, the court should exercise the power to substitute its decision as to penalty for that of the Tribunal (s 105(9)(b) of the Act).
Martin CJ did not refer to Osland.
[35] Legal Profession Complaints Committee v Detata [2012] WASCA 214.
The court in Detata imposed a fine of $10,000 as the new penalty for the respondent's professional misconduct.
It is apparent from the reasons for judgment in Detata that the facts and circumstances relating to the substituted penalty had either been fully found by the Tribunal or were not in dispute. In those circumstances, the court was of the opinion that there was no particular advantage in remitting the question of penalty to the Tribunal for further consideration and it was convenient for the court to exercise the power under s 105(9)(b) and substitute its own decision on penalty.
In Khosa v Legal Profession Complaints Committee,[36] a majority of this court (Murphy and Beech JJA) allowed an appeal by the appellant (who was a legal practitioner) against the Tribunal's imposition on the appellant of a 6 month suspension from legal practice as the penalty for professional misconduct. Section 105(13) of the SAT Act applied to the appeal. The majority held that the penalty imposed by the Tribunal was unreasonable or plainly unjust [223]. The majority set aside the penalty imposed by the Tribunal and substituted a penalty of 2 months suspension from legal practice. See Khosa v Legal Profession Complaints Committee.[37] The majority did not refer to Osland.
[36] Khosa v Legal Profession Complaints Committee [2017] WASCA 192.
[37] Khosa v Legal Profession Complaints Committee [2017] WASCA 192 (S) [16] (Murphy & Beech JJA).
In Scaffidi, the respondent alleged in the Tribunal that the appellant (who was the Lord Mayor of the City of Perth) had committed 45 serious breaches of disclosure requirements under the Local Government Act 1995 (WA). After a contested hearing, the Tribunal made an order that it was satisfied that the appellant had committed all of the alleged 45 serious breaches of the Act and published written reasons. This court (Buss P, Mitchell and Beech JJA) held that the Tribunal's findings of breach in relation to 26 of the 45 serious breaches involved errors of law and must be set aside. Section 105(13) of the SAT Act applied to the appeal. The court referred to Osland. The Tribunal's findings in relation to 19 of the 45 serious breaches were not challenged on appeal. The Tribunal made an order, by way of penalty, for a single period of disqualification from holding office as a member of a local government council for 18 months in relation to the 45 serious breaches. The setting aside of the Tribunal's findings of breach in relation to 26 of the 45 serious breaches meant that the penalty order also had to be set aside. The court ordered, relevantly, that the determination of the appropriate penalty for the 19 serious breaches that were not disputed on appeal should be remitted to a differently constituted Tribunal, with liberty to hear further evidence if the Tribunal decided it appropriate to do so. The court was of the opinion that remittal was necessary because of the discretionary nature of the power to impose penalty; significant aspects of the evidence relevant to the appropriate penalty were contested; the Tribunal's errors of law infected its fact finding in relation to matters relevant to penalty; and further fact finding was necessary.
In Panegyres, this court (Buss P, Murphy and Vaughan JJA) allowed an appeal by the appellant (who was a medical practitioner) against the Tribunal's decision that the appellant was guilty of professional misconduct on the ground that the Tribunal had failed to disclose in its reasons the intellectual process by which it found that the appellant was guilty of professional misconduct. This court made a substitutive order that the appellant was guilty of unprofessional conduct as distinct from professional misconduct.
In Panegyres [85] ‑ [88], Murphy JA and I said:
Ordinarily, the court's power under s 105(9)(b) of the SAT Act would only be exercised where only one conclusion was open on the correct application of the law to the facts found by the Tribunal (Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [20] Commissioner for Consumer Protection v Carey [2014] WASCA 7 [68], [166]). Thus, where the decision committed to the original decision-maker is essentially a 'factual, evaluative and ministerial judgment', the ordinary course would be to remit the matter to the body established for the purpose of making that decision (Osland [20]).
However, the power under s 105(9)(b) of the SAT Act is also wide enough, in appropriate circumstances, to determine any factual issue remaining to be determined in consequence of dealing with the error of law established in the appeal, where that issue is conveniently capable of determination upon uncontested evidence or primary facts found by the Tribunal (Osland [20]; Carey [68]).
In this case, the question of whether Dr Panegyres was guilty of either professional misconduct or unprofessional conduct was to be determined by the Tribunal in the context of strenuously fought adversarial proceedings, including the calling of oral evidence, in relation to events going back to 2012. Although the Tribunal failed to disclose the intellectual process by which it concluded that Dr Panegyres was guilty of professional misconduct, it made material findings of fact, on the contested factual issues before it, which are unchallenged and not in dispute.
Given the history of this matter, given that the principal residual issue concerns the drawing of inferences from uncontested primary facts by reference to (relatively) familiar statutory criteria and given the absence of any 'ministerial' aspect to the evaluative task (cf Osland [20]), this is one of those cases where the court should exercise its power under s 105(9)(b) of the SAT Act. Neither party suggested otherwise.
Vaughan JA, after making the observations I have set out at [303] above, said [351] ‑ [354]:
While the Board's referral of Dr Panegyres' conduct to the Tribunal has an element of public interest - the object of all vocational regulation disciplinary proceedings being the protection of the public - it is not a case involving a public interest determination in the sense used in Osland v Secretary, Department of Justice. The essential task is instead one of applying the facts as found to standards determined by statutory criteria. While the latter task is evaluative it is one that can be performed by this court.
In the present case Dr Panegyres expressly accepts most of the Tribunal's factual findings. The finding of breach of cl 3.2.6 of the Conduct Code, although challenged, is one I would uphold. Otherwise the main issues are ones of characterisation (whether, as contended by Dr Panegyres, the adverse findings constitute a single instance of unprofessional conduct insofar as, on Dr Panegyres' case, the findings are ultimately all attributable to the single event of the issuing of the Invoice to the Public Trustee) and evaluation (whether the behaviour as found constitutes unprofessional conduct or professional misconduct). In those circumstances it may be appropriate for this court to determine the matter for itself. The parties made submissions on that basis (while the Board's submissions were largely made in the context of its cross-appeal the matters that motivated that stance applied equally to Dr Panegyres' appeal) (See eg Respondent's submissions on cross‑appeal, pars 114, 116, 118.1 WAB 81; Respondent's orders wanted on cross-appeal, par 3 WAB 84; ts 33 - 34, 82, 91 - 92).
The events leading to these proceedings occurred in 2012 and 2013. The object of speedy resolution within the Tribunal has not been achieved given that the proceedings commenced in 2015. It is desirable that this court bring finality to the parties if it is possible to do so consistent with the due administration of justice and this court's power on appeal under s 105 of the State Administrative Tribunal Act.
The starting point in determining whether this court may substitute its own decision, rather than send the matter back to the Tribunal for reconsideration, is to assemble the unchallenged factual findings and, to the extent necessary, then consider any further factual findings that can properly be made (eg on uncontested evidence or by inference from the primary facts already found by the Tribunal) (Commissioner for Consumer Protection v Carey [166], [169]; Giudice v Legal Profession Complaints Committee [74]). That must be done having regard to the Board's pleaded case as advanced before the Tribunal.
Vaughan JA concluded at [361] that the Tribunal's unchallenged factual findings and the various concessions made by or on behalf of the appellant in Panegyres were sufficient to enable the court to exercise its jurisdiction under s 105(9)(b).
In my opinion, ordinarily, this court may, consistently with the decision and reasoning in Osland, make findings of fact and exercise a discretion, pursuant to s 105(9) of the SAT Act, if:
(a)the making of the findings of fact and the exercise of the discretion are based upon primary facts already found by the Tribunal or upon undisputed evidence (so that a further hearing to find facts is unnecessary);
(b)this court is in as good a position as the Tribunal (including having regard to the Tribunal's status as a specialist tribunal) in relation to the making of the findings of fact and the exercise of the discretion; and
(c)the making of the findings of fact and the exercise of the discretion by this court would achieve a convenient disposition of the matter and avoid the expense and inconvenience of remitting the matter to the Tribunal.
See, in particular, Osland [20], [33]; Panegyres [85] ‑ [88], [349] ‑ [354], [361]. See also Victorian Legal Services Commissioner v McDonald[38] and Leeda Projects Pty Ltd v Zeng,[39] but I note that in those decisions the Court of Appeal of Victoria did not refer to the reasons of French CJ, Gummow and Bell JJ at [33] of Osland.
[38] Victorian Legal Services Commissioner v McDonald [2019] VSCA 18; (2019) 57 VR 186 [158], [160] (Tate, Kaye & Emerton JJA).
[39] Leeda Projects Pty Ltd v Zeng [2020] VSCA 192; (2020) 61 VR 384 [3] (Tate JA), [4] (Kaye JA), [197], [199] ‑ [205] (McLeish JA).
In the present case, neither the Committee nor the appellant submitted that the matter should be sent back to the Tribunal for reconsideration (appeal ts 29, 60). Indeed:
(a)counsel for the appellant told the court that '[t]his court is capable of dealing with it' and that '[the appellant] does not contend that it would not be a proper disposition … if this court [were] to impose its own [substitutive] orders' (appeal ts 29, 31); and
(b)counsel for the Committee told the court that 'the consequence … for this court in the event that … ground 1A were upheld would be that there would need to be a penalty response imposed by this court' and that the Committee 'certainly' accepted that this court was in a position to and should re‑exercise the discretion in relation to the costs of the proceedings before the Tribunal (appeal ts 54, 60).
As to the Tribunal's finding that the appellant was guilty of professional misconduct, the facts and circumstances that are relevant, in the present case, to the appropriate penalty for the appellant's professional misconduct either have been fully found by the Tribunal or are not in dispute. The professional misconduct occurred more than 6 years ago. The Committee failed to deal with the complaint promptly. The proceedings before the Tribunal were protracted. The Tribunal does not have any advantage over this court in determining the appropriate penalty. There is no 'ministerial' aspect, of the kind that existed in Osland [20], to the evaluative task of deciding upon the appropriate penalty for the appellant's professional misconduct. Remitting the matter to the Tribunal would involve further delay and additional expense for the parties. Neither the appellant nor the Committee wanted the matter to be remitted. It is appropriate, in the circumstances, that this court exercise its power under s 105(9)(b) of the SAT Act to make a substitutive order in respect of penalty.
There is no doubt that the appellant's professional misconduct was a very serious breach of her professional duties as a legal practitioner. The appellant knew that the representation in her email of 7 April 2016 was misleading and deceptive. She intended that a Registrar of the District Court should rely on the representation. She was recklessly indifferent to whether a Registrar would be misled or deceived by the representation. A practitioner's duty to act honestly in his or her dealings with the court does not apply merely to the practitioner's dealings with judicial officers and registrars. It also applies to a practitioner's dealings with administrative officers of the court.
There were, however, numerous factors which mitigated the seriousness of the appellant's professional misconduct. Those factors included:
(a)the appellant's voluntary exclusion from practising within the legal profession between January 2018 and March 2020 (when the Tribunal made its orders);
(b)the appellant's early admissions in relation to her professional misconduct;
(c)the significant impact on the appellant's mental health (in relation to which the Tribunal had independent evidence) of the Committee's delay in commencing the proceedings;
(d)the appellant was admitted to practice in December 2003 and no other disciplinary findings have been made against her; and
(e)the appellant had insight into her professional misconduct and her unsatisfactory professional conduct and, consequently, there was a low risk of reoccurrence of conduct of that nature.
Initially, counsel for the appellant submitted that this court should not impose any penalty on the appellant for her professional misconduct. It was submitted that this court's reasons for judgment would include the Tribunal's findings in relation to the appellant's professional misconduct and that this court should merely publish its reasons without making any order or imposing any penalty (appeal ts 9 ‑ 13). However, later in his submissions, counsel for the appellant, appropriately, withdrew that submission (appeal ts 31). Although it is unnecessary, in those circumstances, to decide the point, I make this provisional observation: it is not apparent from the text, context or apparent purpose of s 438, s 439, s 440 and s 441 of the LP Act that the Tribunal has power to impose no penalty on a legal practitioner where the Tribunal has made a finding that the practitioner has engaged in professional misconduct.
In Gandini v Legal Profession Complaints Committee,[40] the Tribunal found the appellant, who was a legal practitioner, guilty of, relevantly, professional misconduct. On 24 November 2011, the Tribunal ordered that the appellant not be granted a local practising certificate for a period of 18 months commencing from the date of the order. That period expired by about 24 May 2013. The appellant's appeal against the finding of professional misconduct was allowed in part [34]. This court set aside the Tribunal's order imposing the 18 month period of non‑registration, but did not impose any 'fresh penalty' because the 18 month period had passed by the time this court came to deal with the matter (on 19 November 2013) [38].
[40] Gandini v Legal Profession Complaints Committee [2013] WASCA 168 (S).
The decision in Gandini is distinguishable from the present case in that the 18 month period of non-registration imposed by the Tribunal in Gandini was wholly prospective and had passed by the time this court set aside the Tribunal's order. By contrast, the period of non‑registration fixed by the Tribunal in the present case was wholly retrospective and the Tribunal in effect did not impose any penalty.
Counsel for the appellant did not in terms concede that a public reprimand was an appropriate penalty for the appellant's professional misconduct, the subject of order 2 of the Tribunal's order made on 9 March 2020, or for the appellant's unprofessional conduct, the subject of order 1 of those orders. Counsel did, however, inform the court that his instructions were that '[the appellant] does not [contend] that a public reprimand would not be an appropriate disposition in respect of [her professional misconduct]' the subject of order 2 (appeal ts 31). Counsel did not make that statement in relation to the appellant's unprofessional conduct the subject of order 1.
Counsel for the Committee informed the court that the Committee did not contend for anything more than a public reprimand as the penalty for the appellant's professional misconduct. The Committee adopted that position, not because the Committee did not regard the conduct as very serious, but because of '[all the] water that has passed under the bridge' (appeal ts 54).
In my opinion, having regard to all of the facts and circumstances, this court should order, pursuant to s 439(d) read with s 438(2)(b) of the LP Act, that the appellant be publicly reprimanded for the professional misconduct which the Tribunal found was proved.
As to the costs of the proceedings before the Tribunal, I have set out at [62] and [267] above the Tribunal's reasoning at [59] ‑ [60] of its reasons for concluding that it was fair and reasonable to award costs of $20,000 to the Committee. In particular, the Tribunal found that the $20,000 did not include any costs of the Committee itself; the $20,000 was limited to only some of the amount disbursed by the Committee in counsel fees; and the $20,000 represented a significant discount of the fees actually incurred by the Committee.
As I have mentioned at [273] above, the Committee incurred counsel fees in the total amount of $33,540.70. That total amount included fees of $7,492.10 incurred between 22 July 2019 and 12 August 2019. A significant proportion of the amount of $7,492.10 would not have been incurred or would not have been, in effect, wasted if the Committee had made timely disclosure of the documents in question (as it should have done). The Tribunal made an error of law by failing to take that matter into account in determining whether and, if so, in what amount the Tribunal should make an order for the payment by the appellant of the Committee's costs. It was therefore necessary to set aside the Tribunal's costs order. However, no other material error by the Tribunal in making the costs order is apparent.
The facts and circumstances that are relevant, in the present case, to the appropriate costs order in relation to the proceedings before the Tribunal either have been fully found by the Tribunal or are not in dispute. There was a dispute before this court as to whether various facts and circumstances asserted by the appellant were relevant in determining what costs order, if any, should have been made by the Tribunal. I have determined, in the course of these reasons, whether and, if so, to what extent the appellant's asserted facts and circumstances in relation to the Tribunal's costs order are relevant.
The proceedings before the Tribunal were protracted. There is no 'ministerial' aspect, of the kind that existed in Osland [20], to the discretionary task of deciding upon the appropriate costs order. The Tribunal does not have any advantage over this court in determining the appropriate costs order. Remitting the matter to the Tribunal would involve further delay and additional expense for the parties. Neither the appellant nor the Committee wanted the matter to be remitted.
I am satisfied that it would not be just, in the circumstances, for this court to remit the question of costs to the Tribunal.
Also, in my opinion, it would not be just, in the circumstances, for this court to make no substitutive order, pursuant to s 105(9)(b) of the SAT Act, in respect of costs. The effect of this court making no substitutive order would be to require the Committee to bear the whole of its costs of the proceedings before the Tribunal. That outcome would not be just having regard to:
(a)the facts and circumstances that are relevant, in the present case, to the question of costs;
(b)the Committee having made an application for costs before the Tribunal and the Committee not having withdrawn or abandoned its claim for costs;
(c)the position of the appellant and the Committee to the effect that this court can and should make substitutive orders (see [314] above); and
(d)the matters I enumerate at [331] below.
It is appropriate, in the circumstances, that this court exercise its power under s 105(9)(b) to make a substitutive order in respect of costs.
I have had particular regard to the following matters:
(a)The Tribunal's findings that the appellant was guilty of professional misconduct and unsatisfactory professional conduct (which have not been disturbed).
(b)The Committee's functions under the LP Act; in particular, those referred to at [272(a)] above.
(c)The total amount of counsel fees incurred by the Committee.
(d)The history of the proceedings in the Tribunal.
(e)The erroneous submissions of the appellant and the Committee to the Tribunal in the course of the Tribunal deciding, wrongly, that it had power wholly to backdate its order (embodied in order 2) that the appellant not be granted a local practising certificate for a period of 6 months.
(f)The Committee's delay and the extent to which that delay is likely to have increased the costs incurred by the Committee or the appellant or to have resulted in costs incurred by the Committee or the appellant being duplicated or wasted.
(g)Section 87(1) and s 87(2) of the SAT Act, the observations of this court in Questdale Holdings [46] ‑ [51] and in Quinlivan [10] ‑ [12] and my observations at [261] above.
I consider that, in all of the circumstances, it is fair and reasonable to order, pursuant to s 87(2) of the SAT Act, that the appellant pay the Committee's costs of the proceedings before the Tribunal fixed in the sum of $8,500. That sum comprises part of counsel fees incurred by the Committee and includes none of the costs of the Committee itself.
It is not reasonably arguable that the Tribunal's errors in relation to orders 2 and 3 materially affected the correctness or appropriateness of order 1 of the Tribunal's orders made on 9 March 2020.
Accordingly, order 1, which provided in effect that the appellant was publicly reprimanded for her unsatisfactory professional conduct, should not be disturbed.
Conclusion
I would make orders to the following effect:
(a)The appellant has leave to amend her grounds of appeal by adding the new ground 1A.
(b)Leave to appeal in relation to the questions of law raised in the context of grounds 1A, 1, 2, 3, 4, 5, 7 and 8 is granted.
(c)Leave to appeal on the questions of law raised in the context of ground 6 is refused.
(d)Orders 2 and 3 of the Tribunal's orders made on 9 March 2020 are set aside.
(e)The appellant is publicly reprimanded for the professional misconduct which the Tribunal found was proved.
(f)The appellant must pay the Committee's costs of the proceedings before the Tribunal fixed in the sum of $8,500.
Counsel should be heard as to the precise form of those orders and also in relation to the costs of this appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KW
Associate to the Honourable Justice Buss
24 MAY 2022
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