Legal Profession Act 2008 (WA) (repealed), s 226

Legal Profession Conduct Rules 2010 (WA) (repealed), r 18(3)

Legal Profession Uniform Law (WA), s 299, s 299(1), s 302(1), s 303, s 303(1)

Legal Profession Uniform Law Application Act 2022 (WA), s 6

State Administrative Tribunal Act 2004 (WA), s 3, s 5, s 87, s 87(1)

State Administrative Tribunal Rules 2004 (WA), r 40, r 41, r 42

Practitioner not to apply for practising certificate before 9 February 2027

Application for practising certificate to include updated psychological report

Mentoring condition imposed on any practising certificate

Chiropractors Board of Australia and Ebtash [2020] WASAT 86 (S)

Khosa v Legal Profession Complaints Committee [2017] WASCA 192

Law Society of New South Wales v McNamara (1980) 47 NSWLR 72

Lee v Health Care Complaints Commission [2012] NSWCA 80

Legal Practice Board and Barry [2025] WASAT 34

Legal Profession Complaints Committee and Lawson [2021] WASAT 152

Legal Profession Complaints Committee and Lawson [2021] WASAT 152 (S)

Legal Profession Complaints Committee and Lee-Steere [2010] WASAT 189

Legal Profession Complaints Committee and Love [2014] WASAT 84

Legal Profession Complaints Committee and Tang [2021] WASAT 117

Legal Profession Conduct Commissioner v Mancini [2022] SASCFC 1

Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 (S)

Legal Services and Complaints Committee and Kelly [2024] WASAT 125 (S)

Legal Services and Complaints Committee and McCardle [No 2] [2023] WASAT 131

Legal Services Commissioner v McDonald [2018] QCAT 82

Medical Board of Australia and McCarthy [2020] WASAT 12 (S)

Nadkarni v Medical Board of Australia [2022] WASCA 109

Nursing and Midwifery Board of Australia and Ward [2022] WASAT 104

Quinn v Law Institute of Victoria [2007] VSCA 122

Robertson v Legal Services and Complaints Committee [2025] WASCA 92

Singh v Medical Board of Australia [2019] WASCA 51

Teacher Registration Board of Western Australia and Clarke [2021] WASAT 52

Vogt v Legal Profession Complaints Committee [2009] WASCA 202

Watts and Legal Services Commissioner [2016] QCA 224

Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

1. On 22 April 2025, we published our primary reasons in this matter (Primary Reasons).[1]
2. By those reasons, we found the respondent (Mr Barry) to have engaged in one count of professional misconduct under the Legal Profession Uniform Law.[2] We also dismissed a second ground which is not, therefore, further relevant save as to the question of costs, which we address at the end of these reasons.
3. Although we only made one finding of professional misconduct, the relevant conduct was constituted by findings of 17 false representations made to Legal Aid WA (LAWA), seven of which we found to have been deliberately false and for ten of which we found Mr Barry was recklessly indifferent to the truth.
4. The applicant (Board) now seeks an order that the Tribunal recommend to the full bench of the Supreme Court that Mr Barry be struck off the roll of practitioners.[3] The Board also seeks an order for its costs in the sum of $45,000.[4]
5. Mr Barry accepts that his professional misconduct was serious and warrants a finding that he is currently unfit to engage in legal practice. However, he submits that his conduct does not justify a finding that he is permanently or indefinitely unfit to engage in legal practice. Rather, he submits that the appropriate sanction is a period of suspension/exclusion from practice.[5]
6. Mr Barry also accepts that he will be required to pay some of the Board's costs, but submits that he should not have to pay the full amount claimed. In doing so he relies upon a written offer of settlement he made to the Board on, and which the Board rejected on, 13 May 2024.
7. For the following reasons, we are satisfied that the appropriate sanction for the professional misconduct is for Mr Barry to be prevented from practising his profession for a total of 4 years, which period ought to commence from 9 February 2023 when the Board suspended his practising certificate. We are also satisfied that he should be required to provide a current psychological report which addresses his fitness to practise when he applies for a practising certificate on or after the expiry of that time period.
8. We will also order that Mr Barry pay the Board's costs in the fixed sum of $35,000.

1. Section 302(1) relevantly provides that if, after the Tribunal has completed a hearing into the conduct of a lawyer, the Tribunal finds them guilty of professional misconduct, it may make any orders it thinks fit, including any of those orders listed in paragraphs (a) to (l) of that subsection, as well as any of the orders that the Board could make under s 299.
2. The range of orders in paragraphs (a) to (l) of s 302 relevantly include an order recommending that the name of the lawyer be removed from the roll, an order that a specified condition be imposed on the lawyer's practising certificate, an order directing that the lawyer's practising certificate be suspended for a specified period or cancelled, an order directing that the lawyer not be granted, or that the lawyer not apply for, a practising certificate before the end of a specified period, and an order that the lawyer pay a fine not exceeding $100,000.[6]
3. The orders that the Board could make under s 299 include orders cautioning or reprimanding the lawyer,[7] requiring the lawyer to undertake training, education or counselling or be supervised,[8] the imposition of a fine,[9] and recommending the imposition of a condition on the lawyer's practising certificate.[10]

1. In Kelly,[11] the Tribunal outlined the relevant applicable legal principles to the determination of the appropriate penalty for professional misconduct. For completeness, we will reiterate those principles below, to the extent that they apply in this case.
2. First, the Tribunal's task in determining the suitable penalty for conduct amounting to professional misconduct requires it to evaluate and weigh a range of factors, which the Court of Appeal in Nadkarni[12] held included the following:

... the purpose of disciplinary proceedings against ... practitioners (notably, the protection of the public and the maintenance of high professional standards); the findings of fact made by the Tribunal in its reasons; the numerous sanction or penalty options available to the Tribunal under [the relevant regime]; the sanctions or penalties that have been imposed upon ... practitioners in previous cases with at least some features reasonably comparable to the present case; personal and general deterrence; [the practitioner's] personal circumstances and antecedents; and the mitigating factors[.]

1. As the Court held, at the conclusion to that passage: '[t]he determination of the appropriate sanction or penalty option or options [is] not a mechanical process'.
2. Second, we respectfully adopt the observations made by Murphy and Beech JJA in Khosa[13] concerning the imposition of a penalty in disciplinary proceedings, which observations have a particular focus on the difference between, and the factors relevant to, a decision to suspend and a decision recommending strike-off. Given the seriousness of the conduct, we are satisfied that our task as to penalty concerns a choice between those two alternatives.
3. As the Tribunal observed in Kelly,[14] the observations in Khosa have been summarised and applied in numerous subsequent Tribunal judgments concerning legal practitioners. In Lawson,[15] the principles were summarised as follows:

(a) The Tribunal's jurisdiction in this regard is not to be exercised for the purpose of punishing the relevant practitioner but, rather, for the protection of the public and the maintenance of the reputation and standards of the legal profession;

(b) The protection of the public includes both general deterrence of other practitioners who might otherwise be tempted to engage in the relevant conduct as well as deterrence personal to the relevant practitioner;

(c) Where the Tribunal concludes that a practitioner is presently unfit to practise, a choice is presented between the alternatives of suspension and striking off. An order for suspension in those circumstances may only be made on the basis that, at the termination of the period of suspension, the practitioner will no longer be unfit to practise because, at that time, the practitioner's name will still be on the roll of practitioners and they may resume practise;

(d) Suspension is a serious form of discipline which is usually imposed to discipline the legal practitioner who has committed an act of unprofessional conduct but who, in the opinion of the Tribunal, at the end of the period of suspension, will be a fit and proper person to practise law;

(e) In the context of suspension, present unfitness to practise may be understood to include a serious breach of professional obligations reflecting, to a significant degree, upon the practitioner's fitness to practise;

(f) However, where the Tribunal finds that the practitioner's present unfitness to practise reveals or discloses that the practitioner, in fact, lacks the character and trustworthiness necessary to discharge his or her obligations of legal practice or the practitioner is permanently or indefinitely unfit to practise, striking off will ordinarily be the appropriate response rather than suspension;

(g) In seeking to understand the difference, it will be relevant to consider whether the practitioner appreciates or otherwise the impropriety of his or her conduct because a lack of appreciation of impropriety and a lack of insight increases the risk of recurrence of the improper conduct;

(h) Fitness to practise for the purpose of penalty is to be determined at the time of the relevant hearing and not at the time of the misconduct.

1. Third, as the Tribunal also noted in Kelly, the observations of Murphy and Beech JJA in Khosa were recently referred to by the Court of Appeal in Robertson,[16] in the following passage which is applicable here:

However, as Murphy and Beech JJA recognised in Khosa v Legal Profession Complaints Committee, the court's, and the Tribunal's, jurisdiction with respect to the regulation of the profession is not to be exercised for the purpose of punishing the practitioner concerned, but for the protection of the public and the maintenance of the reputation and standards of the legal profession. Further, a finding of unfitness to practise does not necessarily mean that a practitioner is permanently unfit to practise. Where the conclusion is reached that a practitioner is presently unfit to practise, a choice may be made between suspension and striking off. Further, as is illustrated by the decision in Vogt (where a period of suspension was imposed on a practitioner who knowingly made a false statement in an affidavit), striking off is not an inevitable consequence of knowingly making a false statement in an affidavit.

1. In summary, a lawyer may be presently unfit to practise, but that does not necessarily mean it is probable that they are permanently or indefinitely unfit.
2. Our findings in the Primary Reasons were to the effect that Mr Barry's conduct, at the time it occurred, was such as to make him unfit to practise. The submissions made on his behalf concede that he is, also, presently unfit to practice, a concession with which we agree. Our task is, therefore, limited to determining whether it is probable that he is permanently or indefinitely unfit, or whether it is probable that he will be fit to practise after a period of suspension.
3. Such a task is inherently difficult because it involves an assessment of likely future fitness.[17]
4. It has also been accepted that, where there is a choice of sanctions, the decision-maker is expected 'to choose that sanction which maximises the protection of the public'.[18]
5. However, as was noted in Robertson (above), even in cases of deliberate dishonesty, strike-off is not the only option. A period of suspension may be sufficient to protect the public, including by, for example, maintaining the reputation and standards of the legal profession.

1. There is no doubt that Mr Barry's conduct should be characterised as very serious indeed.
2. As noted above, in our Primary Reasons we found that Ground One was made out and that the totality of the conduct amounted to professional misconduct. That totality of conduct includes findings that Mr Barry made:

(a) six deliberately false or misleading representations to LAWA;

(b) nine representations to LAWA that were false where he was recklessly indifferent to their truth; and

(c) one representation (representation 12) to LAWA comprising a statement in the invoice to LAWA made with reckless indifference to the truth and in the Audit Sheet which was deliberately false.

1. In our Primary Reasons, we found that the conduct comprising the deliberately false statements was such as to demonstrate that he is not a fit and proper person to practise law, and that it was likely to a material degree to be prejudicial to, or diminish public confidence in, the administration of justice or bring the profession into disrepute.
2. Our findings as to the conduct comprising the statements made with reckless indifference included that it was likely to a material degree to be prejudicial to or diminish public confidence in the administration of justice or bring the profession into disrepute. We found that making a statement with reckless indifference was a serious breach of a practitioner's duty.[19]
3. We agree with the Board's submission that the Legal Aid system relies on the honesty of practitioners in the declarations they make and the documents they prepare. We also agree that the Legal Aid system is there to assist vulnerable persons who could not otherwise afford legal representation and that the requirement for practitioners to be honest is not limited by the fact that the performance of Legal Aid work is a public service.[20]
4. As we observed in our Primary Reasons, there can be no doubt that honesty is fundamental to the practice of law.[21]
5. To his credit, Mr Barry does not deny the gravity of his conduct, he properly concedes that his conduct is serious and, as we have noted above, that it merits a finding that he is presently unfit to engage in legal practice.[22]
6. Finally, there are two other matters which are relevant to seriousness.
7. The first is that the amounts falsely claimed by Mr Barry were small and did not result in any personal financial benefit to him. That is, while Mr Barry was dishonest, it was not for any personal gain.
8. The second is that there is no evidence before us, and there was no other suggestion, of any complaints made by LAWA, or his clients, about the quality of Mr Barry's work.
9. While relevant to the question of seriousness, in our view these matters must be given only limited relative weight in diminishing the seriousness of the misconduct against the repeated and serious (deliberate and reckless) dishonesty involved.[23]

1. As we have previously noted, in Khosa Murphy and Beech JJA observed that the Tribunal's jurisdiction in disciplinary proceedings is not to be exercised to punish the practitioner but is 'for the protection of the public and the maintenance of the reputation and standards of the legal profession'.[24]
2. Further, their Honours observed that 'the protection of the public includes both general deterrence of other practitioners who might otherwise be tempted to engage in the relevant conduct as well as deterrence personal to the relevant practitioner'.[25]
3. In Singh,[26] the Court of Appeal further expanded on what the 'protection of the public' encompasses, saying:

... the protection of the public has various dimensions. They may include the immediate need to protect the public from the practitioner's conduct, the need to bring home to the practitioner the seriousness of their conduct and to the need to deter the practitioner from future breaches. ... the protection of the public may [also] require an order to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. Such an order may, in this sense, be regarded as akin to 'general deterrence'.

1. That is, general deterrence forms a relevant, and significant, element of the concept of the protection of the public, namely that other practitioners should be deterred from engaging in similar conduct. As such, where it is appropriate to do so, a penalty should reinforce that there are likely to be serious consequences for serious misconduct so as to deter others from committing the same or similar.
2. As was observed in Kelly, 'dishonest practitioners pose a significant danger to the public's confidence in the legal system'.[27] This, in our view, includes public confidence in the Legal Aid system, which provides grants of Legal Aid to persons who cannot afford legal representation and who are therefore vulnerable members of the community. It is critical to the effective operation of LAWA that practitioners are honest in their dealings and representations with it.
3. A penalty that properly incorporates an element of general deterrence also serves to protect the public through the maintenance of the high standards expected of members of the legal profession by sending a clear message that dishonest behaviour is unacceptable and will have serious consequences for the practitioner. This, in turn, serves to maintain public confidence in the legal profession.
4. Accordingly, in our view there is a need for both specific and general deterrence, in addition to the need to protect the public from Mr Barry as a practitioner who has been deliberately dishonest and recklessly indifferent to the truth in his dealings with LAWA, so as to:

(a) reinforce to Mr Barry, notwithstanding his insight and contrition (which we address below), and other practitioners, the seriousness of his misconduct; and

(b) deter Mr Barry and other practitioners from future breaches.

1. Mr Barry has a prior disciplinary history.
2. On 15 December 2020, the Legal Profession Complaints Committee (LPCC) exercised its summary powers in relation to Mr Barry's conduct that occurred between about November 2018 and February 2019 (relevant period), when Mr Barry was an employed solicitor with another firm.[28]
3. The LPCC found that Mr Barry had knowingly made three false fee entries on that firm's practice management software, by which he claimed to have done work for three clients which he knew he had not performed. He further caused the three clients to be billed for the fee entries and caused monies held in trust to be applied towards those fee entries.
4. This conduct was found by the LPCC to have contravened r 18(3) of the Legal Profession Conduct Rules 2010 (WA) by charging the three clients for costs which exceeded those considered reasonable for his services, and caused the firm to contravene s 226 of the Legal Profession Act 2008 (WA) by causing deficiencies in its trust account in respect of the money it held in trust for those clients.
5. The LPCC also found that during the relevant period Mr Barry made time entries in respect of a number of other matters which included narratives which suggested he had carried out specific legal work (such as drafting documents, orders and letters) when he knew that he had not performed the work.
6. The LPCC formed the view that there was a reasonable likelihood that Mr Barry would be found guilty by the Tribunal of unprofessional conduct. He was publicly reprimanded and fined $2,000.
7. Although the LPCC made its decision on 15 December 2020, it did not inform Mr Barry until 11 May 2021.[29] This timing is of concern to the Board, who note that the conduct the subject of these proceedings occurred in June 2021.[30]
8. As we noted in our Primary Reasons, LAWA commenced their second audit of Mr Barry's files in response to the summary findings by the LPCC against Mr Barry.[31]
9. To his credit, Mr Barry forwarded the LPCC's findings to LAWA on the same day he received them.[32]
10. However, we agree that it is of considerable concern that Mr Barry made the deliberately and recklessly false representations relevant to this proceeding so soon after being notified of the LPCC's findings, which concerned similar misconduct.

1. Mr Barry has long admitted many of his inadequacies and failings.
2. That included admissions made before these proceedings commenced. In his First Statutory Declaration, he acknowledged various inadequacies in his timekeeping and in the claims made to LAWA, including that claims had been made for amounts for which there was no basis.[33] In his Second Statutory Declaration, he made further admissions, including that he had made false and misleading statements to LAWA when completing the audit review sheets.[34]
3. His formal Response to the Board's allegations included an item by item response to each of the alleged misrepresentations. For 18 of the 20 misrepresentations, he admitted that he 'acted with reckless indifference to [his] obligations of honesty and good faith. He also admitted that:

(a) it was incumbent on him to take all necessary steps to ensure that information he provided to LAWA was wholly accurate, that he had failed to do so and had been recklessly indifferent to his obligations of honesty, good faith and full disclosure;

(b) his firm, JC, had received payments not due to them, for which he accepted responsibility, describing his conduct as containing 'serious shortcomings';

(c) he had overcharged LAWA, that overcharging LAWA is no different from over-charging any other client, and that the quantum of the over-charging was irrelevant;

(d) he had been recklessly indifferent to his duty of honesty, good faith and proper disclosure in completing the LAWA audit sheets;

(e) that his conduct as a whole fell 'well short' of his obligations as a legal practitioner and 'amounts to serious dishonesty';

(f) the appropriate penalty was for him to spend 'a considerable period of time' out of practice;

(g) if he is able to practise law again in the future, he will need to 'fundamentally reevaluate' his working practices with absolute accuracy at the heart of every aspect of billing'; and

(h) he understands that he has 'much to do to regain the confidence of the profession'.[35]

1. He also said that he has 'the self-awareness to understand' that his billing practices that were previously the subject of censure by the LPCC 'should have served as a warning' to him;
2. Similarly, in his witness statement he accepted that his 'conduct has fallen consistently short of the standards expected of a solicitor and amounts to professional misconduct, for which a significant sanction is warranted'.[36]
3. In that witness statement, he again acknowledged that his conduct warranted a significant suspension from practice in addition to the time he has spent out of practice since his practising certificate was cancelled by the Board.[37] To that end, he said that he had not since applied for a practising certificate because he accepted that a period of suspension was commensurate with his conduct. That was so even though Mr Barry described the impact on his life at being excluded from the legal profession as 'profound'.[38]
4. He also said that he is 'thoroughly embarrassed' by his conduct.[39]
5. Mr Barry was also forthright and frank in his evidence given at the hearing as to liability. He admitted many of the very significant allegations of which he was accused including that, on more than one occasion, his conduct was intentionally dishonest.
6. He also made the frank admission that his ADHD diagnosis did/does not prevent him from knowing right from wrong and that the summary action taken by the LPCC reflected 'very poorly' on him. Amongst other things, on several occasions he expressed an appreciation for the overriding need for honesty.
7. We observed in our Primary Reasons that those matters were to his credit.[40]
8. Despite his various admissions, the Board submits that Mr Barry 'does not have the benefit of an early recognition of his intentional conduct'. It submits that, whilst Mr Barry 'made some concessions prior to the hearing, he did not make relevant concessions as to intentional conduct. [His] position was he was simply recklessly indifferent' and only offered further concessions under cross-examination.[41]
9. As is evident from our Primary Reasons, we made several findings (as to Representations 1, 7, 8 and 19) of intentional dishonesty where Mr Barry had admitted only recklessness (or carelessness).
10. However, we also made findings of deliberate dishonesty that were consistent with his admissions that his conduct should be so characterised: Representations 3, 5 and 12. In other cases, we found that he had been recklessly indifferent consistent with his admissions for those misrepresentations: Representations 2, 6, 14, 16 and 18.
11. In this regard, it is significant to note that the Board's case was that each and every representation was deliberately false (with recklessness pleaded in the alternative). As should be evident, we did not agree with that characterisation in relation to several of the misrepresentations.
12. Further, as our Primary Reasons demonstrate, in relation to at least some of the allegations, whether the conduct was intentional or reckless was not straight forward but, rather, required a forensic analysis of the evidence surrounding the relevant representation.
13. It is also the case that the impression we had of Mr Barry, as we found in the Primary Reasons, was of a witness who was trying to do his best but was often confused and sometimes fixated on peripheral issues.[42]
14. Put another way, we do not accept that it must follow Mr Barry was dishonest in his approach to those matters simply because he admitted recklessness but we found deliberate dishonesty.
15. Further, Mr Warnick SC submitted, although Mr Barry did not admit deliberate dishonesty in each case in which it was found, he did appreciate that his conduct amounted to serious dishonesty and justified a significant sanction.[43]
16. Given all of the foregoing, we do not accept the Board's submission that Mr Barry ought not to be given the benefit of 'an early recognition of his intentional conduct'.
17. It is true that in relation to four of the alleged misrepresentations, we found that his dishonesty was deliberate where he admitted recklessness.
18. However, when considered in the context of the other matters described in the preceding paragraphs, we are satisfied that Mr Barry recognises that his conduct was dishonest, that that represents serious misconduct that must attract a considerable sanction and that he must undertake considerable work to regain the trust of the profession.
19. Put another way, we are satisfied that Mr Barry does not simply regret the situation he has found himself in. Rather, we are satisfied that Mr Barry has been able to reflect upon why his conduct was wrong, is genuine in his remorse and embarrassment, and properly appreciates the steps that he will need to put in place so as not to repeat it.
20. In our view, his insight and contrition represent an important and significant protective factor that will reduce the likelihood of similar conduct being repeated in the future.

1. Mr Barry is 38 years of age.[44] He is married and has a daughter who is nearly 3 years old.[45] At the time of the penalty hearing, his wife was pregnant with their second child.[46]
2. He obtained his Bachelor of Laws degree in Ireland in 2009. He moved to Australia in 2012 and was admitted as an Australian legal practitioner in October 2013.[47] As noted in the Primary Reasons, he practised until February 2023, a period of a little over 9 years and has not practised since.
3. Mr Barry practised primarily in family law. A small portion of his work concerned restraining orders which were heard in the Magistrates Court.[48]
4. Mr Barry has not worked as a lawyer for approximately 2 years and ten months, since 9 February 2023 when his legal practising certificate was suspended by the Board. It was subsequently cancelled by the Board on 10 March 2023. This meant that he had to resign from his employment as a lawyer.[49] In approximately April 2023 he commenced work as a Policy Officer in the not-for-profit sector.[50]
5. As well as working as a lawyer for JC on LAWA matters, Mr Barry previously worked as a volunteer for the Citizens Advice Bureau for 3 hours a fortnight for approximately 5 years. For the year prior to his practising certificate being cancelled, he also worked as a volunteer at another community legal centre for 3 hours a fortnight in the intervening weeks.[51]

1. Mr Barry was diagnosed with attention deficit hyperactivity disorder (ADHD) on 29 June 2016,[52] a condition of which he initially felt ashamed. That shame deterred him from seeking treatment in the first place and contributed to his ceasing treatment later that same year.[53]
2. He became a member of Legal Aid panels in March 2017.[54]
3. At the time of the conduct, in June 2021, he was 33 years old, and he had been practising law for less than 8 years.
4. We agree with Mr Warnick SC's submission that at the time of the conduct, Mr Barry was a relatively junior practitioner who found himself in a high-stress environment, including the need for compliance with LAWA's (entirely understandable) rigorous rules on authorisation and billing. The evidence suggests that he did not receive any supervision.[55] Indeed, as we discussed in our Primary Reasons, Mr Barry was supervising a junior colleague.[56]
5. As we also stated in our Primary Reasons, we are satisfied that Mr Barry had ADHD at the time of the relevant conduct and that he was not receiving treatment for it at that time.[57] He is now receiving treatment and accepts that his ADHD condition requires management, is unlikely to be 'cured', and that he will likely be on medication for the rest of his life.[58]
6. Mr Barry's insight into his ADHD condition is to his credit because it shows he has reflected on his conduct, and those matters which may have contributed to it, and that he has tried to make changes in his life to assist his work practices.
7. In our Primary Reasons, we set out why we were unable to give Mr Barry's ADHD condition material weight in determining his state of mind at the time of the conduct.[59]
8. We did, however, accept that as a result of his medication Mr Barry now experiences less difficulty finishing tasks.[60]
9. We had additional information concerning Mr Barry's ADHD diagnosis before us at the penalty hearing, namely a report dated 23 July 2025 from a forensic psychiatrist, Dr Edward Petch.[61]
10. Dr Petch agreed with Dr van Wyk's diagnosis of ADHD,[62] which he noted was not adequately managed at the time of the conduct and would have 'cause[d] a significant degree of impairment' in Mr Barry.[63]
11. Dr Petch described the symptoms of ADHD to include 'inattention, impulsivity, emotional dysregulation, low frustration tolerance, poor self-control and lack of organisation'. He also stated that ADHD was associated with decision-making deficits in daily life with impairments in 'working memory, inhibition, or learning from experience', which appeared to have been impaired in Mr Barry.[64]
12. Dr Petch's opinion was that Mr Barry's ADHD is likely to have made a 'material contribution' to the behaviour that constituted reckless indifference to the truth and that there was 'more likely than not a causal link' between his symptoms of ADHD and that conduct. Dr Petch further stated that Mr Barry's ADHD 'did make a significant contribution to the lack of care and attention he gave to the billing process, and the thought processes that resulted in these behaviours'.[65]
13. Dr Petch did, on the other hand, state that there was no causal link between ADHD and a deliberate intent to deceive.[66]
14. With respect to Mr Barry's treatment for his ADHD, Dr Petch described the medication Mr Barry is prescribed as 'significant and sufficient to cause a significant reduction in his symptoms during the course of his working day', and that he continues to receive care and review from Dr van Wyk. Significantly, Dr Petch stated that 'Mr Barry's treatment certainly reduces the risk of any recurrence of the same or similar conduct in relation to his ADHD'.[67]
15. We accept the opinion of Dr Petch that if Mr Barry continues with his medication that it is likely to reduce the likelihood that he will engage in conduct involving reckless indifference to the truth in the future.

1. We have also been provided with six character references from other practitioners dated in March 2022 and April 2023, that Mr Barry provided to the Board at the time of its investigation. Those references attest to Mr Barry's competence as a lawyer, and generally as to his good character, including his being respected by colleagues for his compassion, professionalism and assistance with vulnerable clients.
2. Five of those letters were addressed to LAWA or to the Board and were evidently made in the knowledge of the disciplinary proceeding before the Board. One refers to the LAWA audit allegation of court appearances by a non-panel member, and another states it is written for the purpose of the upcoming show cause hearing. We give some weight to those letters in support of Mr Barry's good character.

Conclusions as to Mr Barry's Personal Circumstances

1. In summary, we find that Mr Barry was a relatively junior practitioner at the time of the relevant conduct, his ADHD was untreated and there is no evidence that his work was being supervised by a more senior practitioner. Mr Barry's ADHD is now being treated with medication, and he is under the care of Dr van Wyk, which is a factor that is likely to reduce the risk that he will engage in future conduct in which he might otherwise have done involving reckless indifference to the truth.
2. His character references suggest that he was well respected amongst his peers, and that he was a hard-working lawyer who undertook work for vulnerable persons in community legal centres and through LAWA grants.

1. As we have noted above, the Court in Nadkarni[68] held that in determining the appropriate penalty the Tribunal should have regard to, amongst other things, 'the sanctions or penalties that have been imposed upon ... practitioners in previous cases with at least some features reasonably comparable to the present case'.
2. The Tribunal has previously proceeded on the basis that reference to such cases should occur on the basis that such a comparison is most useful where the earlier cases show some discernible range or pattern but, even where such a range or pattern may be discernible, it does not represent a precedent. Rather, such a range or pattern is, at best, a reflection of the accumulated experience and wisdom of decision-makers.[69] As the Tribunal said in the Teacher's Board decision:

... when comparing penalties, care needs to be taken before assuming that the disciplinary orders made in one case should be regarded as indicating what disciplinary orders should be made in another case. The infinite variations in disciplinary matters, the circumstances in which such conduct takes place, the circumstances of the individual [practitioner] involved... is such that a precise correlation between one disciplinary matter and another is unlikely to be found[.]

1. One difficulty in applying the Court's requirement that we have regard to cases with 'at least some features reasonably comparable to the present case' is identifying those features which make the cases 'reasonably comparable'.[70]
2. By way of example, in the present case the Board relied upon, until the penalty hearing,[71] the South Australian decision in Mancini[72] as being equivalent to Mr Barry's case, and as justifying strike-off.[73]
3. In our view Ms Young SC's concession at the hearing that the Board did not rely on Mancini was correctly made, because although both cases involve Legal Aid funding the differences between the cases[74] render them difficult to compare.
4. Another case to which we were referred which concerned LAWA funding is Love[75] but the conduct carried on by the practitioner in that case is also very different to that of Mr Barry in this case.[76]
5. Mr Warnick SC drew our attention to several other cases that did not concern LAWA funding but involved dishonesty by practitioners which, it might be said, demonstrate that in some cases even very serious dishonest conduct may warrant suspension rather than strike off.
6. We have already referred to Robertson.[77] In that case, the practitioner was found to have made representations as to the status of a company in a letter to Archer J's Associate and in an affidavit filed in the Supreme Court, both of which he knew to be false.
7. The Court of Appeal described that conduct as 'very serious professional misconduct' and held that it justified a finding that he was not a fit and proper person to practise law. Relevantly, the Court held that he had not accepted responsibility for his conduct, and that his lack of insight and remorse emphasised the need for personal deterrence. However, the Court also held that he was not permanently unfit to practise so as to justify striking his name from the roll of practitioners but, rather, decided that a 15-month suspension was appropriate.[78]
8. There are other examples where the ultimate sanction of striking off is not imposed despite findings of deliberate dishonesty.[79]
9. Most relevant for present purposes is that in each of Robertson and Lee-Steere[80] the Court found that the practitioner demonstrated no insight or remorse into his conduct, which stands in contrast to Mr Barry who has (as our previous discussion) demonstrated very considerable insight and remorse into his misconduct and its consequences.
10. Other cases referred to us concern misappropriation of trust account monies and timesheet entries.
11. Watts[81] concerned the payment of disbursements into the lawyer's general account from his trust account before an account had been issued to the client and the creation of false trust account receipts to facilitate the payment of funds into his general account. While the nature of the offending is somewhat different to the present, there are some similarities in that the practitioner admitted his guilt, repaid the monies and voluntarily ceased legal practice.
12. The Court reprimanded the practitioner and ordered that if the practitioner applied for a practising certificate his application should be accompanied by a psychological report which expresses an opinion as to the risk of his engaging in similar conduct. The Court also ordered that any practising certificate should be subject to a condition of supervised legal practice and that the practitioner should not operate a trust account.
13. In McDonald,[82] the practitioner was a senior and supervising partner in a 'top tier' Brisbane law firm who falsified electronic timesheet entries submitted by junior legal staff so as to overcharge 23 clients more than $515,000 over an 18-month period. He self-referred his conduct to the Commissioner who sought an order that he be struck off.
14. The Tribunal ordered that the practitioner be reprimanded, pay a $20,000 fine and be prohibited from applying for or obtaining a practising certificate for 5 years after being granted an employee level practising certificate.

What is the Appropriate Penalty to be Imposed on Mr Barry?

1. Mr Barry's misconduct is very serious. While our findings concerned only one ground, that ground concerned multiple instances of either deliberate or reckless dishonesty.
2. As we have repeated previously, honesty is a fundamental characteristic for a legal practitioner.
3. Mr Barry also has a past disciplinary history involving similar conduct, and he had notice of the LPCC's summary findings shortly before he engaged in the present misconduct.
4. However, Mr Barry was a relatively junior and unsupervised practitioner working in a busy practice at the time of the misconduct. He also had, we are satisfied, untreated ADHD, which must also have been the case during his period of misconduct for which the LPCC sanctioned him.
5. Perhaps most significantly, Mr Barry has in our view demonstrated insight and remorse for his conduct, has taken personal responsibility for it, and was forthright in admitting that his misconduct was dishonest and serious from early in these proceedings. He has accepted that it is appropriate for him to spend significant time away from the legal profession and has not sought to reapply for his practising certificate.
6. One aspect of his insight and remorse is his insight into his ADHD for which he is now receiving medication and treatment from Dr van Wyk.
7. We accept Dr Petch's view that Mr Barry's untreated ADHD contributed to his reckless misrepresentations and that, by engaging in treatment for his ADHD, Mr Barry reduces the risk of the same or similar conduct recurring.
8. In short, despite the very serious nature of the misconduct and Mr Barry's previous disciplinary history, we are not of the view that it requires strike-off. Rather, we are of the view that a significant period of non-practice is appropriate.
9. Put another way, we are not satisfied that Mr Barry is permanently or indefinitely unfit to practise. In light of the nature of his relatively junior and unsupervised status, his insight and remorse, and the opinion of Dr Petch, we think it is likely that he will become fit to practise after a period of exclusion from the legal profession.
10. Such a period of exclusion should also have a deterrent effect on Mr Barry, as well as other practitioners, and is, in our view, sufficient to protect the public, including by protecting public confidence in the legal profession that this type of misconduct is serious and will be met with serious and significant consequences.
11. Mr Barry does not currently have a practising certificate and so the equivalent appropriate penalty is that he should be prevented from applying for a practising certificate for a period.
12. In our view, it is appropriate to have regard to the amount of time he has already spent without practising, which started when the Board suspended his practising certificate on 9 February 2023 - 2 years and 10 months ago.
13. Having regard to that period, we find that he should be precluded from legal practice for at least the period ending on 9 February 2027, being a total period of 4 years. That period is the same as that offered to the Board by Mr Barry in an attempt to settle the matter without the need for a hearing. We address that offer in more detail below. We note it here only to emphasise that the synchronicity is a mere coincidence.
14. We are also of the view that it is appropriate to require that any subsequent application by Mr Barry for a practising certificate should be accompanied by a psychological report attesting to his fitness to practise. We would also order that any practising certificate issued to Mr Barry includes a condition about mentoring.

1. As we have said, the Board seeks an order that Mr Barry pay its costs in the sum of $45,000 pursuant to s 303(1). It would appear that this is the first time that the Tribunal has been called upon to apply that section, which provides:[83]

(1) The designated tribunal must make orders requiring a lawyer whom it has found guilty of ...professional misconduct to pay costs (including costs of the designated local regulatory authority and the complainant), unless the designated tribunal is satisfied that exceptional circumstances exist.

...

(5) An order for costs -

(b) may be for an unspecified amount but must specify the basis on which the amount is to be determined.

(6) An order for costs may specify the terms on which costs must be paid.

(7) ...

1. Under previous relevant legislation, applications for costs orders were made under s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Section 87(1) provides that:

Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.

1. The Uniform Law is, plainly, an enabling Act as that term is defined in s 3 of the SAT Act. Its provisions therefore prevail[84] over the 'presumptive position or starting point'[85] provided by s 87(1) that each party is to bear its own costs.
2. There was no suggestion that the circumstances in this case were 'exceptional' and, without attempting to express a view about the meaning, scope and extent of that phrase in this context, we are satisfied that there is nothing that might be considered exceptional such that a costs order should not be made.
3. The question as to quantum is slightly more complicated, in that Mr Barry relies upon a written offer of settlement.
4. Before turning to that, we express our view that the principles previously enunciated for the calculation of quantum continue to apply to costs orders made under s 303. That is because neither s 87 of the SAT Act nor s 303 include provisions which go to the issue of the calculation of quantum and, therefore, we see no reason why the principles ought to differ.
5. We respectfully adopt the following passage from Ginbey[86] as enunciating the relevant principles:

Having determined that it is appropriate to make an order that one party pay some or all of another party's costs, the Tribunal must make an assessment of the costs to be paid. An assessment of costs should be approached in a broad fashion and should not descend into an inquiry into small items of expenditure. Although the assessment of costs involves a relatively broad and robust approach, the Tribunal must be satisfied that the costs claimed are reasonable and necessary. The Tribunal must also be satisfied that the costs claimed are not excessive. Furthermore, the Tribunal must explain why an award of costs is reasonable, and if so, in what amount.

1. Save for the issue of Mr Barry's 'offer of settlement', we are satisfied that the costs claimed by the Board are 'reasonable and necessary'.
2. In so saying, we note that the Board incurred a total of ~$53,268, which is made up of ~$38,912 in Senior Counsel's fees, $6,656 in general disbursements, being Tribunal and transcript fees, and $7,700 allocated to Mr Hall as instructing solicitor, being ~20 hours at $385/hr.[87]
3. However, the Board has applied a discount to reflect that it 'did not prove two of its representations, withdrew one, and that there were findings of recklessness or carelessness as opposed to intentional conduct'.
4. We are satisfied that, applying the relevant 'broadbrush approach', the total fees are both reasonable and necessary for the preparation for, and attendance at, a two-day liability hearing and a half-day hearing as to penalty and costs, as is the proposed discount for the reasons given.
5. We turn, then, to the question of the offer of settlement.
6. By a letter of 13 May 2024, Mr Barry (through Mr Warnick SC) made a formal offer to settle this and an associated proceeding. The letter was made '[w]ithout prejudice save as to costs' and proposed, in effect, that the review proceeding be dismissed with the parties' costs to be taxed if not agreed and that:

(a) Mr Barry not be permitted to apply for a practising certificate before 9 February 2027; and

(b) should Mr Barry apply for a practising certificate on or after that date, such an application must include an updated psychological report as to his fitness to practice.

1. The letter was emailed to the Board on 13 May 2024 at 2.48 pm.[88] Less than 40 minutes later, at approximately 3.27 pm Mr Hall replied to the letter rejecting the offer, and maintaining the Board's position that the 'only appropriate penalty outcome' was for Mr Barry to be struck off and that, if he was willing to consent to such an outcome, 'the Board would be willing to confer as to the appropriate costs orders'.[89]
2. Mr Barry submits that the 'Board's insistence that he should be struck off was misplaced' and that, but for that misplaced insistence, the matter would have been settled without the need for a hearing. He submits that if we 'determine that the penalty imposed in this proceeding should be a period of exclusion from practice', which we have done, we ought to consider reducing the amount of costs awarded to the Board below the claimed sum of $45,000.[90]
3. Rules 40 - 42 of the State Administrative Tribunal Rules 2004 (WA) provide for the consideration of offers of settlement in determining an award of costs.
4. At one level, those rules appear to have some application here. However, their application is complicated by the fact that Mr Barry's offer proposed the resolution of both this proceeding and the associated proceeding and the latter proceeding remains unresolved.
5. In our view, it is appropriate to reduce the amount of costs awarded to the Board by the sum of $10,000. Such reduction gives some effect to Rules 40 - 42 as well as the Board's failure to make out Ground Two, which does not appear to have been reflected in the Board's own discount, but which we consider to be relevant.
6. On that basis, we will order that Mr Barry pay the Board its costs in the sum of $35,000.

1. For the above reasons, the Tribunal makes the following orders:

1. The respondent is not to apply for an Australian practising certificate before 9 February 2027.
2. The respondent is to provide an updated psychological report as to his fitness to practise with any application for a practising certificate made after 9 February 2027.
3. Any practising certificate granted to the respondent for the first time after 9 February 2027 must include a condition requiring mentoring by a more senior legal practitioner approved by the applicant for a period of 1 year from the date a mentor is approved by the applicant.
4. The respondent is to pay the applicant's costs, fixed in the sum of $35,000, within 30 days or as otherwise agreed between the parties.

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

[1] Legal Practice Board and Barry [2025] WASAT 34. These supplementary reasons should be read with our Primary Reasons. Amongst other things, terms defined in the Primary Reasons are used in these reasons.

[2] As applied by the Legal Profession Uniform Law Application Act 2022 (WA), s 6. Unless stated otherwise, all references to sections are references to the Legal Profession Uniform Law (WA).

[3] Applicant's Outline of Submissions on Penalty dated 30 May 2025 (Applicant's Penalty Submissions), paras 3 and 14.

[4] Applicant's Penalty Submissions, paras 28 - 30.

[5] Respondent's Written Submissions on Penalty and Costs (Amended) dated 15 July 2025 (Respondent's Penalty Submissions), paras 5 - 6 and 74.

[6] Uniform Law, s 302(1)(f), (g), (h), (i), (j) and (l).

[7] Uniform Law, s 299(1)(a) and (b).

[8] Uniform Law, s 299(1)(e).

[9] Uniform Law, s 299(1)(f).

[10] Uniform Law, s 299(1)(g).

[11] Legal Services and Complaints Committee and Kelly [2024] WASAT 125 (S) (Kelly), [28] - [31].

[12] Nadkarni v Medical Board of Australia [2022] WASCA 109 (Nadkarni). As the name of the decision suggests, the case concerned a medical practitioner but, as the Tribunal stated in Kelly, our view is that the same approach applies in making findings about a legal practitioner.

[13] Khosa v Legal Profession Complaints Committee [2017] WASCA 192 (Khosa), [187] - [195].

[15] Legal Profession Complaints Committee and Lawson [2021] WASAT 152 (S) (Lawson), [29].

[16] Robertson v Legal Services and Complaints Committee [2025] WASCA 92, [293]. Internal citations omitted. See also Watts and Legal Services Commissioner [2016] QCA 224 (Watts), [46], per Gotterson JA with whom Margaret McMurdo P and Morrison JA agreed: 'an order removing a practitioner's name from the roll should only be made when the probability is that the practitioner is permanently unfit to practice'.

[17] Law Society of New South Wales v McNamara (1980) 47 NSWLR 72 (McNamara), 76.

[18] Quinn v Law Institute of Victoria [2007] VSCA 122, [31].

[19] Primary Reasons, see for example, [488], [516] and [545].

[20] Applicant's Penalty Submissions, paras 18 - 19.

[21] Primary Reasons, [24]. See, for example, Legal Profession Complaints Committee and Lawson [2021] WASAT 152 (Lawson), [17]; Legal Services and Complaints Committee and McCardle [No 2] [2023] WASAT 131, [413] citing Vogt v Legal Profession Complaints Committee [2009] WASCA 202 (Vogt), [61]; Legal Profession Complaints Committee and Tang [2021] WASAT 117, [56].

[22] Respondent's Penalty Submissions, paras 5, 9 and 55. Mr Barry also submits that he is not permanently or indefinitely unfit to practice. We address that submission below.

[26] Singh v Medical Board of Australia [2019] WASCA 51, [32].

[29] See email from LPCC sent 11 May 2021 at 4.45 pm to Mr Barry in an attachment to Respondent's Closing Submissions on Liability dated 6 September 2024.

[30] Applicant's Penalty Submissions, para 17.

[32] See email from Mr Barry to Kristen Ashton sent 11 May 2021 at 5.20 pm in an attachment to Respondent's Closing Submissions on Liability dated 6 September 2024.

[35] Respondent's Response to Application Annexure A dated 12 September 2023 (Barry Response), paras 8a, 8b, 12a, 12b, 12d, 12h and 12i.

[36] Witness Statement of Kevin Barry dated 3 May 2024 (Barry Witness Statement), para 44.

[40] Primary Reasons, [121] - [123].

[41] Applicant's Penalty Submissions, paras 23 - 24.

[43] Respondent's Penalty Submissions, paras 57 and 59.

[45] Barry Witness Statement, paras 12 and 21.

[46] Exhibit 3, Report of Dr Petch, page 4.

[47] Barry Witness Statement, paras 2, 4 and 6.

[49] Barry Witness Statement, paras 22 - 23.

[51] Exhibit 2, Affidavit of Mr Barry, para 7.

[53] Barry Witness Statement, paras 35 - 36.

[55] Respondent's Penalty Submissions, paras 11 and 16.

[59] Primary Reasons, [109] - [113].

[62] Exhibit 3, Dr Petch Report, page 19.

[63] Exhibit 3, Dr Petch Report, page 21.

[64] Exhibit 3, Dr Petch Report, page 20.

[65] Exhibit 3, Dr Petch Report, page 20.

[66] Exhibit 3, Dr Petch Report, page 20.

[67] Exhibit 3, Dr Petch Report, page 21.

[68] Nadkarni v Medical Board of Australia [2022] WASCA 109 (Nadkarni). As the name of the decision suggests, the case concerned a medical practitioner but, as the Tribunal stated in Kelly, our view is that the same approach applies in making findings about a legal practitioner.

[69] Lee v Health Care Complaints Commission [2012] NSWCA 80, [34], applied by Nursing and Midwifery Board of Australia and Ward [2022] WASAT 104, [60]; Teacher Registration Board of Western Australia and Clarke [2021] WASAT 52 (Teacher's Board), [80]; Chiropractors Board of Australia and Ebtash [2020] WASAT 86 (S), [99]; Medical Board of Australia and McCarthy [2020] WASAT 12 (S), [55].

[72] Legal Profession Conduct Commissioner v Mancini [2022] SASCFC 1 (Mancini).

[73] Letter dated 10 February 2023 advising Mr Barry of the suspension of his practising certificate and proposed cancellation attached to Affidavit of Mr Barry, Attachment KB-1, pages 17 - 18, 19, 20, 31 - 32, 33 and 34; Letter dated 10 March 2023 advising Mr Barry of the Board's intention to cancel his practising certificate in Trial Bundle, pages 996 - 997, 998 and attached to Affidavit of Mr Barry, Attachment KB-2, pages 48 - 49 and 50.

[74] Amongst other things, Mr Mancini had practised for 37 years, had a lengthy disciplinary history, had received previous warnings for the conduct in question, was under a 3 year supervision order at the time of the conduct and had lied at two previous tribunal hearings.

[75] Legal Profession Complaints Committee and Love [2014] WASAT 84.

[76] Mr Love developed and maintained a website which included an application form in almost identical form to the LAWA form, which directed work to himself.

[77] Robertson v Legal Services and Complaints Committee [2025] WASCA 92 (Robertson).

[79] Vogt; Legal Profession Complaints Committee and Lee-Steere [2010] WASAT 189 (Lee-Steere).

[80] The issue does not appear to be discussed in Vogt.

[81] Watts v Legal Services Commissioner [2016] QCA 224 (Watts).

[82] Legal Services Commissioner v McDonald [2018] QCAT 82 (McDonald).

[85] Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32, [50].

[86] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 (S), [51].

[87] Affidavit of Francis Xavier Hall, affirmed 30 May 2025, paras 4 to 8.

[88] Exhibit 2, Affidavit of Mr Barry, Attachment KB3, pages 59 - 60.

[89] Exhibit 2, Affidavit of Mr Barry, Attachment KB3, page 59. The email is marked 'without prejudice' but no objection was taken to its inclusion in Mr Barry's affidavit.

[90] Respondent's Penalty Submissions, paras 67 - 74.