1. No response was received from the Board in that regard.
2. Despite the lack of a practising certificate, of which she says she was ignorant, the applicant practised until 1 March 2024.[6]
3. On that date she was advised by Ms Fulham of the Board, and Ms Lendich SC as Chair of Francis Burt Chambers where she practised, that no practising certificate had been issued to her for the 2023/2024 year and there was no record of her logging on to the Board's website to apply for one.[7]
4. In response, in general terms, she sent emails to both Ms Fulham and Ms Lendich and represented that she had applied for a practising certificate.[8]
5. By the Decision, and at the hearing before me, the Board says that there are reasonable grounds for it, and me, to believe that the applicant's email of 30 June 2023 and her emails of 1 March 2024 contain representations to the effect that she applied for a practising certificate and that those representations were false or misleading.
6. Significantly, the Board says that its lack of any record of her applying, or even logging into its system to apply at the relevant time, means that there is no basis for her subsequent claims that at the time she sent those emails she honestly and reasonably believed that she had tried to apply.
7. When she realised that she lacked a 2023/2024 practising certificate in March 2024, she promptly applied for one. That application was withdrawn and, later, another application was made. That application was not determined before June 2024. As a result, on 31 May 2024 she applied for a practising certificate for the 2024/2025 year.[9]
8. The Board determined to issue her that practising certificate on or about 16 July 2024, although it was not issued until about 19 August 2024. The Board's determination of 16 July 2024 was based, in part, on a statutory declaration made by the applicant on 5 July 2024 (which is sometimes referred to in the evidence as the Third Statutory Declaration).[10]
9. On 10 August 2024 the applicant made a Fourth Statutory Declaration.
10. By the Decision, and at the hearing before me, the Board says that there are reasonable grounds for it, and me, to believe that both the Third and Fourth Statutory Declarations also contain false or misleading representations.[11]
11. On 12 September 2024, the Board imposed an interim suspension on the applicant's 2024/2025 practising certificate pursuant to s 77.
12. The applicant sought review of the interim suspension by this Tribunal[12] but, before her associated application for a stay could be heard, on 2 October 2024 the Board determined to suspend the 2024/2025 practising certificate under s 82(1)(d).[13]
13. Consistent with the language of that sub-section, the Board suspended the applicant's 2024/2025 practising certificate on the ground that it 'continues to believe, on reasonable grounds, that you [the applicant] ... are unable to fulfil the inherent requirements of an Australian legal practitioner'.[14]

1. Division 3 of Part 3.5 of the Unform Law provides for the 'Variation, suspension or cancellation [of practising certificates] on specific grounds'.
2. Section 82 sets out the 'grounds for action' under Division 3. It provides that the Board[15] may 'vary, suspend or cancel' a practising certificate on various grounds. Section 82(1)(d) provides one such ground, being that the Board 'reasonably believes that the holder is unable to fulfil the inherent requirements of an Australian legal practitioner'.
3. Section 83 requires the Board to give notice of the intention to make such a decision and invite the practitioner to respond in writing. That was done. Having made the Decision, the Board gave the applicant notice pursuant to s 84.[16]
4. Before saying any more, it is relevant to note that the powers in Div 3 of Pt 3.5 are separate to, and distinct from, the powers to make disciplinary decisions following such the investigation of a complaint contained in Chapter 5 of the Uniform Law.
5. Under Div 2 of Pt 5.4, if the Board finds that a practitioner has engaged in unsatisfactory professional conduct, it may make orders that impose certain sanctions (a fine, a public reprimand, the imposition of conditions, etc).[17]
6. Alternatively, the Board may 'initiate and prosecute proceedings' against a lawyer in the Tribunal[18] if it considers that the 'alleged conduct may amount to professional misconduct' or would be 'more appropriately dealt with' in that way.[19]
7. Where the Board initiates proceedings in the Tribunal, and where the Tribunal has conducted a hearing and found that the practitioner in question has engaged in either professional misconduct or unsatisfactory professional conduct, the Tribunal has various powers, including the power to suspend.[20]
8. Returning to the Boards own powers, by s 100(1) the holder of a practising certificate may seek review by this Tribunal of certain decisions, including a decision of the Board to suspend their practising certificate.
9. Section 100(4) provides that 'the lodging of an ... application for review ... does not stay the effect of the ... suspension ... concerned' unless the Tribunal otherwise so orders.
10. Section 25(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides this Tribunal with the power to 'make an order staying the operation of a decision that is the subject of a proceeding for review' but s 25(4) of the same Act provides that that power may only be exercised if the Tribunal:

... considers that it is desirable to do so after taking into account -

(a) the interests of any persons whose interests may be affected by the order; and

(b) any submission made by or on behalf of the decision-maker; and

(c) the public interest.

1. As noted above, s 82(1)(d) empowers the Board to act where it 'reasonably believes' that the practitioner is unable to fulfil the inherent requirements of a legal practitioner.
2. The following is taken from the recent Tribunal decision of Marcus:[21]

'Belief' is an inclination of the mind towards assenting to, rather than rejecting, a proposition. The 'belief' of a person is ordinarily a conclusion reached after the probabilities have been weighed. A person's mind will not incline towards accepting a proposition of fact if the person's mind inclines towards rejecting the proposition of fact or if the person's state of mind is that he or she is unable to arrive at a conclusion one way or the other.

A 'belief' is more than a 'suspicion' and is ordinarily less than 'positive knowledge'. The information available to a person who forms a belief may be from external sources, including hearsay, which the person may be unable independently to verify.

The grounds which can reasonably induce a belief may, depending on the circumstances, leave something to surmise or conjecture.

'reasonable belief' or 'belief on reasonable grounds' requires a consideration of context.

A 'reasonable' belief imports an objective criterion. It requires the existence of facts which are sufficient to induce the belief in a reasonable person. There must be proven objective circumstances sufficient to justify the belief.

1. As to the principles governing an application for stay, the following is taken from my decision in Dobson.[22] Neither party suggested that there was any error contained therein:

In Soutorine, Tottle J, sitting as Supplementary President of the Tribunal, was concerned with a decision by the Medical Board of Australia to take 'immediate action' to suspend Dr Soutorine's registration as a medical practitioner. His Honour enunciated the following principles, which have since been repeated and applied:

1. s 25 of the SAT Act provides the Tribunal with a wide discretion to grant a stay that must be exercised judicially;
2. any analysis of that discretion must begin with the terms of the statute, particularly s 25(4) of the SAT Act;

1. care must be taken in looking for guidance to:
   1. jurisdictions with a different statutory basis for the power to grant a stay; and
   2. decisions concerned with the exercise of discretion to grant a stay in curial proceedings. In particular, where a stay application is brought within an application to review an administrative decision, a regulatory decisionmaking authority is not to be equated with the 'successful party' following a contest and determination;

1. s 25(4) of the SAT Act does not exhaustively list the matters relevant to the Tribunal's consideration; and
2. neither party bears an onus of persuading the Tribunal to grant a stay or not.

As noted above, one of the matters for which regard must be had in an application under s 25(4) of the SAT Act is the public interest. The 'public interest' in a particular case must be understood within its statutory context. That legislative context includes the objectives set out in s 3 of the Uniform Law which provides as follows:

The objectives of this Law are to promote the administration of justice and an efficient and effective Australian legal profession, by -

...

(b) ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services; and

(c) enhancing the protection of clients of law practices and the protection of the public generally; and

(e) promoting regulation of the legal profession that is efficient, effective, targeted and proportionate[.]

Those objectives, in my view, support the proposition that the public interest in this context includes the following:

1. the maintenance of a regulatory system which deals with practitioners about whom concerns are raised in a fair and proportionate manner;
2. the ability of legal practitioners being able to practise unless there are grounds that go to their ability to practise competently and to a high ethical standard;

1. accordingly, that disciplinary and associated steps (such as the cancellation of a practising certificate) should only be taken when it is necessary to do so to protect the public and/or maintain relevant standards; and

1. that any disciplinary or associated steps ought to be proportionate to the risk which they seek to address.

1. In Dobson, I also said, following Soutorine,[23] that it would be inappropriate to reach a concluded view on any factual matters. Tottle J said as follows, with which I respectfully agree:

On an application of this nature it is impossible to make any factual findings, let alone try to resolve any credit issues, and it would be wrong to attempt to do so. In so far as I express views on the relative strength of the parties' positions on various issues they are no more than tentative impressions based on the untested evidence adduced on the application.[24]

1. In Soutorine, Tottle J addressed the application before him:

(a) by asking whether the application for review raised a 'serious question' as to whether the decision the subject of review satisfied the relevant statutory requirements;

(b) by considering the impact on the parties, and the protection of the public if the stay is, or is not, granted; and

(c) all of which was considered in the context of a legislative regime expressly concerned with the protection of the public.[25]

1. The applicant adopted a similar structure in her submissions. The Board's submissions, by responding to those of the applicant, more or less did the same.

1. As noted above, the Decision is contained in a Notice given under s 84, which states, in effect, that the Board's reasonable belief is based on 'findings' that the applicant made five false or misleading representations and that the applicant has hindered its investigation. Although a little confusing, I will refer to each of the representations using the numbering used by the Board.
2. The first three representations were made by email as follows:

(a) On 30 June 2023, the applicant emailed an officer of the Board asking her to:

... confirm that you received my application and payment? I seem to have trouble logging into the website and I wasn't sure if the form went through as I was overseas. I have made payment today and I don't want any issues.[26]

That email is called the First Statement. By it, the Board says that the applicant represented to the Board that she had made an application for a 2023/2024 practising certificate: First Representation.

(b) Having been advised on 1 March 2024 that no practising certificate had been issued to her for the 2023/2024 year, and having previously spoken about the matter with Ms Lendich SC on that date, the applicant emailed Ms Lendich attaching an email from the Board of 3 July 2023 advising her that an additional CPD Condition had been imposed on her 2023/2024 practising certificate and said:

Will find the actual application but in the first instance, you will see that because I applied, I received this email re the Condition imposed ... In other words, I would not have received this if I had not made an application.[27]

That email is called the Second Statement. By it, the Board says, the applicant represented to Ms Lendich that she had made an application for a 2023/2024 practising certificate: Fourth Representation.

(c) Having received an email from Ms Fulham which, amongst other things, advised that she (the applicant) 'did not apply to renew [her] practising certificate within the timeframes available', by email of 1 March 2024, the applicant emailed Ms Fulham saying, amongst other things, that she was 'very surprised to have received this email given I did apply'.[28]

That passage is called the Third Statement. By it, the Board says that she represented to Ms Fulham that she had made an application for a 2023/2024 practising certificate: Fifth Representation.

1. The Board alleges that each of those representations were false because the applicant never applied for a 2023/2024 practising certificate. It has, until recently, merely said that it relies upon its records to that effect. That was an issue raised by the applicant in her written submissions. Apparently in response, the Board filed an affidavit of Mr Walsh, an employee with IT expertise: Exhibit 2.
2. The fourth and fifth matters relied upon by the Board in its s 84 Notice concern statutory declarations made by the applicant.

(a) By a statutory declaration of 5 July 2024 (the Third Statutory Declaration), in answer to a question asking her to list 'all the false and misleading oral and written representations' she had made to the Board between certain dates, other than to Ms Fulham and Mr Colella, the applicant answered:[29]

I deny that I have made any false or misleading oral or written representations to Ms Fulham or Mr Colella of the Board.

The Board alleges that that statement is false in that, by the First and Third Statements, she had represented that she had applied for a 2023/2024 practising certificate when she had not done so.[30]

(b) By a statutory declaration of 22 August 2024 (the Fourth Statutory Declaration), the applicant:

(1) denied that the Third Statutory Declaration contained false and misleading information;[31] and

(2) said that the First, Fourth and Fifth Representations were not false or misleading.[32]

The Board alleges that both those statements were false. It says that the Third Statutory Declaration did contain false and misleading information (above) and that the Fourth Representation was false or misleading.[33]

1. The Decision also alleges that by making the Third and Fourth Statutory Declarations the applicant 'hindered and otherwise obstructed' its investigations.[34] That appears to be on the basis that:

(a) the Third Statutory Declaration contains what is alleged to be a false or misleading statement - set out above; and

(b) in the Fourth Statutory Declaration, the applicant 'accepted' that she had made the Fourth Representation,[35] but said that they were not false because at the time she made them she 'honestly and reasonably believed that [she] had made an application to the Board' for the renewal of her practising certificate.[36]

1. In the s 84 Notice the Board is particularly critical of the applicant's statements in the Fourth Statutory Declaration described immediately above which, the Board says, represent an 'inability, or unwillingness, to appreciate, acknowledge and accept' that the representations the applicant made to the effect that she had applied for a practising certificate 'were, and remain false' despite the fact that she has previously accepted her subjective belief in that regard to be inaccurate.[37]
2. The applicant's affidavit of 4 November 2024, filed in support of the application for a stay, seeks to explain the relevant answers in her Fourth Statutory Declaration as follows:[38]

I realised that the fact that the [Board] had never received from me an application for the renewal of my [2023/2024] practising certificate ... could make the First, Fourth, Fifth and Sixth[39] Representations objectively false. However, the allegations in the Complaint, which the [Board] was investigating, were that I had engaged in unsatisfactory professional conduct or professional misconduct by, amongst other things, making false and/or misleading representations ... Also, I was aware that, even if I had made representations which were objectively false, I could not be found to have engaged in unsatisfactory professional conduct or professional misconduct by making those representations unless it were also found that I had made those representations intentionally, knowing that they were false when I made them, recklessly, suspecting that they might be false, but making them anyway, not caring whether they were false or not, or carelessly. I thought that, in those circumstances, because the [Board] was asking me to "explain" how the representations were not false and misleading, and because that request was made in the context of the [Board's] investigation of the Complaint, that the [Board] was not only asking me whether the representations were objectively false and misleading, but was also asking me whether I had made the representations intentionally, knowing that they were false at the time that I made them.

When I had made each of the First, Fourth, Fifth and Sixth Representations, I had honestly believed that I had made the renewal application. Accordingly, I determined that I would admit having made those representations, but would say that those representations were not false or misleading, because, at the time I made them, I honestly and reasonably believed that I had made the renewal application.

1. The 'Complaint' referred to is set out in a letter of 12 June 2024 which advised that the Board was investigating whether the applicant had engaged in 'unsatisfactory professional conduct or professional misconduct by: (1) making false and/or misleading representations to the Board with respect to' her applications for a 2023/2024 practising certificate; and (2) 'engaging in legal practice without an entitlement to do so'.[40]
2. The 12 June 2024 letter incorporates a Notice under s 371 of the Uniform Law[41] which required the applicant to answer questions by statutory declaration.
3. The applicant responded to that Notice with the Third Statutory Declaration. Amongst other things, in that document, in answer to the question whether she had provided false and misleading information to Ms Fulham, the applicant said:[42]

I told Ms Fulham, both in emails which I sent her on 1 March 2024 and over the telephone on 2 March 2024, that I believed that I had applied to renew my practising certificate for the year ending 30 June 2024 because that was my recollection and belief when I sent those emails ... and when I spoke to Ms Fulham ... Also during my telephone conversation with Ms Fulham on 2 March 2024, I said to her that, in light of her statement to me during that telephone conversation, that the Board had no record of me lodging an application for renewal of my practising certificate ... and no record of me even logging onto the Board's onsite portal to lodge such an application, it was clear that my recollection and belief that I had lodged an application were mistaken.

1. The Board submits that, far from seeking to improve her situation, the explanation given in her 4 November 2024 affidavit makes things worse for the applicant because it says, in effect, that she has read into the questions words that were not there and given the questions asked meanings that they cannot bear.[43]

Has the applicant raised a serious question - Ground One

1. The applicant's written submissions proceeded on the basis that one of the questions for resolution by me in determining the stay application is whether there is a serious question to be resolved as to the reasonableness of the decision.[44]
2. In doing so, they appear to rely on my previous decision in Dobson in which I sought to summarise the approach taken by Tottle J in Soutorine.[45] My summary in Dobson did not accurately reflect that approach.
3. In his reasons in Soutorine, Tottle J asked whether Dr Soutorine had 'raised a serious question to be resolved as to whether it is reasonable to believe that a suspension of his registration is necessary to protect public health or safety or whether some form of immediate action less restrictive of his practice would be sufficient for this purpose'.[46]
4. That question followed from the statutory regime which empowered the Medical Board to act if it believed on reasonable grounds that the practitioner posed a serious risk to persons and it was necessary to take immediate action to protect public health or safety.
5. Thus, it was not so much the reasonableness of the decision which was in issue before his Honour, but whether there were reasonable grounds which would provide a basis for the Medical Board's belief.
6. The difference is significant. For example, the question of the reasonableness of the decision would involve the consideration of concepts of proportionality which are not relevant to whether there are reasonable grounds for a belief.
7. Applying the same approach in this regard, it is not so much whether the applicant has raised a serious question whether the Board's decision is unreasonable but whether she has raised a serious question whether there are reasonable grounds to believe that the applicant 'is unable to fulfil the inherent requirements of an Australian legal practitioner'.
8. Accordingly, it is unnecessary to consider the applicant's submissions to the effect that the speed by which the Decision was made, and the means by which it was made (being a circular resolution) provide a basis to challenge the decision.[47]
9. Those matters might be relevant to whether the decision is unreasonable, but they are not, I find, relevant to the question whether there is a reasonable basis for a belief that the applicant is unable to fulfil the inherent requirements of a legal practitioner.[48]

1. The applicant submits that her state of mind when making the various representations is critical to the question whether she is 'unable to fulfil the inherent requirements of an Australian legal practitioner'.[49]
2. She relies upon three decisions of the WA Court of Appeal: Kyle,[50] Fidock[51] and Giudice.[52] In the latter case, Martin CJ held[53] that there are at least three categories of cases where a practitioner provides false or misleading information or statements to a Court: where the falsity is intentional; where the practitioner was reckless as to its truth; and where they were careless. The first two categories will ordinarily constitute professional misconduct while carelessness will amount to either professional misconduct or unsatisfactory professional conduct depending on the circumstances.[54]
3. The Board has not said that it believes on reasonable grounds that, in making (any of) the representations, the applicant did so knowing that they were false, reckless to their truth or that they were made carelessly. Rather, as the applicant's submissions point out, the Board's position is that it is 'not necessary [to its Decision] to determine whether these representations were intentional, reckless or grossly careless'.[55]
4. The Board's written submissions were dismissive of the applicant's submission that her state of mind is relevant. They were to the effect that: (1) none of the cases cited by the applicant 'concern a regulator taking action under a power equivalent to s 84 on a ground equivalent to s 82(1)(d)'; (2) there is no power in these proceedings to make a finding of unsatisfactory professional conduct or professional misconduct; (3) the applicant's submission 'reflects [her] fundamental misunderstanding of both Pt 3.5 and Chapter 5 of the Uniform Law; and (4) the applicant's state of mind is irrelevant because a 'carelessly made false or misleading representation has the potential to do as much damage as if it was made recklessly or intentionally'.[56]
5. It is true that the cases cited concern disciplinary/complaint proceedings, rather than proceedings under s 82 (or its equivalent or predecessor). It is also true that the current proceedings do not give rise to a power in the Tribunal to make findings of unsatisfactory professional conduct or professional misconduct. Further, in some senses a false statement may do the same amount of direct damage regardless of the state of mind of its maker.
6. But I disagree that the applicant's submissions represent a fundamental misunderstanding of the relationship between Pt 3 of the Uniform Law, which provides for the variation, suspension and cancellation of practising certificates, and Chapter 5 which provides for practitioner discipline, the outcome of which may be suspension or striking off. Also, the damage to the legal profession with which we are concerned is not the risk of a one-off falsehood but that of practitioners whose word cannot be relied upon.
7. A belief under s 84 that a practitioner cannot fulfil the inherent requirements of a legal practitioner, save in cases concerning mental capacity or mental illness, goes to the practitioner's character. Certainly that appears to be so where the issue is the making of false or misleading representations.
8. Accordingly, such a belief cannot be reached without seeking to understand the state of mind of the practitioner when they made the representations. The character of a practitioner who deliberately tells lies is very different to one who inadvertently makes a misrepresentation.
9. Under Chapter 5, an allegation of making false or misleading representations would be made as part of an allegation of professional misconduct (or, less likely, unsatisfactory professional conduct).
10. The statutory definition of professional misconduct is in two parts, one of which is that the conduct in question 'would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice'.[57] The definition of unsatisfactory professional conduct does not include the concept of 'fit and proper'.[58]
11. The power exercised by the Board in this case is not triggered by a finding of professional misconduct and the phrase 'fit and proper person' does not form part of the relevant statutory framework.
12. Now is not the time to carefully consider the relationship between the two concepts of whether a person is a 'fit and proper person' to practice law and whether the person is 'unable to fulfil the inherent requirements of an Australian legal practitioner' but at face value they appear to be closely related and overlap to a considerable degree.[59]
13. It would be untenable, in my view, for the Uniform Act to operate such that under Part 3.5 of the Uniform Law the Board could reach a 'reasonable belief' that a practitioner is unable to fulfil the inherent requirements of a legal practitioner because they made a false statement to the Court without considering their state of mind when making that statement in circumstances where the Tribunal under Chapter 5 of the same Act, and following a hearing, could make a finding that the same conduct warranted only a finding of unsatisfactory professional conduct because the statement was made (merely) carelessly.
14. I do not accept that the Board, or this Tribunal on review, can believe on reasonable grounds that a person is 'unable to fulfill the inherent requirements of an Australian legal practitioner' due to the making of false or misleading representation without considering the state of mind of the practitioner at the time the representations are made.

Lack of objective basis for the applicant's purported belief

1. The Board's position is that the applicant's insistence that, at the time she made the First, Second and Third Representations, she held a genuine belief that she had applied for a practising certificate for the 2023/2024 year demonstrates that she is unable to fulfil the inherent requirements of a legal practitioner.
2. It does so on the basis that, it says, there is no factual basis for her belief.[60]
3. In its written submissions it refers in support of that submission to two matters: (1) the First Statement;[61] and (2) that the Board's computer records show no evidence of the applicant logging on to its website.[62]
4. As noted above, by the First Statement the applicant sought confirmation that the Board had received her application. The Board says that, at its highest, that provides a basis only for a belief that 'she had attempted to send a renewal form' and wasn't sure whether her attempt had been successful.
5. That is, the Board says that the applicant's purported belief at the time of making the representations is that she had 'made' an application for a practising certificate, which the Board says, is a belief that she had 'completed and submitted' an application. In contrast, the Board submits, the First Statement says no more than that she had attempted to send the form.
6. The Board's case appears to be internally inconsistent. Its 'reasonable belief' is based on the First Representation which, it says, was that the applicant 'had made the Purported 2024 PC Application'[63] and yet, in answering the applicant's claim of honest and reasonable belief, it says that the First Statement went no further than to say that she had attempted to send a renewal.[64]
7. On its face, the First Statement (30 June 2023) appears to provide a basis for the applicant to have believed, when making the Fourth and Fifth Representations (1 March 2024), that she had made the renewal application. That is what the First Statement says: the applicant seeks confirmation that the Board had received her application. Looking back on it nine months later, it appears to provide a basis for the belief evident in the Fourth and Fifth Representations. The same may be said about her statement in the 5 July Statutory Declaration that her email of 1 March 2024 to Ms Fulham reflected her 'recollection and belief' at the time.
8. As to the basis for such a belief at the time of the First Statement, the fact that she paid the application fee, including the late fee, appears to provide support for a finding that she had such a belief at the time it was made.
9. In so saying I am not making a finding that she had such a belief, only that those matters appear to provide a basis for the belief claimed, such that the applicant has, in my view, raised a serious question as to the basis for the Board's belief.

Subjective belief vs objective falsity and subsequent (mis)construction of questions

1. The Board is on stronger ground, at least at this stage of proceedings, with its concerns as to the Fourth Statutory Declaration and the applicant's 4 November 2024 Affidavit.
2. As I have noted above:

(a) the applicant's Fourth Statutory Declarations contains statements to the effect that the First, Fourth and Fifth Representations were not false or misleading because she honestly and reasonably believed, at the time that they were made, that she had applied for a practising certificate; and

(b) her affidavit of 4 November 2024 seeks to explain her position which is, in effect, that when she denied that they were false or misleading, she meant that the falsity of the representations was not intentional or reckless.

1. On its face, the explanation is, at least, strained. As noted above, the case law distinguishes between the objective truth or falsity of a representation and the subjective state of mind of the person making it, with the latter going to the characterisation of the conduct as professional misconduct or unsatisfactory professional conduct, not to its falsity. The applicant acknowledges that in her 4 November 2024 affidavit and insists that she understands the difference.[65]
2. However, I am not satisfied at this stage that the Fourth Statutory Declaration is so obviously false, and deliberately so, that it cannot be said that there is no serious question raised by the applicant.
3. Rather, I am satisfied that there is a serious question raised by the applicant as to the basis on which the Board says it formed a 'reasonable belief' that the applicant is unable to fulfil the inherent requirements of a legal practitioner -

(a) the Board expressly stated that it did not need to consider the applicant's subjective state of mind when making the representations;

(b) a belief on reasonable grounds that a practitioner is unable to fulfil the inherent requirements of a legal practitioner cannot, in my view, be reached without considering the subjective state of mind of the maker of false representations when they were made;

(c) the email of 30 June 2023 appears to provide a basis for the applicant's claim that, when making the Fourth and Fifth Representations, she genuinely believed that she had, at least, sent an application to the Board for a 2023/2024 practising certificate and the payment of an application fee appears to support the claim that she held such a belief when she made the First Representation. The 5 July 2024 Statutory Declaration appears to say no more than reaffirm the position put in the Fourth and Fifth Representations;

(d) I have concerns with aspects of the Fourth Statutory Declaration and the 4 November 2024 affidavit, but in my view those concerns are best addressed by the testing of evidence. That is, they are not such as to convince me that there can be no question that the applicant is unable to fulfil the inherent requirements of a legal practitioner.

Issue of the 2024/2025 Practising Certificate - Ground Two

1. Another reason why I am satisfied that the applicant has raised a serious issue as to whether or not there is a reasonable basis for the Board's belief is that it (the Board) decided to issue the applicant with her 2024/ 2025 practising certificate on 16 July 2024, only two months prior to its (s 77) interim suspension and 2½ months prior to the Decision.
2. In deciding to issue the 2024/2025 practising certificate, the Board must have formed the view that the applicant was a fit and proper person to hold that certificate: s 45(2).
3. In its letter of 17 July 2024 advising of the decision to issue the practising certificate, the Board advised that it did so on the basis of the 5 July 2024 Statutory Declaration, the applicant undertaking to repay all amounts received during her period of unqualified practice, and subject to a condition that the applicant be mentored.[66]
4. The Board seeks to explain the apparent inconsistency in its actions by saying that it was only after the 2024/2025 practising certificate was issued that it formed the belief that the applicant was unable to fulfil the inherent requirements of a legal practitioner.
5. The Board submits, in effect, that it changed its mind as to the applicant's fitness to practice after making further enquiries and concluding that her statement in the 5 July 2024 Statutory Declaration, by which she denied making false or misleading representations to the Board, was false.[67]
6. In effect, that amounts to a submission that the Board took the view that the contents of the Fourth Statutory Declaration were such as to render a practitioner only recently declared fit and proper, to be not so.
7. That is because, prior to the decision to issue the 2024/2025 practising certificate on 16 July 2024, the Board had before it (at least) the First and Third Statements (both emails to Ms Fulham) and it had also formed the view that the applicant had not logged on to its system to apply for her 2023/2024 practising certificate.
8. The only additional matter before the Board when it made the Decision that was not before it on 16 July 2024 was the Fourth Statutory Declaration, which the Board says:

(a) demonstrated that her answer in the Third Statutory Declaration that she had made no false representations to the Board was false; and

(b) provided the applicant's 'explanation' that the First, Fourth and Fifth Representations were not false due to her state of mind.

1. But the objective falsity of her answer in the Third Statutory Declaration should have been apparent to the Board on 16 July 2024 and her claim as to her state of mind at the time of making The First, Fourth and Fifth representations was also before the Board, including through the Third Statutory Declaration (made 5 July 2024).
2. In those circumstances, there appears to be a question as to the basis for the Board's change in its belief as to whether the applicant was able to fulfil the inherent requirements of a legal practitioner from mid-July to September/October.
3. Accordingly, I am comforted in my view that the applicant has raised a serious question as to whether there are now reasonable ground for its belief that she is unable to fulfil the inherent requirements of a legal practitioner.

1. The applicant points to her 'record' of 9½ years practice without an adverse disciplinary finding in support of her submission that there is a serious question raised as to the Board's 'reasonable belief'.
2. The Board's written submissions do not address this issue[68] but the s 84 Notice says that the applicant's history is of 'limited importance in the circumstances'.[69] That was also the submission made by Mr Nicholls at the hearing.
3. He accepted that, in forming a belief on reasonable grounds as to whether someone is able or unable to fulfil the inherent requirements of a legal practitioner, the practitioner's disciplinary history may be relevant or was, at least, 'not irrelevant'. However, he submitted that the applicant's record is not something to which I should give any real weight to at this stage.
4. I agree. It may be relevant at the determination of the application for review but it does not really assist in determining whether a stay should be granted.

The Applicant's Interests and the Public Interest: ss 25(4)(a) and (c)

1. The applicant submits that the suspension of her practising certificate will have real and considerable impacts on her, including financial. I agree. It is, plainly, contrary to her interests for the Decision to continue in operation such that she is unable to practice law and, thereby, earn an income.
2. The Board recognises that her inability to earn an income is a 'significant consideration'. It says, however, that that consideration must yield to the promotion of the objectives of the Uniform Law. [70]
3. As I have previously noted, amongst other things those objectives represent a significant element of what constitutes the public interest in this case.
4. As I have also noted above, those objectives 'support the proposition that the public interest in this context' includes the maintenance of a regulatory system which deals with practitioners in a 'fair and proportionate manner' such that:

(a) 'disciplinary and associated steps (such as the cancellation [or suspension] of a practising certificate) should only be taken when it is necessary to do so to protect the public and/or maintain relevant standards'; and

(b) such steps must be 'proportionate to the risk which they seek to address'.[71]

1. It is, therefore, necessary to identify the risk which the suspension of the applicant's practising certificate seeks to address.
2. In the s 84 Notice, the Board says that the applicant's:

... inability, or unwillingness, to appreciate, acknowledge and accept that the objectively false representations [she] made were, and remain, false, despite the inaccuracy of [her] subjective belief having been accepted by [her], brings into sharp focus the risk [she] pose[s] to the public, the profession and the administration of justice.[72]

1. In the Board's written submissions, the risk is identified as:

... a lawyer who is either unable or unwilling to be honest in their dealings with colleagues and the regulator poses an ongoing threat to the administration of justice for as long as they are permitted to practice.[73]

1. Despite the language used, the allegations remain just that. No finding has been made that the applicant is, for example, 'unable or unwilling to be honest in their dealings with colleagues and the regulator'.
2. Framing it in that way then allows the risk to be put as follows: if, as alleged, the applicant does not understand the difference between objective falsity and subjective states of mind and/or is unable or unwilling to be honest in her dealings, she may make further false statements or otherwise mislead the Courts, tribunals or other practitioners if she is allowed to continue to practice.
3. Another risk is that fellow practitioners and judicial officers, being aware of these matters, may feel less inclined to accept the applicant's word.
4. Both are very serious risks indeed.
5. But they are risks which are dealt with as a matter of course through Chapter 5 and I am unable to see what it is about this matter that takes it above and beyond the risk that arises in those other cases.
6. In the ordinary course, an allegation that a practitioner has made false or misleading representations will be the subject of an investigation by the Board through the Legal Services Complaints Committee (LSCC).[74] That process was underway in the present matter. It was through that process that questions were posed which the applicant answered in the 5 July 2024 Statutory Declaration and the Fourth Statutory Declaration.
7. In the ordinary course, if the LSCC forms the view that the conduct may, if proven, constitute professional misconduct, it will refer the matter to the Tribunal.[75]
8. In such circumstances, the LSCC sets out the allegation and the facts upon which it is based. The practitioner will then be invited to provide a formal response. Witness statements are then filed and the matter will be programmed to a hearing if a mediated outcome cannot be agreed. At the hearing, the LSCC bears the onus of proving the allegation on the balance of probabilities but consistent with the rule in Briginshaw.[76]
9. In such a case, it is for the Tribunal to determine whether the LSCC has proven the allegations following a hearing.[77]
10. In the usual course, a separate hearing is then held to determine the appropriate sanction. It is not unknown for the LSCC to apply for an order suspending the practitioner's practising certificate upon the Tribunal's finding of professional misconduct. But more often it is only when the Tribunal itself determines that the conduct is such as to warrant suspension that the practitioner is suspended from practice.[78]
11. By contrast, decision of the Board under s 82(1) to suspend a practitioner's practising certificate means that the 'sanction' of suspension is decided without a finding of professional misconduct.
12. Moreover, while the practitioner has a right to seek review of such a decision, in the absence of a stay the suspension continues to operate until the Tribunal determines the merits of that decision on review.
13. Furthermore:

(a) it would appear that at a review hearing the onus of proving that the practitioner is a 'fit and proper person' falls on the practitioner, thereby (more or less) reversing the onus of proof;[79] and

(b) there is a rebuttable presumption that the facts in the Board's reasons amount to a correct statement of the facts.[80]

1. Given the very considerable disparity in the two regimes, and given the very considerable hardship imposed by a decision of suspension, I am of the view that the Board should be able to explain, by reference to the risk posed by the particular practitioner, why it determined to suspend the practitioner's practising certificate under s 82(1)(d), rather than refer the allegation to the Tribunal under s 300.
2. The Board's written submissions did not attempt to do so and at the hearing, counsel for the Board was unable to do so.
3. Rather, he submitted that there is nothing in the statutory regime which precludes the Board taking the course it has and, to the extent that the Board has in other cases taken another course, that doesn't preclude the course taken here.
4. I accept those submissions but, as Mr Ley SC submitted for the applicant, the existence of the power does not require it to be used.
5. Neither of the parties referred to any cases decided under s 82(1)(d) or its equivalents. My research only identified a small handful of cases where the previous provisions under the Legal Profession Act 2008 (WA) were even mentioned. None of them assist me.
6. The NSW courts have considered the power to suspend under s 82(1)(c) and described it, essentially, as an 'emergency' power.[81]
7. The statutory language is materially different between sub-sections 82(1)(c) and (d), and counsel for the Board cautioned me against using similar language to describe s 82(1)(d). At least at this stage, and despite the preceding comparison between the two regimes, I will accede to that submission.
8. But given the absence of anything that might distinguish this case from any other case of alleged false or misleading representations, and especially where there is a question as to whether the applicant had a genuine belief that those representations were true when she made them, I don't understand at this stage of proceedings why the risk cannot be managed in 'the usual way' so that the practitioner continues to be able to practice until the matter is determined.
9. That is, I am not satisfied that the risk posed by the applicant is such that she should not be able to practice until her application for review is determined.
10. Accordingly, I am satisfied that the applicant should have the benefit of the stay for which she applied and it was for these reasons that I made the order on 19 November 2024 granting that stay.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

[1] In these reasons, all references to sections are references to sections of the Legal Profession Uniform Law 2022 (WA) (Uniform Law).

[2] Affidavit of Saritha Cassandra Elizabeth Andrews sworn 4 November 2024 (Exhibit 1), paras [2] - [4].

[9] Exhibit 1, paras [21], [28], [30] and [34].

[10] Board's letter of 17 July 2024; Exhibit 1, Annexure L.

[11] Exhibit 1, paras [67] - [69] and Annexures P, Q and R.

[14] Exhibit 1, page 264; Notice Issued Pursuant to s 84 of the Legal Profession Uniform Law (WA), dated 2 October 2024.

[15] The section refers to the 'designated local regulatory authority'. Section 20 of the Legal Profession Uniform Law Application Act 2022 (Application Act), provides that that is a reference to the Board for all of Chapter 3 other than that s 82(4).

[16] Exhibit 1, paras [74] and [75].

[18] Again, the Uniform Law refers to the 'designated tribunal'. That is a reference to the State Administrative Tribunal: s 22 of the Application Law.

[21] Marcus and Medical Board of Australia [2024] WASAT 8, [14] (c) - (g) (internal citations omitted). See, also, Souraki Azad and Medical Board Of Australia [2024] WASAT 71 at [4]ff.

[22] Dobson and Legal Practice Board of Western Australia [2022] WASAT 80 at [57] - [59]. Internal citations omitted.

[23] Soutorine and The Medical Board of Australia [2020] WASAT 5.

[25] Soutorine, paras [60] - [61].

[27] Exhibit 1, Annexure H, pages 44 - 45.

[32] Exhibit 1, Annexure O, pages 141 and 143.

[35] I note that the s 84 Notice only mentions the Fourth Representation in this regard and assume the omission of the First and Fifth Representation is an oversight.

[36] Exhibit 1, Annexure O, pages 141 and 143.

[38] Exhibit 1, paras [60] - [61]. Underlining added.

[39] The Sixth Representation was contained the Fourth Statement, which was contained in the applicant's email to Ms Fulham of 1 March 2024: Exhibit 1, Annexure N, pages 126, 128.

[43] Submissions in Opposition to Interim Application, 15 November 2024 (Respondent's Submissions), paras [73] - [85].

[44] Applicant's Submissions in support of application for interim order staying decision of respondent, 11 November 2024 (Applicant's Submissions), para [31].

[47] Respondent's submissions referred to these matters as Grounds 5 and 6.

[48] Applicant's Submissions, paras [33] - [38].

[49] Applicant's Submissions, paras [46] - [48] and [74] - [79].

[50] Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 at [6].

[51] Fidock v Legal Profession Complaints Committee [2013] WASCA 108 at [99] - [102].

[52] Giudice v Legal Profession Complaints Committee [2014] WASCA 115 at [8].

[53] Edelman J agreed with Martin CJ's 'summary' of the matter at paras 3 to 26. Buss P held that even a finding that a practitioner had recklessly made a false statement may not amount to professional misconduct but, rather, unsatisfactory professional conduct: [98].

[54] False representations made to a professional regulator, such as the Board should be seen in the same light as those made to the Court: per Legal Profession Complaints Committee and Khosa [2023] WASAT 90 (S), para [44].

[55] Exhibit 1, page 256, para [110].

[56] Respondent's Submissions, paras [89] - [92].

[57] Uniform Law, s 297. The other limb of the definition covers 'conduct [which] involves a substantial and consistent failure to reach or maintain a reasonable standard of competence and diligence'.

[59] At para 129 of the s 84 Notice, the Board says, in effect, that because she is unable to fulfil the inherent requirements of a legal practitioner the applicant is 'not currently a fit and proper person'. See, also, MN Legal and Management Consultants Pty Ltd v The Council of the Law Society of New South Wales; Michail v The Council of the Law Society of New South Wales [2018] NSWSC 1410 at [40] - [41].

[60] Respondent's Submissions, paras [3] - [10] and [59].

[61] Respondent's Submissions, paras [4] - [8].

[62] Respondent's Submissions, paras [6] and [9].

[63] Section 84 Notice, para 111(a): Exhibit 1, page 256. Emphasis added.

[64] Respondent's Submissions, para [6].

[66] Exhibit 1, Annexure L, pages 116 - 119.

[67] Respondent's Submissions, paras [62] and [100] - [114].

[68] Respondent's Submissions, paras [116] - [119] are made under the relevant heading but are silent on the extent to which a clean history is relevant.

[69] Section 84 Notice, para [126(d)]: Exhibit 1, page 263.

[70] Respondent's Submissions, para [123].

[73] Respondent's Submissions, para [47].

[74] Part 5.2 of Chapter 5 of the Uniform Law.

[75] Uniform Law, s 300. Referral may also occur if the Board takes the view that the alleged conduct may amount to unsatisfactory professional conduct but it would be 'more appropriately' dealt with by the Tribunal than the Board.

[76] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at [361] - [362].

[78] It is not uncommon for the Tribunal to suspend a practitioner from practise pending a determination of the full bench of the Supreme Court following a recommendation that the practitioner be struck off.

[79] Uniform Law, s 100(7)(a). I say 'appears' because s 100(7)(a) refers to the 'onus of establishing that a person is a fit and proper person' rather than using the language of s 82(1)(d) - 'unable to fulfil the inherent requirements of an Australian legal practitioner'. In this regard, see MN Legal and Management Consultants Pty Ltd; Michail v The Council of the Law Society of New South Wales at [41].

[81] Berger v Council of the Law Society of NSW [2013] NSWSC 1080 at [10] - [20]; MN Legal and Management Consultants Pty Ltd v The Council of the Law Society of New South Wales; Michail v The Council of the Law Society of New South Wales at [45].