Court of Appeal (WA)|2011-03-22|Before: Pullin JA

BACHMANN -v- LEGAL PROFESSION COMPLAINTS COMMITTEE OF WESTERN AUSTRALIA [2011] WASCA 64 (22 March 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BACHMANN -v- LEGAL PROFESSION COMPLAINTS COMMITTEE OF WESTERN AUSTRALIA [2011] WASCA 64

LEGAL PROFESSION COMPLAINTS COMMITTEE OF WESTERN AUSTRALIA

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Citation : LEGAL PRACTITONERS COMPLAINTS COMMITTEE and BACHMANN [2009] WASAT 120

File No : VR 34 of 2007, VR 53 of 2007

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Citation : LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and BACHMANN [2009] WASAT 120 (S)

File No : VR 116 of 2006, VR 34 of 2007, VR 53 of 2007

Legal practitioners - Disciplinary proceedings - Unsatisfactory conduct - Misrepresentations to clients as to progress of work - Fees charged for work not done - False representations as to instructions from clients - Referral to Full Court of the Supreme Court with recommendation that appellant be struck off - Whether appellant afforded natural justice and procedural fairness

Applications for extension of time and for leave to appeal dismissed

3 BLAXELL J: The appellant (Ms Bachmann) is a legal practitioner who, in 2007, became subject to proceedings commenced by the respondent committee in the State Administrative Tribunal (SAT) alleging unprofessional conduct.

4 The substance of the allegations was that Ms Bachmann had knowingly made false representations to seven clients as to work undertaken on their behalf. In respect of some of those clients it was also alleged that she had charged fees for work that was not done. It was further alleged that Ms Bachmann had deceived her employer by opening files, and purporting to do work, for two fictitious clients.

5 The hearing of these matters occupied 14 days between May and December 2008, and in a decision delivered on 23 June 2009 SAT upheld all of the complaints. SAT found Ms Bachmann guilty of unsatisfactory conduct, but reserved the question of penalty until it had heard further submissions. On 26 October 2009 a differently constituted tribunal recommended to the Full Bench of the Supreme Court that Ms Bachmann be struck off the Roll of Practitioners. Pending the determination of that recommendation Ms Bachmann was suspended from practice.

6 Ms Bachmann now applies for extensions of time and for leave to appeal from some of the primary findings, and from the decision to transmit a report to the Full Bench recommending that she be struck off. Leave to appeal is sought in respect of 19 proposed grounds, most of which assert a denial of natural justice and/or procedural unfairness by SAT. Other grounds contend that SAT made errors of law in finding particular facts, and by recommending a penalty which is said to be manifestly excessive in all of the circumstances.

7 The proposed appeal does not seek to disturb the decision that Ms Bachmann was guilty of unsatisfactory conduct. However, if successful, the appeal would result in substituted findings that Ms Bachmann was guilty of only neglect and undue delay (and in respect of five and not nine clients). Ms Bachmann also seeks orders that four of the complaints be dismissed, and that there be a substitute penalty for the five remaining matters of a 2 year suspension combined with an order that she sign a written undertaking not to practice law in Western Australia.

(It should be noted that an order of this type is not one of the statutory options for disciplining a legal practitioner for unsatisfactory conduct).

8 On 2 December 2009 the Chief Justice ordered that the applications for an extension of time be heard with the appeal. On 3 February 2010 Pullin JA similarly referred the application for leave to appeal to the hearing of the appeal.

9 Ms Bachmann was admitted to practice in Western Australia in 1996 and was employed as a junior practitioner until 1999 when she commenced practice on her own account. Soon afterwards she departed Perth for Sydney and then the United States of America where she worked as a 'business consultant/paralegal'. Ms Bachmann returned to Perth in 2004 and from February 2005 resumed sole practice as 'T Y Bachmann Lawyers'.

10 In July 2005 Ms Bachmann applied for an advertised position as an employed 'commercial solicitor' for Aragon Pty Ltd (which was an incorporated legal practice with two non-legally qualified directors). She commenced that employment on a probationary basis on 1 August 2005, and became permanently employed as 'principal solicitor' on 3 December 2005. The terms of Ms Bachmann's employment were negotiated with a director of Aragon (Dr Bachleda) and she was required to achieve a 'budget' for fees earned of $25,000 per month.

11 The evidence before SAT showed that Ms Bachmann had difficulty in achieving the targeted billings of $25,000 per month. It was in these circumstances during late 2005 and early 2006 that Ms Bachmann took instructions from and acted for either seven (or as she claims) nine clients in ways which resulted in the disciplinary proceedings before SAT. Those proceedings were commenced by two separate applications being VR 34 of 2007 (the 'eight clients matter'), and VR 53 of 2007 (the 'G matter'). The G matter was the more serious of the two applications and it is appropriate that I refer to this matter first.

The issues and findings concerning the G matter

12 Mr and Mrs G consulted Ms Bachmann on 8 August 2005 seeking advice on a simple contractual matter. They had recently entered into two contracts of sale, one for the sale of a house at Viveash, and the other for the purchase of a house at Morley. It was a term of the contract of sale for the Morley property that the vendors would pay them $10,000 compensation in respect of certain electrical and structural defects. Mr and Mrs G had negotiated that sum after obtaining quotes from various tradesmen for the costs of repairs.

13 However, the vendors were refusing to pay the $10,000 and Mr and Mrs G wished to recover this sum. As they did not know any lawyers they asked the Law Society to recommend a practitioner who dealt with property matters. The Society gave them three names including that of Aragon, and it was in these circumstances that they made the appointment to see Ms Bachmann.

14 There was conflicting evidence before SAT as to the number of consultations between Mr and Mrs G and Ms Bachmann, and as to the instructions that she was given. According to Ms Bachmann she was instructed on an urgent basis to 'overturn' the contract for the Morley property and to institute Supreme Court proceedings to that end. It was also her evidence that she quoted fees of $40,000 for the proceedings, but Mr and Mrs G did not have sufficient money to even pay for the Supreme Court filing fee. For this reason they agreed that both the Morley and Viveash properties would be used as 'securities for costs'.

15 Ms Bachmann also testified that her instructions were that the costs of repairs to the Morley property would exceed $250,000 in total. However, it was Mr and Mrs G's evidence that the quoted costs of repairs totalled approximately $10,000 and that they at no time suggested to Ms Bachmann that there were costs exceeding this figure.

16 It was also Mr and Mrs G's evidence that they rejected Ms Bachmann's advice to 'reverse' the Morley contract because they were very happy with the Morley property and wanted to keep it. They asked that she simply send a letter to the vendors demanding $10,000, and for that purpose gave her the cards and quotes for costs of repairs that they had received from the various tradesmen.

17 In a letter to Mr and Mr G dated 10 August 2005 Ms Bachmann enclosed copies of correspondence dated 15 August 2005 that she had sent to the vendors and to the vendor's real estate agent. (Quite obviously there was a discrepancy with the date of that letter). The enclosed correspondence demanded repayment of the purchase price and associated expenses on the Morley property of about $400,000, but made no reference to the terms of the contract of sale and did not offer to return the Morley property. The letter dated 10 August also advised Mr and Mrs G that if the vendor was unwilling to settle then 'we should immediately sue them in the Supreme Court of WA'.

18 By letter dated 23 August 2005, Ms Bachmann sent to Mr and Mrs G copies of the responses that she had received to her letters dated 15 August 2005. The response from the solicitors for the vendors described the claims made by Mr and Mrs G as 'beyond comprehension'. However, the advice in Ms Bachmann's letter was that she would 'like to finalise your statement of claim as soon as possible'.

19 There was conflicting evidence as to the instructions that Ms Bachmann received as a result of her letters of 10 and 23 August 2005. According to Ms Bachmann during a telephone conversation with Mr and Mrs G on 6 September 2005 she told them that the costs they had incurred to date were approximately $14,000. It was Mr G's evidence that there was no discussion at that time about Supreme Court proceedings or costs. Furthermore, when he handed the telephone to his wife she told Ms Bachmann that they wanted to terminate the 'recovery proceedings' (viz the claim to $10,000). By then Mr and Mrs G had lost confidence in Ms Bachmann because she had 'over dramatised' matters and had pushed them unwillingly towards Supreme Court proceedings.

20 During a later telephone conversation on 19 September 2005 Mr G requested that Ms Bachmann send him her bill. He did not know what her costs would be but expected them to be relatively minimal, and he intended to pay for them out of the proceeds of sale of the Viveash property.

21 It was Ms Bachmann's evidence that consistent with the instructions she had received on 8 August, by the time her retainer was terminated on 19 September 2005 she had prepared the documentation necessary for proceedings in the Supreme Court. This work included the preparation of a number of draft statements of claim, the witness statements of Mr and Mrs G, their two children and two tradesmen, as well as necessary research and the drafting of submissions.

22 Furthermore, by mid September she had prepared a fully itemised but interim tax invoice (dated 31 August 2005) for her costs in the sum of $18,150. She posted this invoice to Mr and Mrs G on 16 September 2005. Subsequently, she prepared and sent a final tax invoice dated 7 October 2005 for $5,618. (Mr and Mrs G denied that they received any invoice at all before 11 October 2005).

23 On 20 September 2005 Ms Bachmann arranged for Aragon to lodge caveats over both the Morley and Viveash properties on the basis that it was 'a person who is to receive portion of the proceeds of land upon a sale, being the registered proprietors' secured creditor'. Ms Bachmann made statutory declarations in support of these claims.

24 Mr and Mrs G were very concerned and completely bewildered when they became aware of the lodgement of the caveats. They immediately tried to contact Ms Bachmann but she did not return their calls. The caveats prevented the settlement of the sale of their Viveash property, and also required them to extend the period of their bridging finance for the purchase of the Morley property.

25 One of the major issues that SAT had to determine was whether or not Ms Bachmann had carried out the work that she claimed to have done for Mr and Mrs G (and for other clients). In this regard, it was significant that she failed to produce any documentation or records to corroborate her claims, and that she had also failed to satisfactorily deal with Aragon's queries when it first discovered that those documents were missing.

26 The issue of the missing documentation arose very soon after the termination of Ms Bachmann's employment with Aragon. Ms Bachmann ceased attending Aragon's office after 28 April 2006, and on 2 May 2006 her mother telephoned the employer to say that she was ill and needed two months leave of absence. This resulted in Aragon dismissing Ms Bachmann (as from 5 May 2006), and engaging another solicitor (Mr Boni) to review her files.

27 Mr Boni could not find much of the documentation that was relevant to the work that Ms Bachmann had claimed to have done on behalf of her various clients. In relation to the G matter there were no drafts or other documents relating to the proposed Supreme Court proceedings.

28 Accordingly, Mr Boni telephoned Ms Bachmann and suggested that she return to the office to collect her belongings and to look for the missing documents. However, when Ms Bachmann did collect her belongings she made no attempt to search for the missing documents. She instead told Mr Boni that the documents must have been removed from the files.

29 On 17 May 2006 Ms Bachmann resumed practice on her own account. However, on 14 July 2006 (in earlier proceedings before SAT) an order was made (with Ms Bachmann's consent) that she obtain a psychiatric report and that she be suspended from practice pending the determination of the issues arising from her employment with Aragon. She later gave evidence (in the proceedings the subject of the present appeal) that at the time of the events at Aragon which resulted in her suspension she had suffered a complete loss of memory as to where she had been and as to what she had done.

30 The determination of the issues in respect of all of the matters before SAT largely turned upon the credibility of the relevant witnesses and in particular Ms Bachmann. SAT found that Ms Bachmann's evidence on the whole was 'in varying respects, patently false, incredible, inconsistent, and confusing'. It preferred the evidence of the committee's witnesses to her testimony. SAT also found that such documents as were tendered by Ms Bachmann did not withstand scrutiny. Several critical documents had been falsely created to support her claims as to work undertaken. Although Ms Bachmann's mental condition had possibly contributed to her conduct, SAT considered that there was insufficient medical evidence to make any finding in that respect.

31 In relation to the G matter SAT was satisfied that Ms Bachmann had made a number of fraudulent misrepresentations (either to Mr and Mrs G or to her employer) knowing them to be false, namely that:

- She had undertaken the work on court documents as described in her August invoice, and that Aragon was entitled to payment of that invoice.

- (Similar misrepresentations in respect of the October invoice).

- Aragon was entitled to caveat the properties because of non-payment of the invoices.

- Aragon was a secured creditor.

- Aragon was entitled to receive part of the proceeds of the sale of the Morley property and the Viveash property.

- She had advised Mr G of the amount of the August invoice on 6 September 2005 and that he had requested it to be fully itemised.

- She had posted the September invoice to Mr G on 16 September 2005.

- On 19 September 2005 Mr G was unwilling to negotiate a payment plan in respect of the August invoice.

32 In all of the circumstances SAT considered that the making of the representations (and particularly the first two representations) constituted conduct which was dishonest and disgraceful. That conduct clearly constituted unprofessional conduct.

The issues and findings in respect of the 'eight clients' matter

33 While employed at Aragon Ms Bachmann received instructions to act for a number of clients who wished to apply for liquor licences. In respect of five such clients (the 'M' matter, the 'HGW' matter, the 'F' matter, the 'UT' matter, and the 'B' matter) it was alleged that she had purported to lodge applications and/or progress those applications when she had not in fact done so. It was further alleged that in respect of two of those clients (the 'M' and 'UT' matters) Ms Bachmann had rendered accounts for fees for work that had not been done.

34 SAT heard evidence from two officers of the Department (or Office) of Racing, Gaming and Liquor (ORGL) as to the statutory requirements and manner of processing of applications for liquor licences. Each application had to be accompanied by certain documents as well as the prescribed fee. If the fee was not paid the application was deemed not to be lodged, and the staff of ORGL had no power to waive the statutory requirements. Furthermore, there never had been a procedure which allowed an applicant to deposit an application for 'checking' prior to it being formally lodged.

35 In respect of each of the five liquor licence clients, Ms Bachmann did not dispute that she had made representations concerning the lodgement of the application, the payment of the prescribed fee, and/or the progress being made towards having the application granted. The essential issue was whether or not she made each of the representations knowing them to be false.

36 In respect of the M matter it was alleged that Ms Bachmann failed to carry out her instructions to obtain a liquor licence for her client; and also falsely represented to the client that an application had been lodged, that she had paid the application fee, that there were no objections to the application, and that ORGL staff had given her particular reasons for their delay in processing the application.

37 It was Ms Bachmann's evidence that she had lodged M's application with ORGL for 'checking' prior to it being processed. There were then delays in the processing of the application which she followed up with ORGL. The reasons given by ORGL staff for the delay included the fact that two employees involved in dealing with the application had been dismissed.

38 However, SAT rejected Ms Bachmann's evidence. It found that she made all of the representations knowing them to be false, and that she had also rendered two invoices to M for work that had not been done. Her motivation for making the false representations was:

No more than the practitioner's wish to be seen as competently carrying out her instructions and her inability to admit, either to her client or to her employer, her lack of experience and knowledge as to processing liquor licence applications. That was also the motivation in the other liquor licensing matters that formed part of this application [173].

39 Similarly, in respect of the HGW matter, SAT found that Ms Bachmann made knowingly false representations that the liquor licence application was proceeding when in fact nothing was happening. SAT specifically rejected Ms Bachmann's evidence that the application had been lodged for 'checking' and that the delay in progressing it was the result of a particular query raised by ORGL [177], [181].

40 In response to the similar allegations in respect of the F matter, Ms Bachmann's evidence was to the effect that ORGL had lost the application which had been lodged. SAT specifically rejected this explanation and found that Ms Bachmann had made knowingly false representations to the client that the application had been lodged and that there were no objections to the liquor licence following the advertising of the application [186].

41 In the UT matter SAT found that Ms Bachmann had similarly made a knowingly false representation to the client that an application had been lodged. Furthermore, she had sought and received payment of fees of $3,500 for work that had not been done. SAT went on to make the following observations:

It is difficult to understand the practitioner's thinking at the time. She had not lodged an application. There could be no question of it being processed. Ultimately that fact would have to emerge. Her advice to the client over some months that the matter was progressing would also eventually be exposed as false. On each of these liquor licensing matters the practitioner either simply closed her mind to the consequences of this or believed she could continue to bluff her way through until she did get around to making the appropriate application or she ceased her employment with Aragon and ceased to be responsible for the matter. The burden of this exposure of her conduct must have weighed heavily with the practitioner. It may well have led to her decision to not show up for work at Aragon in early May 2006 [191].

42 The B matter involved very similar circumstances. SAT found that Ms Bachmann had falsely represented to the client that she had lodged an application for the transfer of a liquor licence when she had not done so. She went on to make knowingly false representations as to the progress of the matter [200].

43 In respect of two other matters (the 'FGC' matter and the 'H' matter) the Committee alleged that Ms Bachmann had made knowingly false representations to her employer as to the existence of those matters by (inter alia) opening files for fictitious clients, completing time sheets for work not done, and (in relation to FGC) rendering an invoice for fees to the non-existent client.

44 Ms Bachmann's purported instructions in the FGC matter were to prepare a partnership agreement which would bring about a merger of two different churches. It was Ms Bachmann's evidence that the instructions were received from only one of the two churches, and were given by a 'Mr C' on its behalf. The pastor of the church testified that he knew nothing about the proposed merger, and SAT found that Ms Bachmann had made knowingly false representations as alleged [210].

45 The H matter involved purported instructions (from Mr and Mrs H) to prepare two wills. Ms Bachmann prepared draft wills and completed timesheets for that work. However, the evidence established that Mr and Mrs H had given instructions to Ms Bachmann to prepare wills some six years previously, and had not instructed her at any time since. Ms Bachmann's explanation for this situation was that the clients who gave the instructions in 2006 had the same or similar names to her previous clients. SAT rejected this evidence and upheld the Committee's allegations.

46 The remaining matter (the A matter) involved a client who instructed Ms Bachmann (in February 2006) to recover $10,000 being the balance of moneys due for the sale of a boat. On 1 March 2006 Ms Bachmann issued a general claims summons against the defendant on Mr A's behalf. When she left Aragon in May 2006 she continued the conduct of the matter on her own account.

47 On 30 June 2006 Ms Bachmann sent invoices to Mr A for the cost of preparing a general claim summons and a statement of claim. It was her evidence that she had prepared both of these documents while practising on her own account, and that a second summons was necessary because Aragon had failed to file the original one. SAT made the following findings:

We find that the practitioner knowingly billed and received money from Mr A for a general claims summons and statement of claim that she did not prepare and for court fees that she had not incurred. She did not comply with s 137 of the LP Act as she did not pay any amount into trust, as required by the LP Act. Further, we find as alleged by the LPCC that the practitioner made knowingly false representations to Mr A between 30 June 2006 and 14 September 2006 as to the progress and costs of the proceedings. Finally, we find that in her communications and meetings with Mr A after her suspension in July 2006, the practitioner contravened s 203 of the LP Act [234].

48 In its reasons delivered in June 2009 SAT described the proceedings as having a 'long and tortuous history' as a result of Ms Bachmann mostly representing herself, and doing so in a most unsatisfactory manner. For this reason, SAT had been continuously required to depart from usual procedures in order to ensure that she had a proper opportunity to defend the charges.

49 There were numerous directions hearings, mediations, and compulsory conferences, in the course of which programming orders were made. Although Ms Bachmann partially complied with some orders, she mostly failed to comply with them at all.

50 On the first day of hearing (21 May 2008) Ms Bachmann failed to appear, but she applied for an adjournment by telephone on the grounds of ill health. Her general practitioner attended to give evidence and in his opinion Ms Bachmann was well enough to attend the hearing. Accordingly, the application for adjournment was refused, but SAT gave Ms Bachmann the opportunity of appearing and cross-examining the Committee's witnesses by telephone. She took advantage of that opportunity during the morning session, but following the luncheon adjournment failed to appear again either personally or by telephone. She instead sent word that she was attending at a barrister's chambers for advice.

51 During the subsequent days of the hearing there were further disruptions. On 23 May Ms Bachmann arrived one and a half hours late. On 26 May counsel appeared on her behalf to apply for an adjournment on the basis of her lack of preparation. During the luncheon adjournment that day Ms Bachmann was taken by ambulance to Royal Perth Hospital because of an apparent collapse. (The subsequent discharge notice from Royal Perth Hospital showed that the doctors could not identify any relevant medical condition.)

52 Ms Bachmann did not attend the hearing on 27 May because she remained in hospital until 3.40 pm. On the following day (28 May 2008) she did not attend the hearing, and did not respond to SAT's attempts to contact her. Consequently it was not possible to complete the hearing on the listed dates.

53 Throughout this period Ms Bachmann was in breach of programming orders which had required her to file and serve the signed statements of her witnesses. At various times she claimed to have drafted statements which had been sent off for signature, but at other times she partially retracted these assertions. Ms Bachmann also gave successive undertakings to provide draft witness statements by particular dates, but failed to do so.

54 At a directions hearing on 23 July 2008 Ms Bachmann applied for the proceedings to be adjourned on the grounds that she was suffering from depression. Her psychiatrist testified as to her condition, and it was his evidence that although she was suffering from the usual stresses of litigation, she was quite capable of participating in the proceedings and conducting her defence.

55 On 23 July Ms Bachmann also applied for an extension of time to comply with the orders as to witness statements, and gave the names of 24 witnesses that she wished to call. She said that she had prepared draft statements for ten of those witnesses, and undertook to lodge those drafts by the following day. However, Ms Bachmann did not file any draft witness statements on the following day or at any time subsequently.

56 On 23 July SAT agreed to serve summonses on all 24 of Ms Bachmann's witnesses because she did not have money to pay the issue fees. It was later discovered that none of the addresses that Ms Bachmann had provided for the witnesses were accurate.

57 At a further directions hearing on 27 October 2008 Ms Bachmann undertook to file nine draft witness statements by the close of business that day. However, in the course of what followed it became apparent that she had not spoken directly to any of those witnesses.

58 Late on 27 October 2008 Ms Bachmann sent a fax to SAT stating that all of the nine witnesses were either claiming privilege or seeking legal advice whether they should appear. The fax also asserted that three witnesses had been advised by either the Legal Practice Board or Aragon not to take part in the proceedings.

59 Subsequently, the three witnesses said to have been given that advice testified that this had not occurred. They also denied having made comments to that effect to Ms Bachmann. SAT accepted their evidence and specifically found that the claims made by Ms Bachmann in her fax of 27 October 2008 were false as well as a deliberate delaying tactic [42].

60 The proceedings were listed to resume on 3 November 2008, and on that day the following unusual events occurred:

The practitioner arrived at 10.20 am and advised the Tribunal that she had scanned (or typed) and emailed to the Tribunal all documents and witness statements as required by Thursday 30 October 2008. They had not been received at the Tribunal. The practitioner had not brought copies of the witness statements or other documents with her, either in hard copy or on her thumb drive. She advised that she had reduced her own witness statement from 60 pages to 28 pages after help from her new counsel Mr Hooker, but that she had not shown Mr Hooker her final 28 page witness statement. She did not produce this and could not recall if she had printed out a copy of her witness statement. The practitioner subsequently advised the Tribunal that she had no printer paper. It was agreed between the parties and the Tribunal that the Deputy President would take the extraordinary step of arranging for her associate to go with the practitioner to her home with the necessary printing paper and a thumb drive to assist the practitioner to print out her materials.

In the luncheon adjournment, the practitioner went with two Tribunal staff members to her home as arranged. However, once inside, the practitioner would not allow the staff to enter and ultimately taped a notice to a window that she was not returning to the Tribunal that afternoon [43] - [44].

61 In accordance with previous programming directions Ms Bachmann was scheduled to call the evidence from her witnesses on 4 November 2008. On that date the first of her witnesses attended but she did not. Ms Bachmann instead sent a fax to SAT stating that she would attend at 2.15 pm (and stating that prior to then she would fax through all witness statements). SAT proceeded to hear from Ms Bachmann's first witness by asking him questions that she had previously indicated she wanted to ask. SAT also made unsuccessful attempts to contact Ms Bachmann on her mobile phone so that she (by that means) could ask questions of the witness. The witness was then required to return at 2.15 pm being the time that Ms Bachmann had said that she would arrive. However, Ms Bachmann did not arrive at 2.15 pm and the witness had to depart at 3.00 pm. Ms Bachmann arrived soon afterwards.

62 The hearing continued over the following three days but Ms Bachmann did not attend on 5 November (claiming ill health) and was late arriving on 6 November. She claimed a number of times that she had complied with all orders in respect of witness statements, but on 7 November admitted that she had not. At all material times SAT was conscious of the fact that Ms Bachmann was suffering from some stress as a result of the proceedings. However, in the end it came to the considered view that she had been 'dishonest or evasive' concerning her state of health, her contacts with prospective witnesses, and her preparation of witness statements including her own [57].

63 It is relevant to note that on several occasions SAT recommended that Ms Bachmann obtain independent legal advice, and that from time to time she did in fact receive some limited advice and assistance [55].

64 On 25 November 2009 Ms Bachmann lodged an appeal notice together with an affidavit in support of her applications for an extension of time and leave to appeal from SAT's decisions of 23 June and 26 October 2009.

65 On 2 December 2009 the Chief Justice made appropriate programming orders including a requirement that the parties attend before a registrar on 12 February 2010 to settle the appeal book indexes. On 12 February Ms Bachmann advised that she wished to adduce additional evidence at the hearing of the appeal, and the registrar ordered that she file an application to that effect together with a supporting affidavit by 2 March 2010.

66 Subsequently, and upon request by Ms Bachmann, the registrar granted three successive extensions of time for compliance with that order culminating in an extension up until 20 April 2010.

67 In a letter dated 3 May 2010 Ms Bachmann asked the court to confirm that on 20 April a courier had delivered a cardboard box containing her Form 9 Application to Adduce Further/New Evidence, a cheque for the filing fee, two supporting affidavits, and bundles of attachments clipped to each affidavit. However, the court had not received those documents and it asked Ms Bachmann to produce the courier receipt confirming that delivery. Ms Bachmann then sent a courier receipt to the co-ordinator of the Court of Appeal Office, but it did not record any such delivery.

68 By an email dated 11 May 2010 to the co-ordinator of the Court of Appeal Office Ms Bachmann implicitly acknowledged that the documents had not been delivered. The email stated that she was then interstate, and that:

The contractor's statutory declaration stated that they dropped two of the archive boxes we gave them to deliver so had to collate all the documents, which became 'mixed up'.

69 The email went on to state that Ms Bachmann would contact the Court of Appeal office when she returned to Perth on 13 May 2010. However, Ms Bachmann did not do so, and she never lodged the documents said to have been the subject of an attempted delivery by courier on 20 April 2010. Notwithstanding these facts, Ms Bachmann made the following statements at a directions hearing on 14 May 2010:

NEWNES JA: I notice that there is an order that has been made by Registrar Bush relating to an application to adduce additional evidence. What has happened in relation to that?

BACHMANN, MS: Sir, that was everything which was filed on the 20th.

NEWNES JA: So that's not outstanding. All right. You don't have to do that. That's a mater for you.

BACHMANN, MS: Yes, sir.

NEWNES JA: I wasn't proposing to make any order. I was merely curious. All right (ts 6)

70 Ms Bachmann's substantive applications were listed for hearing on Monday, 15 November 2010. On Friday, 12 November she filed an urgent application seeking an order that the hearing on 15 November be adjourned 'in light of the new evidence the appellant has discovered and the need for both parties to analyse and consider it'. The 'new evidence' (which Ms Bachmann also sought to have admitted on appeal) was said to comprise the following:

- Three computer floppy disks containing electronic documentation directly relevant to the G matter.

- A 2001 model Sony laptop computer HDD containing electronic documents directly relevant to all matters the subject of the proceedings.

- A business cheque refund from the National Australia Bank dated 5 December 2009 (said to be relevant to the B matter).

- A report dated 14 January 2010 from Ms Bachmann's treating clinical psychologist.

- A bundle of statutory declarations 'from various witnesses, declaring the veracity of the new evidence'.

71 The affidavit sworn by Ms Bachmann in support of this application deposed that she had first become aware of the three computer disks on 8 November when they were handed to her by a fellow employee (Ms Yeo) at her workplace. Ms Yeo informed her that the disks had been inside an envelope placed in the residential mail box of Ms Bachmann's mother (who lived opposite Ms Bachmann's workplace).

72 When Ms Bachmann saw the three disks she immediately recognised them as being of the same type that she had used to store information while working for Aragon. As the disks could not be used in the computers she had at work, she endeavoured to read them using an old Sony laptop computer with a floppy disk drive which was stored at her home. However, the old computer malfunctioned when she inserted the first disk, so she had taken the laptop and disks to a local computer company for retrieval of the data. That company then informed her that the laptop would require specialist repairs which would take at least another two weeks to complete.

73 Ms Bachmann's affidavit annexed a purported statutory declaration by Ms Yeo dated 10 November 2010. However, the 'statutory declaration' was not in the required form nor was it witnessed by a person authorised to witness such declarations.

74 In relation to the A matter, Ms Bachmann's affidavit deposed that she had been able to retrieve the original file documents which she had posted to the client at a Melbourne address 'around mid September 2007'. Annexure 'F' to the affidavit was said to be these original file documents but it was not annexed. Three further annexures were also missing from the affidavit, being statutory declarations by either Mrs Jean Smith or Miss Angela Lynn as to the circumstances in which the A matter file documents had been found. In this regard Ms Bachmann deposed that:

Mrs Smith contacted me about an express post envelope of documents she found in the Melbourne suburb of Noble Park (par 14).

75 Also annexed to Ms Bachmann's affidavit was an incomplete copy of a National Australia Bank business cheque refund dated 5 December 2009. Ms Bachmann deposed in considerable detail as to the circumstances surrounding this refund and asserted that it was relevant to the B matter. (However, it is difficult to discern from those circumstances in what way the document might be relevant).

76 The application lodged on 12 November was listed for hearing on 15 November at the same time as the substantive matters. When those matters came on for hearing Ms Bachmann was not present and the court made orders dismissing both the application and the appeal.

77 However, those orders were later recalled when Ms Bachmann arrived approximately half an hour afterwards. The court went on to hear all matters, and in the course of her submissions Ms Bachmann handed up a file which she said contained all of the annexures missing from her affidavit sworn on 12 November. When the court drew attention to the deficiencies in the 'statutory declaration' by Ms Yeo, Ms Bachmann requested time to provide the court with further materials in support of her application to admit new evidence. In the end the court reserved its decision on the appeal and on the application dated 12 November. It also made orders including the following:

That the appellant be granted leave to file a further affidavit in support of her application dated 12 November by 26 November 2010.
If the appellant files an affidavit pursuant to Order 1, she produce to the respondent by 26 November 2010 the three computer disks referred to in her application.

78 Ms Bachmann later applied for and was granted two successive extensions of time (up until 6 December 2010) in respect of the above orders. She did not file any further affidavit nor produce the computer disks to the respondent in accordance with the orders within the extended time, but emailed a great deal of material to the court. She also filed three affidavits (sworn 15 November, 30 November, and 9 December) outlining certain difficulties in producing the computerised information. (Her affidavit of 30 November also referred to a fourth affidavit sworn on 24 November which was not in fact filed). These affidavits deposed to the following sequence of events:

- The computer company that was asked by Ms Bachmann on 8 November to retrieve data from the old laptop computer and the three disks had been unable to do so. For this reason the laptop and disks were sent to a specialist company on 12 November.

- The specialist company recovered 'the entire list of saved e-documents from 2001 onwards' from the hard drive of the old laptop computer. It also recovered all of the electronic documents saved on one of the floppy disks (the 'green disk').

- When doing so, the specialist company had 'disassembled' the hard disk drive of the laptop computer. Furthermore, 'the green disk itself could not be reassembled due to its age, probable computer virus infection and previous "floppy disk" data storage'.

- The specialist company had downloaded the recovered data onto a DVD which only could be read on an IBM compatible computer which had a CD/DVD rom drive using Microsoft Word 1997 software.

- Ms Bachmann was unable to source such a computer until 4 December. She was then able to download the DVD but the computer could not save any documents on to a newer style compact disk or DVD.

- While Ms Bachmann was using this computer it 'overheated and the screen display became blurry and jumpy'. She sought advice on the problem and was told by her local computer company that the computer should be 'given a rest' to prevent further overheating.

- Prior to the computer overheating Ms Bachmann was successful in partially retrieving some of the court documents that she had prepared in the G matter. These comprised the top half of the cover page of the writ and four separate (partial page) portions of the 'full statement of claim'.

- The DVD provided by the specialist company is the only copy of the relevant documents and Ms Bachmann 'would be unwilling to let it leave my possession'.

- As at 9 December 2010 Ms Bachmann was trying to devise a way to make a copy of the DVD available to the respondent. Unfortunately she could not print out the documents because 'the IBM's 2000 bubble jet printer takes an ink cartridge format'. However, she would do her best to source an 'older style' compact disk which would be compatible with the IBM computer.

79 The court has not received any communication at all from Ms Bachmann since 13 December 2010. On 18 February 2011 the respondent filed an affidavit sworn by one of its officers stating that:

- On 30 November 2010 Ms Bachmann delivered a laptop computer to the Committee. When switched on, the computer would not operate.

- On 13 December 2010 Ms Bachmann provided two computer disks to the Committee. The disks were broken and in pieces, and could not be inserted into any computer.

Whether the application to adduce fresh evidence should be granted

80 In my view, a careful consideration of the circumstances surrounding the application (including the contents of Ms Bachmann's affidavits) shows that it is completely without merit. In this regard, the following considerations are particularly significant:

(1) A substantial (but unspecified) proportion of the 'new evidence' is said to have come from the hard drive of the old laptop computer which at all material times was stored in Ms Bachmann's home. Clearly, that material was always accessible to her and does not constitute fresh evidence.

(2) To the extent that the fresh material is said to originate in the floppy 'green disk' there is no evidence verifying the circumstances in which that item (and the other two disks) were allegedly found. Despite the court drawing attention to the deficiencies of the 'statutory declaration' by Ms Yeo (annexed to the affidavit of 12 November 2010), Ms Bachmann has not filed any valid substitute declaration.

(3) The 'original file documents' for the A matter (said to have been annexure 'F' to Ms Bachmann's affidavit of 12 November, but which were handed up in a file cover at the hearing on 15 November 2010) cannot be fresh evidence. Ms Bachmann has deposed that she posted those documents to the client 'around mid September 2007' which was some seven months after the Committee had commenced the relevant proceedings. There is no evidence as to why Ms Bachmann posted the documents to the client at that time, nor is there any evidence as to the circumstances in which she was able to retrieve the same. In this regard, annexures 'G1', 'G2', and 'G3' (to her affidavit sworn 12 November) are still missing because they were not in the file handed up by Ms Bachmann on 15 November 2010.

(4) Ms Bachmann has not complied with Order (2) made by the court on 15 November 2010 when reserving its decision. The late provision to the respondent of two broken computer disks was not even a partial compliance with that order. In this regard, it was implicit in the order that the disks should be in a readable form.

(5) In any event, I consider that the reasons given by Ms Bachmann in her subsequent affidavits for failing to produce the computerised information are inherently implausible. Her claimed difficulties also have remarkable parallels with the reasons she gave to SAT for failing to produce witness statements.

(6) The National Australia Bank business cheque refund dated 5 December 2009 does not appear to be in any way relevant to the issues on appeal.

(7) The report from Ms Bachmann's treating clinical psychologist dated 14 January 2010 is similarly irrelevant.

81 For all of these reasons I have come to the conclusion that Ms Bachmann's application of 12 November 2010 should be refused.

82 Ms Bachmann seeks leave to appeal from SAT's primary decisions (delivered on 23 June 2009) on the following grounds:

GROUND 1

The SAT failed to accord the Appellant natural justice/procedural fairness in regards to its decisions on the 5-Liquor Licensing matters outlined in the Respondent's Complaint numbered VR 34 of 2007 ('VR34') and in its decision in Complaint VR 53 of 2007 ('VR53') because it did not consider all of the relevant witness evidence available to it, or which should have become available to it, during the entire course of the proceedings.

GROUND 2

The SAT failed to accord the Appellant natural justice/procedural fairness in regards to both VR34 and VR53 in that it appeared to give too much weight, or too much consideration, to the evidence of (Dr) Catherine Bachleda, the Appellant's former co-director ('Bachleda') at their workplace of the Aragon Legal Pty Ltd corporation ('Aragon').

GROUND 3

The SAT failed to accord the Appellant natural justice/procedural fairness in regards to both VR34 and VR 53 concerning a particular episode with the Presiding Judge, Her Honour Judy Eckert, when Her Honour appeared to act ultra vires and/or to show extreme bias against the Appellant.

GROUND 4

The SAT erred in law by making findings of fact against the Appellant in VR34 regarding the 5-Liquor Licensing cases, that the Appellant's evidence in chief and evidence during cross-examination concerning her work practices in the 5-Liquor Licensing cases lacked 'honesty'; amounted to 'lies'; and did not justify issuing any invoices whatsoever for alleged work completed.

GROUND 5

The SAT erred in law by making findings of fact against the Appellant in VR53 that the Appellant's evidence in chief and evidence during cross-examination concerning her work practices and in her direct dealings with the clients, Mrs Sandra and Mr Brad Guest and with Counsel, Mr Scott Ellis afterwards, lacked 'honesty'; amounted to 'lies'; and did not justify issuing any invoices whatsoever for alleged work completed.

GROUND 6

The SAT therefore also erred in law in concluding that the Appellant was dishonest and 'lied' to the SAT during her oral evidence in chief, cross-examination and in documents she drafted and submitted to them.

GROUND 7

The SAT therefore also erred in law by drawing negative inferences against the Appellant regarding her credibility when the inferences should not to have been. drawn having regard to all of the relevant evidence available to it, or which should have become available to it, during the entire course of the proceedings.

GROUND 13

The SAT failed to accord the Appellant natural justice/procedural fairness in that it did not postpone or adjourn the first hearing date on 21 May 2008, when the Appellant was too physically incapacitated to attend the SAT in person and was only able to attend via telephone link-up for a limited time period

GROUND 14

The SAT failed to accord the Appellant natural justice/procedural fairness in giving insufficient weight to the medical evidence of the Appellant's treating General Practitioner Doctor ('GP') regarding her physical incapacity to attend the hearing, starting from 21 May 2008. The SAT also refused to consider other medical evidence which the Appellant wished to tender during the course of the first hearing week.

GROUND 15

The SAT failed to accord the Appellant natural justice/procedural fairness by ordering her attendance during the rest of the first hearing week, which resulted in the Appellant's physical collapse and hospitalisation on 26 to 27 May 2008, when it had the discretion to adjourn the proceedings to the following week.

GROUND 16

The SAT failed to accord the Appellant natural justice/ procedural fairness care of the Presiding Judge, Her Honour Judy Eckert, who appeared to show bias and/or express a very subjective opinion (influenced by both the female opposing counsel and solicitor of the Respondent) against the Appellant's physical incapacitation, which was an unusual and severe menstrual condition.

GROUND 17

The SAT failed to accord the Appellant natural justice/procedural fairness in that it did not either adjourn or postpone the second hearing dates in November 2008 or otherwise issue orders that the Appellant obtain legal representation (after the Appellant had sought Counsel's opinion and limited representation in October 2008) when the Appellant was not in any fit mental and emotional state to continue conducting her own defence.

GROUND 18

As a corollary to Ground 17 above, the SAT failed to accord the Appellant natural justice/procedural fairness in that it did not also consider the mental health capacity and status of a number of the Respondent's witnesses, namely:

(1) (Dr) Catherine Bachleda, the co-director; CEO and employer of the Appellant;

(2) Mrs Sandra Guest, the former client and leading witness in VR53;

(3) Mr John Alman, the former client and one of the witnesses in VR34; and

(4) Mr Stephen Lau, the work colleague of the Appellant.

GROUND 19

Further in regards to the 4-witnesses listed in Ground 18 above, the SAT failed to accord the Appellant natural justice/procedural fairness in that it gave weight to each of the 4-witnesses' testimonies against the Appellant without adequate consideration of real or potential bias and self-interest of those 4-witnesses against the Appellant. Moreover, apart from Witness (2), the Appellant was not given adequate opportunity to cross-examine the other 3-witnesses and to respond to the evidence against her.

83 Ms Bachmann also seeks leave to appeal from SAT's decision as to penalty (delivered on 26 October 2009) on the following grounds:

GROUND 8

The SAT failed to accord the Appellant natural justice/procedural fairness in that it delivered its decision without considering any final written submissions of the Appellant, who had asked for an extension of time (from August 2009) in which to file and serve her relevant documentation. The Appellant was therefore denied her right to be heard.

GROUND 9

The SAT failed to accord the Appellant natural justice/procedural fairness in either refusing to consider, or giving insufficient weight to the consideration of, the extenuating circumstances surrounding the Appellant's request for an extension of time.

GROUND 10

The SAT failed to accord the Appellant natural justice/procedural fairness in that it did not postpone the delivery of its decision to either consider, or give weight to the consideration of, whether the direct evidence the Appellant had uncovered on 23 October 2009 in Melbourne, Victoria, regarding the Mr John Alman matter in VR34, necessitated investigation.

GROUND 11

The SAT therefore erred in both law and fact (by reason of Grounds 8 to 10 above) in making its recommendation to the Supreme Court of W A for the Appellant's name to be struck off from the WA Roll of Legal Practitioners.

GROUND 12

In all the circumstances, it was also therefore harsh and oppressive of the SAT to make its recommendation to the Supreme Court of WA for the Appellant's name to be struck off from the WA Roll of Legal Practitioners. Furthermore, it constituted a penalty recommendation which was manifestly excessive, because the SAT did not have regard to all the circumstances of the cases in VR34 and VR53 and the specific mental, emotional and physical health issues of the Appellant, who represented herself during the hearings.

84 In addressing the merits of each of the proposed grounds of appeal I propose to deal with inter-related grounds as a group.

Ground 1: The failure to consider evidence that could have been called

85 Ms Bachmann contends that SAT did not accord her natural justice and/or procedural fairness in that it failed to ensure that three particular witnesses (being staff members at ORGL) were called. The issues raised by ground 1 can only be understood against the background of the directions hearings held on 23 July and 27 October 2008.

86 At the first of those directions hearings SAT reviewed the witnesses that would need to be called in order to complete the hearing that had been abandoned in May. Ms Bachmann told SAT that she had originally intended to call seven witnesses but as a result of the evidence heard in May, she now had a list of 24. She also requested that some of the witnesses who had already testified be recalled for cross-examination.

87 SAT then spent considerable time working through Ms Bachmann's list and reviewing the evidence of the previous witnesses so that it could programme the evidence to be called at a resumed hearing in November.

88 Included on Ms Bachmann's list of 24 witnesses were three staff members at ORGL being an inspector (Mr Schulze), a customer service officer (Ms Kayser) and a manager (Ms Borgward). Ms Bachmann told SAT that although she had substantially completed the statements of ten of her witnesses, she had not prepared any drafts for the 'liquor licensing people'.

89 SAT made it clear to Ms Bachmann that it was her responsibility to subpoena the witnesses if she wished to call them (ts 15), but in the end agreed to issue the 24 summonses on her behalf because she could not afford the fees. It was also agreed that the Committee would make available for cross-examination two ORGL witnesses (Mr Romato and Ms Kemp) whose statements had been lodged with the Tribunal.

90 After the witness summonses were issued there was a second directions hearing on 27 October to ascertain which witnesses had been served and to confirm who would be called in November. On this occasion Ms Bachmann was represented by counsel and he indicated that as a result of his advice she had reduced the numbers of witnesses that she wished to have called.

91 In relation to the ORGL witnesses it was noted that Mr Schulze had passed away, but that Ms Bachmann still required that Ms Kayser and Ms Borgward be called. SAT again specifically reminded Ms Bachmann that 'these are your witnesses'. Neither Ms Bachmann nor her counsel suggested that some substitute witness should be called in lieu of Mr Schulze (ts 5, 20, 21).

92 Ms Bachmann did not attend the hearing on 5 November when the ORGL witnesses were scheduled to appear, but sent a message at 9.45 am that she was 'too stressed and sick' (ts 2). SAT also had information that Ms Kayser had been involved in an accident and would not be there, and that Ms Borgward could not be served with a summons because she was in Queensland on extended sick leave (ts 2, 4). However, the Deputy Director of Licensing at ORGL (Mr Romato) had attended the previous day and been cross-examined by Ms Bachmann. On 5 November SAT also went on to hear evidence from Ms N Kemp, who at all material times had been the supervisor of the staff at ORGL processing the relevant liquor licence applications. In the absence of Ms Bachmann SAT examined Ms Kemp on the basis of its understanding (from the directions hearings) of the evidence that she wished to have adduced.

93 It is now Ms Bachmann's contention that SAT should have taken steps to call an ORGL witness in substitution for Mr Schulze, and to ensure that each of Ms Kayser and Ms Borgward were called at some subsequent time. In this regard, it should be noted that SAT had the following obligation under s 32(7)(a) of the State Administrative Tribunal Act 2004 (WA):

To ensure that all relevant material was disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in a proceeding.

94 Notwithstanding this provision, it was not SAT's role to try and discern every possible issue that Ms Bachmann might wish to raise. At all material times it was incumbent upon her to identify in what way the evidence of the missing ORGL witnesses would assist in the determination of any relevant factual issue. The witnesses who were best placed to testify on the essential issues (namely whether particular applications had been lodged, and whether an application had been lost) were Mr Romato and Ms Kemp. In the absence of any submission from Ms Bachmann, there was no reason for SAT to believe that there was some aspect of the relevant evidence still left uncovered.

95 In the difficult circumstances brought about by Ms Bachmann's failure to comply with programming orders and her repeated failures to attend hearings, I consider that SAT did all that it could to ensure procedural fairness.

96 In my view, ground 1 of the appeal is without merit.

Ground 2: The weight given to Dr Bachleda's evidence

97 In her written submissions Ms Bachmann contends that the witness Dr Bachleda 'unequivocally expressed bias against her, was motivated by "self-interest", and was also in a situation of "conflict of interests".' A perusal of the relevant transcript does not reveal any possible basis for these assertions. Furthermore, Ms Bachmann failed to avail herself of two opportunities to cross-examine Dr Bachleda (on 26 May and 3 November 2008) and thereafter did not make any application to have the witness recalled prior to the hearing being completed.

98 SAT was entitled to place such weight on Dr Bachleda's evidence as it thought appropriate after hearing and seeing her testify. There is no merit in ground 2.

Ground 3: The visit by SAT officers to Ms Bachmann's home on 3 November 2008

99 Ms Bachmann contends that SAT acted 'ultra vires' and that the presiding judge displayed 'extreme bias' in the course of the proceedings on 3 November 2008. This refers to the bizarre episode when Ms Bachmann arrived at court without the witness statements she had undertaken to provide, and explained that she was in that situation because of a lack of printer paper back home.

100 SAT then offered, and Ms Bachmann agreed, that she would be driven home during the luncheon adjournment by staff members carrying a supply of printing paper so that she could print out the witness statements. However, when the party arrived at Ms Bachmann's residence she went inside and locked the others out. She then exhibited a sign stating that she would not be returning to SAT that afternoon.

101 Although the arrangements that were made by SAT were unusual, they were entirely consensual. Furthermore, SAT had power under s 32(6) of the State Administrative Tribunal Act 2004 (WA) to take such measures as were reasonably practical to ensure that Ms Bachmann's case would be properly considered.

102 There is simply no basis for the assertion that by taking these steps SAT in some way acted beyond the law, or the presiding judge showed bias towards Ms Bachmann. Accordingly, ground 3 must fail.

Grounds 4, 5, 6 and 7: The findings as to lies told by Ms Bachmann

103 Grounds 4, 5 and 6 are concerned with SAT's findings that Ms Bachmann told lies about particular matters in the course of her evidence. Ms Bachmann submits that SAT should not have made these findings because it was not put to her in cross-examination that she had told lies.

104 The relevant findings as to the lies are to be found in paragraphs [4], [71], [75], [137], [139], [198], [208], and [228] of the reasons for decision delivered on 23 June 2009.

105 A perusal of the transcript shows that it was directly put to Ms Bachmann a number of times during cross-examination that she was fabricating evidence or telling lies. It was also made very clear to her that the truth of her evidence generally was in issue. The relevant passages of transcript can be found at 277 - 279 and 321 on 6 November, 123 - 131 on 7 November, and 23 - 30, 47 - 53 on 12 November.

106 In my view, Ms Bachmann could not have been left in any doubt that her credibility generally was very much in issue, and that it was part of the case against her that her evidence included numerous lies. Accordingly, I consider that there is no merit in grounds 4, 5 and 6. Ground 7 is dependent upon one or more of those grounds being upheld and it also lacks merit.

Grounds 13, 14, 15, 16 and 17: Ms Bachmann's state of health during the proceedings

107 The first four of these grounds concern SAT's refusal of Ms Bachmann's application on 21 May 2008 to adjourn the hearing on the grounds of her ill health. SAT obviously had prior notice of that application because arrangements had been made (either at Ms Bachmann's instigation or with her consent) for her treating general practitioner (Dr Lui) to attend to give evidence as to her condition.

108 Dr Lui had examined Ms Bachmann on 20 May and it was his evidence that she was fit to attend the proceedings (ts 16). Ms Bachmann had the opportunity to ask questions of Dr Lui by telephone and she did not in any way challenge that evidence (ts 17). Accordingly, SAT refused the application for an adjournment.

109 The correctness of that decision was further confirmed by the reason that Ms Bachmann gave for not appearing after the luncheon adjournment, namely that she was attending upon a barrister at his chambers for advice.

110 Quite apart from the issue of the refusal of the adjournment, Ms Bachmann complains that SAT failed to have regard to the impact of her health problems on her ability to conduct her defence. However, the transcript shows that SAT was very sensitive to the stress and/or other problems that Ms Bachmann might have been experiencing, and that it repeatedly adjusted its usual procedures in order to accommodate those problems. (An example of some of the steps taken in this regard can be found at ts 46 on 26 May 2008).

111 Ms Bachmann's written submissions do not elaborate on the assertion in ground 16 that the presiding judge appeared to show bias 'against the appellant's physical incapacitation', and I am unable to perceive any basis for it.

112 Ground 17 effectively contends that SAT should not have continued to hear the matters in November 2008 because Ms Bachmann was not then 'in any fit mental and emotional state' to conduct her own defence. Although Ms Bachmann did not at any material time apply for an adjournment on these grounds, an issue as to her mental state did arise in the course of her evidence during cross-examination.

113 Towards the end of her cross-examination on 7 November 2008 Ms Bachmann complained of a 'stress headache' and said that she did not feel 'physically and mentally up to' continuing. Notwithstanding counsel's indication that the cross-examination was almost complete, SAT decided that it should adjourn the proceedings until 12 November (ts 137).

114 In my view, SAT did all that it reasonably could to accommodate Ms Bachmann's concerns about her health as expressed by her from time to time. The measures that were taken in this regard inevitably caused significant delays to the proceedings as well as considerable inconvenience to counsel and witnesses. SAT had an obligation to complete the hearing, and I do not consider that its decision to press on with the proceedings during November 2008 caused any denial of natural justice or procedural unfairness to Ms Bachmann. Grounds 13, 14, 15, 16 and 17 are without merit.

Ground 18: The mental status of the respondent's witnesses

115 This ground contends that SAT should have made enquiries as to ' the mental health capacity and status' of four particular witnesses. It is self-evidently lacking in merit, and I see no need to elaborate on that conclusion.

Ground 19: Issues as to four particular witnesses

116 This ground contends that SAT failed to give consideration to 'potential bias and self-interest' of the same four witnesses. There is nothing in the transcript to suggest that any of these witnesses was subject to bias or 'self-interest' and there is no basis for that assertion.

117 Ground 19 further contends that Ms Bachmann was denied an 'adequate opportunity' to cross-examine three of those witnesses, and to respond to their evidence.

118 The first of those witnesses (Dr Bachleda) testified on the afternoon of 3 November 2008. It was immediately beforehand during the luncheon adjournment that the incident occurred when Ms Bachmann locked herself in her house and displayed a notice stating she would not return to the hearing. She did that knowing that Dr Bachleda was about to testify, and therefore is in no position to claim any lack of opportunity to cross-examine the witness.

119 Another of the three witnesses (Mr Lau) was in fact Ms Bachmann's witness, and he was subpoenaed to attend on the morning of 4 November 2008. When Ms Bachmann failed to attend that day, SAT adduced evidence from Mr Lau in accordance with its understanding of what questions she had wished to ask. SAT also asked Mr Lau to return at 2.15 pm being the time Ms Bachmann had said she would attend the Tribunal. The witness waited until 3.00 pm for Ms Bachmann to appear, and she is in no position to claim that she was denied any opportunity of 'cross-examination'.

120 The third witness (Mr Alman) testified by video link from Queensland on the afternoon of the first day of hearing on 21 May 2008. Ms Bachmann was not then present because she had opted to attend on a barrister for advice rather than appear at the hearing. In my view, Ms Bachmann is similarly unable to complain about any lack of opportunity to cross-examine Mr Alman.

121 For all of these reasons there is no merit in ground 19.

Grounds 8, 9 and 10: Whether SAT should have deferred its decision as to penalty

122 When SAT delivered its primary reasons for decision on 23 June 2009 it made programming orders for submissions as to penalty. Ms Bachmann was ordered to file her responsive submissions by 22 July 2009. She did not provide those submissions by 22 July, but on 24 July 2009 filed a draft of the orders that she submitted should be made by way of penalty. An accompanying fax also stated that she would file and serve her substantive submissions by 27 July 2009.

123 In a facsimile sent to SAT on 27 July Ms Bachmann advised that she would not be in a position to file and serve her submissions by 3 August 2009. (It is not clear from the terms of the facsimile why she thought that date was significant). Nothing further occurred until 29 October 2009 when SAT received a letter (dated 23 October) from Ms Bachmann advising that she was in Melbourne. (That letter also made reference to 'the Alman documents'). By that time SAT had delivered its penalty decision on 26 October 2009.

124 Ms Bachmann did not at any time apply for a variation of the programming orders made on 23 June 2009. She had ample time to deliver submissions, and there is simply no merit in grounds 8, 9 and 10.

Grounds 11 and 12: Whether SAT erred in law by recommending that Ms Bachmann be struck off

125 As ground 11 is dependent upon grounds 8, 9 or 10, it also lacks merit.

126 Ground 12 asserts that the recommendation that she be struck off was 'harsh and oppressive' and also 'manifestly excessive'. In light of the primary findings made by SAT it was clearly open to refer the matter to the Full Court together with the recommendation that Ms Bachmann be struck off. There is no valid basis for the contention that this decision was harsh and oppressive.

127 There is similarly no basis for the assertion that this decision was manifestly excessive. It is the very scheme of the legislation that in appropriate circumstances SAT has the discretion to refer the ultimate decision as to penalty to the Full Court. The Full Court has at its disposal the full range of the statutory penalty options. Accordingly, that procedural step by SAT can not be properly described as 'manifestly excessive'.

128 For the above reasons the applications for an extension of time and for leave to appeal from SAT's two decisions should be refused.

Administrative Tribunal Act 2004

BACHMANN -v- LEGAL PROFESSION COMPLAINTS COMMITTEE OF WESTERN AUSTRALIA [2011] WASCA 64 (22 March 2011)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (186 paragraphs)

BACHMANN -v- LEGAL PROFESSION COMPLAINTS COMMITTEE OF WESTERN AUSTRALIA [2011] WASCA 64 (22 March 2011)

The issues and findings concerning the G matter

Legislation Cited (1)