17 JULY 2012 - FURTHER WRITTEN SUBMISSIONS FILED ON 15 AUGUST 2012 AND 4 SEPTEMBER 2012

DELIVERED : 12 MARCH 2013 [REVISED 20 JUNE 2013]

BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE

Vocational regulation - Legal practitioners - Unsatisfactory professsional conduct - Professional misconduct - Duties of fairness, honesty and propriety in relation to third parties affected by proposed court or tribunal orders - Duty not to mislead a court or tribunal - Failure to notify court of third party's interest - Failure to notify third party of proposal to seek consent orders or of making of consent orders affecting third party's interest - Failure to respond to Legal Profession Complaint Committee's enquiries in a proper and timely manner

Legal Practice Act 2003 (WA), s 3, s 164(1)(c)

Legal Profession Act 2008 (WA), s 3, s 402, s 403, s 403(1), s 403(1)(b), s 438(1)

State Administrative Tribunal Act 2004 (WA), s 62(3)

Findings of professional misconduct and unsatisfactory professional conduct

The Legal Profession Complaints Committee alleged that a legal practitioner engaged in professional misconduct in relation to consent orders affecting a third party's interests made by the Family Court of Western Australia in proceedings between the practitioner and his former wife, and in relation to responding to written enquiries of the Committee. The practitioner denied the allegations.

The practitioner had entered into a contract, which became unconditional, to sell a property to a third party. He subsequently signed a minute of agreed orders in which he sought an order of the Court requiring him to transfer the property to his former wife. The practitioner provided outstanding information to enable the minute of agreed orders to be completed and filed by his former wife's solicitor, and told his former wife's solicitor that he would like the minute of agreed orders filed as soon as possible to 'deflect' specific performance by the third party.

The Tribunal found that the practitioner had the intent and carried out a course of conduct to have the consent orders made by the Court and to have the property transferred by him to his former wife pursuant to the consent orders, in order to secure a home for his children with their mother, and also to defeat the third party's claim to specific performance. The Tribunal found that, in doing so, the practitioner engaged in professional misconduct by breaching fundamental duties of fairness, honesty and propriety, to the Court and to the third party, to notify the Court of the third party's interest and to notify the third party of the proposal to seek the consent orders.

The Tribunal also found that the practitioner engaged in professional misconduct by intentionally causing the Court to be misled that there was no third party who ought to be heard by the Court before orders were made in terms of the minute of agreed orders.

In addition, the practitioner engaged in professional misconduct by failing to subsequently notify, or attempt to notify, the third party that the consent orders had been made, and the Court of the third party's interest after the orders had been made.

Finally, the Tribunal found that the practitioner engaged in unsatisfactory professional conduct by failing to respond adequately and within a reasonable time to the Committee's enquiries.

The Tribunal required the parties to file submissions in relation to penalty and costs and listed these issues for determination.

[The reasons for decision were revised prior to general publication on 20 June 2013 in accordance with a non­publication order made under s 62(3) of the State Administrative Tribunal Act 2004 (WA).]

Respondent : Mr MF Rynne (until 23 July 2012) / Mr MJ Lourey (23 July 2012 to 27 August 2012) / Self­represented (from 27 August 2012)

Respondent : Chapmans Barristers and Solicitors (until 27 August 2012)

AB v State of Western Australia & Anor [2011] HCA 42; (2011) 244 CLR 390; (2011) 281 ALR 694

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

Chamberlain v Law Society of the Australian Capital Territory [1993] FCA 527; (1993) 43 FCR 148

Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186

In the Marriage of Biltoft [1995] FamCA 45; (1995) 19 Fam LR 82

Jimmy v R [2010] NSWCCA 60

Kennedy v The Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJR 563

Legal Practitioners Complaints Committee and Richardson [2006] WASAT 251

Legal Practitioners Complaints Committee and Segler [2009] WASAT 205

Legal Profession Complaints Committee and Fitzpatrick [2011] WASAT 20

Legal Profession Complaints Committee and Segler [2010] WASAT 135

Legal Profession Complaints Committee and Skerritt [2012] WASAT 221

Official Trustee in Bankruptcy v Donovan & Stevens (No 2) (1996) 132 FLR 407; (1996) 20 Fam LR 802; (1996) FLC 92­703

State of Victoria v Sutton [1998] HCA 56; (1998) 195 CLR 291

Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202

1 The Legal Profession Complaints Committee alleges that a legal practitioner engaged in professional misconduct in four respects relating to consent orders affecting a third party made by the Family Court of Western Australia in proceedings between the practitioner and his former wife for an alteration of their property interests. In particular, the Committee alleges that the practitioner engaged in professional misconduct, between about 1 December 2004 and 14 March 2005, by:

(a) causing, alternatively, permitting a minute of consent orders to be filed on behalf of his wife and himself in the Family Court of Western Australia for the transfer of property (subject property) from the practitioner to his wife:

(i) in circumstances where the practitioner knew that Mr A, a third party, claimed, or may claim, rights as a third party purchaser, including a right to a transfer of the subject property to Mr A;

(ii) without notifying, or intending to notify, Mr A, of the fact that the minute of consent orders could or would be filed;

(iii) without notifying, or attempting to notify, the Family Court of Western Australia of the fact that a third party claimed, or may claim, rights as a third party purchaser of the subject property;

(b) intentionally, alternatively, recklessly causing or permitting the Family Court of Western Australia to be misled:

(i) as to the reasons why the practitioner and his wife sought to have orders made urgently by the Court in terms of the minute of consent orders;

(ii) that there was no third party who ought to be heard by the Court before orders were made in terms of the minute of consent orders;

(c) failing to notify, or attempt to notify, Mr A, who, to the practitioner's knowledge, wished to proceed with a contract to purchase the subject property, that orders had been made by the Family Court of Western Australia in terms of the minute of consent orders for the transfer of the subject property from the practitioner to the practitioner's wife;

(d) subsequent to orders being made by the Family Court of Western Australia in terms of the minute of consent orders, failing to notify, or attempt to notify, the Court that a third party wished to proceed with a contract to purchase the subject property.

2 The Committee also alleges that the practitioner engaged in professional misconduct, between about 15 May 2006 and 10 August 2006, by:

(e) failing to respond adequately and within a reasonable time to written enquiries made of the practitioner by the Committee.

3 The practitioner denies each of these allegations of professional misconduct.

4 The determination of this matter was delayed because of various applications made by the practitioner to the Tribunal and to the Supreme Court of Western Australia: [citations redacted].

5 We will address each of the Committee's five grounds, after first referring to the applicable legal framework and principles, discussing the basis upon which the Committee contended that the practitioner is guilty of professional misconduct, and addressing certain jurisdictional submissions made by the practitioner.

6 The Committee brought this proceeding against the practitioner pursuant to s 438(1) of the Legal Profession Act 2008 (WA) (LP Act). Section 438(1) of the LP Act confers jurisdiction upon the Tribunal to make a finding that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct. Section 442 of the LP Act provides that the Tribunal may find a person guilty of unsatisfactory professional conduct even though the referral by the Committee alleged professional misconduct.

7 Section 402 and s 403 of the LP Act provide inclusive definitions of the key concepts of 'unsatisfactory professional conduct' and 'professional misconduct'. Section 402 of the LP Act states as follows:

For the purposes of this Act -

"unsatisfactory professional conduct" includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2) For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.

9 As the Tribunal held in Legal Practitioners Complaints Committee and Segler [2009] WASAT 205 (Segler) at [97], in relation to the definition of 'professional misconduct' in s 403 of the LP Act:

The use of the word 'includes' in the definition in s 403 of the 2008 Act suggests that (a) and (b) are intended to be examples of conduct which will constitute 'professional misconduct' and are not intended to be exhaustive of what constitutes 'professional misconduct': see DC Pearce and RS Geddes, Statutory Interpretation in Australia (6th ed, 2006) at 239 [6.56] and the cases cited therein. In that context, we view (a) and (b) as discrete examples of conduct which will constitute professional misconduct. ...

10 Furthermore, as the Tribunal held in Legal Profession Complaints Committee and Caine [2010] WASAT 178 (Caine) at [10], [15] and [19]:

This situation [that the conduct and investigation occurred under the legislation prior to the commencement of the LP Act] is covered by the LP Act. By s 622, Part 13 of the LP Act (which provides for complaints and discipline) applies in relation to the conduct of legal practitioners whether the conduct occurred before or after the commencement day; and to conduct consisting of a contravention of the 1893 Act or the [Legal Practice Act 2003 (WA)] before the commencement of s 622, as if the conduct consisted of a contravention of the LP Act. The effect of that provision is that unprofessional conduct in the form proscribed under the earlier Acts is capable of constituting, and to the extent established must be categorised as, unsatisfactory professional conduct or professional misconduct under the LP Act.

...

The common law concept of 'unprofessional conduct' (sometimes expressed as 'professional misconduct', sometimes signifying more serious misconduct) is conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence; or that, to a substantial degree, falls short of the standard of professional conduct observed or approved by members of the profession of good repute and competence. See Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 (Kyle) for a recent restatement and application of this notion in Western Australia, which is not to be treated as codified or exhaustive.

...

It cannot have been intended by the legislature that only conduct involving 'competence' (to do with skill, capacity and ability) and 'diligence' (to do with application to the task) should (in addition to conduct establishing unfitness to practice) fall for consideration and that other instances of unprofessional conduct (for example dishonesty or impropriety) which exist at common law should no longer constitute conduct covered under the LP Act. (Professional standards include but are not limited to consumer protection). So much follows as a matter of common sense and from the operation of s 622 as described above. Moreover, s 401 includes as the purposes of Part 13 'to promote and enforce the professional standards, competence and honesty of the legal profession'. ... .

11 In Caine, the Tribunal referred, at [15], to the restatement of the common law concept of unprofessional conduct in Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 (Kyle). In Kyle, Parker J (with whom Ipp J, at [1], and Steytler J, at [22], agreed) held at [61] as follows:

... This Court has long accepted and applied, in this context, the understanding of the notion of unprofessional conduct which was expressed by the Full Court of the South Australian Supreme Court in Re a Practitioner of the Supreme Court [1927] SAStRp 9; [1927] SASR 58: see, eg, Re a Practitioner (unreported, Supreme Court, WA, Full Court, Library No 4989, 18 July 1983). It was usefully summarised (at 3) by the Full Court as conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, or that, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence. The first limb of this summary includes, but is not confined to, conduct which occurs in the course of legal practice. The other limb necessarily relates to conduct in the course of legal practice because of the reference to 'professional conduct'. While the words should not be taken as necessarily an exhaustive or codified statement, the essence of the notion of unprofessional conduct is usefully revealed in these decisions.

12 Thus, in Caine, and subsequently in Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (in de Braekt), the Tribunal held that conduct which constitutes unprofessional conduct at common law can constitute unsatisfactory professional conduct or professional misconduct under the LP Act.

13 In Chamberlain v Law Society of the Australian Capital Territory [1993] FCA 527; (1993) 43 FCR 148 (Chamberlain) Lockhart J observed at 163 as follows:

It is well established ... that unprofessional conduct on the part of a legal practitioner may extend to conduct in his private capacity.

14 In particular, a legal practitioner may be guilty of unsatisfactory professional conduct or professional misconduct when acting for themselves in legal proceedings. In Chamberlain, a legal practitioner was found guilty of professional misconduct in relation to the settlement of, and a consent judgment in, a proceeding brought against him in a personal capacity by the Deputy Commissioner of Taxation, where the practitioner knew that the amount claimed by the Deputy Commissioner was only 10% of the amount the practitioner owed in tax. While dissenting in the result, Jenkinson J aptly observed at 168 that:

Although the appellant was here the litigant, not the lawyer, the conduct impugned was in that sphere of activity in which the lawyer engages when he practises his profession.

15 In the circumstances of this case, although the practitioner generally practises in work injury and industrial law, and does not practise in the family law jurisdiction, he was representing himself in the proceedings for alteration of his and his wife's property interests in the Family Court of Western Australia. The practitioner's conduct which is the subject of consideration in this case was in the sphere of activity in which a practitioner engages to practise his or her profession. In particular, as the Committee, in effect, contended, and as we find below, the practitioner's conduct in respect of the consent orders and Mr A's interest involved the breach of fundamental duties which are binding upon legal practitioners, whether acting for a client or representing themselves in private litigation, namely duties of fairness, honesty and propriety, to the relevant court or tribunal and to affected third parties, to notify a third party whose rights or interests are, or may be, affected by proposed orders, of the proposal to seek those orders and the court or tribunal of the third party's interest, and the duty not to knowingly mislead a court or tribunal. As Mr MF Rynne of counsel, who appeared on behalf of the practitioner at the hearing, correctly and properly conceded on behalf of the practitioner in the course of oral submissions:

I think I have conceded, and I will adopt what senior counsel has stated, that, yes, you can be as incompetent as you like, if you are self­representing, but there are certain standards as a legal practitioner that you have to maintain. ...

If the assertion is solely one of propriety, in that you have misled the Court, it doesn't matter whether you're for yourself or for your client. You can't mislead the Court as a practitioner. ...

[The duty to notify a third party of the filing of consent orders affecting the third party's interest is] a duty of fairness and if the practitioner carries that duty, it doesn't matter whether he is representing himself or not representing himself. (T:5.3, 5.5 and 5.5; 17.07.12).

16 Finally, we note that, although the civil standard of proof ('on a balance of probabilities') applies in disciplinary proceedings, because of the serious nature of allegations to be determined and the potential consequences of such proceedings on a person's lawful capacity to pursue their vocation, in accordance with the so­called Briginshaw approach, cogent evidence is required and the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; [citation redacted].

The basis of the Committee's claim of professional misconduct against the practitioner

17 The Committee's grounds alleging that the practitioner was guilty of professional misconduct set out in the introduction above do not identify the statutory or common law basis of the claimed professional misconduct. At the commencement of her opening, we invited Ms PE Cahill SC, who appeared with Ms PE Le Miere on behalf of the Committee, to do so. Ms Cahill referred to both paras (a) and (b) of s 403(1) of the LP Act (which she correctly characterised as 'only an inclusive definition' (T:5.1, 6.3.12)) and to the common law concept of unprofessional conduct which was restated by the Full Court of the Supreme Court in Kyle. Ms Cahill said in opening that 'clearly the conduct in the grounds, if proved, comprises common law unprofessional conduct' (T:5.6, 6.3.12).

18 The Committee's written submissions did not refer to the types of professional misconduct stipulated in s 403(1) of the LP Act, but rather argued solely that the practitioner's conduct amounted to unprofessional conduct at common law, within the first limb of the restatement in Kyle, namely, 'conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence'. In the course of her oral submissions made on 17 July 2012, Ms Cahill also made it clear that the case against the practitioner was professional misconduct at common law, within the first limb of Kyle, and did not include either of the statutory inclusions of professional misconduct in paras (a) and (b) of s 403(1) of the LP Act.

19 In his original written submissions concerning 'the relevant legislation', the practitioner assumed that the Committee relied upon each of the instances of professional misconduct set out in s 403(1) of the LP Act. The practitioner made submissions on this assumption. The effect of the clarification of the Committee's position in its written and oral submissions was to substantially reduce the ambit of the practitioner's original written submissions on this subject.

20 That the Committee's position on this fundamental aspect of its case was not made entirely clear until its closing submissions was unsatisfactory. The Tribunal expects that, in the future, the Committee will clearly articulate the statutory or common law basis upon which it contends a finding of unsatisfactory professional conduct or professional misconduct should be made against a practitioner in its originating application or statement of issues, facts and contentions.

21 However, although the manner in which this issue was clarified caused the practitioner a degree of unnecessary work, the Committee did refer to the common law concept of unprofessional conduct in its opening, and there was no material prejudice to the practitioner.

Practitioner's submissions in relation to jurisdiction

22 Two aspects of the practitioner's original written submissions remain relevant in relation to the Tribunal's jurisdiction. First, as Mr Rynne pointed out, although the allegations of professional misconduct against the practitioner were referred to the Tribunal after the commencement of the LP Act on 1 March 2009, the impugned conduct occurred during the currency of the former Legal Practice Act 2003 (WA) (Legal Practice Act).

23 However, s 622 of the LP Act states that Pt 13, which relates to complaints and disciplinary matters against legal practitioners, applies in relation to their conduct 'whether the conduct occurred before or after the commencement day'. It has been recognised that, in order for conduct that occurred during the currency of the Legal Practice Act to constitute unsatisfactory professional conduct or professional misconduct under the LP Act, the conduct must have constituted 'unsatisfactory conduct' under the Legal Practice Act: Legal Profession Complaints Committee and Fitzpatrick [2011] WASAT 20 at [7]; Legal Profession Complaints Committee and Carlose [2012] WASAT 104 at [21].

24 The term 'unsatisfactory conduct' was defined in s 3 of the Legal Practice Act to include, among other things:

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

25 The term 'unprofessional conduct' was not defined in the Legal Practice Act, but, as noted earlier, has a well established meaning at common law, as restated in Kyle prior to the commencement of the Legal Practice Act. As the High Court of Australia said in AB v State of Western Australia & Anor [2011] HCA 42; (2011) 244 CLR 390; (2011) 281 ALR 694 at [10] (footnotes omitted):

What is comprehended by [a legislative provision] falls to be determined by construing its terms in the context of the [legislation] as a whole and by reference to its evident purposes. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ referred to the importance of the context, general purpose, policy and fairness of a statutory provision, as guides to its meaning. The modern approach to statutory interpretation uses 'context' in its widest sense, to include the existing state of the law and the mischief to which the legislation is addressed. Judicial decisions which preceded the [legislation] may be relevant in this sense, but the task remains one of the construction of the [legislation].

26 Thus, if the practitioner's conduct the subject of this proceeding constitutes unprofessional conduct at common law, within the first limb of Kyle, which we find below that it does, then it constitutes 'unprofessional conduct' under the Legal Practice Act, understood in the context of the existing state of the law prior to that Act, as established by judicial decisions including Kyle and, therefore, 'unsatisfactory conduct' under the Legal Practice Act. Because the statutory definition of professional misconduct under s 403 of the LP Act allows for the continued application of the common law concept of unprofessional conduct, and because of the transitional provisions noted above, the Tribunal has jurisdiction to find the practitioner guilty of unsatisfactory professional conduct or professional misconduct under the LP Act, even though the conduct occurred prior to the commencement of that Act. This is the basis upon which the Committee proceeded in this case and was not seriously disputed by the practitioner.

27 Second, Mr Rynne, referring to a passage in the Tribunal's decision in Caine at [26], submitted that 'by reference to Caine no particulars of professional conduct rules or practice have been outlined as supporting the complaints despite the Application being amended and tendered at the conclusion of the evidence'. The passage from Caine referred to by Mr Rynne is as follows:

Under the new statutory regime, the Tribunal will be required to make findings as to: the nature of the charge made and the evidence in support, the relevant professional conduct rules or practice governing the matter, the extent to which there has been a departure from those rules or that practice, and whether in all of the circumstances including as necessary by reference to the common law concept of unprofessional conduct, the practitioner's conduct may be said to constitute unsatisfactory professional conduct or professional misconduct.

28 Mr Rynne's submission assumes importance in the context of a submission he made, which is addressed below, that the practitioner was not under any duty to notify Mr A of the proposed consent orders, because there was no statutory requirement, or written rule or practise, requiring him to do so. The short answer to the submission about the absence of particulars of professional conduct rules or practise in relation to notification of third parties is that it is clear, including from the decision in Caine, that a finding of professional misconduct is not dependant upon the existence of or a departure from a specified rule or practise. It can be based, as in this case, on conduct within the first limb of the common law concept of unprofessional conduct (historically, professional misconduct), as restated in Kyle, namely 'conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence'. The substantive answer to the submission is that, as discussed below, the duties upon a legal practitioner, whether representing a client or conducting proceedings for themselves, of fairness, honesty and propriety in relation to third parties, including the duty to notify a third party whose rights or interests are, or may be, affected by proposed orders, and the court or tribunal of the third party's interest, and not to mislead a court or tribunal, are so fundamental and self­evident for the proper conduct of a legal practitioner, that it is unnecessary for them to be recorded in a written rule or practise in order to be binding on members of the profession. Finally, the practitioner's conduct in relation to each of grounds (a)­(d) may be described as a breach of the Law Society of WA Professional Conduct Rules in force at the end of 2004. Rule 3.1 provided: 'A practitioner shall not attempt to further his client's case by unfair or dishonest means.' The case is all the stronger when it is the practitioner's own case which he is seeking to advance by such means. (We should record that this rule was not referred to by the Committee.)

29 In his supplementary written submissions, the practitioner made two further substantive arguments in relation to jurisdiction. First, the practitioner submitted that 'there is still serious doubt, in light of s 3 of the [LP Act], as to whether the common law test [ie. the common law concept of unprofessional conduct] is still applicable, or whether s 402 and s 403 [of the LP Act] are the only choices available for the [Committee]'. The practitioner submitted that this is the case because it is possible to construe the word 'includes' in s 403(1) of the LP Act as being exhaustive, and there is no decision of the Court of Appeal on the issue, with the only decision of the Tribunal suggesting the continued applicability of the common law concept of unprofessional conduct being Caine.

30 However, the practitioner's first argument cannot stand, given the clear wording of s 403 of the LP Act ('"professional misconduct" includes ...') and the case law. Although there is no decision of the Court of Appeal directly on point, the Tribunal has, in a number of decisions including Segler, Caine and in de Braekt, held that, on its proper interpretation, s 403(1) of the LP Act is not an exhaustive statement of what constitutes 'professional misconduct' under the Act, but rather sets out in paras (a) and (b) of that subsection what the legislature has declared to fall within the statutory term. The fact that the term 'professional misconduct' is defined in s 3 of the LP Act as having 'the meaning given in section 403' does not cast any doubt on the correctness of this interpretation. The meaning of the term 'professional misconduct' given in s 403 of the LP Act is inclusive, rather than exhaustive. Moreover, as was explained in Caine at [19], in terms endorsed in in de Braekt at [22]:

It cannot have been intended by the legislature that only conduct involving "competence" (to do with skill, capacity and ability) and "diligence" (to do with application to the task) should (in addition to conduct establishing unfitness to practise) fall for consideration and that other instances of unprofessional conduct (for example, dishonesty or impropriety) which exist at common law should no longer constitute conduct covered by the LP Act.

31 Second, the practitioner argued that, because the Committee classified his conduct as not occurring in connection with the practice of law, it could not rely on para (a) of s 403(1) of the LP Act, and therefore had to rely on para (b) of that subsection. The practitioner submitted that it was 'impermissible' for the Committee to rely on para (b) 'on parity principles', having regard to its earlier referral of a professional disciplinary matter to the Tribunal against Ms B, the practitioner's former wife's solicitor in the Family Court of Western Australia proceedings. In that case, the Committee sought, and the Tribunal made, a finding of professional misconduct against Ms B under para (a) of s 403(1) of the LP Act: [citation redacted].

32 The practitioner submitted that, as Ms B 'had control of the process' in relation to the consent orders and the third party, it is impermissible, on parity principles, for the Committee to ask the Tribunal to apply a more stringent test under s 403(1)(b) of the LP Act than it sought to be applied to Ms B. Further, the practitioner submitted that, if the common law concept of unprofessional conduct continues to apply under the LP Act, it is, similarly, impermissible, on parity principles, for the Committee to seek a finding of professional misconduct on the basis of unprofessional conduct at common law, given its approach in the case against Ms B.

33 However, ultimately, in this case, the Committee did not rely on either para (a) or para (b) of s 403(1) of the LP Act, but rather solely on the common law concept of unprofessional conduct (specifically, professional misconduct under the first limb of Kyle), which for reasons explained above continues to apply under s 403(1) of the LP Act.

34 We acknowledge that the Committee's case, and the Tribunal's finding, in [the disciplinary proceeding against Ms B] was based on professional misconduct in terms of para (a) of s 403(1) of the LP Act, which is concerned with competence and diligence, rather than propriety. However, neither the Committee nor the Tribunal is bound to approach the case against the practitioner in the same way as the case against Ms B. Although 'parity principles' may, in certain circumstances, be relevant in relation to the determination of penalty in professional disciplinary proceedings, they do not apply in relation to the basis upon which an allegation of unsatisfactory professional conduct or professional misconduct can be alleged, argued or determined; cf. Jimmy v R [2010] NSWCCA 60 at [267] where Rothman J said, in relation to 'parity of charging' in criminal law, that 'it is for the prosecuting authority, alone, to exercise the discretion as to the charge to be preferred'.

Grounds (a) ­ (d) - The consent orders and Mr A's interest ­ The facts

35 The practitioner was admitted to legal practice in Western Australia in December 1998 and, at all relevant times, held a current practising certificate under the Legal Practice Act. In March 2004, the practitioner's former wife (wife) commenced proceedings in the Family Court of Western Australia against the practitioner for an alteration of their property interests (Family Court proceedings). Between March 2004 and the end of February 2005, the wife was represented in the Family Court proceedings by Ms B, then a solicitor employed a firm. Both Ms B and the firm by which she was employed were accredited specialists in family law. As noted earlier, the practitioner represented himself in the Family Court proceedings. As also noted earlier, the practitioner did not practise in the family law jurisdiction.

36 At the time when the Family Court proceedings were commenced, the practitioner and his former wife owned two properties jointly. At all relevant times, the practitioner was the sole registered proprietor of the subject property. At some point after the commencement of the Family Court proceedings, the practitioner, with the wife's knowledge, put the subject property on the market through Ross & Galloway Real Estate Agents in order to pay out the debts of the practitioner and the wife. The wife subsequently learned of the marketing of the subject property.

37 In November 2004, on instructions from the wife, Ms B caused an Offer to Settle to be filed in the Family Court proceedings proposing that the wife would receive the practitioner's interest in one jointly owned property, the practitioner would receive the wife's interest in the second jointly owned property, and the practitioner would retain the subject property.

38 On 13 November 2004, Mr A made an offer to purchase the subject property for $345,000 and signed a contract for the sale and purchase of the property. On 14 November 2004, the practitioner accepted Mr A's offer and signed the contract. The contract required Mr A to pay a deposit of $5,000 within seven days. It also nominated the settlement date for the sale of the land to be 'on or before 30 days of acceptance'.

39 The practitioner nominated Ventor Settlements as his representative settlement agent for the sale of the subject property in the contract. Ventor Settlements wrote to the practitioner on 18 November 2004, referring to the contract, noting that 'settlement is anticipated for the 15 December 2004' (although, in later correspondence, the settlement date is referred to as 14 December 2004), and enclosing and requesting the practitioner to sign and return a document appointing Ventor Settlements to act on the sale of the subject property to Mr A. The practitioner signed the document appointing Ventor Settlements as his settlement agent on 20 November 2004.

40 Mr A paid the deposit of $5,000 on 22 November 2004 and the contract for the sale of the subject property by the practitioner to him became unconditional at that time. Under cross­examination, the practitioner conceded that, when the contract became unconditional, he knew that he 'had to sell [the subject property] to [Mr A]' and that 'there was no choice' (T:22.8, 7.3.12). The practitioner also conceded that he knew, at the time, that, if, for some reason, he did not proceed with the contract, an action for specific performance 'was a definite remedy [Mr A] would have had' (T:23.1, 7.3.12) and that a claim for damages by Mr A for breach of contract was a 'secondary remedy' available 'in certain circumstances' (T:24.2, 7.3.12).

41 On or about 22 November 2004, the wife, who had learned of the sale of the subject property, told Ms B that the property had been sold. As a result, Ms B, on 25 November 2004, caused a caveat to be lodged over the subject property on behalf of the wife asserting that she had a caveatable interest. In her letter dated 24 November 2004 to the practitioner advising him of the wife's instructions to lodge a caveat, Ms B said the following:

Our client has no wish to prejudice or delay settlement of the sale of the property. However, she does need to be kept informed as to the settlement and the disposal of proceeds of sale.

43 On 29 November 2004, Ventor Settlements sent the transfer for the subject property to the practitioner for him to sign.

44 Ms B arranged an informal conference with the wife and the practitioner at Ms B's office on 30 November 2004. At that conference, a proposal was made that the wife would receive the subject property, subject to the mortgage over that property, as part of the resolution of the Family Court proceedings. There is a conflict of evidence between the practitioner and the wife, on the one hand, and Ms B, on the other hand, as to whether the offer came from the wife or the practitioner. The wife and the practitioner said that the proposal was made by the wife, whereas Ms B said that it was made by the practitioner. The wife gave evidence by her witness statement (which was admitted without a requirement that she be called for cross­examination) that 'the change in my position [of now wanting to receive the subject property] took [the practitioner] by surprise at this meeting'. Ms B was cross­examined about this and gave evidence that 'I remember it as being [the practitioner's] proposal because I do remember that catching me by surprise' (T: 94.8, 6.3.12). When she was told by Mr Rynne that the wife would say in evidence that she had proposed to receive the subject property at the conference, Ms B said that 'would be different to my recollection' (T:94.9, 6.3.12). It appears to us that there is a genuine difference in recollection on this point between the wife and the practitioner, and Ms B, but it is unnecessary to determine which recollection is correct, and nothing substantive turns on it.

45 During the informal conference on 30 November 2004, Ms B asked the practitioner about the contract he had entered into for the sale of the subject property. The practitioner gave evidence that he confirmed that the offer and acceptance had been signed. Ms B gave evidence that the practitioner told her that there was a clause in the contract that would enable him to get out of the contract and that, at worst, he may have to pay some damages to the purchaser. The practitioner's evidence was different, stating that, at the end of the informal conference, he indicated that he would check to see if there was a 'get out clause'. However, nothing turns on this difference.

46 Ms B said that it was agreed that any settlement would provide that the practitioner would pay any damages claimed by the purchaser as a result of the contract not proceeding. The practitioner did not dispute this evidence, which we accept, and, as discussed below, on the next day, signed the Memorandum of Agreed Orders which proposed an order that he indemnify the wife with respect to any damages or liabilities arising from the offer and acceptance with respect to the subject property. Ms B gave evidence, which was not disputed and which we accept, that at the conclusion of the informal conference, the practitioner said that he would go and see Mr A and ask him to release him from the sale.

47 Ms B also gave evidence, which was not disputed and which we accept, that at the informal conference it was agreed that she would draft a minute of orders, which was referred to in her contemporaneous handwritten note as 'MAO', meaning Memorandum of Agreed Orders, for discussion.

48 Ms B gave evidence that later on 30 November 2004, the practitioner telephoned her and asked her about the Capital Gains Tax position in respect of the subject property. Ms B made a contemporaneous, short, handwritten note of their telephone conversation. This evidence was not disputed and we accept it.

49 The practitioner went to see Mr A at around 9 or 9.30 pm on 30 November 2004. Both Mr A and the practitioner gave evidence, in effect, that the practitioner asked Mr A not to proceed with the purchase of the subject property. However, their evidence was quite different as to what Mr A said in response to the practitioner's request.

50 The practitioner gave the following evidence in his witness statement, which stood as his evidence­in­chief:

[Mr A] was very sympathetic towards my situation and he expressed the view that the conduct of my wife's solicitors was highly unfair to me. At no stage did Mr [A] formally agree to release me from the sale, but I was left with the very clear impression from our meeting that Mr [A] would seriously consider my proposal to release me from the contract. I made it clear to Mr [A] that if my wife wished to proceed with the transfer of the property to her, then I could not proceed with the sale, but would financially compensate him.

51 The practitioner gave the following evidence about Mr A's reaction under cross­examination:

I asked him to pull out and I felt that he was ­ his answer was sort of he'll think about it 50/50 (T:42.5, 7.3.12).

He said he would think about it. He wasn't committed either way after that meeting. Whether he made his mind up, I don't know, but I left that meeting with an understanding that there was still a chance that he might, you know, 50/50 that he might agree to walk away. It was unresolved ... on the 30th. His position (T:47.5, 7.3.12).

[Ms Cahill:] I want to suggest to you that as at 6 December, ..., you were clearly of the position that you had determined to proceed with the transfer to [the wife] and you knew that the consequence of that is that Mr [A] was very likely to proceed with an application for specific performance?---No, not very likely. I'd left that I thought he was 50/50. That's as probably as high as I can - when I'd left him, when I'd last spoken to him, I thought it was 50/50.

So there was a real possibility, then?---50/50, if that's - your language is real. I can agree with that. It was 50/50. I thought there was a prospect, yep.

He might or he might not?---Yep. Yep.

But it was certainly possible?---Yep. I thought it was possible.

And you didn't know when?---No.

Could be immediately or he could wait?---Yeah. Yep. (T:68.2­.4, 7.3.12).

52 Mr A gave consistent evidence to the contrary. In his witness statement, which was admitted as his evidence­in­chief, he said the following:

I was keen to buy the property as I thought it was a good buy. I told [the practitioner] words to the effect that I would not agree to pull out of the contract or even to consider pulling out of the contract.

At all times it was my intention to proceed with the contract. Although I cannot now recall precisely what I said to [the practitioner] I made it quite clear I would not pull out of the contract.

53 In cross­examination, Mr A gave the following evidence:

I was so flabbergasted when he came to the door to be perfectly honest, and all I can basically remember saying is that I wasn't going to give up the house, the house was legally mine. (T:48.5, 6.3.12).

54 We prefer Mr A's evidence on this point to that of the practitioner for three reasons. First, Mr A's evidence, that he made it clear that he would not agree to pull out of the contract or even consider pulling out of the contract, is supported by a letter that he wrote on 4 December 2004 to the practitioner's real estate agent. The letter stated as follows:

I have been advised that a caveat has been lodged on the above property.

As my offer was accepted before the caveat was lodged and I have complied with all aspects of the contract, I would like to advise you that I wish to proceed with the purchase.

In the event that settlement does not proceed on the agreed date (14th December 2004), I hereby advise you that I will instruct my solicitor to initiate a default of contract notice.

55 Mr A gave evidence that he wrote the letter 'as a result of discussions with Nathan [Hewitt, an employee of the agent], and Peter Sim, who was the owner/manager of Ross [&] Galloway, about [the practitioner's] apparent intention not to honour the contract of sale'. Mr A's letter clearly shows that he intended to proceed with the purchase.

56 Secondly, the practitioner did not contact Mr A again after their meeting on 30 November 2004. If Mr A had indicated to the practitioner that he would seriously consider releasing him from the contract and had genuinely left the practitioner with an understanding that there was a 50/50 chance that he would do so, one would reasonably expect the practitioner to have followed up with Mr A soon after the meeting to see what his position was. The fact that the practitioner did not contact Mr A again further indicates that Mr A made it clear to the practitioner at the meeting that he would not agree to pull out of the contract.

57 Thirdly, Mr A's subsequent conduct outlined below clearly shows that he was determined to obtain the subject property in accordance with the contract. He instructed solicitors by 17 December 2004, caused a notice of default to be issued in February 2005, and commenced proceedings in the Family Court of Western Australia and in the Supreme Court of Western Australia. Ultimately, 26 months after the date for settlement under the contract, Mr A obtained the property.

58 It is apparent that having had to litigate for such an extended period to obtain the subject property has made Mr A antagonistic to the practitioner. The extent to which Mr A does not like the practitioner was made clear by Mr Rynne's opening questions to him:

... I couldn't help but overhear, sir, when I walked in that you - before when you were in here you made a comment to the effect of - and I wrote it down a couple of minutes later - "Just make sure that you get him." Do you recall making that statement, or words to that effect?---Words to that effect, yes.

So I take it from that, sir, you were referring to [the practitioner]?---I most certainly am.

And you were anxious to see that the charges against him were successful?---Not anxious at all.

So the reason for your comment, sir?---As we know, as per the court case ­ ­ ­

Yes?--- - - - put me through so much hassle and cost me so much money. (T:44.3­.6, 6.3.12).

59 Nevertheless, Mr A answered all questions put to him under cross­examination on their terms, including agreeing that he had said the words 'just make sure that you get him' when he walked into the hearing room. Having observed Mr A's evidence, we do not believe that his antagonism towards the practitioner tainted the truthfulness of his evidence. Given the manner in which he gave his evidence, the fact that it is relevantly supported by his letter of 4 December 2004, and his subsequent conduct, and the fact that the practitioner did not subsequently contact him, we accept his version of what he said to the practitioner at their meeting on 30 November 2004, namely that he intended to proceed with the purchase of the subject property and find accordingly.

60 However, even if we were to accept the practitioner's evidence of the outcome of the discussion at his meeting with Mr A, namely that he genuinely 'left that meeting with an understanding that there was still a chance that he might, you know, 50/50 that he might agree to walk away' (T:47.5, 7.3.12), we would still come to the same findings of professional misconduct as expressed below. Even on this understanding of the discussion, the practitioner knew that there was a 50% chance that Mr A still wanted the property. Knowing that, the practitioner proceeded to cause consent orders to be filed which required him to transfer the property to the wife, and signed a transfer pursuant to the orders, without notifying Mr A of the proposed consent orders or the Family Court of Western Australia of Mr A's interest, and thereby necessarily sought to defeat Mr A's claim to specific performance of the contract of sale and, at best, to reduce his entitlement to a claim for damages.

61 Finally, in relation to Mr A's evidence, the practitioner, in his supplementary written submissions, submitted that Mr A's 'recollection of what he wanted to do at the end of the meeting on 30 November 2012 [sic ­ 2004] is irrelevant', because Mr A understood, by the time of that meeting, that The wife had lodged the caveat. However, Mr A's indication to the practitioner of his position at the meeting on 30 November 2004 is obviously relevant, because it shows that the practitioner knew, before he signed the consent orders and caused them to be filed, that Mr A intended to proceed with the purchase or (on the practitioner's version) there was a 50% chance that he wanted to proceed with the purchase. Furthermore, the fact that there was a caveat did not affect Mr A's position as is plain from his letter of 4 December 2004 to the real estate agent. Finally, although there is no evidence that either Mr A or the practitioner considered this at the time, the practitioner, as vendor under an unconditional contract, had an obligation to give clear title, including, if necessary, taking action to have the caveat withdrawn or set aside.

62 Ms B gave evidence that, on the morning of 1 December 2004, she spoke with the practitioner and the wife, separately, by telephone. She made a contemporaneous file note of both telephone conversations on a single sheet of paper. She also settled the draft of minute of orders after speaking with the wife. Ms B's evidence in this regard was not disputed and we accept it.

63 At approximately 1 pm on 1 December 2004, the practitioner and the wife met for an hour prior to attending a second informal conference at Ms B's office. The practitioner gave evidence, which was not questioned and which we accept, that he stressed to the wife that the only way in which he would look at transferring the subject property to her was if she could guarantee to him that she would settle down and that their children could have a home that they in turn could settle down in. The practitioner said that the wife 'was adamant that she would now do this in the[subject] property'.

64 At approximately 2 pm on 1 December 2004, a second informal conference took place between the practitioner, the wife and Ms B at Ms B's office. At the conference, the practitioner stressed that he wanted to ensure that the subject property was retained as a secure base for his children. Ms B made a contemporaneous, short, handwritten note of the fact that the wife and the practitioner had reached an agreement and with regard to the preparation of a Minute of Agreed Orders, which she abbreviated to MAO.

65 The practitioner and the wife both signed the Minute of Agreed Orders at the informal conference, although there were two gaps left in the Minute at the time. The document was dated 1 December 2004.

...WITH THE INTENTION that these orders will finally determine the financial relationship between the parties and avoid further proceedings between them,

THE FOLLOWING ORDERS BE MADE BY CONSENT: ...

67 There then followed eight proposed orders, in which the practitioner was referred to as 'the husband' and the wife as 'the wife', including the following:

(a) the husband transfer to the wife all his right, title and interest in the [subject] property ...

1. The husband indemnify the wife with respect to any damages or liabilities arising from the offer and acceptance dated [ ] day of November 2004 with respect to the [subject] property.
2. The Applications and Response otherwise be dismissed ... .

68 The two gaps that were left in the Minute of Agreed Orders when the document was signed by the practitioner and the wife on 1 December 2004 were the date of the 'offer and acceptance' with respect to the subject property, referred to in proposed order 4, and the amount of child support payable for a specified period, referred to in proposed order 6. Ms B gave evidence, which was not disputed, that the practitioner agreed to provide the information needed to complete the Minute of Agreed Orders and authorised her to insert the necessary details.

69 On 3 December 2004, Ms B had a telephone conversation with the practitioner and made a contemporaneous file note of the conversation and of a subsequent telephone call to the wife. The file note referring to her telephone conversation with the practitioner states as follows:

TA [practioner's name]

­ p'er causing some hassles on [subject property]

­ OA doesn't have cond on it

­ wld [the wife] consider rec'ing cash as another idea?

­ shld have cs info later today.

70 As Ms B said, this file note evidences that, during the telephone conversation on 3 December 2004, the practitioner told Ms B that Mr A was 'causing some hassles' in respect of the subject property and was threatening specific performance. This is consistent with Mr A's evidence referred to earlier of having had discussions at around this time with Mr H and Mr Sim of Ross & Galloway about the practitioner's apparent intention not to honour the contract. It is also consistent with Mr A's evidence that he indicated to the practitioner that he would not release him from the contract.

71 Ms B also gave evidence, consistently with her file note, that on 3 December 2004 the practitioner told her that the contract with the purchaser (which she referred to as the 'OA', meaning Offer and Acceptance) did not contain an 'escape clause' and that he would probably know more by the following Monday (that is, 6 December 2004) as to what the position of purchaser was. Ms B also gave evidence, consistently with the file note, that the practitioner asked her whether the wife would accept cash instead of the subject property. After taking instructions, Ms B informed the practitioner that the wife would prefer to retain the subject property. Ms B made a further contemporaneous, short, handwritten note of the telephone conversation which evidences this discussion.

72 On 3 December 2004, the practitioner sent a facsimile to Ms B providing the outstanding information for the Minute of Agreed Orders, namely the date of the offer and acceptance of the subject property and the figure for child support. It appears that Ms B then inserted those figures in the Minute of Agreed Orders signed two days earlier by the practitioner and her client.

73 In his substituted response to the application, the practitioner said that, while he may have had a telephone conversation with Ms B on 3 December 2004, 'at no time did the conversation canvass specific performance of the contract of sale'. However, the practitioner did not make a statement to this effect in his witness statement. Mr Rynne cross­examined Ms B about whether she had any specific recollection of those conversations and she said that she did not, although she also said that 'the records [of the conversations] are on the file note' and that 'they were written at the time' (T:89.7, 6.3.12). There is no basis to doubt the accuracy or contemporaneity of Ms B's file notes or the veracity of her evidence based on those file notes. We therefore find that, on 3 December 2004, the practitioner was aware that Mr A was threatening specific performance and, although he signed the proposed consent orders two days earlier, he was looking to see whether the wife would consider receiving cash instead of the subject property (which would have allowed the practitioner to honour the contract with Mr A). Based on the file note of 3 December 2004 and Ms B's evidence that it was written contemporaneously, we are satisfied that the telephone conversations on 3 December 2004 about which Ms B gave evidence occurred as she deposed to and we find accordingly.

74 Ms B gave evidence that, on (Monday) 6 December 2004, during a further telephone conversation, the practitioner advised her that there had been no developments over the weekend and that he intended to tell the purchaser that he was not going ahead with the sale of the subject property. In his substituted response to the application, the practitioner denied that, in a telephone conversation on 6 December 2004, he told Ms B that he intended to tell Mr A that he was not going to proceed with the sale. However, he did not provide a witness statement to this effect and Ms B again made a contemporaneous file note of the telephone conversation, her other attempts to call the practitioner, and a subsequent telephone conversation with the wife. Her file note of the telephone conversation supports her evidence, which we accept.

75 Ms B gave evidence that, on 7 December 2004, during a further telephone conversation, the practitioner said that he would like the Minute of Agreed Orders filed as soon as possible to deflect a claim for specific performance by the purchaser of the subject property. In his substituted response to the application, the practitioner denied that he said this to Ms B and stated that he did not have this conversation. However, he again did not include this in his witness statement. Ms B made a contemporaneous file note of the telephone conversation on a file note/telephone attendance form commonly used by her firm. The file note dated 7 December 2004 states as follows:

TA [practitioner's name]

­ wld like MAO filed asap to deflect

spec perf by p'er

76 Ms B was cross­examined about her evidence in relation to this telephone conversation. She agreed that she did not have any independent memory of the conversation and relied upon her file notes. (A position which we regard as unsurprising given the period of time which elapsed between the making of the file note and the evidence which she gave before us.)

77 The practitioner was cross­examined about the telephone conversations referred to in Ms B's evidence. The practitioner gave the following evidence in cross­examination:

I don't recall any conversations after, you know, the 3rd [of December 2004] at most. I may have on the 3rd. I don't recall any of these conversations after that day, Ms Cahill. ...

I have no personal recollection of those calls occurring at all after that date [i.e. after 3rd December 2004] (T:66.4 and 66.6, 7.3.12).

78 The practitioner also gave the following evidence in cross­examination:

Did you say there were any conversations on 7 December?---No. I had no recollection of ringing or talking to [Ms B].

No. Let's not talk about recollections. Are you denying that there were any conversations on 7 December?---I'm sure they didn't occur. I didn't talk to [Ms B]. I didn't have any need to talk to [Ms B].

You're sure they didn't occur?---Well, I'll be clear. My recollection is I did not talk to her after the 1st or the 3rd in there. So on that basis, I cannot recall any conversation on the 6th or the 7th about any subject matter. I just cannot recall it. It was done, it was finished.

You said two somewhat different things there, ..., and I need to get to the bottom ­ ­ ­?---Sure. Yeah.

­ ­ of what your evidence is?---Yeah.

Is your position that there were no phone conversations on 7 December with Ms [B] or is your evidence that you do not recall ­ ­ ­?---No. My evidence is - and I do apologise for that, I was too quick - I cannot recall those conversations, in fairness, at all. ...

There you say you didn't have these conversations?---No. What that means is because we didn't have them to talk about specific - this deflection issue. Your pleading says there were two telephone conversations in which deflection of specific performance was discussed. They did not occur. Those conversations did not occur. There was never a conversation on the 7th about deflecting specific performance. You asked me about whether I had a conversation with her. I can't recall on other stuff - or I can't recall - but that's not what your pleading says and that's what that's addressed at.

So you might have had a conversation with her or conversations with her on 7 December?---I can't recall any conversation on those dates.

Therefore, you ­ ­ ­?---But I definitely didn't have one about specific performance and deflection, and any of that stuff.

I'm just trying to assist the tribunal by getting some clarity on your evidence, ...?---Yep.

You cannot recall, but it's possible, that you had one or more conversations with Ms [B] on 7 December. Is that right?---Not on this content.

No. I haven't put the subject matter to you, .... We'll get to that?---Possible. Possible.

It's possible, but you can't recall?---No.

What you deny is that there was a conversation or conversations in the terms set out at paragraph 16 of the application?---Yeah. Absolutely. They never occurred. Yep.

And you appreciate, don't you, that allegation is quite an important one in terms of reflecting on your, if it's true, on your motivations at the time?---You're asking my opinion?

Yes. You understand ­ ­ ­?---It seems to be an important part of your case.

Yes?---Yeah.

Because you would accept now that it wouldn't be appropriate to file a consent order to deflect or defeat a specific performance claim, do you?---Well, the language that's used imports some sort of malice or some sort of - and I would have thought, "No. It's completely wrong to do that sort of thing."

Completely wrong?---Well, the way you've pleaded it, yeah, the way you've sort of pleaded the sort of sinister or malicious sort of aspect to it.

(T:69.5­71.5, 7.3.12).

79 As is apparent from this extract, the practitioner's evidence on this point was inconsistent, alternating between asserting positively that he did not have any telephone conversations with Ms B on 6 and 7 December 2004 and stating that he had no recollection of any telephone conversations with her on those days. Ultimately, the practitioner settled on having no recollection of these conversations, although he denied that, if there was a conversation, he said that he would like the Minute of Agreed Orders filed as soon as possible to deflect specific performance by Mr A.

80 It was not put explicitly to Ms B in cross­examination that her file notes in general, or the file note of 7 December 2004 in particular, were fabricated or were not truly contemporaneous. She was, however, cross­examined with a view to casting doubt on the veracity of her notes on the basis that she used two different abbreviations for 'purchaser' in her file notes and telephone attendance notes. Ms B acknowledged that and, in our view, convincingly explained that she used both shorthand references for 'purchaser' interchangeably, with 'no rhyme or reason' (T:88.5, 6.3.12). The cross­examination of Ms B on this subject also revealed that, although there are four telephone attendance notes in evidence during the period 3­7 December 2004 referring to telephone conversations between her and the practitioner, the wife was only billed for three telephone conversations between Ms B and the practitioner during that period. However, Ms B did not personally enter her timesheets; that was done by a secretary. All this cross­examination showed, in our view, was that the client was not charged for the fourth telephone conversation.

81 In his supplementary written submissions, the practitioner suggested that the file note of the telephone conversation on 7 December 2004, and other file notes of telephone conversations referred to by Ms B, 'did not exist on the [firm's] file at the time', because they were not referred to in Ms B's affidavit in April 2005 in relation to the application brought by Mr A in the Family Court of Western Australia to set aside the consent orders, and were not made available for inspection in those proceedings. The implication from the practitioner's suggestion appears to be that the file notes were manufactured subsequently. However, this serious allegation was not put to Ms B in cross­examination and she, therefore, did not have the opportunity to respond to it. We do not know why the file notes were not referred to in Ms B's affidavit or made available for inspection in April 2005, although one obvious possibility is that the wife asserted legal professional privilege in respect of those documents. We reject the suggestion that the file notes identified by Ms B as contemporaneous were not on the file in April 2005, on the basis that they were not referred to in an affidavit at that time and were not produced for inspection.

82 We find that no reasonable inference can be drawn from the evidence that the file notes referred to by Ms B in relation to her conversations with the practitioner between 1 and 7 December 2004 are not genuine, contemporaneous records of the fact and content of the telephone conversations about which she gave evidence. We find that they are genuine, contemporaneous records of those conversations.

83 Ms B was cross­examined about who used the word 'deflect' in the telephone conversation on 7 December 2004 as follows:

[The practitioner] does reject that he told you that he wanted to deflect specific performance. You would accept that [the practitioner's] expression of English at times isn't particularly elegant, wouldn't you?---I never made any observation one way or the other.

I put to you the word "deflect" is more a word within your lexicon rather than [the practitioner]?---Wouldn't have a clue.

What did you understand by the word "deflect"?---That he was trying to get out of the contract and he thought he could use that to get out of the contract.

But you don't recall a specific conversation to that effect, do you?---I do not now remember that, but I do know that I wrote that file note which would indicate to me that at the time I had that conversation that's what he said.

Yes, and similarly it was in your client's interest to deflect a claim for specific performance at the time that you made the application?---True. (T:99.0­.4, 6.3.12).

84 Clearly, Ms B did not accept the suggestion that the word 'deflect' was said by her, rather than by the practitioner. The final question and answer in this passage also indicates that Ms B was prepared to make concessions in her evidence. Indeed, she made fair and appropriate concessions on a number of occasions throughout her evidence, even though some of these cast her own conduct in a less than favourable light. In our view, Ms B's willingness to make concessions, and the candid and direct way in which she answered questions in cross­examinations generally, indicates that she was an honest and impartial witness.

85 We accept Ms B's evidence of the fact and content of the telephone discussions with the practitioner in the period from 1 to 7 December 2004 as related in her evidence, because the telephone conversations are evidenced by contemporaneous file notes and because we find that Ms B was an honest and impartial witness who gave consistent evidence. Ms B was candid and direct in her evidence, and was prepared to make appropriate concessions. In contrast, as we found earlier, the practitioner gave inconsistent evidence about the telephone conversations on 6 and 7 December 2004 (and, as we find below, on another topic ­ see the final matter discussed under the practitioner's arguments below). In addition, as we find below, the practitioner explained his motives and intentions in having the consent orders made by the Family Court of Western Australia, and the subject property transferred to the wife pursuant to the consent orders, during a hearing in the Court on 14 March 2005, in terms that are generally consistent with his statements to Ms B about Mr A's claim to specific performance in the 3 and 7 December 2004 telephone conversations as related in Ms B's evidence. Although the practitioner did not use the word 'deflect' in his explanation to the Magistrate, he said that his understanding at the time the consent orders were sought was that the orders, once made, would prevail over Mr A's claim to (possession of) the subject property in the circumstances, and that orders keeping open the potential for specific performance, rather than damages, for Mr A, by maintaining an interim injunction precluding the registration of the transfer of the property to the wife, would allow 'that whole arrangement [of the subject property serving as the children's home with their mother] to be put into jeopardy'. Finally, the practitioner conceded that he did not make and keep any file notes of his telephone conversations with Ms B. For all these reasons, where there is a difference between the evidence of the practitioner and Ms B in relation to the December 2004 telephone conversations, we, therefore, prefer the evidence of Ms B.

86 We therefore feel an actual persuasion based on clear and cogent evidence, in accordance with the Briginshaw approach, that during the period from 1 to 7 December 2004, the practitioner was aware that Mr A was claiming specific performance of the subject property and, wishing to have the subject property transferred to the wife pursuant to the proposed consent orders, in order to secure a home for his children, the practitioner wanted Ms B to file the Memorandum of Agreed Orders with the Family Court of Western Australia as soon as possible to 'deflect', that is, to defeat, Mr A's claim.

87 Ms B gave evidence that, on 7 December 2004, she finalised the signed Minute of Agreed Orders, using the information provided by the practitioner on 3 December 2004, and dictated a covering letter to the Family Court of Western Australia asking that the orders be made in terms of the Minute as a matter of urgency. However, under cross­examination, Ms B accepted that, having regard to timesheets and the footer on the second page of the letter to the Family Court of Western Australia, she in fact dictated the letter on 2 December 2004, and inserted the date '7 December 2004' on that date. Ms B may also have made some changes to the letter on 7 December 2004, although nothing turns on whether or not she did. We acknowledge therefore that her letter to the Court was dictated prior to her conversation with the practitioner on 7 December 2004 concerning filing the Memorandum of Agreed Orders as soon as possible.

88 The letter enclosing the proposed consent orders to the Family Court of Western Australia was misleading in two significant respects. First, in relation to the reasons why the consent orders were requested to be made as a matter of urgency. The letter stated the following reason for seeking the making of the orders on an urgent basis:

There are pressing tax liabilities which need attending to. The parties need to give effect to the terms of the Minute in order to meet these liabilities.

89 In truth, at least one reason why the parties sought to have the consent orders made urgently was to defeat Mr A's claim to specific performance of the subject property.

90 The second reason why the letter was misleading was that it did not refer to Mr A's interest, although Mr A was a third party who ought to have been given the opportunity to be heard by the Court before orders were made in terms of proposed consent orders, as those orders affected his interest in obtaining specific performance of the contract for the sale of the subject property.

91 However, there is no evidence that the practitioner was aware of the terms, or even the existence of, the letter, before it was sent and before consent orders were made by the Family Court of Western Australia in terms of the Memorandum of Agreed Orders on 9 December 2004.

92 Ms B's letter of 7 December 2004 enclosing the Memorandum of Agreed Orders was copied to the practitioner. The practitioner conceded that he received the letter by 22 December 2004. We find that it is likely that the letter was received by the practitioner by about 9 December 2004, in the normal course of the post. The practitioner conceded in cross­examination that, once he received the letter, he was aware that the Court was not alerted in it to Mr A's interest in the subject property. The practitioner said, however, that:

I didn't correct the letter because I understood Ms [B] knew what she was doing. It was family law, she was accredited, it was a puzzling letter and that's as high as it went. ... . (T:84.6, 7.3.12)

93 Mr Peter Sim, the Managing Director of Ross & Galloway, gave evidence, which was consistent with Mr A's evidence, that he had spoken with Mr A and 'the things that Mr [A] told me made me concerned that the sale would not settle at all'. Mr Sim gave the following evidence in his witness statement, which stood as his evidence­in­chief:

I attempted to discuss my concerns with [the practitioner] but found it difficult to contact him. I recall that there were times when I attempted to telephone [the practitioner] but my messages were not returned.

To the best of my recollection I was unable to speak to him, despite attempting to do so, until after the settlement date had passed [i.e. until after 14 or 15 December 2004].

94 Mr Sim's evidence recounted in the preceding paragraph was not disputed by the practitioner and we accept it. The practitioner was cross­examined about this and gave the following evidence:

Are you saying that Mr Sim hadn't left messages with you?---Mr Sim may well have left messages for me. I don't really recall that, to be honest, either way. He may have.

You didn't return them?---I don't think I was returning calls around that time, no.

You didn't make any attempts to contact your real estate ­ ­ ­ ?---No.

­ ­ agent or your settlement agent ­ ­ ­ ?---No.

­ ­ during this period, did you?---No. I think that's fair. Yep, I didn't. Yep.

The reason you didn't was because you thought that if you made contact with them you'd be required to explain what was happening with [the wife] and the Family Court proceedings and that they might be obliged to tell Mr [A]. Isn't that so?---No, that's not so. After 1 December, I was done with all this and the real estate agent and the settlement agents are my agents and they work for me, as I understand the principle in real estate. And if, for any reason, I wasn't returning calls to any of those people, it was because I was done with the whole thing. I had made my decision. You know? I'd made it on 1 December, the decision to go with [the wife] and not Mr [A], and I knew that was potentially going to cause problems and I was prepared to cop that. That was part of the decision and that was the whole rationale to everything that followed. (T:64.8­65.4, 7.3.12)

95 The practitioner conceded that he did not speak to Mr A after 30 November 2004 and, in particular, that he failed to inform Mr A that the consent orders would be sought or that they had been made and that he was proceeding to transfer the subject property to his former wife. The practitioner's explanation for this failure was unconvincing. In his witness statement, the practitioner said that he left 'dealing with Mr [A]' to Ms B. However, under cross­examination, the practitioner conceded that he only expected Ms B to deal with any legal proceedings brought by Mr A, but did not expect her to communicate with him otherwise. Indeed, the practitioner did not give Ms B Mr A's contact details. (T:58.8, 59.2, 7.3.12). But even the practitioner's evidence that he expected Ms B to deal with legal proceedings brought by Mr A, at least in relation to himself, was unconvincing. Ms B was acting for the wife, not the practitioner, and as subsequent events showed, their interests diverged. Moreover, when Mr A did ultimately sue in the Family Court of Western Australia, the practitioner represented himself, while Ms B's firm represented the wife. In his written submissions, Mr Rynne speculated that the reason why the practitioner may not have contacted Mr A was 'some obvious embarrassment at what he is doing', and, in his oral closing submissions, Mr Rynne speculated that the reason may have been because the practitioner had no money. However, the practitioner did not give evidence to support either submission.

96 As noted earlier, Mr Sim gave evidence that he had spoken with Mr A and the things that Mr A told him made him concerned that the sale of the subject property by the practitioner to Mr A would not settle. Mr Sim said that he suggested to Mr A that Mr A 'put his position to me in writing so that I could seek [the practitioner's] further instruction'. Mr Sim gave evidence that he did not now recall receiving the letter from Mr A to Ross & Galloway dated 4 December 2004. Mr A gave evidence that he either hand delivered the letter to Ross & Galloway 'because Ross & Galloway were rather close to where I was living' (T:55.9, 6.3.12), or that he posted it. Given that, following the practitioner's visit to him on 30 November 2004, Mr A was 'most concerned [the practitioner] did not intend to go ahead with the sale of the property', and that Mr A wrote the letter dated 4 December 2004 to Ross & Galloway after discussions with Mr Hewitt and Mr Sim, it is likely that, if the letter was hand delivered, that occurred by Monday, 6 December 2004, and that if the letter was posted, it was posted on Monday, 6 December 2004 and received on Tuesday, 7 December 2004. Mr Sim gave evidence that, if he had received the letter:

... I would have immediately forwarded it to [the practitioner] or attempted to bring it to his attention both because it was my normal practice to do so and because of my concern with regard to settlement.

97 The evidence of Mr Sim and Mr A recounted in the preceding paragraph was not disputed by the practitioner and we accept it. Mr Rynne pointed out in his written submissions that Mr A's letter dated 4 December 2004 was addressed to Ross & Galloway at 534 Canning Highway, Attadale, whereas Ross & Galloway's address is 524 Canning Highway, Attadale. However, as noted earlier, Mr A said that he may have hand delivered the letter. Mr A was not asked about the discrepancy in the property address of Ross & Galloway, nor whether the letter was returned to him undelivered. In any case, given that the correct address of Ross & Galloway was only five property numbers away, it is likely that it was delivered.

98 We therefore find on the balance of probabilities that Mr A's letter of 4 December 2004, or its contents, were conveyed by Mr Sim to the practitioner by 8 December 2004. Mr A's letter of 4 December 2004 provides yet further confirmation that the practitioner was aware, by 8 December 2004, that is, the day before the consent orders were made by the Court, that Mr A intended to proceed with the purchase of the subject property and that he would instruct his solicitors to initiate a default of contract notice if settlement did not proceed on the agreed date of 14 December 2004.

99 Furthermore, as Ms Cahill submitted, the reasonable inference which can be drawn from the practitioner's failure to return messages from his own real estate agent, his failure to speak to Mr A, and his conduct in relation to his settlement agents and Mr A's solicitors, which we will discuss shortly, is that, during the period December 2004 to February 2005, the practitioner, quite deliberately, 'laid low' so as to prevent Mr A from learning, directly or through another person, of the consent orders and that the practitioner was proceeding to transfer the subject property to his former wife pursuant to those orders.

100 The practitioner conceded that he received the sealed consent orders made in accordance with the Memorandum of Agreed Orders by 22 December 2004. On that day, he sent a facsimile to a settlement agent, Advantage Settlements, requesting that agent to act for him in relation to the transfer of the subject property and the two properties owned jointly with the wife (in accordance with the consent orders), and enclosing 'a copy of the Family Court orders as they relate to the above properties'. However, it appears that the practitioner did not inform his original settlement agent, Ventor Settlements, of the fact that he would not be proceeding with the sale to Mr A, or that he was proceeding, pursuant to the consent orders, to transfer the subject property to his former wife. This is evident because, on 13 January 2005, Ventor Settlements wrote to the practitioner asking that he advise that agency 'as to any developments in relation to the above transaction [i.e. the sale of the subject property] and the name of the Legal Representative who will act on your behalf'. The practitioner conceded in cross­examination that he understood from the letter that Ventor Settlements 'clearly wanted to know what was going on' (T:97.1, 7.3.12) and that he did not respond to the letter.

101 After the practitioner failed to take the steps necessary, as vendor under the contract, to effect settlement of the sale of the subject property to Mr A, on 17 December 2004, MacKinlays Solicitors, acting for Mr A, wrote to the practitioner, referring to the caveat lodged by the wife, and stating that MacKinlays wished to correspond with the wife's solicitors 'but understand that you have been reluctant to disclose who they are'. MacKinlays requested the practitioner to advise the name of the wife's solicitors. It is clear from MacKinlay's letter that, at the time, they, and Mr A, were unaware of the consent orders.

102 The practitioner gave evidence­in­chief that he received the letter from MacKinlays 'shortly after' 17 December 2004 and conceded in cross­examination that he did not respond to it or contact Mr A to advise that he would not be settling on the sale to him. However, it appears that MacKinlays discovered that Ms B's firm acted for the wife, because, on 24 December 2004, MacKinlays wrote to Ms B's firm, referring to the caveat. It is clear from this letter that MacKinlays, and their client, were unaware of the consent orders, as the letter assumes that the only impediment to the settlement of the sale of the subject property was the caveat. Ms B forwarded the letter from MacKinlays to the practitioner on 6 January 2005.

103 Ms B gave evidence, which was not questioned and which we accept, that, on or about 11 and 12 January 2005, MacKinlays attempted to contact her by telephone, but she was busy and unable to return their calls. On 13 January 2005, Ms B wrote to the practitioner in terms which included the following:

...

We also enclose a transfer of land form with respect to the [subject] property which our client is to receive. Could you please sign the transfer and have it stamped.

As we have previously indicated our client has organised her finance with respect to the [subject] property.

We have again been contacted by MacKinlays with respect to this property. Given that our client is ready to proceed with respect to this property, and that MacKinlays is pushing for a response, can this property be transferred to our client notwithstanding that you are not ready to proceed with respect to the refinancing to the other two properties.

104 On 31 January 2005, Ms B had a telephone conversation with the practitioner in which she expressed concern to him about the contact she had from MacKinlays. The contemporaneous file note of the telephone conversation supports this evidence. This conversation was not disputed and we find that it occurred as Ms B said.

105 On 9 February 2005, MacKinlays issued a default notice to the practitioner (and to the wife) stating that they were in default of the contract of sale, in that they failed to execute the transfer of land prior to settlement, and required them to remedy the default within 10 business days. MacKinlays sent the default notice to the practitioner at his home address and care of Ventor Settlements as agent for the vendor. On 11 February 2005, Ventor Settlements wrote to the practitioner, referring to a telephone conversation with the practitioner that day and confirming that the practitioner had received a copy of the default notice from MacKinlays. The letter also stated as follows:

As discussed you are now handling this matter and will draw on your knowledge of the legal profession.

Our sincere wishes that this matter will be resolved to the satisfaction of all parties.

106 The practitioner conceded in cross­examination that, at the time when he received the default notice, 'I was doing what I had to do' (T:99.8, 7.3.12), in signing the transfer forms and proceeding to settlement with the wife, as 'that was going forward' (T:99.9, 7.3.12). He conceded that he was precluded from complying with the default notice because he was proceeding to transfer the property to the wife. The practitioner also conceded that, even in the face of the default notice, he did not go back to Mr A, or to MacKinlays, or even to his own settlement agent, Ventor Settlements, and say that consent orders had been made requiring him to transfer the subject property to the wife and the default notice would not be complied with because he was transferring the property to the wife (T:100.1, 7.3.12).

107 On 16 February 2005, Ms B received a telephone call from the practitioner who told her, among other things, that the bank had advised that the subject property could now be dealt with alone. Ms B made a contemporaneous file note of the telephone conversation, which again supports her evidence. This conversation was not disputed and we find that it occurred as Ms B said.

108 On 3 March 2005, the transfer of the subject property from the practitioner to the wife was lodged at Landgate. It required some time to process and, in the interim, Mr A made an urgent application to the Family Court of Western Australia for an injunction to restrain the registration of the transfer, which application was heard and granted by Magistrate Judges on 14 March 2005.

109 During the course of the hearing before Magistrate Judges, the practitioner explained his motives and intentions in relation to having the consent orders made by the Family Court of Western Australia, and the subject property transferred to the wife pursuant to the consent orders, in terms that are generally consistent with his statements to Ms B about Mr A's claim to specific performance in the 3 and 7 December 2004 telephone conversations about which she gave evidence. Page 10 of the transcript of the hearing records the following statement by the practitioner:

Your Worship, so the property ­ ­ the property will be or is the property that the children will reside when they're with [the wife]. Now, if the interim injunction is kept open and then specific performance is potentially kept open rather than action for damages, that allows then that whole arrangement to be put into jeopardy, certainly in the interim and potentially if the matter is then argued over a number of weeks, in the longer period of time.

110 Page 13 of the transcript records the following statement by the practitioner:

My understanding was ­ ­ and again I can only give my understanding, at the time [i.e. when the consent orders were proposed and made] was that the Family Court order would prevail because of the interests of the children and so on, it would prevail, and the remedy would be damages, which I still don't concede there are damages but that's a separate issue if that is brought.

111 Mr A's application to the Family Court of Western Australia to enjoin the transfer to the wife was subsequently transformed into an application to set aside the consent orders. Following a hearing over three days in February 2006, on 5 May 2006, Holden CJ decided that the consent orders should be set aside on the basis that there had been a 'miscarriage of justice' within the meaning of s 79A(1)(a) of the Family Law Act 1975 (Cth): [citation redacted]. At [17] of [citation redacted], Holden CJ found as follows:

I am comfortably satisfied that [Mr A] is a person affected by the orders. By virtue of orders of the Court, he has been prevented from settling an unconditional contract. He has not been able to obtain possession of the property and has had to rent other accommodation. Both he and [the wife] claim that they are entitled to the whole of the beneficial interest in the property. Both counsel in their written submissions appear to agree that the question of whose equitable interest has priority is dependant upon the rules of equity. In effect, his interest is now contingent upon winning a competing claim in equity.

112 At [21] of [citation redacted], Holden CJ held as follows:

There is ample authority to support the proposition that justice and common sense dictate that a party who holds an interest that might be adversely affected by proposed orders should be given notice. (See, for example, Official Trustee in Bankruptcy v Donovan and Donovan and Stevens (1996) FLC 92­703 and the authorities referred to therein). The failure to do so may almost inevitably constitute a miscarriage of justice. In my view, the facts of this case, and the conduct of the parties lead to the inevitable conclusion that the orders ought to be set aside.

113 Mr A subsequently brought proceedings in the Supreme Court of Western Australia for specific performance and damages in relation to the subject property. The specific performance aspect was not, ultimately, pursued, because, under a negotiated settlement, the property was transferred to him in about February 2007, some 26 months after the date of settlement under the contract of sale.

114 It was common ground that the practitioner did not, at any stage between 1 December 2004 and 14 March 2005, advise Mr A of the proposed consent orders or of the fact that the consent orders had been made by the Family Court of Western Australia on 9 December 2004, or advise the Family Court of Western Australia of Mr A's interest under the unconditional contract of sale of the subject property. In his supplementary submissions, the practitioner noted that proposed Orders 2(a) and 4 in the Minute of Agreed Orders identified the subject property and submitted that proposed Order 4 'informs the Registrar considering the orders that there exists an Offer and Acceptance dated 14 November 2004 (that is, prior to the consent orders being lodged) with respect to the subject property'. However, plainly, this did not constitute proper or adequate notice of the third party's interest to the Court. It is not a matter for the Court to seek amongst the proposed orders for an indication that a third party might be affected, but rather, relevantly, the duty of the practitioner to expose that.

115 The practitioner signed the Memorandum of Agreed Orders on 1 December 2004, and provided the two outstanding items of information to Ms B on 3 December 2004, with the obvious intention and expectation that that document would be filed by Ms B, the orders sought would be made by the Court by consent, and the subject property would be transferred by him to his former wife pursuant to the consent orders, in order to secure a home for his children. As we found earlier, on 7 December 2004, the practitioner told Ms B that he would like the Memorandum of Agreed Orders to be filed as soon as possible to 'deflect', that is, to defeat Mr A's claim to specific performance.

116 The practitioner did not inform Mr A of the proposed consent orders, or even of the fact that the consent orders had been made, even though Mr A indicated to him that he wished to proceed with the contract or, on the practitioner's evidence, that there was a 50% chance that Mr A intended to proceed with the contract. After the making of the consent orders, the practitioner provided them to his new settlement agent for the transfer of the subject property to his former wife, but not to the settlement agent he had retained for the sale to Mr A, or to Mr A himself. The practitioner did not return his own real estate agent's messages and did not reply to Mr A's solicitors' correspondence. The practitioner also did not advise the Family Court of Western Australia at any time of the existence of Mr A or his claim to specific performance of the subject property. Indeed, as Ms Cahill submitted, the practitioner 'laid low' so as to prevent Mr A learning, directly or indirectly, of the fact that the consent orders had been made and that the practitioner was proceeding to transfer the subject property to his former wife.

117 We are satisfied on the evidence, in accordance with the Briginshaw approach, that during the period from 1 December 2004 to 14 March 2005, the practitioner intended that the consent orders made by the Family Court of Western Australia, and the subject property transferred to his former wife pursuant to these orders, in order to secure a home for his children with her. He regarded these orders as necessary in order to achieve this end and to finalise the Family Court proceedings but also in order to defeat Mr A's claim to specific performance of the contract of sale of the subject property, leaving Mr A, with, at best, a claim for damages for breach of contract against the practitioner. The practitioner did not seek to defeat Mr A's claim to specific performance as an end in itself (as Senior Counsel for the Committee at times suggested), but rather as a necessary step to achieve his objective of transferring the subject property to the wife, pursuant to the consent orders, in order to secure a home for his children with her. During this period, the practitioner acted to achieve this intention and objective (in these reasons below, described as 'the practitioner's relevant intention').

118 Essential to the achievement of the practitioner's relevant intention was that the Family Court of Western Australia must not learn of Mr A's interest in the property, and that Mr A must not learn of the proposal to seek consent orders, or the making of the consent orders, and the transfer of the property to the wife pursuant to the consent orders. If the Family Court of Western Australia had learned of Mr A's interest in the property, then, obviously, in order to afford procedural fairness to him, he would have been allowed to make submissions as to whether the consent orders should be made. If Mr A had learned of the proposal to seek consent orders for the transfer of the subject property from the practitioner to his former wife, then, obviously, given his intention to proceed with the unconditional contract of sale, he would have opposed the making of the consent orders. And, if Mr A had learned of the making of the consent orders, then, obviously, as he ultimately did, he would have applied to the Court for the transfer to be enjoined and the consent orders to be set aside. Any of these outcomes would have been inimical to the achievement of the practitioner's relevant intention.

119 In addition to the jurisdictional and evidential arguments addressed earlier in these reasons, the practitioner raised a number of disparate, and in some respects overlapping, arguments in relation to the grounds concerning the consent orders and Mr A.

120 First, Mr Rynne submitted that, in December 2004, practitioners in Western Australia were not subject to a general duty to inform a court or tribunal where there was a third party, such as Mr A, who was, or may be, affected by proposed orders, or to inform the third party of the proposed orders, because no such duties were prescribed or recorded in legislation, rules of court, or written conduct rules. Mr Rynne referred to Ms B's evidence that, at the relevant time, there was a 'custom' or 'practice', or 'a general principle' (T:61.5, 6.3.12), in the family law jurisdiction, requiring notification to third parties, but no prescribed obligation. Mr Rynne submitted that, although there were decisions of the Family Court of Australia recognising an obligation to notify third parties, which would have been known to a specialist family law practitioner such as Ms B, 'the practitioner having no experience in that jurisdiction would not have known'. He also submitted that 'while the concept of notification of third parties in the Family Court may be a matter imported as one of practice, knowledge generally has only recently become the subject of significant judicial comment outside that specialist jurisdiction'.

121 The submission, in effect, that there were no authorities prior to 2004, outside the family law jurisdiction, requiring notice to third parties who may be affected by a court order, is difficult to accept, although we record that the Committee did not refer us to any such cases. There are many examples of a court, including the High Court of Australia, expressing the need for third parties to be notified or joined in proceedings before the court makes an order which may affect them. So, in State of Victoria v Sutton [1998] HCA 56; (1998) 195 CLR 291 at [77], it was said (footnotes omitted):

The rules of natural justice require that, before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of that order. Because that is so, it is the invariable practice of the courts to require such a person to be joined as a party if there is an arguable possibility that he or she may be affected by the making of the order. That practice also assists in avoiding duplication of hearings on the same issues and in avoiding the spectre of inconsistent decisions by courts or the judges of the same court. In Pegang Mining Co Ltd v Choong Sam Lord Diplock, delivering the opinion of the Judicial Committee of the Privy Council, said:

"In their Lordships' view one of the principal objects of the rule is to enable the court to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given an opportunity of being heard ... a better way of expressing the test is: will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?"

122 It is obvious that, in many circumstances, the court or tribunal will not be aware of the existence of third parties whose rights or interests are, or may be, affected by the orders being sought. The court or tribunal will rely upon the party or parties preparing the minute of orders to give notice to those third parties of the proposed orders and notice to the court or tribunal of the existence of the third parties and their interests. The circumstances may require not merely notice to those third parties, but also that they be joined, allowed to intervene, or otherwise heard in relation to the proposed orders. In either event, the minimum obligation of the parties directly, or where represented, by the legal practitioners, is to disclose to the third parties their intended application to the court or tribunal and advise the court or tribunal of the existence and interests of the third parties

123 Even in the absence of an express authority on point, we have no doubt such duty exists. As Rich J said in Kennedy v The Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJR 563:

... a charge of misconduct as relating to a solicitor need not fall within any legal definition of wrong doing. It need not amount to an offence under the law. It was enough that it amounted to grave impropriety affecting his professional character and was indicative of a failure either to understand or to practise the precepts of honesty or fair dealing in relation to the courts, his clients or the public.

124 Similarly, the High Court of Australia observed in Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 200 that certain rules (or duties) which govern the conduct of legal practitioners, which their Honours described as 'fundamental' and contrasted with rules which are 'merely conventional in character':

... are, for the most part, not to be found in writing. It is not necessary that they should be reduced to writing, because they rest essentially on nothing more and nothing less than a generally accepted standard of common decency and common fairness.

125 Holden CJ in [citation redacted] expressed himself in essentially the same terms when he said, at [21], that there is 'ample authority to support the proposition that justice and common sense dictate that a party who holds an interest that might be adversely affected by proposed orders should be given notice'. His Honour referred, for example, to the decision of the Full Family Court of Australia in Official Trustee in Bankruptcy v Donovan & Stevens (No 2) (1996) 132 FLR 407; (1996) 20 Fam LR 802; (1996) FLC 92­703. In that decision, the Court referred to the earlier decision of the Full Court in In the Marriage of Biltoft [1995] FamCA 45; (1995) 19 Fam LR 82 in which the Full Court said at 96:

There is an obligation on both parties to disclose any significant creditors or any significant claim against either of them by a third party. If, as a result of the order of the court in the property proceedings, the ability of a creditor or claimant to recover his or her debt or claim is likely to be affected, notice of the Family Court proceedings must be given to that creditor or claimant. He/she may then intervene in the Family Court proceedings and either seek a stay of those proceedings or some appropriate order which recognises his/her rights.

126 These Family Court decisions clearly recognise a duty, binding on all legal practitioners, and not merely accredited specialists, involved in proceedings in that jurisdiction in 2004, to advise third parties whose rights or interests are, or may be, affected by proposed orders, so that they could apply to be heard in relation to whether the orders should be made by the Court. However, more broadly and fundamentally, there existed in 2004 and earlier core duties of fairness, honesty and propriety, binding on all those who enjoy the privilege of practising law, to the relevant court or tribunal, and to affected third parties, to notify a third party whose rights or interests are, or may be, affected by proposed orders, of the proposed orders, and the court or tribunal of the third party's interest. These duties applied to the practitioner because he was a legal practitioner engaged in proceedings before a court.

127 Secondly, the practitioner relied on his evidence that, although he subsequently found out about these duties, in December 2004 he 'had no idea [affected third parties] needed to be notified' (T:82.6, 7.3.12). We do not accept this evidence. The practitioner was a litigation lawyer whose practise included work in the District Court. In re­examination the practitioner was asked whether he could recall any occasion, other than this matter, when, during the course of his practise, he had found it necessary to take into account a third party's interest in the matter, and he replied 'No'. However, he said that, although he acts for plaintiffs, he was aware of defendants joining third parties in proceedings in which he was involved.

128 We regard as implausible the claim that a litigation lawyer would have no idea of the need to notify a third party of proposed orders which would directly and adversely affect the third party's interests. A litigation lawyer would know that, in order to afford natural justice, a court or tribunal would allow a third party whose rights or interests are, or may be, affected by a proposed order to be joined or to intervene in the proceeding, or at least to participate to the extent necessary to express their position in relation to the proposed order. This is, as Holden CJ observed, a matter of 'justice and common sense'. A lawyer, and certainly a litigation lawyer, could not be ignorant of a basic requirement of justice and common sense in relation to litigation. But, of course, even if we had accepted the practitioner's evidence on this point, that would not have excused his conduct. He was bound by the duties to which we have referred, even if he was personally ignorant of these basic principles of justice and common sense.

129 Thirdly, Mr Rynne submitted that, as the practitioner was representing himself in a jurisdiction in which he did not practise, 'he was entitled to accept and rely upon Ms [B] acting properly'. However, Ms B was not acting for the practitioner, and did not accept in cross­examination that, in her dealings with the practitioner, he was relying on her family law experience and expertise (T:59.3, 6.3.12). But, in any case, Ms B's involvement could not have absolved the practitioner from his independent obligations to inform a third party of proposed orders affecting his interest, to inform the Court of the third party and his interest, and not to mislead the Court that there was no third party who ought to be heard by it before the orders were made. Ms B was not a party to the practitioner's sale of the property to Mr A. She was, moreover, only involved in securing the orders as a practitioner acting for a client, unlike the practitioner who was acting for himself. Furthermore, the practitioner could not rely on Ms B, because he himself was involved in pursuing and carrying out the course of conduct with the relevant intention to which we have referred.

130 Fourthly, Mr Rynne submitted that the consent orders did not have the effect of defeating Mr A's right to seek specific performance or damages, and did not prevent the practitioner from complying with the contract. However, although the making of the orders did not, in itself, defeat Mr A's right to seek specific performance or damages, the evidence clearly shows that the practitioner sought the orders and the transfer of the property in accordance with the orders with the intention to defeat Mr A's claim to specific performance and, at best, to leave him with a claim for damages. As the practitioner told Magistrate Judges on 14 March 2005, his 'whole arrangement' of the subject property serving as his former wife's and children's home would be 'put into jeopardy' if 'specific performance is potentially kept open rather than action for damages'. As the practitioner also told the Magistrate, it was the practitioner's understanding at the time when the consent orders were being sought that 'the Family Court order would prevail [over the remedy of specific performance in favour of Mr A], and [Mr A's] remedy would be [limited to] damages'. The protracted legal proceedings which Mr A was required to undertake reflects, in part, the difficulty he faced from the making of the Family Court orders. As in the case of misleading of the Court, the misconduct lies in the wrongful intention, whether or not the outcome is successfully achieved. Furthermore, if the practitioner had complied with his obligation to transfer the subject property to Mr A, in accordance with the contract, after the consent orders were made, he would have put himself into the position of not being able to comply with an order of the Court.

131 Fifthly, Mr Rynne submitted that, if it exists, 'the duty to notify [a third party] vests on the party seeking the benefit of the orders, in this case [the wife]'. However, the duty of fairness, honesty and propriety, in our view, vests on any legal practitioner who is seeking an order to be made by a court or tribunal, including, in this case, the practitioner. Furthermore, even though the subject property was being transferred by the practitioner to the wife, that does not mean that the practitioner was not seeking the 'benefit' of the orders. The orders were of benefit to him, because they brought the Family Court proceedings to an end, in a manner to which he had agreed, and because they facilitated his intention to secure a home for his children with their mother in the subject property.

132 Sixthly, Mr Rynne submitted that, rather than pursuing or prosecting a 'plan', as the Committee argued, the practitioner's life, in January 2004 and January 2005, 'was just simply chaos' (T:19.4, 17.7.12). However, the practitioner did not give evidence to this effect. In any case, the evidence we have referred to demonstrates that the practitioner pursued and carried out the course of conduct to achieve the practitioner's relevant intention in relation to the subject property and Mr A to which we have referred.

133 Finally, the practitioner initially gave evidence to the effect that he believed that, upon reaching an agreement with the wife on 1 December 2004 for the transfer of the subject property, her interest in the property would prevail over Mr A's claim to specific performance. The practitioner said that, while the consent to orders were important because they 'would, you know, give effect to the settlement of the whole thing' (T:53.5, 7.3.12):

The agreement itself, but the 30th and the 1st both days, my understanding was that the agreement, the context of the agreement to give it to [the wife] would prevail when Mr A brought his proceedings for the house, if he brought proceedings for the house, and then as a result of that the court would balance up interests, the kids were there and so on and so on, and they'd award damages. (T:33.2, 7.3.12).

134 Although the argument was never fully articulated in any of his closing submissions, it appears that, by this evidence, the practitioner intended to convey the impression that he saw no particular significance, in December 2004, in the filing of the Minute of Agreed Orders and the actual making of consent orders by the Court. However, we do not accept the practitioner's evidence that he considered that the agreement, rather than the Court orders imposing the agreement, would prevail over Mr A's claim to specific performance, for the following three reasons.

135 First, the practitioner said that his understanding that it was the agreement, rather than any consequent orders, that mattered, was based on what Ms B had indicated to him. The practitioner gave the following evidence in cross­examination:

... As I understood, you didn't have to get a court order. As I understood, again, what [Ms B] - the discussions with [Ms B] on that day were: if you don't go ahead to Mr A and if the property goes to [the wife], and that's the scenario that was discussed, no doubt about it, on the 30th, and if Mr A commenced proceedings of any nature to get title to the property, that the wife's interest would prevail because the kids were there. That was my understanding at the time. (T:32.1­.2, 7.3.12).

136 However, Ms B, who gave her evidence before the practitioner, gave no such evidence­in­chief and was not cross­examined in relation to this.

137 Secondly, the practitioner gave inconsistent evidence on this topic. Later in the cross­examination, the practitioner gave the following evidence:

[Ms Cahill:] ... Before March 05 you thought that it was simply enough to have an agreement to transfer to [the wife], and that would defeat an entitlement to specific performance that Mr [A] had? ­ ­ The content of whatever's in the Family Court would be enough to defeat. Well, you use "defeat", I don't use that term, but the discretion. All right?

But by March you just ­ ­

EDMONDS, MR: The content of whatever was in the Family Court orders? ­ ­ Yes, that's right. ... .(T:102.8­9, 7.3.12)

138 Thirdly, the practitioner's evidence that it was the agreement, rather than the consent orders, that mattered in terms of the balancing of interests, as he understood it, was inconsistent with his explanation of his understanding in December 2004 to Magistrate Judges only three months later, namely:

My understanding was ­ ­ and again I can only give my understanding, at the time was that the Family Court order would prevail because of the interests of the children and so on, it would prevail, and the remedy would be damages, which I still don't concede there are damages but that's a separate issue if that is brought.

139 The practitioner's attempts in cross­examination to explain the inconsistency between his evidence before the Tribunal and his explanation to the Family Court of Western Australia were unconvincing.

Ground (a) - Causing or permitting consent orders to be filed without notifying, or attempting to notify, the third party or the Court

140 The practitioner relevantly caused the proposed consent orders to be filed by Ms B on behalf of himself and the wife by signing the Memorandum of Agreed Orders on 1 December 2004, with the intention and understanding that it be filed, providing the outstanding information for the document to be completed by Ms B on his behalf on 3 December 2004, and stating to Ms B on 7 December 2004 that he would like the consent orders filed as soon as possible in order to deflect specific performance by Mr A. The practitioner caused the consent orders to be filed:

(i) in circumstances where he knew that Mr A claimed, or may claim, rights as a third party purchaser, including a right to a transfer of the subject property;

(ii) without notifying, or attempting to notify, Mr A of the fact that the minute of consent orders could or would be filed; and

(iii) without notifying, or attempting to notify the Family Court of Western Australia of the fact that Mr A claimed, or may claim, rights as a third party purchaser of the property.

141 Indeed, as we found earlier, it was essential to achievement of the practitioner's relevant intention that the Family Court of Western Australia must not learn of Mr A's interest in the property and that Mr A must not learn of the proposal to seek consent orders or the making of the consent orders and the transfer of the property pursuant to the consent orders.

142 The practitioner's conduct in causing the minute of consent orders to be filed in these circumstances constitutes serious unprofessional conduct (historically, professional misconduct) at common law (and under the Legal Practice Act), in that it was conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, within the first limb of Kyle, with the consequence that the practitioner engaged in professional misconduct for the purposes of the LP Act. In finding Ms B guilty of professional misconduct in connection with obtaining and attempting to implement the consent orders, the Tribunal said the following in [the decision in the disciplinary proceeding against Ms B] at [61]­[64]:

Legal practitioners perform a vital role in the administration of the law. Orders of a court affect rights and liabilities of parties, and potentially impact on persons who are not parties to the particular proceedings. Courts depend upon legal practitioners to disclose information within their knowledge which might impact upon the propriety or appropriateness of orders being sought. It is trite to observe that a legal practitioner's duty to the Court overrides their duty to the client.

In this case, if proper disclosure were made to the Family Court at the time the consent orders were submitted, it can be confidently be said that the Court would not have made the orders without providing the affected third party [Mr A] with the opportunity to be heard. The non-disclosure by Ms [B] prevented the Court from pursuing that course.

Undoubtedly, Ms [B] took the action that she did in the mistaken belief that, by doing so, she was furthering her client's interests. She failed, however, in her higher duty to the Court.

Notifying [Mr A] of the proposal to obtain consent orders would have enabled [him] to take steps to preserve his interests by seeking some appropriate remedy to prevent the orders being made. In the context where the Court had no notice of the third party's interests, we consider the failure to notify [Mr A] to be also a serious failure of Ms [B]'s professional duty.

143 The practitioner was also subject to the same fundamental duties of fairness, honesty and propriety, to the relevant court or tribunal and to affected third parties, to notify a third party whose rights or interests are, or may be, affected by proposed orders, of the proposed orders, and the court or tribunal of the third party's interest. As discussed earlier, it matters not that the practitioner was representing himself or that his practice did not involve family law. The practitioner was required to comply with these duties because he was a lawyer engaged in legal proceedings. His failure to do so in the circumstances of this case would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence.

Ground (b) - Causing or permitting the Family Court of Western Australia to be misled

144 The practitioner intentionally caused the Family Court of Western Australia to be misled that there was no third party who ought to be heard by the Court before orders were made in terms of the minute of consent orders.

145 Although we have found that there is no evidence that the practitioner was aware of the contents, or even the existence of, Ms B's letter of 7 December 2004 to the Family Court of Western Australia, he was obviously aware of the fact that the consent orders would be filed and, indeed, wanted the consent orders to be filed on 7 December 2004 in order to deflect specific performance by Mr A. In [the disciplinary proceeding against Ms B] , the Tribunal determined, at [70], as follows:

Having concluded that Ms [B] had a duty to the Court to disclose the claims of [Mr A] and that a Court, in exercising its functions relies on practitioners fulfilling their duty, we consider that the failure to disclose [Mr A's] interests was misleading. ...

146 Similarly, in this case, as the practitioner had a duty to the Court to disclose that Mr A claimed, or may claim, rights as a third party purchaser of the subject property, and as a court, in exercising its functions, relies on practitioners fulfilling their duty, the practitioner's failure to disclose Mr A's interest was misleading to the Court. The misleading of the Court was by silence or omission.

147 We find that the misleading of the Court by the practitioner was intentional, because it was essential to the achievement of the practitioner's relevant intention to have the consent orders made and the subject property transferred to the wife, and thereby necessarily to defeat Mr A's claim to specific performance.

148 Knowingly or intentionally misleading a court or tribunal constitutes unprofessional conduct of a most serious nature (historically, professional misconduct) at common law (and under the Legal Practice Act), in that it is conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, and is therefore professional misconduct under the LP Act. In Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 at [61] and [70], the Court of Appeal said the following:

For a practitioner, in the course of his or her practice, intentionally to mislead anyone is a serious breach of the practitioner's professional duty. But the finding in the present case that the appellant intentionally misled the court is of particular significance. It goes to the very heart of a practitioner's duty as an officer of the court and therefore to the proper administration of justice. We would respectfully adopt what was said in that respect by the Queensland Court of Appeal in The Council of the Queensland Law Society Inc v Wright [2001] QCA 58, a case involving a solicitor who (among other things) intentionally misled a court in relation to an affidavit relied upon to resist a summary judgment application and as to the availability of a witness. The court said:

A practitioner's duty to the court arises out of a practitioner's special relationship with the court; it overrides the duties owed by a practitioner to clients or others ... The lawyer's duty to the court includes candour, honesty and fairness ... The effective administration of the justice system and public confidence in it substantially depends on the honesty and reliability of practitioners' submissions to the court. This duty of candour and fairness is quintessential to the lawyer's role as officer of the court; the court and the public expect and rely upon it, no matter how new or inexperienced the practitioner. Breaches such as this are hard to detect and once established to the requisite standard are deserving of condign punishment, not only as a deterrent but also to reassure the public that such conduct on the part of lawyers will not be tolerated. ... (Footnotes omitted).

As we have observed, it is a matter of the utmost seriousness for a practitioner intentionally to mislead a court. The effective administration of the justice system and public confidence in the system depends upon the absolute and unconditional discharge by practitioners of their duty of honesty and candour to the court. It is a duty so fundamental that factors such as relative inexperience and lack of supervision do not weigh so heavily in mitigation as they might in other situations. ...

149 After setting out this statement, the Tribunal, in Legal Profession Complaints Committee and Segler [2010] WASAT 135 (Segler 2), held at [69] as follows:

Complete truthfulness and absolute candour with courts and tribunals is, as these authorities show, an essential and fundamental incident of being a member of the legal profession. It is no less the case when a member of the legal profession is engaged in court or tribunal proceedings in an individual capacity as when he or she represents a client. In striking off a legal practitioner for having misled the Family Court of Western Australia in relation to his assets in proceedings between himself and his wife, the Supreme Court of Western Australia (Full Bench) observed and held in Legal Practitioners Complaints Committee v Dixon [2006] WASCA 27 at [10] as follows:

This was therefore a case of a practitioner who must have known that he had a duty to disclose his ownership of funds which would have a material impact upon the orders to be made by the Family Court in respect of the property settlement and maintenance. The evidence amply supported the conclusion of very serious unprofessional conduct in failing to make the necessary disclosure by deliberately concealing the true position from his wife, who was the applicant before the Family Court and, more importantly, from the Court itself. Further, the practitioner was guilty of illegal conduct in the form of perjury committed by the deliberately false statements made in his affidavits. That was a form of perjury which related directly to the practitioner's duty as an officer of the Court and to the integrity of the proceedings before the Court. (See also GE Dal Pont Lawyers' Professional Responsibility (Lawbook Company, 4th Edition, 2010) at [25.140]).

150 In the section of Lawyers' Professional Responsibility referred to in Segler 2 at [69], Professor Dal Pont states as follows:

The concern is that misleading the court in a personal capacity displays a lack of integrity that may directly translate to dishonesty in a professional environment. As explained by de Jersey CJ in Barristers' Board v Young [[2001] QCA 556 at [15]] in striking off a barrister who had knowingly given false evidence on oath before a Criminal Justice Commission Inquiry:

The notion of a barrister's deliberately giving false evidence on oath is utterly repugnant to the essence of what goes to make up a barrister's fitness to practise: such as to erode, if not destroy, the complete confidence which a client, a fellow practitioner, the courts and the public should be able, without hesitation, to assume. It is fanciful to think those persons would not be at least sceptical about the honesty, thence fitness and propriety, of a barrister who had so recently lied on oath on important matters before a significant Commission of Inquiry.

It follows that the lawyer's duty of candour to a court or tribunal is not diminished where the lawyer acts in a personal capacity. For instance, it has been doubted that there would be a case "where a practitioner who knowingly swears a false affidavit that is filed in court could be regarded as fit to practice [sic]" ([Coe v New South Wales Bar Association [2000] NSWCA 13 (Mason P)]. The same applies as regards lawyer­litigants who deliberately conceal matters that should be disclosed to the court. [Citing the passage from Legal Practitioners Complaints Committee v Dixon (2006) WASCA 27 at [10] set out in the extracted passage from Segler 2 above]. (Emphasis in bold added).

151 Finally, as the Tribunal said in Legal Profession Complaints Committee and Skerritt [2012] WASAT 221 at [10]:

... a lawyer's duty of "candour, honesty and fairness" to a court or tribunal extends to all aspects of his or her dealings with the court or tribunal. The proper administration of justice requires no less.

152 We, therefore, find that the practitioner engaged in professional misconduct by intentionally causing the Family Court of Western Australia to be misled that there was no third party who ought to be heard by the Court before orders were made in terms of the minute of consent orders.

153 The Committee also argued that the practitioner was guilty of professional misconduct in that he intentionally, alternatively, recklessly caused or permitted the Family Court of Western Australia to be misled as to the reasons why the practitioner and his wife sought to have orders made urgently by the Court in terms of the minute of consent orders. However, given the manner in which the Committee has framed its grounds, we do not think that this allegation can be made out in circumstances where the practitioner did not receive a copy of Ms B's letter prior to the date on which the orders were made.

Ground (c) - Failing to notify, or attempt to notify, the third party that orders had been made

154 A necessary corollary of the fundamental duty of fairness to notify a third party affected by proposed orders is that if, for whatever reason, there is a failure to notify the third party before the orders were made, the third party must be immediately notified that the orders have been made, so as to enable the third party to apply to have the orders set aside.

155 Having regard to our earlier findings, the practitioner intentionally failed to notify Mr A who, to the practitioner's knowledge, wished to proceed with the contract to purchase the subject property, that orders had been made by the Court in terms of the minute of consent orders for the transfer of the property by the practitioner to the wife. This conduct constitutes serious unprofessional conduct (historically, professional misconduct) at common law (and under the Legal Practice Act), in that it is conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, and is therefore professional misconduct under the LP Act.

Ground (d) - Failing to notify, or attempt to notify, the Court of the third party's interest after the orders had been made

156 A necessary corollary of a practitioner's duty not to mislead a court or tribunal is a continuing obligation to remedy the default. In this case, having intentionally caused the Court to be misled that there was no third party who ought to be heard by the Court before orders were made in terms of the minute of consent orders, the practitioner was under a continuing obligation to remedy the default by immediately advising the Court of Mr A's interest, even though the consent orders had been made.

157 Furthermore, a necessary corollary of the duty to a court or tribunal referred to earlier is that where, for whatever reason, a practitioner does not notify the court or tribunal that there is a third party whose rights or interest are, or may be, affected by a proposed order before the order is made, there is an ongoing obligation to notify the court or tribunal of the third party's interest, both to remedy the default and to enable the third party to seek to have the orders set aside.

158 Having regard to our earlier findings, the practitioner engaged in professional misconduct, being serious unprofessional conduct at common law, within the first limb of Kyle, (and under the Legal Practice Act), by, subsequent to the orders being made by the Court in terms of the minute of consent order, failing to notify or attempt to notify the Court that Mr A wished to proceed with the purchase of the subject property.

Ground (e) ­ Failure to respond adequately and within a reasonable time to Committee's enquiries

159 On 15 May 2006, Mr PR Jordan, a Legal Officer of the Committee, wrote to the practitioner in relation to a 'conduct enquiry'. In the first paragraph of the letter, Mr Jordan said that 'We wish to advise that the Complaints Committee has instituted an enquiry without complaint under section 164(1)(c) of the Legal Practice Act 2003 into certain conduct of yours and certain conduct of the practitioner Ms [B] of [name of Ms B's firm]'. Mr Jordan then set out 16 allegations of fact in relation to the consent orders and Mr A's interest under the contract for the purchase of the subject property, and said that these are the 'matters which are before the Committee'. In the final paragraph of the letter, Mr Jordan requested the practitioner to 'please let me have such facts and explanations with respect to the above matters as they concern you as will [en]able the Committee to give further consideration to the complaint within 21 days from the date of this letter'.

160 The practitioner did not respond to Mr Jordan's letter within 21 days of 15 May 2006, that is, by 5 June 2006. On 8 June 2006, Mr Jordan wrote again to the practitioner, referring to his letter of 15 May 2006, and stating that he 'look[ed] forward to having your reply thereto over the next few days'. The practitioner did not respond during that period.

161 When the practitioner had still not responded to Mr Jordan's letter by 27 June 2006, Mr Jordan wrote to the practitioner on that date advising him that 'unless I have your response by 5.00 pm on 30 June 2006, I propose to refer your failure to respond to the Committee as a separate act of unprofessional conduct'.

162 On 29 June 2006, the practitioner sent a facsimile to Mr Jordan as follows:

I refer to your letter of 15/5/06 and apologise for the delay in responding.

I have significant difficulty understanding why the LPCC would see itself as having an interest into enquiring into a private matter of mine. It does not appear there is any statutory basis as nothing in s 164(1)(c) of the Act seems to support an enquiry.

The private matter also involves decisions taken to ensure the social and emotional well being of my 2 children and at this stage, I cannot see why the LPCC would want to enquire into these issues.

Further, the summary of what occurred is not accurate and obviously was not taken from the judgement [sic] of his Honour alone. Further again, I would like details of when the Complaints Committee itself resolved to institute an inquiry (as claimed by Mr Jordan) as opposed to Mr Jordan himself. What date did the Comittee [sic] resolve to investigate the inquiry?

Finally before I comment further could the Committee please particularise the complaint against me, rather than invite me to comment at large on a series of statements.

163 On 5 July 2006, Mr Jordan responded to the practitioner's facsimile of 29 June 2006 as follows:

Thank you for your facsimile of 29 June 2006.

Apart from the jurisdictional point, which I believe to be without validity, your response does no more than to describe the matters ­ an account of which we placed before you ­ as "not accurate". You have not given any particulars of this alleged inaccuracy.

In due course I will be referring the matter to the Committee for general consideration.

164 On 11 July 2006, Mr Jordan wrote again to the practitioner enclosing a response from Ms B to the same matters as were identified as being before the Committee in Mr Jordan's letter to the practitioner dated 15 May 2006. Ms B's response to these matters occupied three pages. Mr Jordan requested the practitioner to provide his response to the matters raised by Ms B in certain paragraphs of her letter, within 14 days of the date of Mr Jordan's letter, that is, by 25 July 2006.

165 The practitioner did not respond to Mr Jordan's letter by 25 July 2006. On 10 August 2006, the practitioner sent a facsimile to Mr Jordan as follows:

I refer to your letter of 11 July 2006 and again apologise for the delay in responding.

On what basis do you seek I respond to anything said by Ms [B][?].

I've still not had a satisfactory response to my letter of 29/6/06. All I have had is Mr Jordan, as opposed to the Law Complaints Officer or the LPCC, being the only bodies under the Act with any statutory powers, state that ... 'the jurisdictional point' ... is '... without validity ...'. How does the personal views of Mr Jordan satisfy the concerns raised in my letter/fax of 29/6/06?

Am I now to assume that Mr Jordan's letter of 11/7/06 constitutes a separate complaint by Ms [B], and if so, what is that complaint?

Before Mr Jordan can try + command a response from any practitioner in WA he needs to:

(i) set out what the complaint is, with adequate particulars; and

(ii) confirm that the Law Complaints Officer/LPCC has jurisdiction.

Neither of these things have occurred and until they do I am not able to meaningfully respond.

166 On 14 August 2006, Mr Jordan wrote to the practitioner, referring to the practitioner's letter of 10 August 2006, and stating that Mr Jordan would 'refer the papers to the Committee together with the added matter of your failure to respond to our enquiries'.

167 In his facsimiles dated 29 June 2006 and 10 August 2006 to Mr Jordan, and in his evidence before the Tribunal, the practitioner raised three substantive objections to Mr Jordan's initial letter to seek to justify his conduct. The first objection was that the Committee did not have jurisdiction to undertake an enquiry because it related to a private matter. However, whereas the practitioner conceded in cross­examination that he should at least have responded to identify his argument about jurisdiction within 21 days (T:122.1, 7.3.12), which he accepted was a genuinely reasonable period (T:117.5, 7.3.12), he failed to respond raising the 'jurisdictional issue' until 45 days from the date of Mr Jordan's letter, that is 24 days late. Furthermore, the objection that the practitioner made on the basis that it was a 'private matter' was neither reasonable nor tenable. Under cross­examination, the practitioner conceded that the Committee had authority to investigate in relation to the conduct of a legal practitioner involved in private litigation, including family law proceedings. Moreover, as our earlier reasons show, the practitioner's conduct which was the subject of the enquiry was capable of involving, and did in fact involve, unprofessional conduct at common law and under the Legal Practice Act.

168 The practitioner's second basis of objection involved an allegation, in essence, that Mr Jordan was acting without authority. However, there was no reasonable basis for this objection. On the face of the letter, Mr Jordan was a Legal Officer of the Committee, writing on his letterhead, and advising the practitioner 'that the Complaints Committee has instituted an enquiry without complaint under Section 164(1)(c) of the Legal Practice Act 2003 into certain conduct of yours ...'. The final paragraph of the letter stated that the facts and explanations sought from the practitioner would enable 'the Committee to give further consideration to the complaint'. It was clear from the terms of the letter that the Committee had instituted an enquiry and that Mr Jordan was acting on its behalf.

169 The third basis of the practitioner's objection related to a lack of particulars. However, the factual allegations in Mr Jordan's letter were clear and were able to be responded to, as they were in fact by Ms B. The request for the provision of 'such facts and explanations with respect to the above matters as they concern you' was reasonable in the circumstances. Furthermore, contrary to Mr Rynne's submission, the request was not ambiguous and was capable of being understood by the practitioner.

170 As Ms Cahill submitted, the practitioner's two facsimiles were relevantly uncooperative and obstructive.

171 As the Tribunal said in Legal Practitioners Complaints Committee and Richardson [2006] WASAT 251 at [54]:

It has long been accepted that a legal practitioner has a duty to respond to enquiries by a professional disciplinary body, and that a failure to do so amounts to unprofessional conduct.

172 In the present case, the practitioner failed to respond adequately and within a reasonable time to the Committee's enquiries. The Committee contended that the failure to respond adequately and in a timely fashion relevantly constitutes professional misconduct, rather than merely unsatisfactory professional conduct, for the following reasons:

(a) the practitioner's delays in responding (by 24 days and 16 days beyond the reasonable periods specified for response) were unreasonable and repeated;

(b) while the practitioner, in his facsimiles, apologised for his delays in responding, he did not, and has not subsequently, offered any explanation for the delays;

(c) the practitioner's responses, when they were given, were uncooperative and obstructive; and

(d) the practitioner adopted a position to the Committee's enquiries that was both unreasonable and untenable.

173 While we accept that these reasons are correct, we do not agree that they have the consequence that the practitioner's conduct would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, within the first limb of Kyle. Rather, we consider that it was conduct that, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence, within the second limb of Kyle. We therefore find that, between about 15 May 2006 and 10 August 2006, the practitioner engaged in unsatisfactory professional conduct by failing to respond adequately and within a reasonable time to written enquiries made of the practitioner made by the Committee.

174 We have determined that the practitioner engaged in professional misconduct in each of four respects and unsatisfactory professional conduct in a further respect. The matter should now proceed to consideration of the appropriate professional disciplinary consequence of the practitioner's conduct, and the issue of costs.

1. The Tribunal finds that the respondent, between about 1 December 2004 and 14 March 2005, engaged in professional misconduct by:

(a) causing a minute of consent orders to be filed on behalf of his wife and himself in the Family Court of Western Australia for the transfer of property situated at [address redacted] (property) from the respondent to his wife:

(i) in circumstances where the respondent knew that a third party claimed, or may claim, rights as a third party purchaser, including a right to a transfer of the property to the third party;

(ii) without notifying, or attempt to notify the third party of the fact that the minute of consent orders could or would be filed;

(iii) without notifying, or attempt to notify, the Family Court of Western Australia of the fact that a third party claimed, or may claim, rights as a third party purchaser of the property;

(b) intentionally causing the Family Court of Western Australia to be misled that there was no third party who ought to be heard by the Court before orders were made in terms of the minute of consent orders;

(c) failing to notify, or attempt to notify, the third party who, to the practitioner's knowledge wished to proceed with a contract to purchase the property, that orders had been made by the Family Court of Western Australia in terms of the minute of consent orders for the transfer of the property from the respondent to the respondent's wife;

(d) subsequent to orders being made by the Family Court of Western Australia in terms of the minute of consent orders, failing to notify, or attempt to notify, the Court that a third party wished to proceed with a contract to purchase the property.

1. The Tribunal finds that the respondent, between about 15 May 2006 and 10 August 2006, engaged in unsatisfactory professional conduct by failing to respond adequately and within a reasonable time to written enquiries made of the practitioner by the applicant.
2. By 2 April 2013 the applicant is to file and serve its submissions in relation to penalty and costs together with a schedule of the amount of costs and disbursements it seeks and the respondent is to file and serve his submissions in relation to penalty and costs and any character references on which he relies.
3. The issues of penalty and costs are listed for hearing to commence at 10 am on 10 April 2013 for half a day.

I certify that this and the preceding [175] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

ACT : LEGAL PROFESSION ACT 2008 (WA)

CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE and A LEGAL PRACTITIONER [2013] WASAT 37 (S)

BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE

Vocational regulation ­ Legal practitioners ­ Unsatisfactory professional conduct ­ Professional misconduct ­ Penalty ­ Parity principle ­ Duties of fairness, honesty and propriety in relation to third parties affected by proposed court or tribunal orders ­ Duty not to mislead a court or tribunal ­ Failure to notify court of third party's interest ­ Failure to notify third party of proposal to seek consent orders or of making of consent orders affecting third party's interest ­ Failure to respond to Legal Profession Complaint Committee's enquiries in a proper and timely manner ­ Report on findings of professional misconduct to Supreme Court (full bench) with a recommendation that name of practitioner be removed from Roll of Practitioners ­ Costs

Legal Practice Act 2003 (WA)

Legal Profession Act 2008 (WA), s 403(1), s 438(2)(a), s 438(4)(b), s 439, s 440, s 441, s 441(a), s 441(m), Pt 13

State Administrative Tribunal Act 2004 (WA), s 62(3), s 87(1), s 87(2), s 105(13)

Report on Tribunal's findings of professional misconduct made and transmitted to Supreme Court (full bench) with recommendation that the name of the practitioner be removed from the roll of persons admitted to the legal profession under the Legal Profession Act 2008 (WA)

The practitioner is to pay the Legal Profession Complaints Committee's costs in terms of disbursements in the amount of $46,365.75 within four weeks of the Tribunal's order or within such further period as agreed by the Legal Profession Complaints Committee

The Tribunal previously found that a legal practitioner engaged in professional misconduct in relation to consent orders affecting a third party's interests made by the Family Court of Western Australia in proceedings between the practitioner and his former wife. The Tribunal had found that the practitioner had the intent and carried out a course of conduct to have the consent orders made by the Court and to have a property transferred by him to his former wife pursuant to the consent orders, in order to secure a home for his children with their mother, and also to defeat the third party's claim to specific performance in relation to the property. The Tribunal found that, in doing so, the practitioner engaged in professional misconduct by breaching fundamental duties of fairness, honesty and propriety, to the Court and to the third party, to notify the Court of the third party's interest and to notify the third party of the proposal to seek the consent orders.

The Tribunal also previously found that the practitioner engaged in professional misconduct by intentionally causing the Court to be misled that there was no third party who ought to be heard by the Court before orders were made in terms of the minute of agreed orders. In addition, the practitioner engaged in professional misconduct by failing to subsequently notify, or attempt to notify, the third party that the consent orders had been made, and the Court of the third party's interest after the orders had been made.

Finally, the Tribunal previously found that the practitioner engaged in unsatisfactory professional conduct by failing to respond adequately and within a reasonable time to the Legal Profession Complaints Committee's enquiries.

The Tribunal required the parties to file submissions in relation to penalty and costs and listed these issues for determination. The hearing in relation to penalty and costs was delayed because of an appeal in relation to other disciplinary findings against the practitioner.

The Tribunal determined that the appropriate professional disciplinary consequence of the practitioner's conduct in the circumstances of this case is to make and transmit a report on the Tribunal's findings that the practitioner engaged in professional misconduct to the Supreme Court (full bench) with a recommendation that the practitioner's name be removed from the Roll of Practitioners.

The Tribunal also determined that the practitioner should pay costs in terms of the disbursements incurred by the Legal Profession Complaints Committee in the proceeding in the amount of $46,365.75 within four weeks of the Tribunal's order or within such further period as agreed by the Committee.

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

Australian Communications and Media Authority v TPG Internet Pty Ltd [2014] FCA 382

Australian Competition and Consumer Commission v Energy Australia Pty Ltd [2014] FCA 336

Australian Competition and Consumer Commission v Mandurvit Pty Ltd [2014] FCA 464

Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372; (2014) 305 ALR 323

Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32

Comcare v PVYW [2013] HCA 41; (2013) 88 ALJR 1; (2013) 303 ALR 1

Commissioner for Consumer Protection v Susilo [2014] WASC 50

Dixon v Legal Practice Board of Western Australia [2012] WASC 79

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

Kennedy v Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJR 563

Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42 (S)

Legal Practitioners Complaints Committee v Dixon [2006] WASCA 27

Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211

Legal Practitioners Complaints Committee v Pepe [2009] WASC 39

Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37

Legal Profession Complaints Committee and Benari [2005] WASAT 213 (S)

Legal Profession Complaints Committee v Brickhill [2013] WASC 369

Legal Profession Complaints Committee v Segler [2014] WASC 159

Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)

Motor Vehicle Industry Board and Dawson [2006] WASAT 8

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

New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177

Phillips Fox (A Firm) v Westgold Resources NL & Ors [2000] WASCA 85

Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256

Stirling v Legal Services Commissioner [2013] VSCA 374

The Council of the Queensland Law Society Inc v Wright [2001] QCA 58

Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202

1 On 12 March 2013, we found that, during the period 1 December 2004 to 15 March 2005, the respondent practitioner engaged in professional misconduct in four respects (grounds (a) - (d)) by:

(a) causing a minute of consent orders to be filed on behalf of his wife and himself in the Family Court of Western Australia for the transfer of property situated at [address redacted] (property) from [the practitioner] to his wife:

(i) in circumstances where [the practitioner] knew that a third party [Mr A] claimed, or may claim, rights as a third party purchaser, including a right to a transfer of the property to the third party;

(ii) without notifying, or attempt to notify [Mr A] of the fact that the minute of consent orders could or would be filed;

(iii) without notifying, or attempt to notify, the Family Court of Western Australia of the fact that [Mr A] claimed, or may claim, rights as a third party purchaser of the property;

(b) intentionally causing the Family Court of Western Australia to be misled that there was no third party who ought to be heard by the Court before orders were made in terms of the minute of consent orders;

(c) failing to notify, or attempt to notify, [Mr A] who, to the practitioner's knowledge wished to proceed with a contract to purchase the property, that orders had been made by the Family Court of Western Australia in terms of the minute of consent orders for the transfer of the property from [the practitioner] to [the practitioner's] wife;

(d) subsequent to orders being made by the Family Court of Western Australia in terms of the minute of consent orders, failing to notify, or attempt to notify, the Court that [Mr A] wished to proceed with a contract to purchase the property.

(Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (conduct reasons) at [175]).

2 In the conduct reasons we also found that the practitioner was guilty of one ground of unsatisfactory professional conduct in the period 15 May 2006 to 10 August 2006 by failing to respond adequately and within a reasonable time to written enquiries made of the practitioner by the applicant Legal Profession Complaints Committee (Committee).

3 We made orders requiring the parties to file and exchange submissions in relation to penalty and costs and enabling the practitioner to file character references. The Committee filed its written submissions in relation to penalty and costs and the practitioner filed a number of character references and an affidavit deposing to him being unable to obtain character references from members of the judiciary before whom he had appeared. The hearing in relation to penalty and costs was then adjourned, on the practitioner's application, in consequence of a then pending appeal in relation to other disciplinary findings against the practitioner (discussed below).

4 Following the determination of the appeal in relation to the other disciplinary findings against the practitioner, the Committee filed supplementary written submissions and the practitioner filed an outline of his submissions on penalty and costs. At a hearing on 27 and 28 May 2014, the parties made further oral submissions in relation to penalty and costs.

5 The Committee seeks a 'global' penalty in respect of the Tribunal's findings of professional misconduct in the form of an order that a report be made and transmitted to the Supreme Court (full bench) with a recommendation that the name of the practitioner be removed from the roll of practitioners under s 438(2)(a) and s 438(4)(b) of the Legal Profession Act 2008 (WA) (LP Act). The Committee does not seek a separate penalty in respect of the finding of unsatisfactory professional conduct unless the Tribunal does not make and transmit a report to the Supreme Court (full bench), in which case the Committee seeks an order for payment of a fine of $8,000. The Committee also seeks an order for the payment by the practitioner of its costs in terms of disbursements of the proceeding in the amount of $51,517.50.

6 The practitioner also contends that a 'global penalty' is appropriate. However, he submits that the penalty should be a fine of $10,000 (or no more than $20,000), or alternatively an order that he not be granted a practising certificate for a period of three months. He also seeks a 50% reduction in the costs claimed by the Committee.

7 Following the hearing in relation to penalty and costs, the Committee raised the issue whether the decision of the High Court of Australia in Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372; (2014) 305 ALR 323 (Barbaro) may have relevance to our decision on penalty. We subsequently made orders inviting the parties to make written submissions on that question. Both parties did so.

8 In Barbaro, the sentencing judge had refused to hear submissions from the Crown on an appropriate range of sentences to be imposed. Special leave to appeal was sought from the High Court. This was granted, but the appeal was dismissed. The majority judgment of the Court (French CJ, Hayne, Kiefel and Bell JJ) held that in criminal proceedings the prosecution is not required nor permitted to submit to the sentencing judge its view as to the specific result which should be reached or the bounds of the range of sentences which might be imposed on the offender (at [7], [39]). The reasons included that any such submission by the prosecution is not a submission of law; that it is a conclusion in that it rests on unstated assumptions and assumed facts; and that it cannot be made by the prosecution dispassionately by reason of the nature of its role in criminal proceedings. The majority said at [7]:

The prosecution's statement of what are the bounds of the available range of sentences is a statement of opinion. Its expression advances no proposition of law or fact which a sentencing judge may properly take into account in finding the relevant facts, deciding the applicable principles of law or applying those principles to those facts to yield the sentence to be imposed.

9 The Committee contends that it is in a 'substantively different position from a criminal prosecutor in relation to the issue of penalty' and has referred to decisions of the Federal Court of Australia which supports the view that Barbaro does not apply to the imposition of penalties in civil proceedings. These cases follow Australian Competition and Consumer Commission v Energy Australia Pty Ltd [2014] FCA 336 where the Federal Court considered the issue at some length and concluded that Barbaro does not prohibit the practice of regulators in civil penalty proceedings making a submission about the appropriate range of penalties. The reasons which Middleton J relied upon included first, that the statutory context for a criminal prosecution is different from that for a civil penalty proceeding; second, his Honour had received submissions of law and an agreed statement of facts which went beyond the mere bare expression of opinion by a prosecutor; and third, the High Court had not addressed the question of whether its reasons extended to such civil proceedings and there was binding Federal Court authority which supported the practice of civil regulators making submissions as to penalty. (We mention, with respect, that the second reason does not appear to be persuasive given the High Court's view in Barbaro at [35], that even if the assumptions and conclusions supporting the sentence sought are exposed, the submission as to that sentence remains impermissible).

10 The practitioner contends that, by analogy, the Committee 'is a prosecutor and as such the law as set out in Barbaro applies.' He submits that the Committee's submissions on penalty in this matter 'exceeded the role of the prosecutor as outlined in Barbaro because the [Committee] strongly proposed a particular outcome.' The practitioner notes, however, that 'both parties have referred to the relevant authorities and sentencing principles.'

11 It is apparent that the statutory context in which the Tribunal makes findings of professional misconduct and imposes a penalty is different from the criminal context. As the Committee submits, its functions are different from that of a criminal prosecutor. The Committee has a range of statutory administrative, advisory, investigative, regulatory and enforcement functions. The constitution, powers, practices and procedures of the Tribunal in relation to vocational disciplinary proceedings are different from that of a criminal court. Furthermore, the objects of vocational disciplinary proceedings, which generally involve protection of the public in their dealings with members of the vocation, maintenance of proper standards in the vocation, and maintenance of the reputation of the vocation in the eyes of the community, are different to the objects of disciplinary proceedings, which generally involve punishment of the offender.

12 However, as the practitioner submits, in making an application before the Tribunal and seeking a finding of professional misconduct or unsatisfactory professional conduct and the imposition of a penalty, the Committee assumes a role which may be said to be analogous to that of a prosecutor. Furthermore, while the statutory framework is different, it remains that it is the Court in a criminal matter and the Tribunal (and the Supreme Court (full bench) where a report and recommendation for a strike off is made by the Tribunal) in a vocational disciplinary matter, which alone determines the appropriate penalty.

13 We accept that the words of a judgment articulating a principle are not to be applied in other cases as if they were an Act of Parliament, but rather having regard to the reasoning in support of that principle: Comcare v PVYW [2013] HCA 41; (2013) 88 ALJR 1; (2013) 303 ALR 1 at [15], cited in Australian Competition and Consumer Commission v Mandurvit Pty Ltd [2014] FCA 464, a decision adopting the reasoning of Middleton J. However, the reasoning underlying the High Court's conclusion in Barbaro (that is, as to unstated assumptions, assumed facts, lack of objectivity) would seem to apply equally to the case of the Committee making a submission as to penalty. In the circumstances, we have some difficulty in seeing how the different statutory context means that whereas a prosecutor's opinion as to the appropriate sentence advances no proposition of law or fact which a sentencing judge may properly take into account in finding the relevant facts, deciding the applicable principles of law or applying those principles to those facts, the Committee's submission to the Tribunal as to the appropriate penalty does contain such a proposition of law or fact which the Tribunal may properly take into account.

14 The resolution of the issue as to whether the prohibition on a prosecutor identified by the High Court in Barbaro applies to a vocational regulatory body in a vocational disciplinary proceeding should ideally be the subject of a determination of the Supreme Court. In the circumstances of this proceeding, it is not necessary for us to attempt to resolve the issue. Those circumstances are as follows.

15 It is apparent from the nature of our findings in the conduct reasons, including misleading the Family Court and unfairness to a third party, that the consequence of a report and recommendation to the Supreme Court (full bench) for the striking off of the practitioner from the roll was always going to be under consideration. Whether such a professional disciplinary consequence should follow from the conduct determination is a question entirely for the Tribunal taking into account all relevant circumstances. It follows that, irrespective of what submissions on penalty were made by the parties, the Tribunal would have undertaken the same consideration of whether to make a report and recommendation for a strike off.

16 Moreover, from a practical viewpoint, the parties' respective submissions on the appropriate penalty merely made explicit that which was implicit. That is, even had the Committee's submissions not specifically identified that it sought a strike off order, the relevant facts which it identified, the applicable principles of law which it advanced and the comparable cases it referred to, all pointed to that penalty. Equally, the practitioner's submissions on the facts, the law and comparable cases went to denying the appropriateness of a strike off order.

17 Recently, in Commissioner for Consumer Protection v Susilo [2014] WASC 50, Beech J held that it was unnecessary to determine whether Barbaro applied in that case, because the Commissioner's submission to the Court as to the range within which his Honour should fix the penalty did not influence his decision in any way - it was not a matter to which his Honour gave any weight in fixing the penalty. (See also Australian Communications and Media Authority v TPG Internet Pty Ltd [2014] FCA 382 at [93]). In the circumstances before us, the position rather is that in reaching our decision on penalty we have taken into account the parties' submissions to the extent they have identified relevant facts, principles and comparable cases. But in relation to the appropriate penalty (the 'ultimate issue') we have reached our own decision; one which we would have reached in any case without the benefit of the parties' submissions on the specific penalty.

18 Whilst the imposition of separate penalties for each ground is the preferable course, there are circumstances in which a 'global' approach to penalty may be more appropriate in vocational disciplinary proceedings: Stirling v Legal Services Commissioner [2013] VSCA 374 (Stirling) at [72] ­ [75]. This is such a case.

19 As revealed in the conduct reasons, the practitioner's professional misconduct formed part of a course of conduct over several months such that it is convenient to impose a global penalty in respect of the separate findings of professional misconduct, rather than seeking to impose separate penalties for each charge. That is the basis upon which the parties proceeded and it was also the course followed by the Tribunal when it imposed a penalty in respect of Ms B's conduct in relation to the consent orders and Mr A's interest. (In consequence of a non­publication (suppression) order which the Tribunal made in the present proceeding under s 62(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal's penalty reasons in relation to Ms B is referred to in these reasons as B).

20 The parties each made submissions in relation to the relevant principles governing when strike off is appropriate, the serious nature of findings involving honesty and integrity, and mitigation, aggravation and parity. Their submissions on the law may generally be accepted and are broadly as set out below. The differences between the parties were not as to the content of these principles, but rather as to their application.

21 A report and recommendation for a strike off order, as proposed by the Committee, would be appropriate where we regard the misconduct as so serious as to mean that the practitioner is permanently or indefinitely unfit to practise: New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [26] - [28]. In assessing the appropriate disciplinary consequence of the practitioner's conduct, other remedies which we must consider include suspension of the practitioner's local practising certificate (s 439(a) of the LP Act) or (more appropriately here, as the practitioner does not have a current practising certificate) that a local practising certificate not be granted to the practitioner (s 439(b) of the LP Act) / not be applied for (s 441(m) of the LP Act) before a certain time, that conditions be placed on his practising certificate (s 439(c) of the LP Act), that the practitioner be reprimanded (s 439(d) of the LP Act), or that he pay a fine of up to $25,000 to the Legal Practice Board (s 441(a) of the LP Act) (see orders specified in s 439, s 440 and s 441 of the LP Act). Those were penalties also available under the Legal Practice Act 2003 (WA) which was current at the time the misconduct occurred. The Committee concedes, correctly in our view, that the practitioner could not be liable to a greater penalty under the LP Act than was available under the earlier Act.

22 The relevant principles in this type of case were set out by the Supreme Court (full bench) in Legal Profession Complaints Committee v Brickhill [2013] WASC 369 at [18] - [21] as follows:

The principles to be applied in an application of this kind are well established. The court's jurisdiction with respect to the regulation of the legal profession is not to be exercised for the purpose of punishing the practitioner concerned, but for the protection of the public and the maintenance of the reputation and standards of the legal profession: Re Maraj (a legal practitioner) (1995) 15 WAR 12, 25 (Malcolm CJ, Kennedy and Franklyn JJ agreeing); Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279, 286 (Dixon CJ, McTiernan, Fullagar and Kitto JJ agreeing); Legal Profession Complaints Committee v Masten [2011] WASC 71 [16] (Martin CJ, Murray and EM Heenan JJ); Legal Profession Complaints Committee v Brennan [2010] WASC 198 [10] (Martin CJ, Murray and Hall JJ agreeing); Legal Profession Complaints Committee v Fitzpatrick [2011] WASC 320 [43] (Martin CJ, EM Heenan and Jenkins JJ).

Where the motion is to remove a practitioner from the Roll, the critical question for the court is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner: Ziems (297­298); A Solicitor v The Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 [15] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ); Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 [43] (Steytler P, Wheeler JA and Newnes J). Fitness to practice [sic] law requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and judges: In re Davis [1947] HCA 53; (1947) 75 CLR 409, 420 (Dixon J); Legal Practitioners Complaints Committee v Thorpe [43] (Steytler P, Wheeler JA and Newnes J); Legal Profession Complaints Committee v Brennan [11] (Martin CJ, Murray and Hall JJ agreeing).

Striking off is an order reserved for very serious cases, where the character and conduct of the practitioner is seen to be 'inconsistent with the privileges of further practice': Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 [38] (Thomas JA, McMurdo P and White J agreeing).

Integrity and honesty are essential characteristics expected of a practitioner, and therefore, the court has generally taken a very serious approach when dealing with dishonesty by a practitioner: Brennan [15]; Legal Profession Complaints Committee v Bachmann [2011] WASC 309 [47] (Martin CJ, EM Heenan and Jenkins JJ); Legal Practitioners Complaints Committee v Palumbo [2005] WASCA 129 [22]­[23] (Steytler P, Wheeler and McLure JJA agreeing); Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 [69] (Parker J); Re Maraj (25) (Malcolm CJ, Kennedy and Franklyn JJ agreeing). In Barristers' Board v Darveniza, Thomas JA observed that:

[T]he quality most likely to result in striking off is conduct which undermines the trustworthiness of the practitioner, or which suggests a lack of integrity or that the practitioner cannot be trusted to deal fairly within the system which he or she practices [33].

23 These principles were recently adopted and restated in Legal Profession Complaints Committee v Segler [2014] WASC 159 (Segler) at [6]. In Segler, the Court added at [7] (citing A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253):

The critical question is, therefore, whether [the practitioner] is a fit and proper person to be a legal practitioner. That question is to be decided at the time of the hearing not at the time the conduct was engaged in[.]

24 The practitioner submits also that, in determining the appropriate penalty, care needs to be taken that the penalty reflects the matters with which the practitioner is charged and not other conduct including the defence of the action by the practitioner which is ultimately held to be unsuccessful: Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 (Smith) at 267 - 268 and 271 - 272. That principle may generally be accepted, but it is subject to this qualification expressed by Ipp JA in Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32 at [108] - [109]:

The relevant time for determining the fitness of a practitioner to practise is the time of the determination by the disciplinary body seized with the question: cf A Solicitor v The Law Society of New South Wales [2004] HCA 1; (2004) 204 ALR 8. The misconduct charged will have taken place before the decision is made; there will inevitably be a gap between the date of the misconduct and the date of the determination. It will not be unusual for the practitioner concerned to submit that circumstances have changed since the misconduct charged; arguments as to remorse, reform, character change and subsequent good deeds are not uncommon. The practitioner's conduct of the defence and the veracity and candour of his or her testimony will often be the best evidence as to whether these mitigating circumstances are to be accepted.

25 As we understand the position, the principle in Smith does not preclude the Tribunal's consideration of matters relevant to the practitioner's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness. Both parties made submissions on this premise.

26 The Committee refers in this context to the decision in Legal Practitioners Complaints Committee v Pepe [2009] WASC 39. This passage appears at [12]:

Where the choice presented is, as in this case, effectively between suspension and striking off, useful guidance can be obtained from the judgment of Thomas JA, McMurdo P and White J agreeing, in Barristers' Board v Darveniza [2000] QCA 253; (2000) 12 A Crim R 438 at 446 ­ 447 [38]:

Striking off is of course reserved for the very serious cases where the character and conduct of the practitioner is seen to be inconsistent with the privileges of further practice. Suspension is a less serious result, firstly because a limited period is specified and secondly because the right to resume practice is then preserved without any further onus upon the practitioner to prove that he or she is now a fit and proper person to practice [sic].

The proper use of suspension is, in my opinion, for those cases in which a legal practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner. (In Re A Practitioner (1984) 36 SASR 590 at 593 per King CJ.)

27 Another way to express this distinction is to say that striking off is reserved to those cases where the practitioner is found to be permanently or indefinitely unfit to practise, whereas suspension is suitable where the Tribunal is satisfied that, upon completion of the period of suspension, the practitioner will be fit to resume practice.

28 In the conduct reasons at [148], we made reference to Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 which concerned a case where a practitioner had intentionally misled the Court. The Court of Appeal there referred to a passage in The Council of the Queensland Law Society Inc v Wright [2001] QCA 58 where the lawyer's duty was described as including 'candour, honesty and fairness'. The Court of Appeal then observed at [70] that:

[I]t is a matter of the utmost seriousness for a practitioner intentionally to mislead a court. The effective administration of the justice system and public confidence in the system depends upon the absolute and unconditional discharge by practitioners of their duty of honesty and candour to the court. It is a duty so fundamental that factors such as the relative inexperience and lack of supervision do not weigh so heaving in mitigation as they might in other situations. A deliberate departure from the duty must attract a substantial penalty. ...

29 The practitioner draws attention to the penalty imposed in that case. The Court held that the nature of the penalty must always depend upon the facts of the case. It said that it was not a case where the Tribunal could have concluded that only suspension would serve the objective of protection of the public, having regard to the practitioner's inexperience at the time, the fact that the events were now four years old, his otherwise unblemished record, the fact that he was now practising on his own account, and the fact that suspension would deprive the public of his services. It held that the penalty of three months suspension imposed by the Tribunal was appropriate.

30 We also referred in the conduct reasons to the decision in Legal Practitioners Complaints Committee v Dixon [2006] WASCA 27. There, as here, a practitioner acting in his personal capacity had misled the Family Court. In that case, the practitioner had failed to make full disclosure of his assets in an affidavit. In ordering that the practitioner's name be struck off the roll, the Court said at [10]:

This was therefore a case of a practitioner who must have known that he had a duty to disclose his ownership of funds which would have a material impact upon the orders to be made by the Family Court in respect of the property settlement and maintenance. The evidence amply supported the conclusion of very serious unprofessional conduct in failing to make the necessary disclosure by deliberately concealing the true position from his wife, who was the applicant before the Family Court, and, more importantly, from the Court itself. Further, the practitioner was guilty of illegal conduct in the form of perjury committed by the deliberately false statements made in his affidavits. That was a form of perjury which related directly to the practitioner's duty as an officer of the Court and to the integrity of the proceedings before the Court.

31 Mr Dixon was subsequently to make an application for readmission. In Dixon v Legal Practice Board of Western Australia [2012] WASC 79, the Court considered the leading authorities on the subject of fitness to practise in the context of striking off and readmission. It emphasised that the issue is not merely whether the practitioner was likely to reoffend, but the public interest in maintaining the reputation of the legal profession.

32 The Committee submits that a practitioner's failure to understand the impropriety of his or her conduct may be a factor of great importance in determining whether the practitioner should be permitted to stay on the roll, citing Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211 at [35]. See also New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 184.

33 The recent decision in Segler is also important in this respect. The Supreme Court (full bench) said at [23]:

... [the practitioner's] perspective on his previous conduct, and on the breaches the subject of this application, reveal and reinforce his unfitness to practise.

That submission [alleged improper conduct by a member of the Committee] demonstrates a concerning lack of insight on Mr Segler's part and reveals a significant failure to accept responsibility for the conduct the subject of adverse findings against him. His submissions which seek to justify or minimise the conduct the subject of [the] adverse findings raise the same concern. The attempt by Mr Segler through his submissions to minimise the seriousness of his conduct, and to suggest that at least some of the findings against him should not have been made, demonstrates a failure to appreciate the effect of section 444(1) of the LP Act [conclusiveness of SAT's findings of fact in a report to the Supreme Court] and indicates a failure on Mr Segler's part to accept responsibility for his actions.

35 An aspect of 'sentencing' principles in criminal law is that of parity; that is, that a similar penalty should be imposed on those guilty of the same or similar offences. The application of that principle in this case is important to the practitioner's submissions for reasons explained below.

36 The decision in Stirling at [63] - [67] supports the parties' submissions that sentencing principles, including the notion of parity, which evolved in the criminal law jurisdiction, apply with appropriate modifications to vocational disciplinary proceedings. This Tribunal has previously adopted this approach, but with the qualification that the pre-eminence of the object of protecting the public in disciplinary proceedings may serve as a distinction: Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42 (S) at [18] - [21].

37 The 'parity principle' in sentencing was explained by Gibbs CJ in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 609 as follows:

It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.

38 The parity principle was further explained in Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [28] - [29] as follows (citations omitted):

Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and 'is a fundamental element in any rational and fair system of criminal justice'. It finds expression in the 'parity principle' which requires that like offenders should be treated in a like manner. As with the norm of 'equal justice', which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.

General concepts of 'systematic fairness' and 'reasonable consistency' in sentencing, as an aspect of the administration of federal criminal justice, were discussed in Hili v The Queen. They apply to persons charged with similar offences arising out of unrelated events. The consistency they require is 'consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence.' That kind of general consistency is maintained by the decisions of intermediate courts of appeal. The consistency required by the parity principle is focussed on the particular case. It applies to the punishment of 'co-offenders', albeit the limits of that term have not been defined with precision.

39 More recently the High Court said in Barbaro at [41] (citations omitted):

As the plurality pointed out in Hili [v The Queen], in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect. ...

40 It is necessary to determine the appropriate penalty having regard to the foregoing principles as they apply to the particular circumstances of this case. The course we propose to follow is, firstly, to briefly examine, in turn, each of the grounds of professional misconduct as it impacts on the practitioner's fitness to practise, then to have regard to the factors which the parties say operate as aggravating or mitigating culpability, and finally, to address the issue of parity, having regard to the common background facts and the penalty imposed in B.

Ground (a) ­ Causing consent orders to be filed without notifying, or attempting to notify, the third party or the Court

41 As we found in the conduct reasons at [141], it was essential to the achievement of the practitioner's relevant intention (as defined at [117] of the conduct reasons) that at the time the orders were made, the Family Court not know of Mr A's interest in the property and that Mr A not know of the application for, and the making of, the orders. In his conversation with Ms B on the day the Minute of Agreed Orders was filed (7 December 2004) the practitioner sought the filing of the Minute as soon as possible to 'deflect', that is, to defeat Mr A's anticipated claim for specific performance (conduct reasons at [86]).

42 As we have set out in the conduct reasons, the duty to notify a court asked to make orders by consent in settlement of a matter, of the interest of a third party who would be directly affected by the making of those orders, is no mere formality. It is an instance of the extent to which courts necessarily rely upon the understanding and integrity of legal practitioners in the effective administration of justice. The court will often not be in a position to know of the existence of outside parties who will or may be affected by its orders. The practitioners involved in seeking the exercise of the court's powers to make consent orders are under an overriding duty to the court to make full disclosure of persons who may be affected so that the court may make appropriate provision for them to be heard or otherwise protected. Even had the practitioner in this instance notified the third party directly of the proposed orders, the duty to notify the Court would have remained.

43 In the conduct reasons, we described the practitioner's conduct which breached this duty as 'professional misconduct' as the term is understood at common law; that is, as conduct which would reasonably be regarded as disgraceful or dishonourable by members of the profession of good repute and competence.

44 Although it was somewhat weakly contended on behalf of the practitioner that the terms of the Minute of Agreed Orders alerted the Court to the possible existence of a purchaser of the subject property, we dismissed that assertion as an entirely inadequate discharge of the practitioner's duty (conduct reasons at [114]). Further, at [120] - [131] of the conduct reasons, we rejected, for the reasons given, the practitioner's various arguments that he was not under an obligation in the described circumstances to notify the Court and the third party. These arguments included that practitioners in Western Australia were not under the duty to notify the Court (although they may have done so as a matter of practice), that the practitioner himself was ignorant of such a duty, that the practitioner was entitled to rely upon Ms B to make any necessary disclosure and that the duty rested on the wife as the party entitled to the benefit of the orders.

45 None of these arguments were to the credit of the practitioner and reflect poorly on his appreciation of his professional duties, given what we regard as a self­evident duty on a legal practitioner, in any jurisdiction, in seeking orders, to inform the court of the interests of any affected third party. Even in the absence of an express authority on point, a breach of this duty would be 'indicative of a failure either to understand or to practise the precepts of honesty or fair dealing in relation to the courts, his clients or the public.' (to quote Rich J in Kennedy v Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJR 563 referred to in the conduct reasons at [123]).

46 In her oral submissions on penalty, Ms Cahill SC for the Committee drew attention to a paragraph in the practitioner's submissions seeking to minimise the seriousness of the practitioner's conduct in this respect. The relevant paragraph reads:

It appears that errors in the joinder of parties are not uncommon. See for example Tiao v Lai [No2] [2010] WASCA 189 ... .

47 Counsel's point is that such a submission demonstrates a failure on the part of the practitioner to comprehend the nature and seriousness of the duty in question. The issue was not one of an 'error' in 'joinder', but rather one of a deliberate decision to avoid disclosure of a third party known to be directly affected. Although Ms Black, counsel for the practitioner at the penalty hearing, sought to make clear that the practitioner did not seek to 'cavil' at the findings made, in our view this paragraph in the practitioner's submissions does exactly that. It does, moreover, seek to minimise the seriousness of the breach of duty as we have found it. To the extent that the submission is made on behalf of and, we must assume, with the knowledge and authority of the practitioner, it reflects poorly on his appreciation of the nature and seriousness of his misconduct.

48 The obligation to notify the third party in advance of the intended application to the Court exists alongside the corresponding duty to the Court. It existed as a duty to act fairly, honestly and with propriety and was owed both to the Family Court and to Mr A. As senior counsel for the Committee expressed the argument, members of the public are entitled to expect that legal practitioners will (consistently with their duties to the court and their clients) assist the public in the enforcement and protection of legal rights ­ not act to deny those rights by the use of unfair, improper and dishonest means. As we explained in the conduct reasons, it is not a material consideration in this context that the practitioner was acting for himself. He had an overriding duty to the Court, whose processes he sought to invoke, and to the third party affected by those processes, to notify each of them.

49 We have found that the practitioner, in signing the Minute of Agreed Orders with the relevant intention as we have described it, intentionally caused the Family Court to be misled that there was no third party who ought to be heard by the Court before the orders were made. It was that conduct (that being the material particular supporting this ground in the Committee's application), rather than the practitioner's knowledge of the terms of the letter (being a further particular relied upon by the Committee) that we found constituted the misleading conduct, for the reasons we explained at [145] - [146] of the conduct reasons.

50 We regard this ground, whilst based on essentially the same facts as for the previous ground, as reflecting a higher degree of culpability; that is, this was not a case where the practitioner through inadvertence or mistake failed to notify the Court of the third party's interests, but one where the practitioner in signing the Minute of Agreed Orders, aware and wanting them to be filed with the Court in order to deflect, that is, to defeat, specific performance by Mr A, positively sought to mislead the Court that no such third party existed, in order to defeat that third party's rights.

51 For reasons we have explained (conduct reasons at [144] - [153]), this was conduct of a very serious nature and one which we have also found would reasonably be regarded as disgraceful or dishonourable by legal practitioners of good repute and competence.

Ground (c) ­ Failing to notify, or attempt to notify, the third party that orders had been made

52 As to the reasons why, after the making of the orders, the practitioner did not alert Mr A to the fact of their making, it is apparent that doing so would have defeated the practitioner's relevant intention as we have described it (conduct reasons at [117]). The practitioner's evidence that he did not contact Mr A to inform him (both before and) after the orders were made, because he regarded that as the duty of Mr B, was unconvincing and discreditable (conduct reasons [95]). We also found this conduct of the practitioner would reasonably be regarded as disgraceful or dishonourable by reputable and competent practitioners.

Ground (d) ­ Failing to notify, or attempt to notify, the Court of the third party's interest after the orders had been made

53 Given the importance of the duty to notify the Court of the interests of any third party as we have described it, it was clearly the duty of the practitioner after the making of the orders to remedy the initial default by notifying the Family Court of Mr A's interests (conduct reasons at [156]). Contrary to the practitioner's submissions, there would clearly have been options open to the Court in those circumstances to have acted, or caused the parties to act, to protect the position of Mr A.

54 We again found that this was professional misconduct within the common law expression of that term (conduct reasons at [158]).

55 It is apparent that the circumstances in which the practitioner's duties of honesty, fairness and propriety were breached and the categorisation of the conduct as disgraceful or dishonourable as outlined above raises the issue of the fitness of the practitioner to continue to practise.

56 The practitioner in his submissions has resisted the making of a report and recommendation for a strike off order sought by the Committee on a number of grounds. Some of these grounds are also considered under the issue of parity (below).

57 The practitioner has maintained that the circumstances of his separation from his wife in late 2003 and her institution of property settlement proceedings in early 2004 was 'the start of a period of significant stress and anxiety for [him]', in particular concerning his children's welfare (practitioner's written submissions, paragraph 25). In support of this submission, reference is made in particular to an affidavit of Ms B sworn 23 November 2011 at paragraph 19 and to a series of emails (Exhibits 7 and 15A). Ms Black also submits that it is to be implied from the circumstances of the practitioner's separation from his wife and the Family Court proceedings that this would be so. Moreover, it is contended that during the relevant period the practitioner 'was very busy with his legal work, the income from which was required to support his family and the mortgages of the properties owned by him and his wife' (practitioner's written submissions, paragraph 30, and the evidence referred to there).

58 The documentary evidence relied on in support of these submissions is inconclusive. Neither at the conduct hearing (note the finding at [132] of the conduct reasons) nor at the penalty hearing did the practitioner provide affidavit or oral evidence in support. In consequence, the documents relied upon, most of which are from the practitioner himself and many of which may be regarded as self-serving, are untested. We have no basis to judge whether, outside the relevant period, the practitioner was stressed and busy. However, we are prepared to assume, in his favour, for the purposes of penalty, that the general assertions made, that he was stressed and busy at the relevant time, are established. Whilst we take these assertions into account in the mix of factors going to penalty, for the reasons which follow, we do not regard them as persuasive.

59 It is in the nature of the work of a legal practitioner that a practitioner will be busy and very often under stress. That could hardly be regarded as a basis to excuse the practitioner's professional obligations.

60 Moreover, as senior counsel for the Committee submitted, there is no evidence as to how the stress which the practitioner was said to be under, or how his busyness, acted to impair his judgment during the critical period. Ms Black's assertion that the practitioner's judgment was 'clouded' by concerns for his children's welfare was not supported by any evidence.

61 Furthermore, and significantly in the circumstances of this case, the stress which the practitioner was allegedly under during the critical period (November and December 2004) was largely of his own making. As we have found, on 14 November 2004, the practitioner entered into a contract to sell the property to Mr A. On 30 November 2004, the proposal was made that the subject property be transferred to his wife. Even assuming the proposal was made by his wife, rather than emanating from the practitioner (as to which the evidence is conflicting ­ see conduct reasons at [44]), the obvious response from the practitioner ought to have been to the effect:

I cannot agree to that proposal because I have agreed to sell the property to Mr A. The best I can do is to see if he will agree to a mutual termination of the contract. If that is successful, then I can then agree to the proposal to transfer the property to my wife. But unless and until he does so, I cannot agree to it.

62 For the practitioner to have sought and failed to have Mr A withdraw from the contract, then to have signed the Minute of Agreed Orders, including the transfer of the property to his former wife, and then urged Ms B to file it as soon as possible, was (aside from the ethical implications) inevitably to lead him into conflict with Mr A and significantly add to the practitioner's 'stress' and 'busyness'.

63 In this context, it is also to be noted that there is no evidence that it was only the subject property which was suitable for the practitioner's wife and children, as opposed to the property that the wife was then living in or one of the other properties that the parties owned. At the commencement of the Family Court proceeding, the wife was living in another of the parties' properties. The wife had subsequently proposed that the practitioner retain the subject property (conduct reasons at [37]). As late as 3 December 2004, the parties were discussing alternatives to the transfer of the subject property (conduct reasons at [69] - [71]).

64 The practitioner's related submission, one at the forefront of his counsel's submissions, was that in pursuing the course he did, the practitioner 'was not seeking to obtain a personal advantage' (practitioner's written submissions, paragraph 65); that is, because he was acting to provide a stable home for his former wife and their children. One answer to that is he might have done so in ways which did not cause such serious breaches of his professional duties. But we do not accept the starting premise for the reasons set out in the conduct reasons at [131]; that is, it was in the practitioner's personal interest to settle the property proceeding and to secure a home for his children with their mother.

65 The practitioner has also drawn attention to 'severe financial setbacks' arising from legal costs, a separation, absence from the profession and providing financially for his children.

66 Again, no evidence is provided by or on behalf of the practitioner as to the nature and extent of these expenses.

67 It is apparent that part of the legal costs sustained by the practitioner or ordered to be paid to the Committee were incurred in the numerous applications made by the practitioner in the course of this proceeding and which were unsuccessful. Other costs which the practitioner incurred, or has been ordered to pay, arose from his failure to comply with orders made or the obligations of a party to legal proceedings (most recently, his failure to identify the evidentiary basis for factual submissions on penalty, notwithstanding an early request from the Committee that he do so). The practitioner incurred the main costs of defending the application as a matter of election. Importantly, in that respect, the breaches of duty we have identified in the conduct reasons were not of an obscure or technical nature, but were fundamental to the role of a legal practitioner. In resisting the findings sought based upon breaches of these duties, particularly after the breaches had been identified both by the Committee and by this Tribunal in B, the practitioner was always at risk as to costs.

68 As to his ceasing to earn an income as a practitioner, that consequence was in part as a result of the penalty imposed in other disciplinary proceedings. (We acknowledge that part of that period of suspension was in respect of a finding of professional misconduct which was set aside on appeal.) It was also in part because of his election not to renew his practising certificate.

69 The costs arising from his separation and the maintenance of his children are personal to the practitioner.

70 We do not think that the financial circumstances of the practitioner are matters which affect the penalty we consider appropriate in light of the findings we have made.

71 The practitioner has included in his submissions some of the history of the proceedings between Mr A and himself, including that the practitioner agreed, in December 2005, to orders being made that reflected orders that were in fact made by the Family Court in May 2006 (but, because the practitioner's wife was not agreeable to the orders in December 2005, the matter progressed to a hearing), and that the practitioner made a number of settlement offers which were rejected. We should say, for completeness, that we do not regard anything in this history as of material significance to the question of penalty. In particular, it does not demonstrate any insight into the seriousness of the practitioner's professional misconduct.

72 The practitioner also submits that, in assessing the penalty, we should take into account the fact that under an earlier disciplinary penalty order the practitioner was effectively prevented from obtaining a practising certificate for a period of 18 months (from 24 November 2011) in circumstances where that global penalty was imposed to cover various charges, the most serious of which was ultimately found to have been made in error. (The details are outlined below). Whilst that submission is conceptually a difficult proposition, we would be prepared to take it into account on the subject of an appropriate period of suspension. It does not, however, appear to us relevant where the issue is whether a report and recommendation for a strike off order should be made, because in that circumstance the primary consideration is the present fitness of the practitioner to continue or resume practice. This was conceded by Ms Black.

73 The practitioner has further included as a mitigating factor that he voluntarily decided to not renew his practicing certificate in July 2011, and after the 18 month suspension period (expiring in May 2013), he undertook not to apply for a practising certificate until the final determination of this proceeding. The purport of this submission appears to be that the practitioner has already been punished by being unable to practise as a lawyer during this period. One difficulty with this submission is that the practitioner has not adduced evidence as to why he did not renew his practising certificate. Moreover, as senior counsel for the Committee put the matter, it is not possible for a practitioner to 'forward serve' part of a prospective penalty of suspension. Again, that consideration could only be relevant where the issue is the period of suspension.

74 It is also said on his behalf that the practitioner was admitted to practise in 1998 and continued to practise until June 2011 ­ a period of 12½ years. The events giving rise to the charges took place more than nine years ago. The practitioner currently works part­time for a law firm in an administrative capacity, having received permission from the Legal Practice Board to do so. Other than the earlier disciplinary proceeding (referred to below) and the current proceeding, he is said to have 'an unblemished record' (practitioner's written submissions, paragraph 65) (a characterisation which senior counsel for the Committee again drew attention to as exhibiting a lack of insight into his professional obligations). The difficulty we have in giving weight to these submissions is that the practitioner has not given evidence as to the nature of the work he has undertaken since July 2011, beyond the brief reference to currently working part­time for a law firm in an administrative capacity (a matter which Ms Black said was provided merely as background information). Neither do we have evidence from his employer or employers as to the nature of that work and how the practitioner is managing it. In the absence of that evidence, it is not possible to form a view that since the relevant events, and currently, the practitioner has established a reputation as an honest and trustworthy employee who can be relied upon, amongst other things, meticulously to meet his obligations to the court and to the public; that is, evidence which would allow us to form a view as to the practitioner's rehabilitation.

75 The practitioner produced and relied upon nine character references. Three of these are from people who are not lawyers and are, therefore, of very limited assistance. Of the six produced by lawyers, four did not refer to either or both the conduct reasons and the earlier disciplinary proceeding (described below) and for that reason are of limited value. Of the two remaining references, each generally speaks about the referee's knowledge of the practitioner's past conduct. The first of these referees says that, having had dealings with the practitioner acting for the other party in proceedings, 'I have never had any concerns about [the practitioner's] honesty and integrity when dealing with matters involving myself.' The strongest reference is from a lawyer (the principal of the firm in which the practitioner was formerly a partner) who says that he regards the conduct the subject of the earlier proceeding and our decision as 'completely out of character' for the practitioner, that his firm would 'engage/employ [the practitioner] in an instant', and that '[a]ll those in this Firm would have complete faith in [the practitioner's] integrity, honesty and candour with the Courts and Tribunals, clients and opponents if he were able to work again in the legal profession.'

76 The Tribunal regards it as difficult to place significant weight upon even the stronger references for this reason. The issue before us is whether we consider that the practitioner is a fit and proper person to be a legal practitioner; that is, as a person in whom the courts and tribunals, fellow practitioners and the public may repose trust and confidence especially in his honesty and in the discharge of his professional duties. There are now several serious disciplinary findings against the practitioner, that he deliberately misled his fellow practitioners (the earlier proceeding discussed below), that he failed to give the appropriate notice to the Family Court and an affected third party (both before and after the making of the orders), and that he deliberately caused the Family Court to be misled (before the making of the orders). Those are matters which directly concern the practitioner's honesty and integrity and go directly to the practitioner's character. It would be difficult to regard even one instance of such breach as being out of character ­ but several breaches occurring over a relatively short period as here, unaccompanied by evidence of an appreciation of their nature and remorse for his conduct, appear more likely to indicate the practitioner's true character.

77 The Committee submits that aggravating factors include that the relevant conduct continued from 1 December 2004 through to mid­March 2005, and therefore allowed for considered reflection. Moreover, there were attempts made on behalf of Mr A to contact the practitioner in this period which he avoided. We accept that submission. This was not conduct undertaken in the 'heat of the moment' or under pressure during a hearing in court. It was not a momentary lapse of judgement. Rather, it reflects a sustained and concerted course of action over a period of time. Even were we to accept that it was the wife who requested the transfer to her of the subject property and that this came as a surprise to the practitioner, a week passed between his signing of the Memorandum of Agreed Orders and his provision of outstanding information enabling its filing and his telling Ms B that he wanted the Memorandum of Agreed Orders filed as soon as possible to deflect specific performance. Moreover, the practitioner had a period of weeks thereafter in which he might have reflected on his conduct and notified the Court of the purchaser's interest and the purchaser of the making of the consent orders.

78 Given our global approach to determining the penalty, we would not, as urged by the Committee, include as an aggravating factor that the practitioner's motivation was to defeat the purchaser's rights under his contract with the practitioner. That is a central element in the charges themselves. Neither do we accept that the charges beyond misleading the Court can be regarded as aggravating factors to that charge: Stirling at [68] - [71].

79 The Committee also submits that the practitioner is not entitled to the mitigating benefit of 'immediate remorse and cooperation', pointing out that it was obliged to prosecute the charges to final determination by the Tribunal:

The practitioner denied throughout the gravamen of the offending conduct, namely, that he had intentionally misled the Court, sought to defeat the Third [P]arty's rights and [thereby] failed to observe his fundamental duties of fairness and honesty.

(Committee's written submissions, paragraph 39)

80 We accept that from the outset of the bringing of the complaint (including by his responses to the Committee in relation to it), in his formal reply to the application, during the hearing of the substantive matter including in giving evidence and making submissions, and even during the penalty hearing, the practitioner has showed no appreciation of the unprofessional nature of his misconduct as we have found it and has expressed no remorse for it. The only concession made is in the practitioner's written submissions (at paragraph 88) that he 'now accepts that the purchaser should have been joined in the proceedings'. That manifestly does not grapple with the issue of the practitioner's serious breaches of duty. This is a significant failure because, as the Committee points out, the practitioner's failure to appreciate the impropriety of his conduct and to express contrition is a matter of great importance in determining whether he should continue on the roll.

81 The practitioner seeks to meet this argument, at least in part, by explaining that he has filed an appeal against the Tribunal's conduct decision and therefore (inferentially) he is not in position to show remorse for findings of misconduct which, to the extent they are the subject of appeal, are disputed. In this context, the way Ms Black put the matter is that whilst the practitioner is not in a position to take advantage by way of mitigation of expressions of regret by reason of the appeal, as a sentencing principle, the lack of such expressions may not properly be regarded as an aggravating factor.

82 We do not, of course, know the grounds of the appeal and how far they are directed to the principal findings establishing misconduct. We can see that where, as here, the penalty hearing precedes the appeal (which is the usual course in consequence of s 105(13) of the SAT Act), the position which the practitioner finds himself in is, or may be, of some difficulty in this respect. The practitioner is of course perfectly entitled to exercise his rights of appeal. As in defending the charges before us, if the practitioner is unsuccessful in the appeal, his continued denial of the substance of the charges may be material to penalty. We also acknowledge that, to be of value, an expression of remorse must reflect genuine contrition, and that if not felt, it is better not expressed. Given the practitioner's defence of his position and his attempt to lay the blame for his conduct on Ms B, any expression of remorse might have been subject to examination.

83 But that is not to accept that the practitioner could not have provided evidence of insight and regret. The practitioner's position in this respect is not unique. It would have been possible for the practitioner to have made a qualified expression of regret and demonstrated his understanding of the obligations of a practitioner to the court and to the public. That a legal practitioner might defend a claim whilst acknowledging responsibility for the conduct, and thereafter to accept the seriousness of the findings made against the practitioner, is demonstrated in B (discussed below).

84 As to the sentencing principle which Ms Black adverted to, we do not accept that a lack of insight and remorse can only be regarded in these circumstances as 'neutral'. In this disciplinary jurisdiction, where protection of the public is the primary criterion, a failure to display insight and remorse, whether or not described as an aggravating factor, has very often been treated as important in determining penalty, particularly where fitness to practise is under consideration, as the cases mentioned above make clear. It is difficult to see how a tribunal is to judge whether a person found guilty of professional misconduct is fit and proper to continue practice, unless that person shows an insight into the conduct and takes responsibility for it and demonstrates that it will not reoccur. We do not regard the passage from Segler at [28] as confined because of the 'fairly extreme' circumstances of that case, as was submitted by Ms Black.

85 Ms Black also submits that the practitioner's admission of some of the key factual matters during the conduct hearing ought to be considered in his favour in this context. It is enough to say that we did not regard the practitioner as displaying a particular readiness to confine the issues and to advance the resolution of the matter. To cite a single instance, the Committee's early application to amend in the manner mentioned below was opposed by the practitioner's counsel based on instructions that he was 'not to agree to any amendments'.

86 In an earlier disciplinary decision, the Tribunal found that:

1. The practitioner was guilty of unsatisfactory professional conduct with respect to an interlocutory hearing in the Supreme Court held on 9 August 2004 in that his conduct involved a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
2. The practitioner was guilty of professional misconduct in making representations to the Supreme Court at a hearing on 17 November 2004 that were intentionally, or alternatively, recklessly misleading.
3. The practitioner was guilty of professional misconduct by making representations to another firm of legal practitioners in letters dated 17 November 2004 and 2 December 2004 that were intentionally misleading.

87 The first of these findings concerned the practitioner's attendance at an interlocutory matter where he had sought an adjournment. The Tribunal determined:

We find the conduct of the practitioner at the hearing unacceptable and falling below the standard of competence to be expected of a reasonably competent legal practitioner. ... That he came to the hearing prepared only to apply for an adjournment and being totally unprepared to argue the merits of the strike out application, knowing full well that his application for an adjournment was going to be opposed, compromised the interests of his clients and serves to underline his lack of professionalism.

88 An appeal against the second of these findings was upheld by the Court of Appeal and the nature of the allegation and Tribunal finding does not concern us.

89 As to the third of these findings, an appeal against which was dismissed by the Court of Appeal (but, we are told, is the subject of an application for special leave to appeal to the High Court of Australia), there were two relevant letters to the firm of practitioners on the other side. In each case, it was found that the letter contained representations which were known to be false; that is, as found by the Tribunal and upheld on appeal, the practitioner deliberately intended to mislead fellow legal practitioners.

90 In the penalty hearing in the earlier disciplinary proceeding, the Tribunal recognised that the second and third grounds were the more serious. It determined that a global penalty was appropriate and ordered a period of suspension of 18 months. The Committee appealed against the penalty order, arguing that the appropriate penalty was a strike off order. In its decision in relation to the appropriate penalty in these circumstances, the Court of Appeal said:

Integrity and honesty are essential characteristics expected of a practitioner, and accordingly the court has generally taken a very serious approach when dealing with dishonesty by a practitioner [citations omitted] ...

Bearing in mind the practitioner's dishonesty, the fact that it occurred twice over the period 17 November 2004 to 2 December 2004, and the apparent absence of any insight or remorse, it would be open to order some period of suspension or non-registration in a case such as this. However, 18 months is a substantial period for an order of that kind, and even if it also covered the ground of unsatisfactory professional conduct, a period of that length would not be appropriate having regard to the fact that the conduct stemmed from earlier ineptitude rather than being motivated by personal gain, the relatively limited experience, post-admission, of the practitioner at the time of the events in question (particularly relevant to complaint (i)), and the absence of any history of other misconduct. ...

91 As the period of 18 months' suspension had already passed, the Court made no order in relation to penalty.

92 In dealing with his disciplinary history, the practitioner submits that the facts giving rise to the earlier proceeding arose at about the same time as the events the subject of this proceeding, such that it is not a situation where the practitioner, having been through the earlier proceeding and having had the benefit of a decision, should have been 'on guard' and more attuned to his professional obligations. The events the subject of the earlier proceeding took place between August 2004 and December 2004, whereas the events the subject of the present proceeding took place between December 2004 and March 2005.

93 We accept that the practitioner did not have the benefit of an earlier decision on which he might reflect during the events dealt with by us. However, that does not take the practitioner very far. A practitioner's obligations to deal honestly and candidly with a court and to deal fairly with a contracting party who would be affected by court orders are so fundamental and obvious that no prior 'warning' was required; that is, they are values which are regarded as being inherent in a legal practitioner and officer of the Supreme Court.

94 Having considered the practitioner's conduct and the submissions made by the parties, we have reached the provisional view that we cannot regard the practitioner as a fit and proper person to continue (resume) legal practice. We have reached the unfortunate conclusion that, on the basis of his conduct in the earlier proceeding that he made representations in letters to another firm of legal practitioners that were intentionally misleading and his conduct as we have found in this proceeding, he is not a person who would command the respect and trust of courts and tribunals, his professional colleagues and the public. We have grave concerns that the instances of misleading his professional colleagues, failing to notify and misleading the Family Court as to Mr A's interests, and securing the court orders with the intention we have described, reveal a lack of honesty and a lack of integrity which are fundamental attributes of legal practitioners who play a significant role in the administration of justice. We consider that this conduct reveals character defects of a nature which will not be remedied by the imposition of a fine or a term, even a long term, of suspension, or by restrictions imposed on the practitioner's practising certificate. We think that the public is entitled to protection from a practitioner with such a character. We bear in mind also the earlier, and our current, findings of unsatisfactory professional conduct. In all the circumstances, unfortunately, we consider that the practitioner's conduct found in this case and in the earlier disciplinary proceeding (in relation to which the appeal was unsuccessful) demonstrates and reflects a character which is inconsistent with the privileges of legal practice and shows that he is not a fit and proper person to be a legal practitioner.

95 We are fortified in this view by the manner in which the practitioner has defended the charges brought against him and his submissions in relation to penalty as we have outlined above. They reveal that the practitioner has failed to take responsibility for his conduct and to acknowledge the seriousness of it. Furthermore, although it was not the subject of submissions, it is apparent from the conduct reasons that we have not found the practitioner to have given evidence in an open and candid fashion, such as to inspire confidence in his veracity.

96 We have reached this position on the basis that the four charges of professional misconduct are regarded as a course of conduct. In this context, however, we should make clear that we recognise that the same facts give rise to the charges of both failing to notify the Court (ground (a)) and misleading the Court (ground (b)). To the extent that, in those circumstances, it is impermissible to have regard to both for the purposes of fixing penalty, we would reach the same conclusion whether ground (a) or ground (b) is relied upon. We should also say that we have reached this position on the basis that ground (d) is limited to a failure to notify the Court after the orders were made (per [175(d)]) and without considering that conduct also a failure to remedy the earlier misleading conduct.

97 It remains to consider how far this provisional view may require to be modified to achieve parity. We mention in this context that the practitioner's submissions put it that the starting point for our consideration of penalty is to have regard to the penalty imposed on Ms B ­ namely a fine of $20,000. Although we would not regard the sequence of our reasoning as determinative of the outcome, it will be apparent that we think the preferable approach is to arrive at a provisional view on penalty and to then have regard to the parity principles.

98 As the Committee acknowledges, in B the conduct under consideration in relation to penalty arose from the same factual background as is the subject of the Tribunal's findings in the current matter. The Tribunal's ultimate findings in that case upholding each of the four charges were very similar to those of this Tribunal with respect to the practitioner, but with two differences. First, in B there was a finding of misleading the Family Court based upon Ms B's letter of 7 December 2004 (as to the reasons for urgency in the making of the orders and the absence of a third party who ought to be heard) which for reasons we have explained was not a finding we made in relation to the practitioner. Second, in the present case, but not in B, a charge of failing to respond appropriately to the Committee was upheld.

99 The material elements of the Tribunal's decision in B in relation to penalty may be summarised as follows:

1. The Committee submitted that in view of the findings made, a strike off order was appropriate.
2. Ms B, whilst accepting the seriousness of the findings against her, submitted that, in all the circumstances, such an order was not necessary to meet the proper objectives of the imposition of a penalty, and in particular the findings did not, when considered against her otherwise impeccable professional career, lead to the conclusion that she is not fit to remain on the roll.
3. The Tribunal reached the view, based on the authorities cited, that although a single finding of misleading a court might justify a strike off order, such an order was not mandated whenever a finding of misleading a court was found.
4. Ms B had a legal career of approximately 29 years, including 24 years in professional practice, three and a half years as a Registrar and one and a half years as an acting Magistrate of the Family Court. She had not been the subject of any other disciplinary proceeding.
5. Ms B produced 26 character references, including from members of the judiciary and the profession. All referees had read the Tribunal's reasons. The Tribunal found that collectively these strongly supported the conclusion that the conduct the subject of the proceeding against her was entirely out of character. The Tribunal was satisfied that Ms B's actions, motivated by a misguided desire to secure her client's interests, involved a single lapse in her otherwise high professional standards, rather than a flaw in her character which rendered her unfit for legal practice.
6. Ms B had acknowledged that her conduct was a serious error of judgement, and that she was uncomfortable with her avoiding Mr A's solicitors. She maintained that she did not intend to misled the Family Court, which the Tribunal regarded as a matter of concern, but she acknowledged in retrospect that she should have notified the Court and the third party, both before and after the making of the orders.
7. After the Tribunal's conduct determination, Ms B acknowledged that she was involved in serious breaches of her professional duties, including recklessly misleading the Court.
8. The Tribunal's finding was that her conduct should be seen as a serious aberration deserving of a significant penalty, but not as demonstrating an underlying unfitness to practise.
9. The Tribunal regarded a period of suspension from practice as one that would have been appropriate, but as her current employment with the Family Court did not require a practising certificate, suspension would be of no practical effect.
10. In those circumstances the Tribunal imposed a fine of $20,000.

100 The practitioner's starting position in his written submissions in this case is that a fine of $10,000 or a reprimand would be sufficient (practitioner's written submissions, paragraph 65). Subsequently (practitioner's written submissions, paragraph 83), it is submitted that as between the practitioner and Ms B, a similar penalty should be imposed; that is, a fine of $20,000. It is subsequently said (practitioner's written submissions, paragraph 90) that the practitioner should receive a lesser penalty and at worst a similar penalty to Ms B. In her oral submissions, Ms Black accepted that, but for the period of suspension of 18 months imposed in the earlier proceeding, a period of suspension would likely have been appropriate. Moreover, in relation to the B decision, Ms Black acknowledged that a comparable penalty would involve a period of suspension. The practitioner's arguments in support of the proposed penalties generally, and as a matter of parity, were as follows.

101 First, it is said, correctly, that it was Ms B who wrote the letter of 7 December 2004 to the Family Court and the practitioner took no part in its preparation or drafting and was not aware of it until after it was sent. Ms Black submits that the drafting and sending of the letter (together with the filing of the orders) was a significant difference in the conduct of the two practitioners. That is so. We accept the submission and regard Ms B as having a greater level of culpability than the practitioner in this respect.

102 Second, it is said that Ms B prepared and lodged the consent orders with the Court. We accept this is so, but think it of limited significance. The practitioner signed the Memorandum of Agreed Orders and provided outstanding information with the intention and understanding that it would lead to the consent orders being filed and made. Furthermore, the practitioner told Ms B that he wanted the Memorandum of Agreed Orders to be filed as soon as possible in order to 'deflect', that is, to defeat, Mr A's anticipated claim for the specific performance in respect of the property (conduct reasons at [86]).

103 Third, it is said that Ms B was an experienced practitioner within the family law jurisdiction and had no 'distracting' personal involvement in the matter. Conversely, it is said that the practitioner had no experience in that jurisdiction and was acting in a matter that 'deeply affected his ability to exercise good judgment'. We accept the position in relation to Ms B's and the practitioner's experience and that their involvement was different in that Ms B was acting for a client, but again this has limited significance. The practitioner evidently regarded himself as sufficiently experienced in a general sense to conduct the Family Court proceeding not merely in relation to the property settlement, but thereafter when Mr A initially brought proceedings in the Family Court. More significantly, as a practising solicitor, the practitioner well knew or ought to have known of his duty to deal honestly and candidly with the Court and with Mr A. As earlier indicated, that was not a matter calling for experience in a particular jurisdiction, or specialist training, but would be regarded as axiomatic for a practitioner admitted to the roll, and thereby being an officer of, the Supreme Court. As to the practitioner being distracted by his personal involvement, that in one sense puts him in a more culpable position. Ms B was (misguidedly) pursing the interests of her client (the wife) for a fee. The practitioner was pursing his own interests; that is, first entering into the contract of sale with Mr A and thereafter seeking to defeat his claim for specific performance through orders of the Family Court, in order to allow his (former) wife and children to live in the subject property. The practitioner brought about the circumstances which made it necessary to 'deflect' the purchaser's claim. We mention also that in the earlier proceeding the practitioner was prepared to mislead the opposing firm notwithstanding the absence of any such distracting interest.

104 The degree of difference between the circumstances of B and the present case is evident from the outline of the penalty decision in that case given at [99] above. The relevant differences may be summarised as follows.

105 First, Ms B had a long legal career of approximately 29 years, including periods as a Registrar and as an acting Magistrate of the Family Court, and had not been the subject of any other disciplinary proceedings. In contrast, the practitioner, during a much shorter career of 12½ years of professional practice, has been the subject of earlier disciplinary proceedings with findings of incompetence and misleading his opponents. The practitioner was also found guilty by us of unsatisfactory professional conduct relating to his responses to the Committee.

106 Secondly, based on the references provided, the Tribunal in B was able to reach the conclusion that Ms B's conduct was entirely out of character and a single lapse in her otherwise high professional standards, rather than a defect of her character demonstrating an underlying unfitness to practise. In contrast, we have not been persuaded that the references provided by the practitioner have established his reputation for honesty and integrity. We acknowledge that, as indicated in his affidavit, the practitioner has not been able to obtain references from members of the judiciary before whom he has appeared, because of the confirmation of a judicial policy, since Ms B obtained and used character references from judicial officers in her disciplinary proceeding, not to provide character references for use in disciplinary proceedings brought against legal practitioners. Whether, absent the policy, judicial officers would have given references for the practitioner and what those references might have said, remain open questions. Significantly, we have found that the practitioner's conduct reflects on his character in a manner which directly brings into question his fitness to remain in legal practice.

107 Thirdly, in the course of her conduct hearing, Ms B acknowledged that her conduct involved a serious error of judgement and said that she was uncomfortable with her avoiding Mr A's solicitors. She acknowledged in retrospect that she should have notified the Court and the third party both before and after the making of the orders. In contrast, there was no such acknowledgement by the practitioner in this case who maintained that he was entitled to act as he did and that to the extent that there was some duty to notify the court and Mr A, this was entirely Ms B's responsibility.

108 Fourthly, by the time of her penalty hearing, Ms B acknowledged that she had engaged in serious breaches of her professional duties, including recklessly misleading the Court. In contrast, there has been no such acknowledgment by the practitioner in this case. He has not only maintained that he has not engaged in professional misconduct, but has never accepted that his conduct was wrong or unfair. The closest he has come to acknowledging any culpability is his response that 'the purchase should have been joined to the proceedings'. The practitioner had the opportunity to acknowledge the seriousness of his conduct in the affidavit which he provided for the purposes of the penalty hearing. He did not do so. In those circumstances, we do not think it advances the matter that Ms Black (on his behalf) said in her oral submissions that she accepts, as she must, that the practitioner made decisions which were 'wrong in a very serious way'.

109 Fifthly, the Tribunal in B regarded a period of suspension from practice as one that would otherwise have been appropriate for Ms B. We are therefore entitled to infer that the Tribunal was satisfied that, having served that period of suspension, Ms B could be held out as a fit and proper person to practise as a legal practitioner. For reasons we have given, we do not think a specific deterrent of this nature would mean that thereafter the practitioner was fit to resume practice.

110 We mention one final matter. Senior counsel for the Committee submits that when the issue is fitness to practise, so that the character of the practitioner is in question, the principles relating to parity assume less significance. We think there is some force in this submission to the extent that the enquiry as to a person's character is likely to be unique to the circumstances of that person.

111 In any event, we are satisfied that the circumstances we have outlined above justify different penalties to be applied in B and in the present case. More broadly, we think the legal principles governing penalty in disciplinary proceedings have been consistently applied in both B and the case before us, such that the requirement for parity has been met.

112 We mention, for completeness, that we have read all of the other cases mentioned by the parties on the subject of penalty where a practitioner has been found guilty of misleading a court. Each requires to be read in the light of the substantive findings made and the considerations affecting the particular practitioner.

Unsatisfactory professional conduct in response to the Committee

113 We have set out our findings in relation to this issue in the conduct reasons at [159] - [173]. We have found that the practitioner's responses to the reasonable requests of the Committee were uncooperative and obstructive. We have also drawn attention to an authority in this jurisdiction which affirms that a failure in this respect may amount to unprofessional conduct. Our finding is that this conduct fell short of, to a substantial degree, the standard observed or approved by practitioners of good repute and competence and therefore constitutes unsatisfactory professional conduct.

114 We accept the Committee's submission in this respect that, having decided to make and transmit a report on our findings of professional misconduct to the Supreme Court (full bench) with a recommendation that the name of the practitioner be removed from the local roll (and to some extent taking into account this finding of unsatisfactory professional conduct in that context), no separate penalty in respect of the finding of unsatisfactory professional conduct is appropriate.

115 The general position in relation to costs in the Tribunal is that, normally, each party bears its own costs of a proceeding: s 87(1) of the SAT Act. However, insofar as the Committee has been substantially successful in the charges of professional misconduct which it has brought, and given the statutory functions of the Committee in investigating and bringing complaints against legal practitioners in the interests of protecting the public, we accept (subject to the practitioner's specific submissions addressed below) that it is appropriate to order that the practitioner pay the Committee's reasonable costs of the proceeding: Legal Profession Complaints Committee and Benari [2005] WASAT 213 (S) (Benari) at [25]; Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) (Roberman) at [30].

116 The Committee does not seek any solicitors' fees, but seeks an order for the payment of its disbursements, including counsel's fees. The Committee has produced two schedules of disbursements and invoices showing an updated total, including the penalty hearing, of $51,517.50, of which counsel's fees amount to $47,534.20. Senior counsel has charged an hourly rate of $350 (for work performed in 2008 and 2009) and an hourly rate of $550 and a daily rate of $5,000 (for work performed since 2010). These invoices have then been discounted by 20% with the consequence that the fees sought are a rate of $280 per hour (for work performed in 2008 and 2009) and $440 per hour and $4,000 per day (for work performed since 2010).

117 We are satisfied that the complexity of the allegations against the practitioner justified the briefing of senior counsel and, looking at the matter broadly (and having regard to the rates prescribed in the Legal Profession (State Administrative Tribunal) Determination 2008 (which applied from 1 March 2009 to 30 September 2010), 2010 (which applied from 1 October 2010 to 31 December 2012) and 2012 (which applied since 1 January 2013) as a guide to the maximum rate which might be allowed), that the work performed by senior counsel and the fees charged by her are reasonable and appropriate in the circumstances of this case. Indeed, the practitioner has not challenged the quantum or details of the Committee's accounts.

118 What the practitioner does contend, however, is that the Committee's costs should be discounted to reflect that the Committee was not successful on all counts, citing Benari at [25] - [26] and Phillips Fox (A Firm) v Westgold Resources NL & Ors [2000] WASCA 85. The practitioner submits further that an order will not usually be made in favour of a vocational regulatory body in respect of a part of proceedings in which it has not been successful: Benari at [26]; Roberman at [30] ­ [32]; Motor Vehicle Industry Board and Dawson [2006] WASAT 8. The practitioner also refers to Benari at [27] in support of the proposition that the Tribunal may take into account any special matters when determining costs.

119 These propositions may all be generally be accepted, although it may be added that a reduction in costs in respect of a charge on which the Committee failed will more readily be made where that charge may be regarded as a discrete issue involving its own evidence: Roberman at [31]. Ultimately, it is a matter of the Tribunal's discretion, taking into account all circumstances.

120 On the subject of the Committee not being successful on all counts, only one instance is identified, being the charge that the practitioner intentionally or recklessly caused or permitted the Family Court to be misled as to the reasons why the orders were sought urgently. Given that the practitioner did not receive the letter written by Ms B to the Family Court until after the orders had been made, we did not uphold this charge (conduct reasons at [153]). However, we think that the sending of the letter by Ms B formed an integral part of the background facts to this matter and that the unsuccessful allegation did not extend the scope of the evidence and the hearing in any substantial way. In the circumstances, we would allow a small discount (5%) to the Committee's costs in this respect.

121 The practitioner also maintains in this context that the Committee's case was 'presented in an unclear way, and the pleadings were amended in the first day despite objection which caused unnecessary costs and work for the Respondent; see paragraphs 20 and 21 of the Reasons for Decision.' The amendment referred to was only to allocate certain dates to charges (a) - (d) and other dates to charge (e). This did not affect the practitioner's defence and we would not allow any discount in this respect. Although the practitioner has not clearly identified the point, we accept that additional work was made necessary because the Committee did not identify at the outset that the professional misconduct was confined to that arising at 'common law', and did not encompass those specific statutory instances identified in s 403(1) of the LP Act (competence and diligence, not a fit and proper person); that is, the Committee initially proceeded on the basis of both the specific statutory instances of professional misconduct and the common law notion of professional misconduct. Moreover, the practitioner's then counsel made written submissions addressing those specific statutory grounds, which work was unnecessary. We would allow a small discount (5%) to the Committee's costs in this respect.

122 The practitioner has also claimed that a discount should be imposed because, in December 2011, the conduct hearing was adjourned at the request of the Committee. We do not consider that there should be any discount for this reason. On 2 September 2011, the originally scheduled conduct hearing dates of 7 and 8 September were vacated on the application of the practitioner (with the agreement of the Committee). On 9 December 2011, the rescheduled hearing dates of 13 and 14 December 2011 were vacated on the application of the Committee (over the objection of the practitioner, notwithstanding that the reason for the application was that senior counsel for the Committee, who had been involved in the matter for some time, was 'more or less totally incapacitated' because of a back injury (T:2.5; 09.12.11)). Given that each party had sought the vacation of one of the scheduled hearings and that it does not appear that the Committee's costs were increased as a result of the December 2011 adjournment, or that that the practitioner's costs were increased as a result, we do not think that a discount against the Committee's costs should be made on account of the adjournment.

123 In the circumstances, we will allow a total 10% discount to the Committee's costs. The practitioner should therefore pay the Committee's costs of this proceeding assessed in the sum of $46,365.75.

1. Pursuant to s 438(2)(a) of the Legal Profession Act 2008 (WA), a report be transmitted to the Supreme Court (full bench) on the Tribunal's findings that the respondent practitioner engaged in professional misconduct, with a recommendation, pursuant to s 438(4)(b) of the Legal Profession Act 2008, that the name of the practitioner be removed from the roll of persons admitted to the legal profession under the Legal Profession Act 2008. The report comprises the Tribunal's reasons in Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 and Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S) and is to be transmitted with a copy of the exhibits and transcript of the proceeding.
2. Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the respondent must pay to the applicant its costs of the proceeding in terms of disbursements in the amount of $46,365.75 within four weeks of the date of this order or within such further period as agreed by the applicant.

I certify that this and the preceding [124] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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