State Administrative Tribunal (WA)|2009-06-23|Before: Ms P, Judge J

LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and BACHMANN [2009] WASAT 120 (23 June 2009)

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

BETWEEN : LEGAL PRACTITONERS COMPLAINTS COMMITTEE

Legal practitioners Disciplinary proceedings Unsatisfactory conduct Unprofessional conduct Statements made to clients about progress of work Whether knowingly false Charging for work not undertaken or completed Misrepresentations as to progress of work allegedly completed Whether dishonest Practising while under suspension

Legal Profession Bill 2007 (WA), cl 621, cl 622

Applicant : Legal Practitioners Complaints Committee

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

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

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170

The LPCC's applications and the practitioner's defences

1 The Legal Practitioners Complaints Committee brought charges of unprofessional conduct against a legal practitioner, Ms T.Y. Bachmann. In substance, the allegations concerned the practitioner making knowingly false representations to nine clients about work undertaken by the practitioner and the progress of their matters. With respect to several clients, there were also allegations that the practitioner, on behalf of her employer, charged for work she did not undertake. These charges were of the most serious nature. The Committee's proof of them involved allegations that the practitioner created false records to support her claims of work undertaken.

2 The practitioner's position in essence was that she had completed or substantially completed the work in the manner she represented. To the extent the work was not undertaken, this was largely due to the conduct of others and her dismissal by her employer. The practitioner maintained she was entitled to bill in the manner she did for the work performed. She accused several of the clients who gave evidence of dishonesty and confusion.

3 For the most part, the practitioner represented herself and did so in a most unsatisfactory manner. The Tribunal was continuously required to depart from its usual procedures to ensure the practitioner was given a proper opportunity to present her case and to defend the charges.

4 The Tribunal held that the charges had been proved to the requisite standard. The Committee through its witnesses and documentary evidence established a strong prima facie case. For the most part there was no dispute that the representations had been made. The issue was whether they were knowingly false. The practitioner's evidence on the whole was, in varying respects, patently false, incredible, inconsistent and confusing. The Tribunal preferred the evidence of the Committee's witnesses to the testimony of the practitioner. The practitioner's documents did not withstand scrutiny and the Tribunal found that several critical documents had been falsely created to support the practitioner's claims as to work undertaken. The practitioner's conduct may have been affected by her mental condition but there was insufficient medical evidence to establish this. The Tribunal was of the view that it was not possible or appropriate for it to make the relevant finding without that evidence.

5 The Tribunal found the practitioner guilty of unprofessional conduct. The Tribunal sought submissions on penalty and costs.

6 Pursuant to the provisions of Pt 12 of the Legal Practice Act 2003 (WA) (LP Act), the Legal Practitioners Complaints Committee (LPCC) instituted professional disciplinary proceedings before this Tribunal against Ms T.Y. Bachmann, the respondent legal practitioner (the practitioner). These proceedings were instituted by the LPCC's application filed on 28 February 2007, being VR 34 of 2007 (the eight clients matter), and an application filed on 5 April 2007, being VR 53 of 2007 (the G matter). In each case, the LPCC seeks:

an order that the practitioner is guilty of unsatisfactory conduct pursuant to s 185(1) of the LP Act;
consequential orders pursuant to s 185 and s 187 of the LP Act; and
an order that the practitioner pay the LPCC's costs pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

The LPCC's applications and the practitioner's defences

7 VR 53 of 2007 is the more serious of the two applications and it is convenient to deal with it first.

8 The grounds of the application (amended on 22 May 2008) in the G matter are that the practitioner is guilty of unsatisfactory conduct by:

unprofessional conduct; and
conduct occurring in connection with legal practice that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.

between about 8 August 2005 and 19 September 2005, the practitioner acted for Mr and Mrs G in relation to a claim against the vendor of a property that Mr and Mrs G purchased in Morley (the Morley property);
in the course of the retainer the practitioner claimed to have undertaken considerable work and claimed fees of about $23,000;
Mr and Mrs G terminated the retainer on or about 19 September 2005. Immediately following this, the practitioner arranged to lodge caveats against the Morley property and a property that Mr and Mrs G were selling (the Viveash property) on the basis that Aragon Legal Pty Ltd (Aragon), the practitioner's employer, had a claim to the proceeds of the sale of the Morley property and the Viveash property in respect of its fees; and
the essence of the complaint is that the practitioner made a number of knowingly false statements concerning the work the practitioner claimed to have undertaken, Aragon's right to lodge a caveat and some incidental matters.

10 In outline, the practitioner's defence by her response filed with the Tribunal on 11 June 2007 is that:

the LPCC has failed to prove the facts of its complaint;
the practitioner completed the work for which she rendered invoices but the work product in both hard copy and electronic form was lost by Aragon (or some other person or entity). The practitioner says she has not had access to the offices of Aragon since the time her employment was terminated on 4 May 2006 so as to be able to search for the documents;
Mr and Mrs G offered the properties as security for Aragon's costs and she was entitled on Aragon's behalf to caveat the properties; and
the representations she made were not false and in any event were not knowingly false or recklessly made.

11 The grounds of the application (amended on 22 May 2008) in the eight clients matter are that the practitioner is guilty of unsatisfactory conduct by:

unprofessional conduct;
conduct occurring in connection with legal practice that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner;
neglect, or undue delay, in the course of practice; and
a contravention of s 137 of the LP Act.

there are eight separate matters. Five concern applications for liquor licenses for clients (Mr M, HGW, Mr F, UT and Mr B). Three relate to general work not involving liquor licensing, for other clients (FGC, Mr and Mrs H and Mr A);
in each matter the practitioner made knowingly false representations as to the nature of work said to have been carried out. In several cases there are also claims that the practitioner invoiced for work she did not undertake; and
in the matter for Mr A, the LPCC also claims that the practitioner:
1. continued to practice whilst under suspension; and
2. failed to deposit funds into her trust account.

13 In summary, the practitioner's defence, as based on her response filed with the Tribunal on 19 April 2007, is that:

in relation to the liquor licensing matters generally:

when processing applications, the Office of Racing Gaming and Liquor (ORGL) treated differently applications lodged for checking and applications lodged for processing. The practitioner did not appreciate this distinction during the period she first made licensing applications; 2. ORGL only provided written confirmation of receipt for those applications that were lodged by post and not for those applications that were lodged in person; and

due to circumstances not attributable to the practitioner, and often involving the administration of ORGL, the practitioner did not carry out instructions in the various matters 'to completion'.
the M matter: the practitioner did all things necessary, accurately and in a timely manner. Many of the difficulties arose from ORGL's procedures;
the HGW matter: the practitioner, in effect, completed all tasks necessary for the licence to be lodged, but was unable to complete the matter because of her dismissal;
the F matter: the practitioner, in effect, processed the application as instructed but was unable to complete the matter because of her dismissal;
the UT matter: the practitioner, in effect, processed the application as instructed but was unable to complete the matter because of her dismissal;
the B matter: the practitioner, in effect, processed the application as instructed but was unable to complete the matter because of her dismissal;
the FGC matter: the practitioner, in effect, did undertake the work required of her but on behalf of a Mr C and not FGC. The charge was made for the work for Mr C, but Aragon incorrectly sent a copy of the invoice to the FGC. The practitioner was not able to obtain evidence from Mr C;
the H matter: the practitioner, in effect, did undertake the work required but Aragon incorrectly invoiced the matter to the wrong client. The practitioner was again not able to obtain corroborating evidence from this client; and
the A matter: the practitioner, in effect, undertook the work for which she invoiced the client and she made no misrepresentations. The practitioner did not undertake any work on this matter in the period of her suspension.

14 It will be apparent from this summary that the principal issue in these proceedings is whether, as the practitioner claims, she did in fact undertake the work for which she (through Aragon) charged the clients and in respect of which she made representations as to the progress of the work undertaken.

15 The allegations against the practitioner are extremely serious. In relation to the G matter, the LPCC alleges that the practitioner lied about the work she claimed she had undertaken comprising pleadings, witness statements, research and submissions (collectively, the court documents work) and for which on behalf of Aragon she subsequently invoiced the clients and then instituted recovery proceedings. In relation to many of the other matters, the LPCC alleges that the practitioner deliberately misrepresented to her clients the work she said she had undertaken.

16 The practitioner produced a number of written records relating to these matters, particularly in relation to the G matter, which, on the LPCC's case, are false records. The practitioner maintained throughout the proceedings before us that in fact she did undertake this work and that she has made no misrepresentations as to the work she undertook.

17 It is apparent in these circumstances that whilst the relevant standard of proof is the civil standard, that is, proof on the balance of probabilities, the circumstances require proof in accordance with the decision in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) read with Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170. In accordance with the Briginshaw principles, we require reasonably clear evidence in order to be actually persuaded on the balance of probabilities that the facts on which the charges are brought have been established. This is because of the serious nature of the charges brought against the practitioner generally and the grave consequences for her if made out.

18 In the context of the LPCC's reliance on circumstantial evidence, its counsel, Ms Cahill, drew our attention to the decision in **Bradshaw v McEwans Pty Ltd (**1951) 217 ALR 1. The following passage (without the authorities) appears at 5:

The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise.

19 Where the fact in issue is integral to the charge brought against the practitioner so that the Briginshaw standard applies, the Tribunal will need to be reasonably satisfied, having regard to the seriousness of the matter, that the relevant inference may properly be drawn. In the circumstances of these proceedings, the resolution of the issues in the applications depends in large part on our assessment of the credibility of the practitioner.

20 These proceedings have a long and tortuous history before this Tribunal. For reasons we subsequently explain, it is necessary to make reference to this. On 14 July 2006, in earlier proceedings (VR 116 of 2006 and VR 120 of 2006), the Tribunal ordered the practitioner to obtain a psychiatric report and, with her consent, suspended her from practice pending inquiry and determination of the matters raised by the LPCC. The suspension was confirmed and continued on 26 September 2006. The LPCC filed and served its application for the eight clients matter on 28 February 2007 and its application for the G matter on 5 April 2007.

21 There followed a number of directions hearings, mediations, and compulsory conferences and various programming orders were made by the Tribunal (20 March 2007, 24 April 2007, 12 June 2007, 11 July 2007, 24 August 2007 and 20 November 2007). Amongst the various orders made at those hearings were orders that the practitioner file her response to the applications, that the parties file various documents and that the practitioner clarify the documents that she had earlier filed.

22 The practitioner filed only incomplete responses to the LPCC applications.

23 As at 8 January 2008, the practitioner had failed to file documents as ordered and she was again ordered on that date to file the various documents. The practitioner did not comply with those orders. On 6 February 2008, a compulsory conference was held but the practitioner failed to attend. She faxed a doctor's certificate to the Tribunal. On 12 February 2008, there was a directions hearing and the parties were ordered to file witness statements. The matters were listed for hearing from 6 - 9 May 2008 and 12 - 14 May 2008. On 25 March 2008, the practitioner was granted an extension of time for compliance with the orders and the final hearing was relisted for 21 - 29 May 2008. On 9 April 2008, the practitioner was again granted an extension for compliance with the orders. Programming orders were again made but the practitioner failed to comply.

24 At a directions hearing before Deputy President Judge Eckert on 13 May 2008, the practitioner advised that she had sent witness statements to all of her witnesses. She initially confirmed this at the hearing on 21 May 2008 although later on that day she advised she had sent only some of the statements (see below).

25 On 21 May 2008, the first day of the hearing, the practitioner failed to attend and applied by telephone for an adjournment due to ill health. The practitioner advised that she had sent eight witness statements for signing and she was awaiting their return to her post office box. However, she added that she not checked her post office box since Monday 12 May 2008. She undertook to fax the covering letters attached to those draft witness statements to the Tribunal later that day. The practitioner did not comply with that undertaking.

26 The practitioner then advised that she had prepared half of her witness statements but had made no progress since 13 May 2008. The practitioner seemed confused as to the distinction between her lack of preparation on factual issues and the grounds or legal reasoning underlying her defence to the proceedings. Her general practitioner, Dr Louie, was called and gave evidence before the Tribunal. He expressed the opinion that the practitioner was well enough to attend the hearing.

27 The practitioner's application for an adjournment was refused. Although in the usual course the Tribunal would grant an adjournment if the respondent is unwell or otherwise unable to attend, the Tribunal had before it no satisfactory medical or other evidence to support the practitioner's argument for an adjournment. The practitioner's own doctor had advised the Tribunal that the practitioner was well enough and capable of attending the Tribunal and presenting her case. The Tribunal told the practitioner that she should appear in person that afternoon, but if that was not possible, then she could appear and cross-examine the LPCC witnesses by telephone. The Tribunal also gave her the opportunity of appearing and cross-examining the LPCC witnesses by telephone. Although the practitioner took advantage of that proposal to some extent in the morning, she did not appear in the afternoon either in person or by telephone. The practitioner advised the LPCC after the luncheon adjournment that she was on her way to a barrister's chambers to obtain advice but she refused to say who she was seeing. The hearing continued in her absence.

28 On 23 May 2008, the Tribunal reconvened. The LPCC sought leave to amend its applications. The practitioner, although notified to attend at 10 am, arrived at 11.34 am. She told the Tribunal that she needed professional advice and that she was still unwell. She had asked counsel, Mr Quinlan, to act for her and she advised that he required an adjournment until the following week so he could look over the amended grounds of the applications. At this stage, despite undertaking to do so, the practitioner had not sent any draft witness statements or covering letters to the Tribunal. She advised that this was because no-one had yet returned the draft witness statements to her.

29 On 26 May 2008, when the Tribunal reconvened, Mr Quinlan appeared with the practitioner. He advised he appeared in a very limited capacity with limited instructions to oppose the amended applications and to seek an adjournment of the proceedings so that the practitioner might be properly prepared. Mr Quinlan said that it appeared to him that the practitioner was not properly prepared for the hearing and that she was 'curiously disengaged' (T:15, 26.05.08) from the process of the proceedings. The practitioner then advised the Tribunal that she proposed to call eight witnesses and that she had two of the draft witness statements. She said that she had spoken to one witness who was prepared to sign his statement; however, all other witnesses would have to be summonsed. She undertook to attend to those summonses in the luncheon adjournment. She also handed up to the Tribunal three pages of her own witness statement. The practitioner had, at all times up to this point, advised the Tribunal that she intended to give evidence and that she wished to file a witness statement in accordance with the Tribunal's directions. She gave the Tribunal the two draft witness statements which were from Mr M and Ms H. At no point did the practitioner provide to the Tribunal final or signed witness statements from those or any other witnesses.

30 During the luncheon adjournment on 26 May 2008, the practitioner appeared to collapse at the registry of the Tribunal. An ambulance was called and she was taken to Royal Perth Hospital. The Tribunal advised the practitioner that it required a medical report as to the condition of her health and her ability and capacity to conduct and be part of the proceedings. The discharge notice from Royal Perth Hospital given to the Tribunal by the practitioner showed that no medical condition had been identified.

31 On 27 May 2008, the practitioner advised the Tribunal that she would not be home from Royal Perth Hospital until the afternoon. She would therefore not be able to attend the Tribunal. The practitioner was discharged from hospital at 3.40 pm. The following day, 28 May 2008, the practitioner did not attend or contact the Tribunal despite attempts by the Tribunal and the LPCC to contact the practitioner. The Tribunal made further orders as to the filing of witness statements and other documents and as to the future conduct of the hearing. Those orders were sent to the practitioner and the LPCC.

32 Following a request from the practitioner for an urgent directions hearing, the Tribunal made orders listing the proceedings for directions on 23 July 2008. The practitioner sought an adjournment of the hearing and an extension of time to comply with the orders regarding witness statements. The practitioner also advised that she had been ill between the 28 June 2008 and 5 July 2008, and had therefore been unable to comply with the Tribunal's orders to file witness statements. This was despite having had in effect two years to produce these documents and prepare for the proceedings.

33 The practitioner also informed the Tribunal that she required an adjournment because she was depressed. However, the practitioner's psychiatrist gave evidence before the Tribunal. He could not confirm that the practitioner was medically depressed and he advised the Tribunal in effect that the practitioner could proceed to participate in and actively conduct the proceedings. The psychiatrist's view was that the practitioner was suffering from the usual stress that a party in similar circumstances to the practitioner would be likely to suffer.

34 The practitioner also said that she had met with ten witnesses since 1 July 2008, and that she had substantially completed ten witness statements and sent each of those witnesses a letter. This was not corroborated by any of the practitioner's witnesses. The practitioner listed the witnesses to whom she had written. In particular, she advised that she had contacted Mr C and that she had emailed him in March 2008 regarding the proceedings. The practitioner told the Tribunal that Mr C had given her a perfunctory reply and that she had again emailed him on 20 May 2008. She had sent him a draft witness statement.

35 Subsequently, on 27 October 2008, the practitioner advised that Mr C had emailed a person from her previous church stating that he did not want to give evidence. The Tribunal was unable to locate Mr C and he did not give evidence to the Tribunal. The practitioner did not provide a copy of any correspondence or draft or final witness statements for him nor indeed for any of the other witnesses that she identified on 23 July 2008.

36 In total, the practitioner provided the names of 24 witnesses that she wished to call. She also wished to recall the LPCC's witnesses whom she had not had an opportunity to cross-examine as she had not attended the Tribunal. The practitioner advised the Tribunal that she had sent six draft statements and that she had filed two draft statements with the Tribunal. She confirmed that she had met with eight of her witnesses since May 2008 and undertook to lodge all draft witness statements for all of her witnesses by 24 July 2008. The practitioner said that she had received from the LPCC and the Tribunal various documents and a DVD of all Aragon legal files. She confirmed that although she had received all of the documents at least six weeks earlier, she had not looked at them.

37 The Tribunal informed the practitioner that the process-server had been unable to serve her at the address that she had given the Tribunal. In fact, the process-server swore to the Tribunal that the practitioner had never lived at that address according to reports given by residents of the premises at the address. After much discussion, the practitioner confirmed that she was living with her mother and provided that address to the Tribunal.

38 It was apparent to the Tribunal on 23 July 2008 that the practitioner was having difficulty facing up to these proceedings and doing what was required to meet the allegations, including contacting her witnesses. She told the Tribunal that she did not have the money to pay the issue fee for 24 summonses. The Tribunal advised that it would serve the summonses on each witness. The practitioner undertook to provide recent addresses for all of her witnesses. As it transpired, none of the addresses provided were accurate.

39 The hearing continued on 27 October 2008. At the commencement of that day's proceedings, the practitioner advised the Tribunal that she would file nine draft witness statements with the Tribunal by the close of business on that day. However, during the course of that day's proceedings it became apparent that the practitioner had not contacted any of her witnesses at the time or in the manner expressed in her undertaking. The practitioner subsequently advised the Tribunal that although she had not spoken directly to witnesses, for example, her former client Mr T in Victoria, she had emailed them.

40 Later that day the practitioner sent a fax to the Tribunal which contained the following information and allegations:

I have spent my time since the hearing adjourned at 1.35 pm contacting my proposed witnesses. I have experienced the extraordinary response from each and every witness (for whom I planned to lodge the draft and/or completed Witness Statements by close of business today) that they either wished to claim "privilege" over their current draft statements and/or are seeking legal advice regarding their participation in these proceedings.

Two of my proposed witness - who asked me not to cite their names at present - have also claimed that the Legal Practice Board contacted them in or around July to August 2008 and specifically told them not to respond to any communications from me. A third witness also claims that my former employer and co-director, Catherine Bachleda, contacted them and directly asked whether I had been in communication with them. The third witness then claimed that Bachleda "warned them" not to take any part in these proceedings.

41 The practitioner did not file any draft or signed witness statements on that day or subsequently.

42 On further examination on 3 November 2008 by the LPCC's counsel, Ms Cahill, and in response to questions from the Tribunal, the practitioner named several of her witnesses who she alleged had been approached in this manner by the Legal Practice Board (T:8-14, 3.11.08). All of the practitioner's witnesses who subsequently gave evidence denied that they had claimed privilege or that they were seeking legal advice or that they had made these comments to the practitioner, if indeed they had even spoken to her. On their evidence, none of the witnesses had been contacted by Dr Bachleda or the Legal Practice Board or the LPCC and advised not to participate in the proceedings. The contents of the practitioner's fax on 27 October 2008 were fanciful and evidence of another delaying tactic by her. In the Tribunal's view, the fax and practitioner's statements to us in support of it are an instance where the practitioner's claims as to why she was unable to prepare her defence and proceed at the hearing have been exposed as false. This conduct reflects negatively on the practitioner's credibility and illustrates why her statements and explanations generally are open to question.

43 The proceedings were listed to resume on 3 November 2008. 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.

44 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.

45 The Tribunal reconvened on 4 November 2008 at 10 am. The practitioner did not appear. The Tribunal received a fax from the practitioner at 10.08 am advising that she would attend at 2.15 pm, that she had contacted her witnesses and provided the Tribunal with her amended witness timetable. She also stated in that fax that she would fax through all witness statements prior to 2.15 pm. She sent a certificate from her general practitioner saying that he had examined the practitioner on 3 November 2008 and she was 'unable to function today because of emotional distress'.

46 Meanwhile, the first of the practitioner's witnesses had attended the Tribunal and proceedings were initially delayed pending the arrival of the practitioner. On receiving advice of her non-attendance, the Tribunal proceeded to hear from the first witness and asked him questions that the practitioner had indicated in July 2008 that she wished to ask him. The Tribunal attempted on several occasions to telephone the practitioner on her mobile so that she could ask questions of the witness. As the practitioner had advised that she would be attending at 2.15 pm, the witness was requested to return after the lunch adjournment. At 3 pm the witness had to leave. The practitioner arrived soon after.

47 The Tribunal had continued to press the practitioner for her witness statement as she had continued to indicate in the strongest terms that she wished to give evidence, had prepared a witness statement and was happy to file it. On her arrival on 4 November 2008, the practitioner submitted a short 'summary' of her witness statement. The practitioner had arrived with a suitcase of materials but had omitted to bring her 'full' witness statement or any of the draft witness statements that she said she had prepared.

48 The practitioner advised the Tribunal that she had faxed and emailed all of the required documents and the witness statements. However, whilst the Tribunal had received her faxes about being late the Tribunal had not received the faxes that the practitioner alleged she had sent containing her witness statements. It was at this stage on 4 November 2008 that the practitioner stated that she would not provide electronic copies of her witness statements as they were not relevant, in her view, to support her claims that they had been prepared. The Tribunal thinks otherwise. It was fundamental to the undertakings that the practitioner gave the Tribunal that she had prepared all of these draft witness statements many months earlier. The electronic versions would have indicated the dates on which the statements were first prepared and subsequently amended. In the Tribunal's view, the continuing assertions by the practitioner that she had prepared witness statements and her continued failure to ever produce those statements undermines her credibility.

49 The Tribunal reconvened, as agreed, on 5 November 2008. The practitioner left telephone messages on the general Tribunal switchboard at 9.20 am and 9.46 am that she was ill and would not be attending. Again, the practitioner confirmed that she had faxed and emailed all required documents. These had not been received by 5 November 2008 and were not provided subsequently.

50 On 6 November 2008, the Tribunal again reconvened at 10 am in accordance with notice it had given. The practitioner telephoned the general number of the Tribunal registry at 10.35 am and advised that she would arrive at 10.45 am. The practitioner arrived at 11 am and advised the Tribunal that that was 'the best that I can do'. The practitioner said (T:229, 6.11.08):

my circumstances are what they are, Judge Eckert. I wish to have recorded that this is the best that I can do. I know that it falls short of whatever levels that are expected of me, but it is what it is. I apologise.

51 She tendered pages 1 - 4 and page 25 of her draft unsigned witness statement, together with two annexures, and advised that counsel Mr Hooker had given her advice that those pages were all that she should release to the Tribunal.

52 There followed lengthy discussion about what the practitioner had filed in response to the LPCC's applications to the Tribunal and in accordance with Justice Barker's orders. The practitioner said that she filed part 3 of her response on or about 7 December 2007. There was no record with the Tribunal of it ever having been lodged and the LPCC had not received it. Furthermore, the filing of it at that time would have been inconsistent with subsequent orders made by Justice Barker that she file a response. The practitioner had made no enquiries to ensure that it was lodged and had no evidence that it was lodged.

53 The practitioner provided a copy of part 3 of her response to the Tribunal and the LPCC (exhibit 32). Large parts were incomplete and the practitioner expressed confusion as to why so much had been left blank. The hearing proceeded and the Tribunal heard further from the practitioner's witnesses.

54 When the practitioner attended the Tribunal on 7 November 2008, she advised that her health and financial situation had impeded the conduct of her defence. She admitted in effect that she was unprepared for the proceedings. She claimed that she had complied with all Tribunal orders with respect to witness statements; however, at the same time the practitioner conceded that she had not filed any final witness statements (T:123-124, 7.11.08).

55 It is important to note that on several occasions the Tribunal recommended to the practitioner that she obtain independent legal advice. At an early stage, the Tribunal facilitated the practitioner obtaining assistance from counsel Dr Hockley. He acted for the practitioner on a pro bono basis from July 2006 to February 2008. Dr Hockley advised the Tribunal on 6 February 2008 that he had assisted the practitioner at the instigation of the then President of the Tribunal and spent an 'inordinate amount of time on these matters'. However, 'the situation has arisen where I would not be assisting either Ms Bachmann or the Tribunal to continue to act'. Subsequently, encouraged by the Tribunal the practitioner obtained some limited advice and assistance, from Mr Quinlan and Mr Hooker. However, it appears both counsel were approached at a late stage of the proceedings and given limited instructions and a selective collection of materials to consider. The Tribunal is grateful to those barristers for the assistance they provided. However, for much of the proceedings, Ms Bachmann represented herself.

56 We have set out in some detail aspects of the practitioner's conduct during the period of these proceedings in order to illustrate the areas and extent of our concern about the practitioner. We take into account that the practitioner was representing herself in the defence of very serious charges advanced forcefully, but always fairly, by Ms Cahill for the LPCC. We accept the practitioner was suffering some stress in consequence of this. We are conscious also that this conduct was itself not the subject of the applications or any amended applications. However, the issue of the practitioner's credibility and integrity is critical to the determination of these applications and, as we made clear to the practitioner, should we find her guilty of the charges brought, her conduct may well be relevant to penalty.

57 In that respect it is relevant to record our considered impressions of the practitioner in the course of her defence of the charges brought. We think that the practitioner was dishonest or evasive with us and the LPCC on the subjects of the state of her health, her contact with prospective witnesses and their addresses, the preparation of witness statements including her own and the filing of part 3 of her response. These were subjects on which the practitioner was cross-examined.

58 The subject of our assessment of the practitioner's professional competence is also of some relevance in determining the probabilities of the matters the subject of the applications. As will be seen, the contest is between the LPCC's case which is that the practitioner repeatedly failed to act as instructed but claimed she had; and the practitioner's case that she had competently and in a timely manner done what was asked of her but that others (her clients, public officials, Aragon, third parties) had caused delays to completion. As evidenced by her conduct of these proceedings the practitioner repeatedly failed to do what she was ordered to do and sometimes undertook to do and either blamed others or technology for this failure or attributed a change of circumstances for non-compliance.

59 We think the manner in which the practitioner has conducted her defence is relevant to our findings on the substantive applications in the manner we have indicated, but it is certainly not determinative of them and we would have reached the same decision in any event. The practitioner's closing submissions following the hearing showed considerable industry but limited understanding of the legal principles governing the application. For instance, the practitioner submits that because the LPCC is required to prove certain negative propositions and also the mental elements necessary for fraud, deception and dishonesty, the criminal standard of proof should apply. It is well settled that the standard of proof in disciplinary proceedings such as these is the civil standard but taking into account the principles of Briginshaw. In both her response and closing submissions, the practitioner raises the spectre of the liability of the directors of Aragon in relation to the matters the subject of the applications. The alleged liability of the non-legal directors of Aragon cannot be a relevant consideration to our determination of the consequences of the practitioner's conduct. Again, in her response and closing submissions, the practitioner complains that she effectively undertook four full-time jobs at Aragon but was paid for one full-time position. She alleges that the directors of Aragon engaged in misleading and deceptive conduct and were in breach of s 52 of the Trade Practices Act 1974 (Cth), when they employed her. Whilst the fact that the practitioner was under some pressure at work may be relevant (and would be relevant to penalty) the size of her salary, which she accepted on being employed, is not.

60 The LPCC complains about the conduct of the practitioner in the period August 2005 to September 2006. In August 2005, the practitioner commenced employment with Aragon. This was an incorporated legal practice with non-legal directors, Dr Bachleda and Mr Venables, who gave evidence before us. The practitioner was dismissed from the company in May 2006. The matters the subject of complaint largely took place during the period in which the practitioner was employed by Aragon and relate to Aragon's clients.

61 The practitioner was admitted to practice in December 1996 in Western Australia and worked in Perth as an employed junior practitioner and then from 1999 practised on her own account. Thereafter she advises that she lived and worked in Sydney and the USA as a 'business consultant/paralegal'. She returned to Perth in September 2004 and in February 2005 she resumed sole practice as 'TY Bachmann Lawyers'.

62 In July 2005, the practitioner answered an advertisement from Aragon for a 'commercial solicitor'. She was interviewed and commenced employment on 1 August 2005. There was an initial four month probation period. On 3 December 2005, the practitioner achieved permanent status and commenced as 'Principal Solicitor'.

63 A written assessment made of the practitioner's performance as at 21 October 2005 and 1 December 2005 was put into evidence. At each of these times both Aragon and the practitioner expressed satisfaction with their arrangements. However, in her response and in evidence the practitioner consistently alleged that during her time with Aragon she was put under considerable pressure, both 'personal and professional', by Dr Bachleda who 'relied upon her too much'. The practitioner submitted that part of the responsibility for the matters the subject of complaint ought to be borne by the directors of Aragon. This was so notwithstanding that they were not lawyers and had engaged the practitioner in order to undertake the legal work for Aragon.

64 The practitioner and the directors of Aragon agreed a budget for the fees it was planned the practitioner would bring in for Aragon. The practitioner was keen to demonstrate to the principals at Aragon that she was performing well and bringing in the fees expected of her. In relation to the G matter, this led to the practitioner claiming to have undertaken a great deal of work in preparing for proceedings in a Supreme Court action and claiming that fees of $40,000 would be earned from these proceedings if the matter went to trial.

65 Many of Aragon's clients sought its services in relation to liquor licensing applications. The evidence examined below discloses that the practitioner was not familiar with the appropriate procedures of this jurisdiction. Rather than owning up to this and either declining instructions or obtaining the necessary assistance, the practitioner took on these matters and continually wrote to her clients advising them of the purported progress of their applications through ORGL.

66 On 1 May 2006, the practitioner telephoned Dr Bachleda and advised that she was with a client and would return to work later. She did not do so. The next day the practitioner's mother rang Dr Bachleda and advised that the practitioner was with a client and would return the next day. She failed to arrive at work. On the following day, the practitioner's mother spoke to Dr Bachleda and advised that the practitioner was sick and requested a two month leave of absence. This led to the practitioner's dismissal on 5 May 2006. In her evidence, the practitioner said that during part of the period she was absent she suffered a complete loss of memory as to where she had been or what she had done.

67 Following the dismissal of the practitioner, Dr Bachleda arranged for another solicitor, Mr Boni, to review the hard copy and electronic files that the practitioner was working on. He discovered that there appeared to be documents missing on Mr and Mrs G's file, in particular the court documents work, and from the liquor licensing files, primarily copy applications with associated documents. Mr Boni spoke to the practitioner about the matter and suggested that when she return to collect her personal belongings, she look for the documents from Mr and Mrs G's file. The practitioner told him the documents must have been removed from the file. She did not undertake a search for the documents when she made her final visit to Aragon's offices. Dr Bachleda, with Mr Boni's assistance, arranged to complete or return the various files, sometimes refunding the clients the fees which they had been charged for services purportedly performed by the practitioner.

68 On 14 July 2006, in proceedings before the Tribunal, the practitioner agreed to her suspension from legal practice.

69 In assessing the practitioner's credibility, we have had the opportunity over a number of days to observe the practitioner's demeanour in giving evidence. We have also had the opportunity to study the transcript of her evidence. Our assessment of the practitioner's credibility is based primarily on the practitioner's evidence under oath in relation to the issues in the matter and, to some extent, on the practitioner's conduct before the Tribunal.

70 We are conscious that with respect to many of the matters the subject of the hearing the practitioner was required to recall events extending back three or so years. As mentioned above, we are conscious also that the practitioner was representing herself in these proceedings and bore the stress of doing so. In particular, she was required both to conduct her defence as well as give evidence.

71 Taken in isolation, the practitioner's evidence on various matters seemed plausible. She spoke well, had a good vocabulary, in many respects had a good recall of detail and was seldom without an answer. However, as the hearing progressed, it became apparent that the practitioner's evidence of the events which had occurred became less and less believable when tested against other oral and documentary evidence, the objective facts and the probabilities. On several subjects the practitioner appeared to invent answers to explain why, in relation to the matters the subject of the applications, she was unable to complete work she had undertaken, and in relation to the hearing, why she was unable to contact witnesses and so on.

72 On subjects where the practitioner was confronted with evidence opposing her version of events, the practitioner often took refuge in verbosity and irrelevance. An example of this follows (T:253, 6.11.08). In response to a question from the LPCC's counsel, Ms Cahill, the practitioner's evidence was as follows:

Well, it's a fact, isn't it, that you didn't give the email address to the SAT? ---I believe that - - -

You gave a postal address, didn't you?---Sorry? What date are we referring to? Because I remember at the very last request for confirmation of addresses et cetera, I received an email from President Barker J's associate and I make an apology in that I presumed she was Judge Eckert's new associate, so I gave her the wrong title - but, anyway - and when - when she asked for certain addresses, I replied to her by email that there were only two that I could verify as at that date as being definite. So I didn't mention Mr Cheong at all, I believe.

73 The practitioner ultimately never provided the information requested either in her evidence, in writing or from the bar table.

74 There is in the practitioner's response and closing submissions the common theme that whilst she does not admit to any specific charges made, she was disadvantaged at the final hearing by reason of memory loss, psychological or psychiatric stress, illness and the passage of time. The medical evidence on which the practitioner sought to rely fell well short of supporting a claim that her memory or capacity was relevantly affected in relation to the matters the subject of the proceedings. The practitioner apparently failed to obtain and read many of the principal documents on which the LPCC relied for its case and which were available to the practitioner insofar as they were tendered by the LPCC (for instance the files relating to the various clients' matters). The practitioner was provided with a copy of the disc containing an electronic copy of Aragon's legal files but admits that she did not make use of this.

75 In her closing submissions, the practitioner maintains that 'credibility is not an all or nothing matter' in that it may be affected by memory loss, stress and illness. To the extent that the practitioner submits that it is not appropriate for the Tribunal to make an adverse finding about her credibility in relation to one event and adopt it with respect to all matters, we think this is correct. It seems to us necessary to identify the various points at which the practitioner's credibility is important to a determination of a particular matter and to then examine the specific context and so on to make the appropriate determination in respect of that matter. That is how we have proceeded. That said, however, we have made an assessment of the practitioner's credibility taking into account the whole of her evidence. There are a large number of occasions in which there are obvious factual errors in what the practitioner has reported to her clients. The practitioner's explanations to us in this respect include innocent error, her misunderstanding of procedures, her poor expression in some of the relevant documents, error on the part of Aragon's staff, error on the part of ORGL, the pressures on the practitioner and her working under stress and so on. Having regard to this evidence and the probabilities of the mater, we take the view that the errors cannot be explained in the manner suggested by the practitioner. For the reasons given below we think that the practitioner effectively lied to her clients about the progress of their matters in order to hide her deficiencies and that her critical evidence was in several crucial respects dishonest and generally unreliable.

76 It is convenient to set out the relevant parts of the LPCC's amended statement of facts:

In about August 2005 Ms [G] and Mr [G] ('the [Gs]') sought advice from the practitioner in the course of her employment by Aragon regarding a potential claim by the [Gs] against the vendor of a property at ... Morley ('the Morley property') that the [Gs] had contracted to purchase.
At all material times the [Gs] had contracted to sell the property they owned at ... Viveash ('the Viveash property') to assist in funding their purchase of the Morley property.
On about 19 September 2005, Mr [G] informed the practitioner by telephone to the effect that the [Gs] no longer wished her to act for them.
On about 20 September 2005, the practitioner caused Aragon, as purported caveator, to lodge caveats over the Morley property and the Viveash property in circumstances where:

(a) the practitioner on behalf of Aragon falsely claimed that Aragon was a secured creditor of the [Gs];

(b) the practitioner on behalf of Aragon falsely claimed that Aragon was entitled to receive a portion of the proceeds of a sale of the Morley property and the Viveash property;

(c) the practitioner knew at the time she made them that the claims pleaded in subparagraphs (a) and (b) above were false;

(d) alternatively to (c), the practitioner made the claims recklessly, not caring whether they were true or false;

(e) the practitioner knew that the [Gs] were not at that date indebted to Aragon in any amount; and

(f) the practitioner knew that there was no basis, reasonable or otherwise, to justify the lodgement of either caveat.

At some time after 20 September 2005, by an invoice purportedly dated 31 August 2005, the practitioner on behalf of Aragon purported to render to the [Gs] an invoice that included fees for:

(a) drafting documents to initiate Court proceedings;

when in fact, and to the practitioner's knowledge, no such work had been done by the practitioner or Aragon.

By an invoice dated 7 October 2005, the practitioner on behalf of Aragon purported to further invoice the [Gs] for:

(d) drafting documents to initiate Court proceedings;

(g) preparing witness statements for the [Gs], a property inspector and a Western Power inspector,

when in fact, to the practitioner's knowledge, no such work had been done by the practitioner or Aragon.

By letter from Aragon to the [Gs] dated 11 October 2005, the practitioner falsely represented to the [Gs] that:

(a) the practitioner had undertaken work on their behalf to justify the invoices referred to in paragraphs 7 and 8 of this application;

(b) the practitioner had advised the [Gs] by telephone on 6 September 2005 of the amount of the first invoice the practitioner purportedly raised;

(d) Aragon had posted an itemised invoice to Mr [G] on 16 September 2005;

(e) Mr [G] had previously been unwilling to negotiate a payment plan in respect of those invoices; and

(f) Aragon was entitled to lodge caveats over the Morley property and the Viveash property because the [Gs] had not paid Aragon's invoices.

By letter dated 17 October 2005 from Aragon to solicitors for the [Gs], Thompson Legal Pty Ltd, the practitioner falsely represented to Thompson Legal Pty Ltd that:

(a) the practitioner had undertaken work on behalf of the [Gs] to justify the invoices referred to in paragraphs 7 and 8 of this application;

(b) Aragon was entitled to lodge caveats over the Morley property and the Viveash property because the [Gs] had not paid Aragon's invoices;

(d) Aragon had posted an itemised invoice to Mr [G] on 16 September 2005.

By letters from Aragon to Thompson Legal Pty Ltd dated 17 October 2005 and 2 December 2005, and by facsimile transmissions from Aragon to Thompson Legal Pty Ltd dated 1 November 2005 and 2 November 2005, the practitioner falsely represented to Thompson Legal Pty Ltd that:

(a) the practitioner had undertaken work on behalf of the [Gs] to justify the invoices referred to in paragraphs 7 and 8 of this application;

(b) Aragon was entitled to payment pursuant to those invoices; and

(c) Aragon was entitled to lodge caveats over the Morley property and the Viveash property because the [Gs] had not paid those invoices.

By letter from Aragon to Sheridan Settlements dated 1 November 2005, the settlement agents for the [Gs] in respect of the Viveash property, the practitioner:

(a) falsely represented that Aragon was entitled to lodge caveats over the Viveash property because the [Gs] had not paid Aragon's invoices;

(b) falsely represented that the [Gs] had made contracts with Aragon in which the [Gs] had agreed that the [Gs'] legal fees payable to Aragon would be paid from the proceeds of sale of the Viveash property;

(d) proposed that Aragon would provide a withdrawal of caveat at settlement of the sale of the Viveash property if, at the same time, Aragon received payment in full of its invoices; and

(e) requested that Sheridan not disclose the letter or its contents to the [Gs].

From about mid November 2005 to about early April 2006, the practitioner misled counsel retained by her to act on Aragon's behalf, Mr Scott Ellis, by falsely representing to him that:

(a) the practitioner had undertaken work on behalf of the [Gs] to justify the invoices referred to in paragraphs 7 and 8 of this application;

(b) Aragon was entitled to payment pursuant to those invoices; and

(c) the [Gs] had made statements to the effect that Aragon's invoices would be paid from the proceeds of sale of the Viveash property.

13A. When the practitioner made the representations pleaded in paragraphs 9-13 above:

(a) she knew each of the representations to be false;

(b) alternatively, she made each representation recklessly, not caring whether it was true or false.

On or about 29 November 2005, the practitioner caused to be lodged with the Department of Land Information documents for the purpose of seeking an extension of time for the operation of the caveat Aragon had lodged over the Viveash property in circumstances where:

(a) the practitioner knew that the [Gs] were not at that date indebted to Aragon in any amount, alternatively, were not indebted to Aragon in the amount then claimed by it; and

(b) the practitioner knew that there was no basis, reasonable or otherwise, to justify the continued operation of the caveat.

On or about 5 December 2005, the practitioner caused Aragon to institute proceedings against the [Gs] in the Magistrates Court of Western Australia for recovery of the amounts the subject of the invoices referred to in paragraphs 7 and 8 of this application ("the Magistrates Court proceedings").
On or about 20 December 2005, the practitioner caused Aragon to file in the Magistrates Court proceedings an application for judgment against the [Gs] in default of defence.
On or about 6 April 2006, the practitioner caused Aragon to file in the Magistrates Court proceedings a statement of claim in which the practitioner falsely claimed that:

(a) Aragon had undertaken work on behalf of the [Gs] to justify the invoices referred to in paragraphs 7 and 8 of this application; and

(b) Aragon was entitled to payment pursuant to those invoices.

The practitioner took the steps pleaded in paragraphs 15 - 17 above in circumstances where:

(a) the practitioner knew that the [Gs] were not at that date indebted to Aragon in any amount, alternatively, were not indebted to Aragon in the amount claimed by it in the Magistrates Court proceedings; and

(b) the practitioner knew that there was no basis, reasonable or otherwise, to justify the institution and prosecution of the Magistrates Court proceedings.

On about 13 May 2006, the practitioner falsely represented to Stefano Boni, a legal practitioner engaged by Aragon to review the status of Aragon's legal client files, that she had undertaken the work in respect of the [Gs]' matter referred to in paragraphs 7 and 8 of this application.
When the practitioner made the representation pleaded in paragraph 19 above:

(b) alternatively, she made the representation recklessly, not caring whether it was true or false.

77 Upon analysis of the G matter, the LPCC alleges that the practitioner made eight knowingly false, that is to say fraudulent, representations as follows (the reference to the document identifies where the representation was initially made):

Aragon was a secured creditor - the caveats;
Aragon was entitled to receive the proceeds of the sale of the Morley property and the Viveash property - the caveats;
the practitioner undertook the court documents work reflected in the invoice purportedly dated 31 August 2005 (the August invoice) and Aragon was entitled to payment of that invoice - the August invoice;
the practitioner undertook the court documents work reflected in the invoice dated 7 October 2005 (the October invoice) and Aragon was entitled to payment of that invoice - the October invoice;
the practitioner advised Mr G of the amount of the August invoice on 6 September and Mr G requested it be fully itemised - letter from Aragon to Mr and Mrs G dated 11 October 2005 - the October letter;
Aragon posted the itemised August invoice to Mr G on 16 September 2005 - the October letter;
on 19 September 2005, Mr G was unwilling to negotiate a payment plan in respect of the August invoice (the substance of this representation has been slightly changed to accord with the October letter) - the October letter; and
Aragon was entitled to caveat the properties because of non-payment of the invoices - the October letter.

78 The making of the representations is not in dispute. The question is whether they were fraudulent in the sense that they were false to the knowledge of the practitioner when made.

79 As the period of the practitioner's direct contact with Mr and Mrs G was only six or so weeks, it is convenient to outline the evidence for this period before making findings in relation to what took place.

80 The practitioner first met Mr and Mrs G at a meeting at Aragon's offices on 8 August 2005.

81 The practitioner claims Mr and Mrs G gave instructions on an urgent basis to 'overturn' the contract for the Morley property and to institute Supreme Court proceedings to that end. Further, that at the meeting Mrs G said she had no money even for the Supreme Court filing fee and had offered the Morley and the Viveash properties as 'securities for costs', insofar as she gave instructions to proceed immediately with the Supreme Court action. The practitioner also gave evidence that she quoted fees of $40,000 for the Supreme Court proceedings.

82 In the practitioner's cross-examination, she put to Mr G that at the meeting she had mentioned that if they proceeded in the Supreme Court she would have to prepare witness statements for the whole family and the tradespeople as well (T:45, 3.11.08). He did not recall that. In answer to questions by the Tribunal, Mrs G (T:42, 3.11.08) emphatically denied that she ever asked the practitioner to prepare witness statements for anyone.

83 The practitioner said she made notes of the meeting but these were not on the file which she inspected at the LPCC's offices. At this time she had made a general note to the LPCC pointing out that some documents were missing and gave that to the LPCC. She had not taken the matter further. The note was not produced.

84 Mr and Mrs G each claimed in evidence that they made clear to the practitioner that their only interest was to recover an amount of $10,000 being the quoted cost of repairing the Morley property to make it habitable. This was the amount which, on Mrs G's evidence, the vendor had previously undertaken to pay to meet the cost of these repairs but from which agreement he had later resiled. Mr and Mrs G also said they made clear to the practitioner that they did not wish to rescind the contract for the Morley property. They did not want to institute Supreme Court proceedings, as the practitioner suggested, but only to mediate their claim for the cost of repairs. They asked the practitioner to write a letter to the vendor for this purpose. At the meeting, Mrs G provided to the practitioner the tradesmen's cards and, it seems likely, the reports from the tradesmen as to the work required for the repairs to the Morley property. Mr and Mrs G each denied that they had offered either of the two properties as security for Aragon's fees.

85 It appears that, notwithstanding the subsequent dispute between Mr and Mrs G and the practitioner as to the nature and content of her instructions, this meeting ended amicably. Mr Venables' evidence was that on the Gs departing, they made a comment to him to the effect that: 'It's nice to find someone who knows what we want'.

86 By letter to Mr and Mrs G dated 10 August 2005, the practitioner confirmed her instructions. She purported to enclose a copy of the letters she wrote to the vendor and to the vendor's real estate agent. The letter to the vendor demanded repayment of the purchase price and associated expenses on the Morley property of about $400,000, based on contractual misrepresentations. There was no reference to the relevant terms of the contract of sale and no offer to return the Morley property. The enclosed copy letters are in fact dated 15 August 2005 and this is the date referred to in the addressees' replies. We note that this type of inconsistency and error was a fairly typical and constant feature of the practitioner's client documents. The practitioner's letter to Mr and Mrs G advises that if these parties are unwilling to settle then 'we should immediately sue them in the Supreme Court of WA'. This letter also encloses Aragon's Standard Terms Contract. This was not signed by Mr or Mrs G.

87 By letter dated 23 August 2005, the practitioner advised Mr and Mrs G as to progress. She enclosed a copy of the responses to her letters dated 15 August 2005. The letter from the solicitors for the vendor stated that Mr and Mrs G's claim articulated in the practitioner's letter was 'beyond comprehension'. The practitioner said in her letter to Mr and Mrs G that she would 'like to finalise your statement of claim as soon as possible'. She enclosed a further copy of the Standard Terms Contract. This again was not signed by Mr or Mrs G. It was never signed.

88 On 28 August 2005, the practitioner inspected the Morley property with Mr and Mrs G and their children. There is a dispute between Mrs G and the practitioner as to what took place during that inspection. It is not necessary to determine exactly what occurred.

89 There was then a telephone conversation between Mr and Mrs G and the practitioner on 6 September 2005. There is a dispute about nearly every aspect of the call including who initiated it and from where, who received it and from where, how long it lasted and what was said. The practitioner claims that the call lasted one and a half hours. She first spoke to Mr G and gave him an estimate of her lump sum bill for work undertaken to date of about $14,000. Her evidence was that Mr G said not to mention this figure to Mrs G because 'she would have a heart attack'. She made a file note of the conversation.

90 In the practitioner's cross-examination of Mr G, she put to Mr G that Mrs G rang the practitioner at her office and that they spoke for one and a half hours and that Mrs G had mentioned that the family was at home. Mr G disputed that the call lasted anything like the time claimed but was rather 10 or so minutes and he said the call was made on their mobile phone whilst they were at the dentist's surgery. He denied the fee estimate was provided. All they had spoken about was the practitioner's view that the vendor ought 'not get away with' not repairing the property. There was no discussion about the Supreme Court proceedings or costs. Mr G said he was unaware at this time that the practitioner was preparing the Supreme Court action. Mr G said in answer to the Tribunal that he thought the practitioner's fees would be in the order of $5,000 to $6,000. They were going to fund this from the sale of the Viveash property.

91 Mr G said the phone was then passed to Mrs G. Mrs G in evidence confirmed that the call was made by the practitioner whilst the family was at the dentist, that Mr G answered the call and spoke first, that it was reasonably short, and that she then took over the phone. She told the practitioner that they wanted to terminate the recovery proceedings (we think in context she meant their 'claim' to $10,000) and that the practitioner had tried to persuade them to continue the claim.

92 In cross-examination of Mrs G, the practitioner suggested that Mrs G had said to Mr G that 'we need to continue this' (meaning the claim against the vendor). The answer from Mrs G was that this assertion was 'totally untrue'.

93 Mr and Mrs G gave evidence that from the time of the practitioner's visit to the Morley property at the end of August 2005, they had lost confidence in her because she overdramatised matters and had pushed them toward the Supreme Court proceedings. They decided to terminate the practitioner's instructions. Mr G did so in a telephone conversation with the practitioner on 19 September 2005. He asked the practitioner to send her bill. He thought that by this stage the fees would be about $3,000 to $5,000.

94 The practitioner said in her evidence she was frequently contacted by Mrs G, on an almost daily basis, in the period from their first meeting until 19 September 2005. Mrs G denied this. The practitioner purportedly made file notes of these conversations which included Mr and Mrs G effectively promising to pay Aragon's fees from the sale of the Viveash property. The substance of these conversations were put to Mrs G by the Tribunal. Mrs G denied the content of these conversations.

95 Mrs G was also asked by the Tribunal about her response to the practitioner's proposal to proceed in the Supreme Court in order, as the practitioner said, to threaten the vendor. Mrs G said 'I believe I would have said, never, ever, ever, ever were we ever going to go to any Supreme Court' (T:147, 27.05.08). She said that is why they refused to pay the filing fee of $700. She said that when the practitioner referred in her letters to proceeding in the Supreme Court she felt bullied by the practitioner. They wanted to move into the Morley property. By the time of the telephone conversation with the practitioner on 6 September 2005, her evidence was that Mr G and she had determined to do the repairs and move in and forget about trying to recover the cost.

96 The practitioner's evidence was that in consequence of these instructions, between the date of her first contact with Mr and Mrs G on 8 August 2005 and the termination of her retainer on 19 September 2005, she prepared the court documents necessary for proceedings in the Supreme Court and in the Magistrates Court. The court documents work included the preparation of a number of statements of claim, witness statements of Mr and Mrs G, their two children and two tradespeople, research and submissions.

97 The practitioner says in relation to the court documents work that she prepared an interim tax invoice dated 31 August 2005 for $18,150 (the August invoice). The practitioner said that following her conversation with Mr G on 6 September 2005 she prepared a fully itemised version of the August invoice which she posted out on 16 September 2005 (the September invoice). Following the termination of her retainer she prepared and sent the October invoice which was a final tax invoice dated 7 October 2005 for $5,618.

98 Mr and Mrs G deny receipt of any invoice until the practitioner's letter dated 11 October 2005.

99 On 20 September 2005, the practitioner arranged for Aragon to lodge caveats over both the Morley property and the Viveash property in each case as 'a person who is to receive portion of the proceeds of land upon a sale, being the registered proprietor's secured creditor'. She made a statutory declaration in support.

100 Thereafter, the practitioner, on Aragon's behalf, sought an extension of the caveats and prosecuted a claim for the recovery of these fees in the manner outlined in the LPCC's statement of facts.

101 The two most significant matters in relation to this aspect of the LPCC's complaint are:

whether the practitioner undertook the court documents work comprising the bulk of the amount claimed in the invoices; and
whether the practitioner believed that Aragon was a secured creditor entitled to lodge and continue the caveats.

102 Both Mr and Mrs G prepared witness statements, the truth of which they swore, and were first questioned by the Tribunal (in the practitioner's absence) and subsequently re-called and cross-examined by the practitioner.

103 As between Mr and Mrs G, Mrs G was principally involved in instructing the practitioner. Although it appears her relationship with the practitioner was initially cordial, it quickly deteriorated. Within three weeks or so of their first conference, Mr and Mrs G had resolved to terminate the engagement of the practitioner, which they did some weeks later (19 September 2005). When the practitioner cross-examined Mrs G it was apparent that there was a high degree of animosity between them. Each accused the other of lying about what had occurred.

104 We are inclined to think Mrs G had rather more contact with the practitioner than she was able or prepared to recall in evidence. We also think that she initially went along with the practitioner's proposals to intimidate the vendor of the Morley property by threatening to issue proceedings. Fundamentally, however, we accept that her instructions to the practitioner were to seek to recover $10,000, which she said the vendor had initially promised to pay, by some form of mediated settlement. She did not authorise the practitioner to launch any proceedings nor to undertake the court documents work.

105 In relation to the events during the period in which Mr and Mrs G retained the practitioner, there is considerable conflict between the version put forward by Mrs G and the account of the practitioner. We deal with some specific areas of conflict below. Generally speaking, for the reasons given, we prefer the evidence of Mrs G, particularly when supported by the evidence of Mr G, over the evidence of the practitioner.

106 Overall, Mr G's witness statement and oral evidence supported the evidence of Mrs G. It appeared he was concerned that the practitioner exercised a measure of influence over his wife's decisions. He gave his evidence in a straightforward way and we believe he genuinely endeavoured to tell the truth as he recalled the events. His evidence was important as to the telephone conference with the practitioner on 6 September 2005. We accept his version of events over that of the practitioner in relation to that call and generally.

107 With regard to the other witnesses, Dr Bachleda was a director of Aragon. She gave evidence both by witness statement and orally, on two separate occasions, concerning her role in the employment and termination of the services of the practitioner. She also gave evidence concerning the location and contents of Mr and Mrs G's file. Dr Bachleda was an impressive witness and we think her evidence entirely reliable. Mr Boni was a solicitor who assisted Aragon in sorting out the practitioner's affairs when her services were terminated. Again, we think he was a reliable witness. His evidence differs from the practitioner's as to the telephone conversations between them. We accept Mr Ellis' limited evidence of his involvement on behalf of Aragon in the recovery proceedings against Mr and Mrs G and we have no reason to doubt the contents of Mr Fullwood's affidavit in relation to his work on the computers at Aragon described below.

108 Overall, we do not accept the practitioner's evidence regarding Mr and Mrs G's matter and we prefer the evidence of the other witnesses which is generally supported by documentary evidence or the fact of the absence of documentary evidence.

109 We must first determine what instructions Mr and Mrs G gave to the practitioner in relation to the Morley property. If, as they emphatically maintained, they were opposed to any Supreme Court proceedings and did not authorise the practitioner to commence the court documents work, it seems unlikely that the practitioner would commence and for some weeks continue the drafting of these documents. The practitioner would have known that Aragon's claim for its fees for this work would have been challenged by Mr and Mrs G.

110 There are several reasons why we accept Mr and Mrs G's evidence that their only instructions to the practitioner were to endeavour to recover the $10,000 claimed against the vendor and that they positively opposed the initiation of Supreme Court proceedings.

111 First, Mrs G as the person most involved in giving instructions, but also Mr G, consistently maintained this position. They did so in their witness statements, under questioning by the Tribunal and in cross-examination by the practitioner. They said they only ever wanted to hold the vendor to his earlier agreement to pay about $10,000 for the cost of work on the Morley property. On their evidence, each time the practitioner raised the subject of Supreme Court proceedings, they indicated this was not what they wanted. In her evidence, Mrs G said she regarded the practitioner's advice that they should institute Supreme Court proceedings to 'scare' the vendor as 'bizarre' (T:131, 27.05.08). Although clearly Mrs G was aware that the practitioner was threatening Supreme Court proceedings, both from the copy correspondence she received and we think also from her telephone contact with the practitioner, we accept her evidence that she did not authorise the practitioner to undertake the court documents work. On the evidence it is apparent that Mr and Mrs G were concerned about incurring legal costs and were themselves scared about the prospect of commencing and conducting Supreme Court proceedings.

112 Second, the rescission of the contract for the Morley property and the recovery of the purchase price necessarily involved the return of that property. Mrs G was adamant in her evidence that at no time did she contemplate such a course. She said, with complete conviction, that the Morley property was 'an amazing beautiful house' which she had no intention of giving up.

113 Third, according to the evidence of the practitioner, at the initial conference on 8 August 2005 she quoted the sum of $40,000 as the cost of the Supreme Court proceedings. We do not believe on the evidence that Mr and Mrs G ever contemplated incurring such a cost, nor indeed the amount they were invoiced, about $24,000, in order to recover the cost of repairs of $10,000. As a matter of probability that was most unlikely. Mrs G's evidence in her witness statement was that in a telephone conversation with the practitioner in mid-August 2005 she told the practitioner that they did not have the $700 the practitioner was seeking for filing fees. We accept Mrs G's evidence in this respect.

114 Fourth, in her own evidence, the practitioner said that it was only Mrs G who wanted to rescind the contract - she accepted that Mr G did not want to rescind the contract because he thought it would be easier just to make the necessary repairs to the Morley property and move in. On that state of the evidence it seems most unlikely that the practitioner genuinely believed she had authority to prepare comprehensive Supreme Court and Magistrate Court proceedings on behalf of Mr (and Mrs) G.

115 Finally, in other areas where there is a conflict between the evidence of Mr and Mrs G and the practitioner (such as the conversation of 6 September 2005) we think the clients' account is more reliable than that of the practitioner.

LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and BACHMANN [2009] WASAT 120 (23 June 2009)

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Judgment (490 paragraphs)

LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and BACHMANN [2009] WASAT 120 (23 June 2009)

Legislation Cited (6)

Cases Cited (7)