Legal Profession Act 2007 (Qld), s 9(1)(h)

Legal Profession Uniform General Rules 2015 (WA), r 13, r 13(1)(a), r 13(1)(b), r 13(1)(b)(i), r 13(1)(d)(i), r 13(1)(j), r 13(1)(m), r 13(1)(r), r 13(1)(u)

Legal Profession Uniform Law (WA), s 84, s 100, s 279, s 297(1)(b), s 371(2), Pt 5

State Administrative Tribunal Act 2004 (WA), s 25(4)(c), s 32

A Practitioner and Medical Board of Australia [2022] WASAT 38

A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253

Andrews and Legal Practice Board of Western Australia [2024] WASAT 131

Bar Association (NSW) v Young [2003] NSWCA 228

Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54

Commissioner of the Australian Federal Police v W [No 3] [2016] NSWSC 1200

Cooper v Williams [1963] 2 QB 567

Council of the New South Wales Bar Association v Breeze [2015] NSWCATOD 152

Department for Consumer and Employment Protection and Chequecash Pty Ltd [2008] WASAT 168 (S)

Di Carlo v Bar Association of Queensland [2024] QCAT 530

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

Law Society (NSW) v Maharaj [2017] NSWCATOD 79

Legal Practitioners Complaints Committee and Pillay [2006] WASAT 309

Legal Profession Complaints Committee v Lourey [2019] WASC 62

New South Wales Bar Association v Murphy [2002] NSWCA 138

NSW Bar Association v Cummins [2001] NSWCA 284

Re Evatt (1987) 92 FLR 380

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

Stirling v Legal Services Commissioner [2013] VSCA 374

The Barristers' Board v A Legal Practitioner [1990] WASC 131, unreported, 9 March 1990, Library No 8127

Thomas A Edison Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679

1. On 2 October 2024, the Respondent (Board), by its delegate the Professional Affairs Committee, resolved to suspend the practising certificate of the applicant (Ms Andrews), pursuant to s 84 of the Legal Profession Uniform Law (WA) (Uniform Law) (Suspension Decision).
2. On 28 October 2024, Ms Andrews applied for review of the Suspension Decision (Review Application). On the same day she also applied for a stay of the operation of the Suspension Decision (Stay Application).
3. The Stay Application was heard by me on 19 November 2024. After a brief adjournment following that hearing, I made orders staying the operation of the Suspension Decision until further order (Stay Order).
4. I delivered my reasons for that decision on 29 November 2024 (Stay Reasons).[1]
5. These reasons should be read together with the Stay Reasons.
6. By application filed 14 February 2025, the Board applied for the Stay Order to be 'set aside' or, in the alternative, for the Review Application to be programmed for an urgent hearing (Application to Set Aside).
7. Pursuant to orders made by me on 19 February 2025 for the programming of the Application to Set Aside through to a hearing:

(a) the Board filed an Outline of Submissions[2] and an Affidavit of Michaela McGurdy;[3] and

(b) written submissions[4] and an affidavit sworn by Ms Andrews[5] were filed on her behalf.

1. At the hearing of the Application to Set Aside on 4 April 2025, the Board also relied upon an affidavit sworn by Mr Colella on 14 February 2025, which had been filed with the Application to Set Aside.[6]
2. For the following reasons, I will dismiss the Application to Set Aside.

1. The Board's Submissions assert that the power to make a stay 'necessarily encompasses the power, [sic] to vary, set aside or otherwise cease the effect of the stay. This is especially clear when the stay is ordered subject to further order'.[7]
2. That submission was not resisted in either the written submissions or at the hearing through Mr Ley SC, who appeared for Ms Andrews with Ms Luck.
3. I agree that, given the Stay Order is expressed as being subject to further order, I have the power to vary it or set it aside.
4. That raises the question as to when that power should be exercised. In that regard, the Board's Submissions rely on the following statement of principles by Adamson J in W:[8]

[47] ... As the stay granted ... was not a permanent stay, it is appropriate to treat it as an interlocutory order which can be revisited if there is a fundamental, or at least material, change in the basis on which the stay was granted, or if there has been material non-disclosure. A stay may be varied, discharged or suspended in appropriate circumstances, either by the judge who ordered it, or another judge: Hutchinson v Nominal Defendant [1972] 1 NSWLR 443, at 452, citing Woods v The Sheriff of Queensland (1895) 6 QLJ 163 at 164 - 165 per Griffiths CJ, who said:

"The same principle that allows relief to be given against the continued operation of a final judgment obviously extends also to giving relief against the continued operation of an interlocutory order if after it is made new facts come into existence or are discovered which render its enforcement unjust. Such a contingency is plainly much more likely to arise in a case of an interlocutory order than in that of a final judgment".

[48] The jurisdiction to dissolve or vary a stay does not depend on a change in circumstances, since the jurisdiction may also be exercised if good cause is otherwise shown: Cooper v Williams [1963] 2 QB 567 at 580 (Denning LJ) and 582 (Danckwerts LJ).

...

[55] In my view, the principles relevant to applications for interlocutory injunctions also apply to applications for temporary stays. In Elton v Cavill (No. 2) (1994) 34 NSWLR 289, Young J said, at 304:

'It is trite law that if a person asks for an interlocutory injunction but fails to make full disclosure, then the judgment will be set aside and it matters not that even if there had been full disclosure the injunction still would have been granted: Thomas A Edison Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679 .... The court needs to maintain its policy that if a person is to obtain an interlocutory order the proper standard of disclosure must be maintained. I appreciate that the present injunction was not granted on an ex parte basis, but it seems to me that a similar policy consideration arises where injunctions are granted on an interlocutory basis where both parties are present because of the limited inquiry which judges customarily make on such an application'.

1. I have some concerns with certain aspects of the foregoing, at least in its application to a stay granted within the context of the relevant statutory framework. However, given the way the Board's case was presented at the hearing it is unnecessary for me to say too much in this regard.
2. Four matters of principle arise from the above.
3. First, it seems uncontroversial and I find that the power to vary or set aside a stay ought not to be exercised unless there is a proper basis to do so.
4. As noted above, the UK Court of Appeal in Cooper v Williams held that a stay could be set aside for 'good cause'.[9] There is unlikely to be any material difference between the concepts of a 'proper basis' and a 'good cause'. However, the very different context (statutory and otherwise) of that case to this provides a useful opportunity to remodel Tottle J's admonition in Soutorine[10] that 'care must be taken' in looking for guidance to jurisdictions with a different statutory basis for the power to grant a stay, so that it applies equally in an application to set aside a stay.
5. Second, it also seems self-evident that an application to set aside or vary a stay order which proceeds on the basis that the original stay order was wrongly made does not put forward a 'proper basis' or, for that matter, 'good cause'.[11] The proper forum for an application made on that basis is an appeal court.
6. Third, I accept that a 'fundamental, or at least material, change' in the factual or legal basis on which the stay was granted would amount to a 'proper basis' or 'good cause' for a stay to be varied or set aside. That principle provides a basis to consider the two grounds addressed by Mr de Kerloy SC, who appeared with Mr Nicholls for the Board at the hearing: Ground One and Three (below).
7. The fourth principle raised by Adamson J in the quoted passage above concerns material non-disclosure. It is unnecessary for me to address this issue because, for the reasons set out in relation to Ground Three below, I am not satisfied that there has been a material non­disclosure by Ms Andrews.
8. In any event, I did not hear full argument on the point, which is particularly significant given, as I have previously noted, the context surrounding the cases cited is considerably removed from the present.

1. In the Board's Submissions, the Board relied on four grounds in support of its application to set aside the stay:

(a) That Ms Andrews has failed to comply with her tax obligations - Ground One;

(b) That Ms Andrews failed to disclose to the Board her failure to comply with her tax obligations - Ground Two;

(c) That Ms Andrews misled Macquarie Bank as to various matters when applying to refinance her home loan - Ground Three; and

(d) That Ms Andrews failed to disclose the above three matters to me at the hearing of the Stay Application - Ground Four.

1. As should be apparent from the foregoing, Grounds One, Two and Three all concern allegations which were not before me at the time of the Stay Application. Rather, the Board alleges that it became aware of them subsequently, and that they therefore amount to a material change in the factual basis on which the Stay Decision was made. That is, the Board effectively submits that, had I been aware of the matters in those Grounds, I would not have made the Stay Decision. Accordingly, the Board submits, they provide a basis to set it aside.

1. Before turning to the Board's four grounds, it is necessary to address this preliminary issue.
2. The Andrews Submissions allege that various notices issued by the Board under s 371(2) of the Uniform Law[12] were ultra vires because they:[13]

(a) sought documents regarding matters beyond the scope of the complaint being investigated at the time they were issued; and

(b) were issued for the purposes of pursuing the Application to Set Aside and not for the purposes of a complaint investigation under Part 5 of the Uniform Act.

1. On the face of the documents, there would appear to be some strength to, at least, the submission that the notices sought documents beyond the scope of the complaint investigation that was in place at the time they were issued.
2. By way of example, Ground Three alleges that Ms Andrews misled Macquarie Bank (Macquarie) in her application for a refinancing loan. It does so in reliance on documents provided pursuant to notices sent by the Board under s 371(2) of the Uniform Law to Macquarie, Wise Family Lawyers (Wise) and her accountant in early to mid February 2025.
3. From 24 January 2025, the scope of the complaint investigation was extended to cover a fourth issue; whether Ms Andrews had 'fail[ed] to comply with obligations owed to the Australian Taxation Office' (ATO).[14]
4. On 28 February 2025,[15] the scope of the complaint investigation was extended to cover another two issues, the sixth of which was whether Ms Andrews had 'ma[de] false and/or misleading representations in connection with [her] application for a loan from Macquarie Bank'.
5. On its face, therefore, the notices to Macquarie and Wise were sent when the scope of the complaint investigation was limited to enquiries about compliance with the ATO, and the scope was extended to cover the loan application to Macquarie after relevant documents were received from Macquarie and Wise.
6. Mr Nicholls, who appeared for the Board led by Mr de Kerloy SC and addressed me on this point, submitted that the issue raised by Ms Andrews (whether the Board had exceeded its powers in sending out the relevant notices) was 'irrelevent' to the resolution of the 'core' issue before me, being whether or not to vary or set aside the Stay Order.
7. He nonetheless made submissions that rebutted Ms Andrews' claim of ultra vires given, as he submitted, the gravity of the claims made.
8. In oral submissions at the hearing, Mr Ley SC pursued the submission that the documents had been obtained improperly and submitted that, therefore, I ought not to have regard to them.
9. That submission is, in effect, that the principle in Bunning v Cross[16] applies and that I could and should disregard material obtained 'unlawfully'.
10. I am reluctant to do so for at least two reasons.
11. The first is s 32 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). I agree with the previous decision of the Tribunal in Chequecash[17] that s 32 of the SAT Act 'militates ... against the exclusion of ... illegally obtained material', because the focus of the Tribunal must be on the substantial merits of the case rather than technical evidentiary rules of admissibility.
12. The second is that, in my view, challenges to the lawfulness of a notice issued by the Board are best made to the Supreme Court[18] rather than by way of a collateral attack.
13. Mr Nicholls made cogent submissions resisting a conclusion that the Board had acted beyond power in obtaining the documents under the various notices. However, it is not necessary for me to determine that question because, in any event, I do not consider that the documents should be excluded even if they were unlawfully obtained.
14. The High Court in Bunning v Cross[19] held that five factors should be considered in exercising the discretion to exclude evidence obtained unlawfully. They are:

(a) whether or not the unlawfulness was deliberate or reckless;

(b) whether or not the unlawfulness bears upon the cogency of the matter unlawfully obtained;

(c) the ease with which the legal requirements could be complied with;

(d) the comparative seriousness of the offence charged and the unlawful conduct by the law enforcement authorities; and

(e) whether the nature of the legislative concern is to restrict the conduct of the law enforcement authorities in question.

(a) even if I was to accept that the Board acted beyond power there is no evidence to indicate that the Board did so deliberately or recklessly;

(b) such 'unlawfulness', should it exist, does not bear on the cogency of the material thereby obtained;

(c) the ease of compliance by the Board does point in the opposite direction;

(d) the allegations made against Ms Andrews are, it seems to me, more serious than those made against the Board; and

(e) the legislative purpose of s 371(2) of the Uniform Law is to enable the Board to compel the production of documents but there is also, it seems to me, a secondary purpose of restricting the scope of those enquiries.

1. In my view, the first and second (and, to a lesser degree, the fourth) of those factors support the view that the documents should not be excluded, even if I was to find (which, I repeat, I have not done) that they were unlawfully obtained.
2. I turn now to consider each of the grounds relied upon by the Board.

Ground One: Ms Andrews has failed to comply with her tax obligations

1. The Board alleges that, until recently, Ms Andrews was non­compliant with her tax obligations and had been for some time. It submits that 'the non-filing of tax returns is incompatible with that degree of integrity, which the public has the right to expect in a barrister'.[20]
2. Ms Andrews accepts that she failed to lodge:

(a) eight annual income tax returns for the years ending 30 June 2016 to 30 June 2023; and

(b) sixteen quarterly Business Activity Statements (BAS) from 31 December 2020 through to 30 September 2024.

1. She does, however, seek to explain that conduct by reference to various matters.[21] Submissions filed on her behalf summarise her evidence (accurately, in my view) as follows:[22]

(a) says that she did not deliberately fail to lodge tax returns to avoid paying income tax and did not deliberately fail to lodge BAS to avoid paying GST;

(b) says that her failure resulted from administrative disorganisation and procrastination;

(c) was an employed solicitor between 1 July 2016 and March 2019, and, during that time, her employers deducted tax instalments from her salary and remitted them to the ATO;

(d) caused all the outstanding tax returns and BAS to be lodged with the ATO in January 2025 and paid in full the net amount of GST and interest she owed to the ATO; and

(e) has not been prosecuted by the ATO for her failure to lodge tax returns or her failure to lodge BAS.

1. She submits that, in those circumstances, 'it is unlikely' that her failure 'would be characterised as ... professional misconduct', and nor does it 'in any way increase the risk the applicant would pose to the public or the reputation of the profession if she were permitted to practice.[23]
2. Further, she submits that it is 'far from clear' that the failure by a legal practitioner to lodge tax returns and BAS amounts to 'conduct in the course of legal practice or whether it can be characterised as unsatisfactory professional conduct or professional misconduct'.[24]
3. I consider it unlikely that the approach taken by the Full Court in 1990 in The Barristers' Board v A Legal Practitioner would be taken today. In that case a lengthy period of non-compliance with the practitioner's obligations to file tax returns was described as 'the conduct of his personal affairs'.[25]
4. As the Andrews Submissions acknowledge, there is a line of NSW authority starting with Cummins,[26] which the High Court has endorsed,[27] which have held that the preparation and filing of tax returns is sufficiently related to the earning of income, including professional income, that a practitioner's failure to file tax returns may justify a finding of professional misconduct.
5. However, that line of cases is not authority for the proposition that any failure by a practitioner to comply with their tax obligations renders them unfit to practice.[28]
6. Rather, as Mr de Kerloy SC acknowledged in the hearing, correctly in my view, all of the facts and circumstances are relevant to the question of both the characterisation of the conduct and any penalty.
7. In Pillay[29] the Tribunal (with Barker J presiding) was concerned with a failure by a practitioner to attend to his tax affairs, including a failure to lodge income tax returns for six financial years until the eighth year and a failure to pay income tax for eight financial years. [30]
8. The practitioner in Pillay did not ultimately contest a finding of unprofessional conduct. In imposing a penalty of 12 months' suspension of his practising certificate,[31] the Tribunal had regard to: (1) the 'period of default';[32] (2) that the practitioner had paid tax prior to the period of non-compliance;[33] (3) that he suffered from post-traumatic stress disorder, which caused him to behave in a manner out of character in failing to lodge the tax returns;[34] and that he did not deliberately set out to avoid his tax obligations.[35]
9. Pillay was referred to with apparent approval by the Victorian Court of Appeal in Stirling.[36] The Court was concerned with an appeal on penalty. Having considered the authorities from various Australian jurisdictions, including Pillay, the Court identified the following as 'issues ... important in evaluating an appropriate penalty':[37]
   • term of non-payment/lodgement;
   • declaration of bankruptcy;
   • the amount of the debt;
   • the amount of the repayment;
   • disclosure and communication with the Bar and the regulator;
   • mental health issues;
   • family issues;
   • whether the respondent lived a lavish lifestyle;
   • intention to work to repay creditors; and
   • whether the failure was a deliberate one to defraud the Commonwealth or simply ignoring one's obligations.
10. The Court concluded that a period of suspension was warranted given the practitioner's 'failure to comply with his obligations, refusal to cooperate with the respondent, continuing issues with tax compliance and failure to give an account of his failings at the Tribunal'.[38] He was suspended for 30 months, with 24 of those months suspended for five years. The Court also imposed a series of conditions on any future practising certificate.[39]
11. To repeat, I am of the view that those factors (which the Court held went to penalty) are also relevant to the characterisation of the conduct in question; whether it amounts to professional misconduct or the lesser standard of unsatisfactory professional conduct.
12. But, in any event, given the penalties imposed in both Pillay and Stirling, it is plainly not the case that tax non-compliance per se mandates a finding that the practitioner is unable to fulfil the inherent requirements of a legal practitioner. Rather, as I have previously held, all of the facts and circumstances must be considered in considering whether the conduct in question requires such a finding to be made.
13. As I have said, Mr de Kerloy SC agreed with that proposition but said that Ms Andrews' conduct (i.e. facts and circumstances with which I am concerned) was such as to warrant the setting aside of the stay.
14. He relied, in particular, on the fact that Ms Andrews was, for several years, advised by the ATO that she is in breach of her legal obligations.
15. That is so. Attached to the Colella Affidavit are copies of ATO letters to Ms Andrews dating from October 2022, which list the overdue returns and BAS to the relevant date and which are phrased in increasingly urgent tones.[40] From November 2022, the letters speak of a risk of prosecution if she continues to fail to lodge.
16. But, as I have noted above, the length of the period of non­compliance is but one of the relevant factors.
17. Ms Andrews' evidence (summarised above) is to the effect that:

(a) she did not deliberately fail to lodge her tax returns but, rather, the cause was disorganisation and procrastination;

(b) she is now up to date with her tax obligations and, as to the tax returns, she owed no tax and was, in fact, due a refund;

1. It is also plain, going through the other factors, that:

(b) the amount of the GST debt owed (and which has now been paid) was not very large.

1. There is also no suggestion that she has lived a lavish lifestyle on the basis of the previous non-payment of income tax/GST.
2. In those circumstances, I am satisfied that there is a serious question to be tried as to whether or not Ms Andrews' previous non­compliance with her ATO obligations gives rise to a reasonable belief that she is unable to fulfil the inherent requirements of a legal practitioner.
3. The issue of non-compliance with ATO requirements goes to the issue of public confidence in the profession. As the Victorian Court of Appeal said in Stirling:[41]

Without diminishing the significance of the appellant's conduct, it is not in the category of misconduct that brings directly into question the security of a client's interests or his technical competence as a practitioner. There is nothing to suggest that protection of the community is called for. What is at risk is whether community confidence in the integrity of members of the legal profession continues to be threatened. ...

1. That is, the issue falls within the scope of the public interest: s 25(4)(c) of the SAT Act.
2. Consistent with my approach in that regard in the Stay Reasons, it is necessary for me to balance the hardship that would be imposed on Ms Andrews, should I set aside the stay, against the risk to the community's confidence in the integrity of members of the profession.
3. Given that (as above) Ms Andrews:

(c) has put on oath that her non-compliance was not the result of a deliberate decision to fail to lodge her tax returns but, rather, due to disorganisation and procrastination,

I am of the view that the balance lies in favour of retaining the stay.

Ground Two: Ms Andrews failed to advise the Board of her failure to comply with her tax obligations

1. As noted above, in its written submissions, this ground constituted Ground Two of the four grounds relied upon by the Board in its Application to Set Aside.
2. In his primary oral submissions, Mr de Kerloy SC spoke only to Grounds One and Three. In reply, and by way of explanation for not addressing this ground, he submitted in effect that the Board's case rises or falls on Grounds One and Three.
3. However, he had previously commenced his primary submissions by expressly relying on the Board's written submissions. While it might therefore be said that it is unnecessary for me to address this ground, it is prudent for me to do so.
4. By this ground, the Board alleges that Ms Andrews failed to disclose her non-compliance with her tax obligations to the Board over several years when she applied for practising certificates, including the application for her 2023/2024 practising certificate.[42]
5. Ms Andrews has previously admitted, in a statutory declaration made 18 February 2025 in response to a s 279 notice, that she did not disclose her non-compliance with her tax obligations to the Board when seeking renewal of her practising certificate.[43]
6. At paragraph 24 of that document (i.e. her statutory declaration) she declared that she had not notified the Board of her ATO non­compliance because:

[she] did not know that [she] was obliged to disclose those matters to the Board and did not think that a failure by a legal practitioner to lodge income tax returns and/or business activities statements with the ATO could be found to be unsatisfactory professional conduct or professional misconduct ...

1. In its written submissions, the Board relied upon three submissions in this regard.
2. First, that that explanation is 'inexplicable' given that she had received notices from the ATO advising, amongst other things, that she risked prosecution if she continued to fail to act.[44]
3. Second, that Ms Andrews' non-compliance with the ATO 'plainly goes to whether Ms Andrews is a fit and proper person' to hold a practising certificate and, therefore, she was obliged to disclose that fact at item 35 of her 2025 application for a practising certificate.[45]
4. Third, that when responding to the Board in this regard in December 2024 and January 2025, she failed to display candour. The Board submits that that lack of candour is 'strongly suggestive' that her failure to disclose in May 2024 was deliberate.[46]
5. I will address each submission in turn.

1. Whether or not Ms Andrews explanation is, ultimately, accepted by the Tribunal is for another time, but I do not accept that it is so 'inexplicable' that I ought to revoke the stay.
2. As I have previously noted, the ATO notices from November 2022 speak of a risk of prosecution if she continues to fail to lodge. As an example, the ATO notice of 9 May 2024 says that the risk of prosecution will crystalise '... if you don't act now' and '[i]f you choose not to lodge ...'.[47]
3. However, it also says that if Ms Andrews has 'lodged recently, [she] do[es] not need to do anything further'.
4. That is, the notice effectively advises that sanctions will only be imposed if Ms Andrews continues to fail to lodge the outstanding returns and BAS.
5. In those circumstances, I do not accept that the terms of that notice (or, indeed, the other notices) render Ms Andrews' explanation 'inexplicable'.
6. Certainly, she was aware that the ATO wanted her to lodge the outstanding returns and BAS and that her continued failure to do so may attract sanctions, including prosecution.
7. Indeed, I accept Mr de Kerloy SC's submission (made in relation to Ground One) that, as the recipient of these various notices, Ms Andrews can have been in no doubt that her ongoing failure to lodge her tax returns and BAS amounted to a non-compliance with the law.
8. That may be so but, at least at this stage, I am not yet persuaded that any such awareness must necessarily have put her on notice, when she applied for a practising certificate, that she must notify the Board of her outstanding non-compliance.
9. More specifically, I am not satisfied that the link between her ATO non-compliance and her obligations of disclosure to the Board upon her application for a practising certificate are so obvious and patent that her non-disclosure requires the stay to be set aside.
10. In making those observations, I am addressing in part the second of the Board's submissions, to which I now turn.

Was Ms Andrews obliged to disclose to the Board her non-compliances with the ATO?

1. I have already expressed (in relation to Ground One) my view that non-compliance with the ATO regime does not necessarily render a practitioner unfit to practice, because all of the facts and circumstances are relevant.
2. By Ground Two, the Board submits, in essence, that Ms Andrews should have disclosed her ATO non-compliance when she applied for her practising certificate because, in completing the relevant form, she was asked a question which required her to disclose that non­compliance.
3. The relevant question relied upon is 'item 35' of the application which was completed by her by hand on 29 May 2024.[48] That question reads as follows:[49]

Apart from matters previously disclosed by you in writing to the Board, have any of the matters referred to in rule 13 of the Uniform General Rules occurred to you?

1. The Board relies upon r 13(1)(a) of the Legal Profession Uniform General Rules 2015 (WA) (Uniform General Rules) in this regard.[50] That rule provides as follows:

(1) For the purposes of section 45 of the Uniform Law, in considering whether an applicant is or is not a fit and proper person to hold an Australian practising certificate, the designated local regulatory authority may have regard to any of the following matters -

(a) whether the applicant is currently of good fame and character,

1. There is an obvious difficulty in applying that rule to the question asked in item 35 of the application. That is because the question in item 35 asks whether any of the matters in r 13 have 'occurred to you', but r 13(1)(a) describes the applicant's character. A practitioner's character is who they are, it is not an event; it cannot be something which has 'occurred' to them.
2. That is in contrast with rules 13(1)(b)-(l)[51] and (n)-(t),[52] all of which are events which may have 'occurred to' a practitioner. The following are examples only:

(a) whether the applicant has been an insolvent under administration: r 13(1)(b)(i);

(b) whether the applicant has engaged in legal practice in Australia when not permitted to do so under a State or Territory law: r 13(1)(d)(i);

(c) whether the applicant has contravened, in Australia or a foreign country, a law about trust money or trust accounts: r 13(1)(j);

(d) whether the applicant has failed at any time to pay a required contribution or levy to the fidelity fund of a jurisdiction: r 13(1)(r).

1. But regardless of that difficulty, at least at this stage I am not satisfied that r 13(1)(a) is framed so as to obviously capture tax non­compliance within its scope, such that Ms Andrews' failure to disclose renders her so obviously unfit to practice or raises the risk to the reputation of the profession, that I ought to set aside the stay.
2. I accept that item 35 can be read as asking the applicant to consider, in a very broad sense, whether they are 'currently of good fame and character' (r 13(1)(a)) and whether they are able to satisfactorily carry out the inherent requirements of a legal practitioner: r 13(1)(m).
3. I also accept that such consideration might, in some circumstances, require disclosure of non-compliance with tax obligations.
4. However, consistent with my consideration of Ground One, that consideration must look at all of the facts and circumstances. That is, simple non-compliance will not, in all circumstances, require disclosure.
5. Given that, and given the relevant facts and circumstances to which Ms Andrews has sworn in explaining her non-compliance, I do not accept at this stage that Ms Andrews' failure to disclose her ATO non-compliance in answering the question renders her so obviously unable to fulfil the inherent obligations of a legal practitioner, or otherwise poses such a risk to the profession's reputation that I ought to set aside the stay.
6. The Board relies upon, in this regard, the recent decision of the Queensland Civil and Administrative Tribunal (QCAT) in Di Carlo.[53] The Board submits that in that case the QCAT found that Mr Di Carlo's 'failure to disclose a suitability matter 'misled the Association' and that, had the Association not found out the truth in another way 'the applicant's PC renewal would have been decided on that false basis'.[54]
7. I do not accept that that case is analogous to the present. The non­disclosure by Mr Di Carlo was a complaint made against him to the Legal Services Commissioner by a former client. That was a matter specifically identified by s 9(1)(h) of the Legal Profession Act 2007 (Qld)[55] as one which required disclosure in the relevant context. The gravamen was not a failure to disclose a matter which the QCAT found fell within the broad catch-all of the equivalent to r 13(1)(a) or (m), but one which the legislation specifically required to be answered.

1. The Board's submissions allege that Ms Andrews' 'non-disclosure of her tax failures persisted notwithstanding extensive attempts by the Board to ascertain whether she was compliant with her obligations to the ATO'.[56]
2. Ms Andrews resists that characterisation saying that the Board's correspondence covered matters other than her ATO compliance, that she agreed to answer questions notwithstanding that there was no complaint investigation on that subject at the time, and that she sought an extension of time to do so to allow her to consider her records in relation to the other matters.[57]
3. It is not appropriate for me to try to ascertain where the truth is in all of that at this stage.
4. Certainly, at this stage, I cannot say that Ms Andrews' conduct with the Board in late 2024 and early 2025 was such as to allow an inference that her failure to disclose her ATO non-compliance to the Board when applying for practising certificates was deliberate.
5. This aspect of the Board's case in relation to Ground Two does not take the matter any further.

Ground Three: Ms Andrews misled Macquarie Bank when refinancing her home loan

1. By this ground, the Board alleges that Ms Andrews misled Macquarie when successfully applying to refinance her home loan.
2. In the Board's written submissions, it alleges that she misrepresented her employment status, her income and her liabilities.[58]
3. At the hearing, Mr de Kerloy SC focused on:

(a) her representation that she was employed by Wise Family Lawyers, when she knew at the time of completing the form that her employment would end imminently;

(b) her representation that her income was ~$110,000 per annum; and

(c) her failure to disclose as liabilities her debt to Francis Burt Chambers (FBC) and her undertaking to repay those clients from whom she took fees while practising without a certificate.

(a) the two representations appear to have been made by Ms Andrews, who also appears to have not disclosed her debts to FBC and her former clients; and

(b) there does not appear to be any dispute that the liabilities to FBC and her former clients existed. Indeed, Ms Andrews' evidence is that the loan was used to discharge them. Further, it would appear that she knew several days before the loan documents were signed that her employment at Wise would end imminently.

1. Ms Andrews' evidence is to the effect that she made full disclosure of all relevant matters to her mortgage broker, who advised her that she could sign the loan application form.[59]
2. It is clear that, as a matter of general principle, personal misconduct may ground a finding of professional misconduct. Both the statutory definition (s 297(1)(b) of the Uniform Law) and the common law meaning of the term allow for that.[60]
3. Further, there are cases in which comparable tribunals in other jurisdictions have made findings of professional misconduct concerning conduct similar to this.[61]
4. However, a consideration of those cases demonstrates that, again, it is the facts and circumstances which are critical to the determination of the matter.
5. In Maharaj, the practitioner intentionally falsified a payslip in order to artificially inflate her earnings to assist the chances of success in obtaining a home loan. The Tribunal recorded that the practitioner:[62]

readily conceded the obvious, namely that her conduct in submitting a payslip to the bank which she knowingly and deliberately created and which overstated her income constituted an act of dishonesty incompatible with the qualities expected of a legal practitioner.

1. Despite that, however, the Tribunal was persuaded not to impose either a sanction of cancellation or suspension but, rather, imposed lesser sanctions, including a public reprimand.
2. Similarly, in Breeze, public reprimand was the primary sanction imposed on Mr Breeze and his wife, Ms Graves. Both accepted that they had made three misleading statements in documents lodged by way of an application for a loan with the Commonwealth Bank.[63]
3. Given those outcomes, I do not accept that the conduct alleged against Ms Andrews must, without more, require the stay to be set aside.
4. Put another way, I do not accept that the Board's allegations regarding Ms Andrews' conduct in applying for a refinancing of her home loan are such that, without making any findings of fact, her practising certificate should remain suspended until the Review Application is determined.
5. Rather, I am satisfied that there is a serious question to be tried as to whether the relevant statutory test is satisfied (i.e. whether there is a proper basis for reasonable belief that she is unable to discharge the inherent functions of a legal practitioner). Further, I am not satisfied that she poses such a risk to the reputation of the legal profession that she should be suspended until the Review Application is determined.
6. Put shortly, given all of the above I am not satisfied that the stay should be set aside.

Ground Four: Ms Andrews failed to disclose material matters at the Stay Hearing

1. This ground was not addressed at all by Mr de Kerloy SC at the hearing.
2. The Stay Application sought a stay of the operation of the Suspension Decision. The Board made the Suspension Decision on the basis of representations it says Ms Andrews made to the effect that she had applied for a 2023/2024 practising certificate.[64]
3. In its Application to Set Aside, the Board raises four entirely different and unrelated complaints, the fourth of which is that Ms Andrews failed to disclose to me at the Stay Hearing the three matters that now form Grounds One, Two and Three.
4. None of those matters appear to be relevant in any way to the grounds relevant to the original Stay Application.
5. In Thomas A Edison Ltd v Bullock,[65] Isaacs J held that 'it is a duty of a party asking for an injunction ex parte to bring under the notice of the Court all facts material to the determination of his [sic] right to that injunction'. As noted above, Adamson J applied that principle to an application to set aside a stay.
6. Isaacs J's focus is on the need for full disclosure of facts 'material to the determination' under consideration.
7. In the present context, that requires attention on the facts material to the Stay Decision, rather than whether there has been disclosure of all facts material to the determination of the Review Application.
8. In the latter case, assuming that s 100 of the Uniform Law imposes on Ms Andrews the burden of demonstrating that she is a fit and proper person, she will be obliged to make full disclosure of 'any matter that might reasonably be regarded by the [Tribunal] as touching on the question of fitness to practise'.[66]
9. But, in my view, her obligation in the context of the Stay Application was not so broad or onerous.
10. As the Stay Reasons make clear, the two critical questions in the Stay Application were:

(a) whether Ms Andrews had raised a serious question as to the reasonableness of the Board's belief that she is unable to fulfil the requirements of a legal practitioner; and

(b) the magnitude of the risk posed by the practitioner if a stay is granted and their right to practice remains unlimited.

1. As the Stay Reasons also make clear, both questions fell to be considered in the context of the matters relied upon by the Board in making the Suspension Decision and, subsequently, the lead up to, and at the hearing of, the Stay Application.[67]
2. In those circumstances, I do not think that Ms Andrews' failure to disclose those matters at the Stay Hearing of which the Board now complains represents a failure to make material disclosure.

Conclusion and Future Management of the Proceeding

1. For the above reasons, the Board's application should be dismissed.
2. As I discussed with Senior Counsel for both parties at the conclusion of the hearing on 4 April 2025, I am firmly of the view that the substantive Review Application should be brought on for hearing as a matter of urgency.
3. The matter has now been before the Tribunal since late October 2024. Since then, only the two hearings regarding the stay have been held, as well as an unsuccessful attempt to mediate following the Stay Decision.
4. It is the Board's view that its decision to suspend will expire with Ms Andrews' practising certificate on 30 June 2025. That date is almost upon us.
5. The parties should confer with a view to creating a timetable to allow a decision to be provided by that date. That will require the full cooperation of everyone involved.
6. I will list the matter for a directions hearing at which I intend to make orders consistent with that intention.

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

[1] Andrews and Legal Practice Board of Western Australia [2024] WASAT 131.

[2] Outline of Submissions in Support of the Respondent's Interim Application dated 14 February 2025, 7 March 2025 (Board's Submissions).

[3] Affidavit of Michaela McGurdy in Support of Interim Application filed 7 March 2025 (McGurdy Affidavit): Exhibit 2.

[4] Applicant's Submissions in Opposition to Respondent's Application for Order Lifting Stay, 21 March 2025 (Andrews Submissions).

[5] Affidavit of Saritha Cassandra Elizabeth Andrews and Annexures 'A' to 'K' Thereto Sworn 21 March 2025 in Opposition to Respondent's Interim Application for Order Lifting Stay (Andrews Affidavit): Exhibit 3.

[6] Affidavit of John-Paul Anthony Colella in Support of Interim Application Filed 14 February 2025 (Colella Affidavit): Exhibit 1.

[8] Commissioner of the Australian Federal Police v W [No 3] [2016] NSWSC 1200, [47] - [48] and [55].

[9] Cooper v Williams [1963] 2 QB 567, 580 (Denning LJ), 582 (Danckwerts LD).

[10] Soutorine and The Medical Board of Australia [2020] WASAT 5, [28].

[11] See Woods v Sheriff of Queensland (1895) 6 QLJ 163.

[12] Section 371(2) of the Uniform Law provides as follows:

For the purpose of carrying out a complaint investigation in relation to a lawyer ..., the investigator may ... require any person (other than the lawyer) who has or had control of documents relating to the subject matter of the complaint to give the investigator [documents or information].

[13] Andrews Submissions, para 23 and 24.

[15] McGurdy Affidavit, annexure MM-12.

[16] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54.

[17] Department for Consumer and Employment Protection and Chequecash Pty Ltd [2008] WASAT 168 (S), [39].

[18] Legal Profession Complaints Committee v Lourey [2019] WASC 62, [90].

[19] Bunning v Cross, 78 - 80 (Aickin and Stephen JJ), 65 (Barwick CJ agreeing).

[20] Board's Submissions, para 19 citing Bar Association (NSW) v Young [2003] NSWCA 228, [11].

[21] Andrews Affidavit, paras 5 - 17. She also addressed the matter in her statutory declaration made 18 February 2025: McGurdy Affidavit, annexure MM-9.

[25] The Barristers' Board v A Legal Practitioner [1990] WASC 131, unreported, 9 March 1990, Library No 8127, page 19.

[26] NSW Bar Association v Cummins [2001] NSWCA 284, [66].

[27] A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253, [33].

[28] See, for example, New South Wales Bar Association v Murphy [2002] NSWCA 138.

[29] Legal Practitioners Complaints Committee and Pillay [2006] WASAT 309 (Pillay).

[36] Stirling v Legal Services Commissioner [2013] VSCA 374 (Stirling).

[39] Stirling, [164] - [166].

[40] Colella Affidavit, annexure JPC-5 and JPC-6.

[46] Board's Submissions, paras 31 - 33.

[47] Colella Affidavit, annexure JPC-5, pages 26 - 27.

[48] Colella Affidavit, annexure JPC-12, page 95.

[51] Rule 13(1)(m) is: 'whether the applicant is currently unable to carry out satisfactorily the inherent requirements of practice as an Australian legal practitioner'. In my view it suffers from the same difficulty as r 13(1)(a).

[52] Rule 13(1)(u) is: 'any other matter that is related to a matter referred to in another provision of this rule'.

[53] Di Carlo v Bar Association of Queensland [2024] QCAT 530, [33].

[55] Section 9 appears to be in a very similar form as r 13 of the Uniform General Rules.

[57] Andrews Submissions, paras 39 - 41.

[58] Board's Submissions, paras 5(c), 34 - 36.

[60] Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56, 72.

[61] Council of the New South Wales Bar Association v Breeze [2015] NSWCATOD 152 (Breeze); Law Society (NSW) v Maharaj [2017] NSWCATOD 79 (Maharaj).

[64] The fourth and fifth ground were different but closely related - see the Stay Reasons, [38], [40] - [42].

[65] Thomas A Edison Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679, 681-2.

[66] Re Evatt (1987) 92 FLR 380, 383. My emphasis.

[67] Stay Reasons, [105] - [112], [128]. See, also, A Practitioner and Medical Board of Australia [2022] WASAT 38, [52] - [56].