BETWEEN : LEGAL PRACTITIONERS COMPLAINTS COMMITTEE

Legal practitioner - Professional behaviour - Legal Practitioners Complaints Committee allegations of illegal conduct and unsatisfactory conduct - Jurisdiction to make finding that legal practitioner is guilty of unsatisfactory conduct - Legal practitioner convicted of an offence - Tribunal finding of unsatisfactory conduct - Disciplinary powers of Tribunal - Tribunal decision not to exercise powers of discipline under s 187 Legal Practice Act 2003 - Tribunal to transmit report to Supreme Court (full bench) pursuant to s 185 (2)(a) Legal Practice Act 2003 - Report finding practitioner guilty of unsatisfactory conduct - Practitioner suspended by Tribunal from practice pending determination of the Supreme Court (full bench)

Words and phrases - "fit and proper person", "unsatisfactory conduct"

Legal Practice Act 2003, Part 12, s 3, s 162, s 164(1)(f), s 185(1), s 185(2), s 185(2)(a), s 185(3), s 185(4), s 187, s 190(1), s 190(2), s 194, s 194(1), s 194(2), s 250A(1), s 250A(2)

State Administrative Tribunal (Conferral of Jurisdiction) Act 2004 (WA), Div 72

State Administrative Tribunal Act 2004 (WA), s 167(4)

Report transmitted to the Supreme Court (full bench) pursuant to s 185(2)(a) of the Legal Practice Act 2003 (WA)

Applicant : Legal Practitioners Complaints Committee

New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at 289

Re A Practitioner unreported Supreme Court of Western Australia Library No 970354 delivered 18 July 1987

Re Maraj (1995) 15 WAR 12

Re Wheare [1893] 2 QB 439

Ziems v The Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279

1 On 27 August 2004, following his plea of guilty to 37 counts of fraud, Rohan George Skea (a legal practitioner) was sentenced in the District Court of Western Australia to a total term of six years imprisonment, with eligibility for parole.

2 In proceedings in the State Administrative Tribunal the Legal Practitioners Complaints Committee alleged that Mr Skea's convictions on the 37 counts of fraud constituted "unsatisfactory conduct" under the Legal Practice Act 2003 (WA) (the Act) and that he should have his name struck from the Roll of Practitioners in Western Australia.

3 At a hearing before the Tribunal on 20 July 2005, Mr Skea, through Senior Counsel, admitted that he was guilty of "unsatisfactory conduct" under the Act and that it was inevitable that his name should be struck from the Roll of Practitioners in this State.

4 The Tribunal found that Mr Skea was guilty of "unsatisfactory conduct" under the Act in terms of the reference filed by the Complaints Committee in the Tribunal.

5 The Tribunal resolved to make and transmit a report on this finding to the Supreme Court (full bench) pursuant to s 185(2)(a) of the Act to enable the Supreme Court (full bench) to determine whether Mr Skea's name should be struck from the Roll of Practitioners.

6 In the meantime, the Tribunal ordered that Mr Skea be suspended from practice.

7 The Tribunal also ordered that Mr Skea pay the Complaints Committee's costs fixed in the sum of $1000.

8 The Legal Practice Act 2003 (WA) (the Act) currently regulates legal practice and legal practitioners in the State of Western Australia. Complaints and discipline concerning legal practitioners are governed by Part 12 of the Act. Section 162 of the Act establishes the Legal Practitioners Complaints Committee. By the Act s 164(1)(f), the functions of the Complaints Committee include the function, "if the

Complaints Committee considers it appropriate to do so, and whether or not it has conducted an inquiry, to institute professional disciplinary proceedings against a legal practitioner before the State Administrative Tribunal".

9 Prior to 1 January 2005, when the State Administrative Tribunal came into operation, s 164(1)(f) gave the Complaints Committee the same function, but provided for the institution of professional disciplinary proceedings against a legal practitioner before the Legal Practitioners Disciplinary Tribunal.

10 Since 1 January 2005, pursuant to the terms of the Act and the 164(1)(f) State Administrative Tribunal (Conferral of Jurisdiction) Act 2004 (WA) Div 72, the State Administrative Tribunal (the Tribunal) has replaced the Legal Practitioners Disciplinary Tribunal for the purpose of complaints and discipline under the Act, and by virtue of the State Administrative Tribunal Act 2004 (WA) s 167(4) matters that were pending before the Disciplinary Tribunal as at 1 January 2005, were transferred to the Tribunal.

11 By a reference to the Disciplinary Tribunal dated 8 October 2004, the Complaints Committee allege that "Rohan George Skea [the practitioner] was:

(1) guilty of illegal conduct between on or about 12 December 2000 and on or about 24 December 2003; and

(2) guilty of unsatisfactory conduct by illegal conduct on or about 13 February 2004."

12 Thirty seven particulars of the illegal conduct were provided in the reference. The reference is attached to these reasons as Annexure A.

13 In each case the Complaints Committee allege that "with intent to defraud, by deceit or fraudulent means" the practitioner gained a benefit of money from a company, Showtrax International Pty Ltd.

14 By reason of the operation of the State Administrative Tribunal legislation referred to, on 1 January 2005 the reference to the Disciplinary Tribunal was transferred to the State Administrative Tribunal.

15 On 20 July 2005, the reference came on for hearing before this Tribunal.

16 By the practitioner's answer filed in the Disciplinary Tribunal and dated 14 November 2004, the practitioner admitted that "he was guilty of illegal conduct and unsatisfactory conduct as particularised in the reference dated 7 (sic) October 2004."

17 At the hearing before this Tribunal on 20 July 2005, Mr Birmingham QC, who appeared on behalf of the practitioner, confirmed that the practitioner admitted the practitioner was guilty of illegal conduct and unsatisfactory conduct as particularised in the reference and confirmed the answer previously filed by the practitioner in that regard.

18 By s 185(1) of the Act, "[t]he [Tribunal] has jurisdiction to make a finding that a legal practitioner is guilty of unsatisfactory conduct".

19 By s 185(2), "[o]n making a finding in respect of the legal practitioner under subsection (1) the [Tribunal] may -

(a) make and transmit a report on the finding to the Supreme Court (full bench); or

(b) deal with the legal practitioner as specified in section 187".

20 By s 185(3), "[i]f the [Tribunal] transmits a report in respect of a legal practitioner to the Supreme Court (full bench) under subsection (2)(a) the Tribunal may, pending the determination of the Supreme Court (full bench) -

restrict the entitlement of the legal practitioner to practice".

21 By s 185(4), "[w]here appropriate, a report forwarded under subsection (2)(a) may include a record of the evidence taken at the hearing".

22 By s 194(1), "[i]f the [Tribunal] under s 185(2)(a) or s 190(4)(b) makes and transmits a report in respect of a legal practitioner to the Supreme Court (full bench), the report is to be taken to be conclusive as to all facts and findings mentioned or contained in the report".

23 By s 194(2), "[t]he Supreme Court (full bench) may, upon motion and upon reading the report, and without any further evidence, fine,

suspend from practice, or strike off the Roll of Practitioners the legal practitioner or make any order which the [Tribunal] might make under s 185(2)(b)".

24 By s 187, the Tribunal may make a number of disciplinary orders in respect of a legal practitioner but they do not include suspension from practice for a period exceeding two years or striking the legal practitioner off the Roll of Practitioners. Accordingly, if, having heard a reference, the Tribunal decides that a practitioner should be struck off the Roll of Practitioners, the Tribunal must make and transmit a report to that effect to the Supreme Court (full bench).

25 By s 250A(1) and (2), the Tribunal cannot exercise it powers under s 185(2)(a) and make and transmit a report to the Supreme Court (full bench) or order the suspension of a legal practitioner from practice, unless the Tribunal is constituted so as to include the President.

26 The Tribunal, for the purposes of this reference, is appropriately constituted to enable it to make and transmit a report to the Supreme Court (full bench) that the practitioner should have his name struck off the Roll of Practitioners.

27 Section 3 of the Act defines the expression "unsatisfactory conduct" to include -

"(a) unprofessional conduct on the part of a legal practitioner, whether occurring before or after admission as a legal practitioner;

(b) illegal conduct on the part of a legal practitioner, whether occurring before or after admission as a legal practitioner;

(c) neglect, or undue delay, in the course of legal practice;

(d) a contravention of this Act, the regulations or the rules; and

(e) 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."

28 In this case the two allegations made against the practitioner by the Complaints Committee each refer to "illegal conduct" by the practitioner at material times.

29 The practitioner, by his answer and through senior counsel who represented him at the hearing before the Tribunal, admitted his illegal conduct.

30 Section 190(1) of the Act provides that the Tribunal

"may make a finding that a legal practitioner is guilty of unsatisfactory conduct on it being shown that -

(a) the legal practitioner has been convicted of an offence by or before a court exercising jurisdiction in any place, whether in Australia or elsewhere; and

(b) the conviction occurred within the period of 10 years before the commencement of the proceedings under this Act in which that finding may be made."

31 By s 190(2), "[i]n any matter to which subsection (1) relates the [Tribunal]

(a) is not required to inquire as to the propriety of the conviction; and

(b) may inform itself as to the circumstances giving rise to the conviction from the transcripts or other records of -

(i) the court which convicted the legal practitioner; or

(ii) any court which dealt with the conviction on appeal,

and may make such inquiries or requests as are necessary to obtain those transcripts or records".

32 In this case, the Tribunal has received a Transcript of Proceedings of the District Court of Western Australia at Perth on Friday 27 August 2004 concerning the State of Western Australia and the practitioner in which Kennedy CJDC sentenced the practitioner on 37 counts of fraud which occurred between 12 December 2000 and 14 February 2004. These counts of fraud are those set out in the particulars to the reference which are admitted by the practitioner. The Transcript of Proceedings, and the

factual matters referred to that are incorporated by reference into these reasons, are attached as Annexure B.

Findings by the Tribunal concerning unsatisfactory conduct

33 The Tribunal has informed itself from the Transcript of Proceedings in the District Court.

34 The Tribunal finds that the practitioner is guilty of unsatisfactory conduct in the manner alleged in the reference and the 37 particulars provided in the reference.

35 Each of the particulars in the reference is based upon the practitioner's conviction in the District Court on 37 counts of fraud, which occurred between 12 December 2000 and 13 February 2004, and the further count of fraud on 13 February 2004 alleged in particular 37, which correlates with count (37) in the Indictment brought by the State of Western Australia against the practitioner in respect of which the practitioner entered his plea of guilty in the District Court. The Indictment is attached to these reasons as Annexure C.

36 It was for this illegal conduct that the Chief Judge of the District Court on 27 August 2004, having considered all factors relevant in the sentencing process, sentenced the practitioner to a term of imprisonment in these terms:

"You are sentenced in fact to three years on each count. Counts 1 and 2 are cumulative on each other and each other count is concurrent with them. The total then is six years. You are eligible for parole. I do not set the parole term, but it is my obligation to advise you that at the end of four years you may apply for parole and it's a matter for the Parole Board to determine whether that parole is granted, and the sentence if backdated to the day you went into prison."

Tribunal's view of the necessary disciplinary outcome

37 As noted earlier, by s 185(2) of the Act, on making a finding in respect of the legal practitioner that the legal practitioner is guilty of unsatisfactory conduct, the Tribunal may either make and transmit a report on the findings to the Supreme Court (full bench) or deal with the legal practitioner as specified in s 187 of the Act.

38 Under s 187 of the Act, the Tribunal has a relatively limited array of disciplinary powers. As noted earlier, the Tribunal cannot suspend a

practitioner for a period exceeding two years and may not strike a practitioner's name from the Roll of Practitioners. In the event that the Tribunal considers that a longer suspension than two years, or striking off is required, it must make and transmit a report to that effect to the Supreme Court (full bench) to permit the Court "to punish" the practitioner (as the heading to s 194 suggests it does).

39 In this case, the Tribunal has no hesitation in deciding that it must make and transmit a report to the Supreme Court (full bench) to the effect that the practitioner should have his name struck off the Roll of Practitioners.

40 The Complaints Committee, through counsel, submits that this is the only proper outcome. In its statement of the issues, facts and contentions concerning the reference, the Complaints Committee state the issue in these terms: "[I]s the practitioner a fit and proper person to remain on the roll of practitioners of the Supreme Court of the State of Western Australia?". That is a fair statement of the issue.

41 The Complaints Committee contends that it is not just the fact that the practitioner has been convicted that, of itself, warrants a report to the Supreme Court (full bench). It says that "[t]he facts upon which the convictions are based are important". The facts on "the whole of the practitioner's conduct, including those facts which are additional to those facts required to prove the offences of which the practitioner has been convicted", are relevant to the findings of facts: Ziems v The Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279 at 288; Re A Practitioner unreported Supreme Court of Western Australia Library No 970354 delivered 18 July 1987 at 12 - 13.

42 The Complaints Committee further contends that "[a]lthough the practitioner's conduct did not occur in the course of his professional practice, [his conduct] ... demonstrates unfitness to practice as it amounts to incompatibility with:

the personal qualities essential for the conduct of practice; and

43 See: New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at 289; Ziems v The Prothonotary of the Supreme Court of NSW (supra) at 297-299.

44 The Complaints Committee further contends that "the practitioner's conduct giving rise to his convictions is of such a personally disgraceful

character that he should not remain a member of an honourable profession": Re Wheare [1893] 2 QB 439 at 446.

45 The Complaints Committee also contends that "[i]n order to protect the public and the reputation of the profession, the consequences for the practitioner may need to be more severe than if the only object of the proceedings is one of punishment": Re Maraj (1995) 15 WAR 12 at 25.

46 The Complaints Committee ultimately contends that "[t]he practitioner is not a fit and proper person to remain a member of the profession": Re A Barrister and Solicitor (1979) 40 FLR 1 at 24-25.

47 The practitioner, through his answer and by senior counsel who appeared on his behalf both in the District Court sentencing process and in this Tribunal, acknowledges that it is inevitable that his name should be struck off the Roll of Practitioners. Before the Tribunal, Mr Birmingham QC, on behalf of the practitioner, told the Tribunal that the practitioner profoundly regrets and apologises for his conduct. He accepts that his conduct, whilst not conduct in the course of practising law, nonetheless not only has brought great shame upon him personally, but also has greatly affected the standing and reputation of the legal profession in Western Australia.

48 The Tribunal accepts the contentions made on behalf of the Complaints Committee; contentions which have been acknowledged and confirmed by the practitioner. In the view of the Tribunal, there is no alternative but for the practitioner to be struck off the Roll of Practitioners.

49 However, as noted, this Tribunal does not have the power to strike the practitioner off the Roll. The function of the Tribunal, where it considers this outcome to be appropriate, is to make and transmit its report containing its findings to the Supreme Court (full bench) to permit the Court to exercise its powers of discipline under the Act.

50 The Tribunal finds the practitioner guilty of unsatisfactory conduct under the Act, in the terms and particulars set out in the reference.

51 The Tribunal does not consider it appropriate for the practitioner to be dealt with in accordance with the powers of the Tribunal set out in s 187 of the Act.

52 Rather, the Tribunal considers it should make and transmit a report on the finding it has made to the Supreme Court (full bench) pursuant to s 185(2)(a) of the Act to permit the Court to consider striking the practitioner's name off the Roll of Practitioners.

53 These reasons constitute the making of the report on the finding of the Tribunal for the purpose of the Act s 185(2)(a) and they will be sent to the Chief Justice.

54 The Tribunal also considers that pending the determination of the Supreme Court (full bench) of the matter in light of the transmission of the report, there should be an order suspending the practitioner from practice.

55 There should also be orders that the practitioner should pay the Complaints Committee's costs in the sum of $1000 and that this decision may be published.

56 The Tribunal makes the following findings or orders:

1. the Tribunal finds Rohan George Skea (the practitioner) guilty of unsatisfactory conduct under the Legal Practice Act 2003 (WA), in terms of the reference to the Tribunal dated 8 October 2004;

2. the Tribunal makes and transmits a report on the finding it has made to the Supreme Court (full bench) which, for purposes of the Legal Practice Act 2003 (WA) s 185(2)(a) is constituted by these reasons for decision;

3. pending the determination of the Supreme Court (full bench) in relation to the report transmitted to it by the Tribunal, the practitioner is suspended from practice;

4. the practitioner shall pay to the Complaints Committee its costs of and incidental to the hearing and determination of the proceedings in the Tribunal, which are fixed in the sum of $1000;

5. the decision and the reasons of the Tribunal may be published.

I certify that this and the preceding [56] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUSTICE M L BARKER, PRESIDENT

Annexure A