BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE

Legal practitioner - Misleading State Administrative Tribunal - Unprofessional conduct

Legal Practice Act 2003 (WA)

Legal Profession Act 2008 (WA), s 5, s 5(a), s 403, s 428(1), s 438, s 601, s 622, Pt 13

Practitioner found to have engaged in unprofessional conduct

The practitioner had a long history of acting for clients in Broome who operated camel tours on Cable Beach. Those clients fell out with the local Shire. The clients wanted to purchase a second camel tour business but believed, as did the practitioner, that if the Shire was aware of the purchase the Shire would seek to have the clients divest the second business. In order to conceal the purchase, an employee of the clients was named as the purchaser of the second business.

The clients subsequently brought proceedings in the State Administrative Tribunal to challenge a condition that 'no individual or business shall hold more than one trading licence at any time and will operate independently at all times'.

The witness statements which were subsequently prepared by the practitioner went into considerable detail about the operation of the two businesses but failed to mention their common beneficial ownership. The practitioner also approved counsel's submissions, which did not refer to the common beneficial ownership.

The Tribunal found that in preparing the witness statements and approving counsel's submissions and causing them to be tendered in proceedings before the Tribunal, the practitioner deliberately sought to conceal the common beneficial ownership from the Tribunal and in doing so mislead the Tribunal.

The practitioner was found to have engaged in unprofessional conduct.

Bird and Shire of Broome [2006] WASAT 338

Braysich v The Queen [2011] HCA 14; (2014) 243 CLR 434 at 456; [2011] HCA 14

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

Calverley v Green [1984] HCA 81; (1985) 155 CLR 242

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

Napier v Public Trustee (WA) (1980) 32 ALR 153

Red Sun Camels Pty Ltd and Shire of Broome [2008] WASAT 201

1 The Legal Profession Complaints Committee (the Committee) made a referral to the Tribunal under s 428(1) of the Legal Profession Act 2008 (WA) (the LP Act) in relation to a legal practitioner, Ms Julia Barber.

2 The referral by the Committee relates to Ms Barber's conduct in proceedings before this Tribunal in 2008 (the 2008 Proceedings). The applicants in the 2008 Proceedings were Red Sun Camels Pty Ltd (Red Sun) and 'Ships of the Desert' (Ships). The respondent was the Shire of Broome (Shire). Ms Barber acted on behalf of both Red Sun and Ships in the 2008 Proceedings.

3 Mr John Geappen was a long term client of Ms Barber. He was the sole director and major shareholder of Red Sun which operated camel tours on Cable Beach.

4 Ships was another Cable Beach camel tour business. In 2007, that business had been acquired by Red Sun. In order to conceal Red Sun's ownership from the Shire, Ships was purchased in the name of a Red Sun employee, Mr Christopher Hill. Concealment of Red Sun's ownership was thought expedient because of an earlier dispute involving licenses to conduct camel tours issued by the Shire. In 2006, the Shire issued three licences to operate camel tours on Cable Beach to Red Sun. That decision was successfully challenged by other tour operators before this Tribunal in 2006 (the 2006 Proceedings). Ms Barber acted for Red Sun in the 2006 Proceedings. Thereafter, animosity developed between the Shire and Mr Geappen/Red Sun. Ms Barber acted on the purchase of Ships by Red Sun. She drafted the purchase agreement and was aware that the purpose of the agreement was to conceal Red Sun's ownership of Ships from the Shire.

5 In the course of the 2008 Proceedings, the common beneficial ownership of Red Sun and Ships was concealed. Ms Barber prepared the witness statements and approved counsel's submissions which were filed in the 2008 Proceedings, all of which concealed the common beneficial ownership of Red Sun and ships, which fact was well known to Ms Barber through her prior involvement. The witness statements and the submissions were subsequently tendered and relied upon in the 2008 Proceedings. The Committee contends that this conduct was unprofessional conduct by Ms Barber.

The Committee's statement of issues, facts and contentions and Ms Barber's response

6 The Committee's statement of issues, facts and contentions (SIFC) was filed on 18 July 2014 (Committee SIFC). Ms Barber's first SIFC was filed on 26 August 2014. An amended SIFC was filed by Ms Barber on 12 May 2015 (Barber SIFC).

7 Many of the facts were agreed or not disputed by Ms Barber. The Tribunal is satisfied that those facts in the Committee SIFC not disputed by Ms Barber are proved on the evidence.

A brief chronology of the sources of written evidence

8 Much of the Tribunal's findings rely on various forms of written statements that were prepared by or approved by Ms Barber for various proceedings and possible proceedings. In addition, two decisions, as noted below, were handed down by this Tribunal.

9 In order to put into context the various statements and decisions which were admitted into evidence in the present proceedings, a brief chronology is set out below.

10 The 2006 Proceedings were between two camel tour operators as applicants and the Shire and Red Sun as respondents. Justice Barker heard those proceedings. His reasons for decision were published as Bird and Shire of Broome [2006] WASAT 338 (Bird) (Exhibit A, pages 1 ­ 28) (RD 06).

11 The next proceedings involving Red Sun were the 2008 Proceedings.

12 Mr Geappen's first statement, dated 25 June 2008 (JG6/08) was filed in the 2008 Proceedings (Exhibit A, pages 159 ­ 182).

13 A statement from Mr Hill was also filed in the 2008 Proceedings (Exhibit A, pages 183 ­ 205) (CH6/08).

14 Justice Barker also heard the 2008 Proceedings. His reasons for decision were published as Red Sun Camels Pty Ltd and Shire of Broome [2008] WASAT 201 (Red Sun Camels) (Exhibit A, pages 256 ­ 292) (RD 08).

15 In 2009, Mr Geappen and Mr Hill fell out. As a consequence of the falling out, it appeared that there would be legal proceedings between Red Sun and Mr Hill. Mr Hill engaged Mr Eagle of Eagle & Partners to act on his behalf. Mr Eagle wrote to Ms Barber. Ms Barber stated in a letter dated 21 July 2009 to Eagle & Partners that, given her close association with both Mr Geappen and Mr Hill, she would not be acting for Mr Geappen (Exhibit A, page 298). Mr David Fleming of HFM Legal was therefore engaged to act on Red Sun's behalf in the dispute with Mr Hill.

16 As a result of Mr Fleming's engagement, he sought statements from a number of people, including Mr Geappen and Ms Barber. Mr Geappen's statement is dated about mid­August 2009 (JG8/09). Ms Barber's statement is also dated about mid­August 2009 (JB8/09).

17 On 14 June 2010, Ms Barber was the subject of a complaint by Mr Hill to the Committee. Mr Hill complained that Ms Barber acted for him and Mr Geappen when there was a conflict of interest. In correspondence with the Committee over that complaint, Ms Barber was at pains to point out that she had never acted for Mr Hill, including in the 2008 Proceedings (Exhibit A, pages 384 ­ 387).

18 Ms Barber, by her solicitors and counsel, also corresponded with the Committee over the complaint the subject of these proceedings.

19 The Committee alleged that between 27 May 2008 and 26 June 2008, Ms Barber engaged in professional misconduct within the meaning of s 403 and s 438 of the LP Act in that, in the course of acting for Red Sun and Ships in the 2008 Proceedings before the Tribunal, Ms Barber knowingly misled or attempted to mislead the Tribunal by:

(a) preparing or causing to be prepared under her supervision, a witness statement of Mr Geappen dated 25 June 2008 which, as Ms Barber well knew, conveyed the impression, either expressly or impliedly, that from 1 July 2007 or thereabouts and at all material times thereafter, Mr Hill was the owner of the Ships business;

(b) further and alternatively, preparing or causing to be prepared under her supervision, a witness statement of Mr Hill dated 26 June 2008 (the Hill Statement) which, as Ms Barber well knew, conveyed the impression, either expressly or impliedly, that from 1 July 2007 or thereabouts and at all material times thereafter, Mr Hill was the owner of the Ships business;

(c) further and alternatively, preparing or causing to be prepared under her supervision the Geappen Statement and the Hill Statement which, as Ms Barber well knew, concealed the fact that from 1 July 2007 or thereabouts and at all material times thereafter Red Sun was the owner of the Ships business;

(d) further and alternatively, causing Mr Geappen to sign the Geappen Statement;

(e) further and alternatively, causing Mr Hill to sign the Hill Statement; and

(f) further and alternatively, filing or causing the Geappen Statement and the Hill Statement to be filed in the Tribunal with the intention that they be admitted into evidence in the proceedings or otherwise relied on by the Tribunal; when in fact, from 1 July 2007 or thereabouts and at all material times thereafter, as Ms Barber well knew, Red Sun (and not Mr Hill) was the true owner of the Ships business.

20 Ms Barber admitted that both the Geappen Statement and the Hill Statement were prepared under her supervision for the purpose of proceedings before the Tribunal and accepted responsibility for both statements. Ms Barber stated:

1. She believed, and it was the fact, that the only issue to be determined by the Tribunal in the Proceedings was whether the condition imposed on the licences issued by the respondent shire to Mr Geappen and Mr Hill respectively were valid or reasonable ('the Issue for Determination').
2. Mr Hill was at all times the legal owner of the Ships business and the holder of the licence required to conduct that business.
3. The question of whether Mr Hill was also the beneficial owner of that business was not relevant to the Issue for Determination and was not addressed in either the Geappen Statement or the Hill Statement.
4. Neither the Geappen Statement nor the Hill Statement said that Mr Hill was the beneficial owner of the Ships business.
5. Neither the Geappen Statement nor the Hill Statement implied that Mr Hill was the beneficial owner of the Ships business. Nor did she intend to convey that impression or to mislead the Tribunal in respect of that matter, which was of no relevance (and could not conceivably have been relevant to) the Issue for Determination.
6. In fact, the Tribunal made no finding that Mr Hill was the beneficial owner of the Ships business, a matter which played no part in its decision on the Issue for Determination.

21 The Committee further alleged that Ms Barber, between on or about 30 June 2008 and 19 August 2008, engaged in professional misconduct within the meaning of s 403 and s 438 of the LP Act in that in the course of acting as instructing solicitor for Red Sun and Ships, Ms Barber knowingly caused or allowed the Tribunal to be misled, or attempted to cause or allow the Tribunal to be misled by submissions of counsel and by the tender of and/or reliance upon the Geappen Statement and the Hill Statement which as Ms Barber well knew:

(a) conveyed the impression, either expressly or impliedly, that from 1 July 2007 or thereabouts and at all material times thereafter, Mr Hill was owner of the Ships business; and

(b) concealed the fact, that from 1 July 2007 or thereabouts and at all material times thereafter, Red Sun was the owner of the Ships business;

when in fact, from 1 July 2007 or thereabouts, and at all material times thereafter, as Ms Barber well knew, Red Sun (and not Mr Hill) was the true owner of the Ships business, alternatively Ms Barber acted with reckless disregard as to whether the Tribunal was misled.

22 Ms Barber denied that she knowingly caused or allowed the Tribunal to be misled; denied that the Tribunal was misled, and denied that she acted with reckless disregard as to whether the Tribunal was misled.

23 In relation to Ground 2, Ms Barber repeated, in relation to Ground 2, her response (above). In particular, she repeated that:

(a) Mr Hill was the legal owner of the Ships business and the holder of the licence, which he held in trust for Red Sun;

(b) it was never put to the Tribunal that Mr Hill was the beneficial owner, nor was that relevant to the issue for determination; and

(c) as to the assertion that Red Sun was the 'true' owner, in fact Red Sun was the beneficial owner, but Mr Hill was the legal owner.

24 Unprofessional conduct is conduct which, to a substantial degree, falls short of the standards of professional conduct observed or approved by members of the profession of good repute and competence: Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 at [71] ­ [72].

25 The Committee bears the onus of proof. It is to the civil, not the criminal standard, but the principles of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) apply. That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained.

26 Mr Cuerden SC on behalf of the Committee submitted the following principles in his written submissions in relation to a practitioner's duty of disclosure:

1. The conduct in question pre-dates the introduction of the Legal Profession Conduct Rules 2010 (WA). See however Professional Conduct Rules rule 2.2 and 3.1.
2. Nevertheless, it is a basic precept of the legal profession that lawyers owe a duty of honesty and candor to the court. It is the general duty of lawyers not to mislead the court by stating facts which are untrue, or mislead the judge as to the true facts, or conceal from the court facts which ought to be drawn to the judge's attention, or knowingly permit a client to deceive the court: Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190 at 193; Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 at [6], [12], [13], [23], [66] - [67]; Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 at [61]; Giudice v Legal Profession Complaints Committee [2014] WASCA 115 at [100].
3. The duty not to mislead the court is of fundamental importance in the due administration of justice, and is paramount and overrides any duty to the client: Kyle v Legal Practitioners Complaints Committee (supra) at [19], [23], [66].
4. It is a breach of that duty for a lawyer to produce a witness statement that the lawyer knows to be false or if the lawyer knows that the witness does not believe the statement to be true in all respects. The duty to correct a false witness statement continues after it is filed. Kyle v Legal Practitioners Complaints Committee (supra) at [13], [23].
5. Although expressed in terms of a duty to the 'court', there is no question that duty applies with equal force to proceedings in the Tribunal: see eg Clyne v The New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 200 (see also definition of 'court' in the Professional Conduct Rules in force at the relevant time).
6. The duty not to 'mislead' the court or tribunal is not limited to positive lies or misstatements. Half-truths, implying a false state of affairs, the creating of a misleading impression, or allowing the client to mislead the court will also be a breach of the duty: Kyle v Legal Practitioners Complaints Committee (supra) at [12], [23]; Vogt v Legal Practitioners Complaints Committee (supra) at [48]; Forster v Legal Services Board [2013] VSCA 73 at [161].
7. A practitioner's duty is not merely to not deceive the court or tribunal. He or she must be fully frank in what he or she does before it. This obligation takes precedence over the practitioner's duty to the client, to other practitioners and to himself or herself: Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 447.
8. Similarly, In Re Thom [1918] NSWStRp 4; (1918) 18 SR (NSW) 70, Cullen CJ (with whom the other two members of the Full Court agreed) said (at 74 ­ 75):

'It is of the greatest importance than any mere casuistry in the presentation of evidence should be strictly avoided by those entrusted with the responsible duties of a legal practitioner. It is perhaps easy by casuistical reasoning to reconcile one's mind to a statement that is in fact misleading by considering that the deponent is not under any obligation to make a complete disclosure. By this means a practitioner may be led into presenting a statement of fact which, although it may not be capable of being pronounced directly untrue in one particular or another, still presents a body of information that is misleading, and conceals from the mind of the tribunal the true state of facts which the deponent is professing to place before it. For that reason it is proper on such an occasion as this to express condemnation of any such casuistical paltering with the exact truth of the case.'

1. Kyle v Legal Practitioners Complaints Committee (supra) was a case where the practitioner had deliberately or knowingly misled the Court. However, a legal practitioner who misleads the court with reckless indifference may engage in professional misconduct even though the practitioner did not knowingly mislead the court: Giudice v Legal Profession Complaints Committee (supra) at [101] ­ [103].
2. To proceed with indifference as to the truth or falsity of the matter, or to consciously disregard a risk that a statement may be untrue or false, may be reckless: Giudice v Legal Profession Complaints Committee (supra) at [2], [44] - [46], [87], [95]-[97], [102], [131]; see also Legal Profession Complaints Committee v Wells [2014] WASAT 112 at [146] - [147].

27 The Tribunal accepts Mr Cuerden SC's submissions as an accurate statement of the relevant authorities and legal principles.

28 The Tribunal notes that it has adopted other parts of the Committee's submissions in these reasons.

29 The allegation of an intention to mislead is an allegation of dishonesty.

30 Three references from Ms Teresa Farmer, Ms Robin Hunter and Ms Desiree Male were tendered on behalf of Ms Barber (Exhibit E).

31 The Tribunal has read those references and is satisfied that they are relevant to whether Ms Barber was unlikely to have had a dishonest purpose (Braysich v The Queen [2011] HCA 14; (2014) 243 CLR 434 at 456; [2011] HCA 14 at [44]).

32 In considering whether Ms Barber had a dishonest purpose the Tribunal has started from the presumption that it is improbable that she had such a purpose.

33 The formal matters relating to the complaint are:

(1) Ms Barber is an Australian legal practitioner within the meaning of s 5(a) of the LP Act and was at all material times a legal practitioner within the meaning of the Legal Practice Act 2003 (WA) (Committee SIFC and Barber SIFC [1]).

(2) At all material times, Ms Barber held a practising certificate (Committee SIFC and Barber SIFC [2]).

(3) At all material times since on or about 23 April 2004, Ms Barber practised as a sole practitioner under the name 'Julia Barber & Co' (Committee SIFC and Barber SIFC [3]).

(4) The commencement day within the meaning of s 601 of the LP Act was 1 March 2009 (Committee SIFC and Barber SIFC [48]).

(5) Part 13 of the LP Act commenced on the commencement day (Committee SIFC and Barber SIFC [49]).

(6) Ms Barber's conduct occurred prior to the commencement day (Committee SIFC and Barber SIFC [50]).

(7) Pursuant to s 622 of the LP Act, Pt 13 of the LP Act applies to Ms Barber's conduct notwithstanding that it occurred before the commencement day (Committee SIFC and Barber SIFC [51]).

The history of the operation of camel tours on Cable Beach

34 Mr Abdul Casley conducted camel tours on Cable Beach, Broome from 1981 under the name Ships of the Desert (Ships). A business trading under the name Red Sun Camels (Red Sun Camels) conducted camel tours on Cable Beach from 1991 (Exhibit A, JG6/08 page 160 [3]). Broome Camel Safaris (Safaris), operated by Mr and Mrs Bird, commenced camel tours on Cable Beach in about 1996 (Exhibit A, JG6/08 page 160 [4]).

35 In early November 2005, Mr Madden, a previous owner of Red Sun Camels, commenced a fourth camel tour business on Cable Beach (Exhibit A, JG8/09 page 354 [23]).

36 Mr and Mrs Geappen purchased the business of Red Sun Camels in about 2000 from Mr Madden (Exhibit A, JG6/08 page 160 [8]; JG8/09 page 352 [1], [6]).

37 In 2003, Red Sun was incorporated and the business of Red Sun Camels was transferred to Red Sun (Exhibit A, page 370; Committee SIFC and Barber SIFC [5]). Mr Geappen was, at all relevant times, the sole director of Red Sun (Committee SIFC and Barber SIFC [6]). The initial two shareholders of Red Sun were Mr and Mrs Geappen (Exhibit A, JG6/08 page 352).

Ms Barber's history of acting for the Geappens and Red Sun

38 In about 2000, Ms Barber, as an employed solicitor of Skea Hager & Co, first acted for Mr and Mrs Geappen when they purchased Red Sun Camels from Mr Steve Madden (Exhibit A, page 370; Committee SIFC and Barber SIFC [4]).

39 Thereafter, Ms Barber continued to act for the Geappens and Red Sun, as an employee of Skea Hager & Co, and then on her own account, in particular, in relation to ongoing issues with the Shire and the issue of camel tour licences (Exhibit A, JB8/09 page 370 [8]).

The Shire's decision to require licences for tour operators on Cable Beach

40 On 22 March 2005, the Shire engaged an independent consultant to conduct a review of all commercial operations on Cable Beach and to prepare a new policy (Exhibit A, page 10). The consultant recommended that only three licences be granted for camel tours (Exhibit A, RD06 page 13).

41 On 6 October 2005, the Shire accepted the independent consultant's recommendations and adopted the new policy (Committee SIFC and Barber SIFC [9], Exhibit A, page 10; RD06).

42 In January 2006, the Shire published an invitation to tender for the three licences. Eight tenders were received from six entities (Exhibit A, pages 13 ­ 14; RD06).

43 Mr Geappen decided to apply for the three licences. Prior to applying for the three licences it became apparent to Mr Geappen that if Red Sun's tender for all three licences was successful, it would require about 30 more camels and an additional manager. Mr Geappen was aware of Mr Hill's experience with camels (Exhibit A, JG6/08, page 161 [15] ­ [16]; JG8/09, pages 353 - 354 [9] ­ [21]). Mr Geappen sought Mr Hill's assistance to manage these extra camels (Exhibit A, JG8/09 354 ­ 5 [27]).

44 As an incentive to Mr Hill to move to Broome, Mr Geappen offered him employment with Red Sun and agreed that, if after 12 months Mr Hill committed to Red Sun, he would receive 10% of the issued shares of Red Sun on 1 January 2007, plus an additional 3% for every year he remained an employee of Red Sun, up to a maximum of 25% (Exhibit A, JG8/09, page 355 [28] ­ [30]).

45 In January 2006, Mr Hill visited Broome to assist Mr Geappen in preparing the tender documents (Exhibit A, JG8/09, page 355).

46 Mr Hill moved to Broome. In or about March 2006, Red Sun engaged him as its operations manager (Committee SIFC and Barber SIFC [9]) (Exhibit A, JG8/09, page 356 [36]).

47 In or about early 2007, Mr Hill became a minority shareholder in Red Sun (Committee SIFC and Barber SIFC [15]; T: 52).

48 Red Sun tendered for the three licences (Committee SIFC and Barber SIFC [10]; Exhibit A, JG8/09 page 354 [25]). Ships and Safaris also tendered for a licence (Committee SIFC and Barber SIFC [11]).

49 On 27 June 2006, the Shire 'granted' all three licences to Red Sun (Exhibit A, RD06, page 15). As Justice Barker noted in Bird, trading licences were not actually issued at that time (Exhibit A, page 16; RD06).

50 The decision was not well received by the other operators (Committee SIFC and Barber SIFC [12]; Exhibit A, JB8/09, page 37).

51 There was a public backlash against the Shire's decision to award all three licences to Red Sun (JG8/09, page 360 [75]). A rally was organised against the Shire's decision (Exhibit A, JG8/09, page 361 [75]; JB8/09, page 373 [26]).

52 Justice Barker noted that 'there was much consternation in Broome when the Shire ... granted all three licences to Red Sun' (Exhibit A, RD08, page 275 [56]).

53 The Shire's decision resulted in the 2006 Proceedings against the Shire and Red Sun brought by Mr Casley, who owned and operated Ships, and Mr and Mrs Bird, who owned and operated Safaris.

54 Ms Barber acted for Red Sun in the 2006 Proceedings (Committee SIFC and Barber SIFC [13]).

55 On 22 November 2006, Justice Barker allowed the applications for review and set aside the Shire's decision of 27 June 2006 to award all three licences to Red Sun (Exhibit A, RD06, pages 1 ­ 28). The matter was sent back for further consideration in accordance with his Honour's reasons (Committee SIFC and Barber SIFC [14]).

56 Pending the Shire's further reconsideration, the Shire 'issued' a licence to each of Red Sun, Ships and Safaris. Those three businesses continued to operate on the temporary licences issued by the Shire (Exhibit A, pages 98, 261 [11]).

57 For reasons which are not apparent, there was a falling out between the Shire and Mr Geappen/Red Sun following the 2006 Proceedings and a degree of animosity developed between them (Exhibit A, JB8/09, pages 373 ­ 374 [27] ­ [28]).

58 In early June 2007, Mr Casley approached Mr Hill, who was then the operations manager of Red Sun, and informed him that he wished to sell Ships (Exhibit A, JG8/09, page 360 [69]). Shire approval was necessary to transfer Ships' licence.

59 Mr Casley wanted settlement of the sale of Ships before 30 June 2007 so that he could put the sale proceeds into his superannuation (Exhibit A, JG8/09, pages 360 - 361 [72] ­ [73], [80]).

60 At that time, the issue of the three licences to Red Sun was only just out of the newspapers and Mr Geappen did not want any more public backlash (Exhibit A, JG8/09, page 361 [76]).

Mr Geappen and Ms Barber's perception of the Shire's likely attitude to Red Sun's purchase of Ships

61 Given the animosity that had developed between Mr Geappen/Red Sun and the Shire, Mr Geappen believed that it was unlikely that the Shire would approve a 'transfer' to Red Sun before 30 June 2007 (Exhibit A, JG8/09, page 361 [81]). Mr Geappen and Mr Hill decided to keep Red Sun 'out of the equation' (Exhibit A, JG8/09, page 360 [75]).

62 The Shire could not have refused to approve a transfer of the licence. However, Mr Geappen was concerned that if the Shire knew of his/Red Sun's involvement, it might take steps to divest Red Sun of Ships at a later date.

63 Ms Barber was well aware that the Shire was likely to oppose Red Sun holding more than one licence because:

1. if Red Sun were seen to buy Ships and acquire a second licence, the Shire might take action to have the licence taken away from Red Sun even though at that time there were no Shire policies or regulations to prevent Red Sun from owning two or more licences (T: 63­64);
2. there was animosity from the Shire towards Mr Geappen and Mr Geappen had told Ms Barber of the Shire's attitude (T: 64);

1. not only was it Mr Geappen's perception but Ms Barber was personally aware of the 'public backlash' against the three licences being issued to Red Sun which had been a 'debacle' (T: 65); and

1. Ms Barber stated that the transfer of the Ships' licence to Red Sun/Mr Geappen would have been an emotional issue in the small community of Broome and there would have been a public backlash because Mr Geappen would have been perceived to be doing the wrong thing to other operators (T: 119).
2. one of the reasons for the contract being in Mr Hill's name was because of the Shire's animosity (T: 64­66).

64 In closing, Ms Barber's counsel submitted that Ms Barber's knowledge of the purpose of the transaction was hearsay (T: 149). The Tribunal does not accept that submission. Ms Barber had personal knowledge of the community's attitude towards Red Sun and knew that the Shire was unlikely to approve a transfer of Ships' licence to Red Sun. In any event, whether it was hearsay or not, it formed part of Ms Barber's knowledge.

Mr Geappen's instructions to Ms Barber in relation to the purchase of Ships

On or about 6 June 2007, Mr Geappen on behalf of Red Sun instructed the practitioner to act for Red Sun in respect of the purchase by Red Sun of the Ships business from Mr Casley (the Transaction).

66 Paragraph 16 is denied by Ms Barber (Barber SIFC [16]).

(a) Red Sun had agreed to purchase the Ships business from Mr Casley;

(b) because of animosity that had developed between the Shire and Mr Geappen over the dispute concerning the Shire's issue of the three trading licences to Red Sun and the earlier proceedings, Mr Geappen was concerned that if Red Sun was seen to buy the Ships business and acquire a second licence, the Shire might take action to have that licence taken away from Red Sun;

(c) for this reason, the Ships business was to be purchased in the name of Mr Hill;

(d) the true purchaser was to be Red Sun, not Mr Hill; and

(e) Red Sun would pay the whole purchase price under the Transaction.

68 Ms Barber does not dispute paragraphs 17(a) ­ (c) and (e).

69 Ms Barber's SIFC states that Mr Geappen had instructed her that the Ships business would be registered in the name of Mr Hill but that he was to hold it on trust for Red Sun (Barber SIFC [17(d)]).

70 Ms Barber's proof of evidence (Exhibit A, page 375) states:

1. On June 6, 2007, John and Chris came to see me and told me that Red Sun Camels Pty Ltd had agreed to purchase the Business known as Ships of the Desert from Abdul Casley ('Cas'). John told me that Cas had insisted that settlement be effected on or before 30 June 2007 or the deal was off. John was concerned that because of the animosity that had grown between the Shire of Broome and John over the camel licence dispute and subsequent trial in the SAT if Red Sun Camels Pty Ltd were seen to buy 'Ships of the Desert' and acquire a second licence the Shire might take action to have the licence taken away from Red Sun Camels Pty Ltd even though at the time there was nothing in the Shire's policies or regulations to prevent John from owning 2 or more licences.

1. As a result John instructed me that the business (and the licence) was to be purchased in the name of Chris Hill.
2. I did not think anything untoward in that arrangement. I already knew that Chris was now a part owner of Red Sun Camels Pty Ltd and that the new business would be owned by the Company. It did not matter whether or not the named purchase was Chris or Red Sun Camels Pty Ltd.
3. I was well aware of the urgency in this matter as I knew that Cas wanted to settle by June 30 so that he could take advantage of superannuation laws as otherwise he wasn't going to sell.

71 Ms Barber's counsel wrote to the Committee on 26 August 2010. The letter stated:

1. On 6 June 2007 Mr Geappen told [the practitioner] that Red Sun Camels Pty Ltd had agreed to buy a business, 'Ships of the Desert', from Abdul Casley, and that because of a concern that the Shire might try to take Red Sun's licence if it were known that Red Sun was buying 'Ships of the Desert', he had decided that the purchase would be in the name of Mr Hill, although the true owner would be Red Sun Pty Ltd, which would pay the whole purchase price.
2. On 18 June 2007 Mr and Mrs Geappen gave [the practitioner] instructions to prepare the sale and purchase documents. All of the purchase price was to be paid from a loan to Mr Geappen (which he in turn lent to Red Sun Camels Pty Ltd) plus the proceeds from the sale of the Geappens' home. No part of the price was to be paid by Mr Hill, who was to be simply the nominal purchaser.
3. The Geappens confirmed that the documents were to name Mr Hill as the buyer but the real buyer, and beneficial owner, would be Red Sun Camels Pty Ltd. Mr Geappen attended [Ms Barber's] office again on 19 June, she believes in relation to the same matter.
4. Mr Hill took no part in giving [Ms Barber] these instructions, nor was he present when they were given. Clearly, he was not the client. However, presumably because he was named as the buyer, [the practitioner's] secretary ... opened the file in the name of Mr Hill, instead of the correct client, Red Sun Camels Pty Ltd.
5. On 25 June 2007, Mr Hill and Mr Casley attended [Ms Barber's] office to sign the purchase documents.
6. [Ms Barber's] invoices for all legal costs and disbursements were addressed to Mr Hill by the MYOB system, as he was shown as the 'client' on the record; but all invoices went to the Geappens' Post Office box number, and were paid by them, as Mr Geappen will confirm, by direct debit.
7. At no time did [Ms Barber] regard Mr Hill as her client. Nor, she is sure, did he consider her to be his solicitor.

72 Mr Geappen's statement confirms that he instructed Ms Barber to act for Red Sun in that transaction (Exhibit A, JG8/09, page 361 [82]).

73 Mr Geappen states that his instructions to Ms Barber were as follows:

I provided the initial instruction to Julia Barber and advised her that the business was being purchased in the name of Chris but that it was part of the overall Red Sun Camels operations and that all funds would be provided by the real purchaser, Red Sun Camels Pty Ltd.

(Tribunal emphasis added) (JG08/09, Exhibit A, page 362 [83])

74 From 18 June 2007 or thereabouts, Ms Barber knew that Mr and Mrs Geappen and Mr Hill intended that Red Sun, and not Mr Hill, would pay all instalments of the purchase price under the Ships Agreement (Committee SIFC and Barber SIFC [26]).

75 There is no reference by Mr Geappen in his statements to Ships being held on trust for Red Sun. Ms Barber accepted that there was no reference to a trust. She was unable to explain why (T: 68­69). The Tribunal finds that there was no discussion at the time of the Ships Agreement between Mr Geappen and Ms Barber that Mr Hill would hold Ships on trust for Red Sun. That is, the Tribunal does not accept that the term 'beneficiary' or 'trust' was used by Ms Barber or Mr Geappen.

There was no question that Chris would be buying the business as he had no money of his own nor any capacity to borrow any.

(Exhibit A, JG8/09, page 360 [71])

It mattered not as far as we were concerned whether the name of the purchaser was state[d] to be Chris or Red Sun Camels Pty Ltd because the reality was that Chris had an equitable share in the Company and the Company was going to be the overall purchaser.

(Exhibit A, JG8/09, page 360 [74])

That the business was being the purchased in the name of Chris but that it was part of the overall Red Sun Camels operations and that all funds would be provided by the real purchaser, Red Sun Camels Pty Ltd.

(Tribunal emphasis added) (Exhibit A, JG8/09, page 362 [83])

78 The Tribunal finds paragraph 16 of the Committee's SIFC to be proven.

79 The Tribunal finds that Mr Geappen's instructions were substantially as alleged in paragraphs 17 and 18 of the Committee's SIFC.

80 Ms Barber prepared a written sale of business agreement (the Ships Agreement) (Committee SIFC and Barber SIFC [20]).

81 The Ships Agreement named Mr Hill as the purchaser of the Ships business from Mr Casley (Committee SIFC and Barber SIFC [21]).

82 The Ships Agreement provided that the lease was valued at $150,000 and the other assets at $50,000 (Exhibit A, page 46).

83 On or about 22 June 2007, $200,000 for the deposit payable under the Ships Agreement was transferred to Ms Barber's trust account by Mr Jason Lamson. Ms Barber knew that Mr Lamson lent the money to Mr and Mrs Geappen, alternatively to Mr Geappen, who in turn lent the money to Red Sun to pay the deposit under the transaction (Committee SIFC and Barber SIFC [19]).

84 Red Sun borrowed a total of $250,000 from Mr Lamson. The loan was repaid by Red Sun on 20 November 2007 (Exhibit A, JB8/09, page 376 [38] ­ [40]).

85 The Ships Agreement was executed by Mr Hill and Mr Casley on or about 25 June 2007 in the presence of Ms Barber who witnessed each of their signatures (Committee SIFC and Barber SIFC [23]; Exhibit A, pages 29 ­ 46).

86 Julia Barber & Co's file was opened in Mr Hill's name due to an error by Ms Barber's secretary (Exhibit A, JB8/09, pages 376 ­ 377 [41]).

87 Ms Barber addressed all accounts for the Ships Agreement to Mr Hill but sent them to Mr Geappen's post office box with the intention that they would be paid by Red Sun, not Mr Hill. Her accounts were paid by Red Sun and not by Mr Hill (Committee SIFC [25]). Ms Barber agrees that Red Sun paid her accounts, that the accounts were addressed as set out and that she expected those accounts would be paid by Red Sun (Barber SIFC [25]).

88 After the sale of Ships, Mr Hill took on the lease of the land and the other assets, leased camels from Mr Geappen, kept the camel trains separate for Red Sun and Ships, successfully applied for a transfer of the trading licence to himself, and applied for the new licence for Ships to operate camel rides on Cable Beach. Red Sun and Ships maintained a separate name and identity, ran at different times of the day, depending on demand, used different coloured and distinctly marked blankets, occupied different positions on the beach, promoted the businesses differently and had different prices (Exhibit A, RD 08, pages 264 and 269; Exhibit B, 52, 76, 90, 93, 97, 144, 162, 164, 171.)

89 All income from Red Sun and Ships was paid into Red Sun's account and Red Sun paid all the wages and other expenses of both businesses (Exhibit A, JG8/09, page 364 [1047]).

91 Ms Barber knew that, in or about November 2007, Red Sun paid the stamp duty of $15,500 on the Ships Agreement (Committee SIFC and Barber SIFC [24]; Exhibit A, page 47).

The 'true owner', the 'true purchaser', the 'real buyer'

92 The expressions used in the Committee SIFC included references to Red Sun as the 'true owner', the 'true purchaser' and the 'real buyer'.

93 Ms Barber was the source of those terms (e.g. Exhibit A, JB8/09 page 376 [41]). The expressions were also used by her counsel in his letter of 26 August 2010 (Exhibit A, page 385 [4], [6]).

94 The only use of the term 'beneficial purchaser' by Ms Barber, prior to her counsel's letter of 26 August 2010, appears at paragraph 45 of Ms Barber's August 2009 statement (Exhibit A, page 377).

95 Ms Barber amended her SIFC on 12 May 2015. The hearing was on 20 May 2015. Until 12 May 2015, Ms Barber either admitted or did not dispute the Committee's allegations in paragraphs 17, 18 and 22 of the Committee's SIFC as to Mr and Mrs Geappens' instructions to her. Those instructions included that:

1. the 'true purchaser' was to be Red Sun, not Mr Hill (SIFC at paragraph 17(d));
2. the written agreement was to name Mr Hill as the buyer but the 'real buyer' would be Red Sun (SIFC at paragraph 18(b)); and

1. Ms Barber drafted the agreement naming Mr Hill as the purchaser pursuant to her instructions to do so from Mr Geappen but she knew that Mr Hill was not the 'true purchaser' of the Ships business and that the 'true purchaser' was Red Sun (SIFC at paragraph 22).

96 By Ms Barber's 12 May 2015 amendments to her SIFC:

1. She withdrew many of her admissions. Ms Barber denied that she was instructed that Red Sun was the 'true purchaser' or the 'real buyer' of Ships.
2. She alleged that Mr Geappen instructed her that the Ships business would be 'registered' in the name of Mr Hill but that he was to hold it 'in trust' for Red Sun (Amended Response, paragraphs 17(d) and 18(b)).

1. She alleged that the 'true purchaser' was to be Mr Hill who would hold the Ships business 'in trust' for Red Sun (Amended Response, paragraph 22). Now she alleged that she understood the agreement to be a purchase by Mr Hill who held the trading licence on behalf of the 'beneficial owner', Red Sun (Amended Response, paragraph 27(a)); and

1. She now said that Mr Hill, trading as Ships, was the legal owner of the business and applicant for the licence (Amended Response, paragraphs 39 and 40).

97 These late amendments reflect Ms Barber's changing explanations as to what her instructions were from Mr Geappen.

98 Mr Hill acquired the legal estate in Ships and he was presumed to hold the business on a resulting trust of which Red Sun was the beneficiary: Napier v Public Trustee (WA) (1980) 32 ALR 153 at 158; Calverley v Green [1984] HCA 81; (1985) 155 CLR 242 at 246 ­ 247, 266 ­ 267.

99 The Tribunal accepts that the effect of the Ships Agreement and the fact that Red Sun made all payments means that Mr Hill was the legal owner of Ships but that he held his interest in Ships on a resulting trust for Red Sun.

100 As a matter of law, those propositions are correct. However, whether that is how the relationship between Mr Geappen/Red Sun and Ships operated is in fact a different question.

101 It is clear from what is set out below that Ms Barber regarded Mr Geappen as in being complete control of Red Sun and Ships. It is also clear that Mr Hill was only an employee and that Ms Barber treated him as such. Mr Hill was never her client.

Findings on the Committee SIFC at paragraphs 22, 24 and 27

The practitioner drafted the agreement naming Mr Hill as the purchaser of the Ships business pursuant to her instructions to do so from Mr Geappen, but the practitioner knew that Mr Hill was not the true purchaser of the Ships business and that the true purchaser was Red Sun.

Agreed save that 'the true purchaser' i.e. the legal owner was to be Mr Hill who would hold the business in trust for Red Sun.

[F]rom 18 June 2007, or thereabouts [Ms Barber] well knew:

(a) [Paragraph 27(a) was not pursued at the hearing];

(b) [T]hat Red Sun, and not Mr Hill, was the true purchaser of the Ships business from Mr Casley and the true owner of the ships business after the purchase;

(c) [F]urther and in the alternative, that it was understood as between Red Sun, Mr and Mrs Geappen and Mr Hill that Red Sun was the true purchaser and owner of the Ships business and that Mr Hill had agreed to be named in the agreement as the purchaser of the Ships business only for the purpose of concealing Red Sun's purchase and ownership of the Ships business.

The reason that 'Red Sun' did not purchase 'Ships' was, as Ms Barber has explained:

(a) Mr Casley wanted to complete a sale by 30 June, for reasons (he said) related to his superannuation; and

(b) Mr Geappens apprehended that if he was the buyer and sought a transfer of the Casley licence, there might be a delay, because of some difficulties he had had with the Shire.

106 In cross­examination, Ms Barber sought to downplay the significance of Mr Geappen's desire to conceal the true position from the Shire as the motivation for purchasing the business in Mr Hill's name. She suggested that the main reason was Mr Casley's insistence that the sale be completed before 30 June 2007 (T: 63­67).

107 When asked why no steps were taken after 30 June 2007 to transfer Ships to Red Sun, Ms Barber responded that she was never asked to do that (T: 122­123).

108 If it was the case that Mr Hill being named as purchaser in the Ships Agreement was only a short term expedient to ensure the transaction took place before 30 June 2007, one would expect a further transfer to Red Sun after 30 June 2007. No such transfer took place.

109 The Tribunal finds that it was understood as between Red Sun, Mr and Mrs Geappen and Mr Hill that Red Sun was the true purchaser and owner of Ships.

110 The Tribunal finds that the reason that Mr Hill was named as purchaser of Ships in the Agreement was to conceal Red Sun's involvement in the acquisition of Ships from the Shire. It was not simply a short term expedient to ensure that the acquisition took place by 30 June 2007. It was a long term strategy designed to hide Red Sun's involvement from the Shire. Ms Barber was fully aware that that was the reason why Mr Hill was named as purchaser in the Ships Agreement. The perceived threat of the Shire acting if it became aware of Red Sun's acquisition of Ships did not cease on 1 July 2007.

111 Ms Barber well knew of each of the matters alleged in paragraph 27(b) and 27(c).

112 Paragraphs 22, 24 and 27 of the Committee SIFC are proved.

113 On 14 February 2008, the Shire endorsed and adopted the 'Commercial Activities on Cable Beach' Policy (the Policy) (Committee SIFC and Barber SIFC [28]; Exhibit A, pages 57 ­ 63).

114 The Policy provided, amongst other things, that:

1. the Shire would grant three trading licences for commercial camel activities on Cable Beach;
2. no individual or business shall hold more than one trading licence at any time and will operate independently at all times; and

1. trading licences for commercial camel activities on Cable Beach will be approved for a period of five years.

115 Prior to the passing of the Policy, an amendment was moved to that clause and passed. It read:

No individual or business shall hold more than one (1) trading licence at any time and will operate independently at all times.

(Exhibit A, page 63)

('the 14 February Amendment')

116 On 10 April 2008, the Shire resolved to approve applications for three separate trading licences for camel tour operations on Cable Beach, one to each of the Red Sun, Ships and Safaris businesses from 1 May 2008 to 31 December 2013 (Exhibit A, page 263 [15]). The licences were subject to, amongst other things, the condition that no individual business would hold more than one trading licence at any time and will operate independently at all times (Committee SIFC and Barber SIFC [30]) (Exhibit A, page 262 [14]).

117 In late April/early May 2008, a dispute emerged as to the sit down positions of the camels on Cable Beach. Red Sun's camels were sitting closest to the rocks (Exhibit A, page 75), Ships' camels next to Red Sun's and Safaris' camels furthest from the rocks (Exhibit A, page 70).

118 There was a meeting between the camel tour operators and the Shire on 5 May 2008 (Exhibit A, pages 72, 74).

119 The Shire stated that in future the sit down positions would be reversed (Exhibit A, page 81).

120 On 6 May 2008, both Mr Hill and Red Sun (Exhibit A, pages 69 ­ 71) wrote to the Shire (Exhibit A, pages 66 ­ 68).

1. described himself as 'the new owner of Ships of the Desert';
2. described himself as attempting to 'prevent any unrest between the other operators';

1. referred to his 'close working relationship with Red Sun Camels';

1. stated 'when challenged by myself and the owners of Red Sun Camels as to any concerns Broome Camel Safaris had'; and
2. signed off as 'Owner/Operator Ships of the Desert'.

122 Red Sun's letter, which was signed by 'Janet and John Geappen', stated:

1. 'when Ships of the Desert was sold to Chris Hill in July 2007, Ships was obliged ...';
2. 'Red Sun Camels and Ships of the Desert are currently sitting side by side, safely away from the car access track. We commenced this practice by mutual agreement in September 2007'; and

1. Red Sun Camels and Ships of the Desert have been 'working together over the past 10 months to facilitate ... [i]t is imperative that we sit in close proximity to each other in order to enable us to continue to provide a high level of service'.

123 On 12 May 2008, the Shire of Broome emailed John Geappen stating:

The approved set down areas working north from the rocks are:

1. Ships of the Desert
2. Broome Camel Safaris
3. Red Sun Camels.

124 On 21 May, John Geappen forwarded to Ms Barber an email to the Shire advising of Red Sun's decision to appeal. It stated:

I have had the opportunity to speak with Mr Hill, owner of Ships of the Desert, who is similarly disappointed with the decision and wishes to appeal.

125 On 13 May 2008, John Geappen on behalf of Red Sun sent an email to Chris Jackson of the Shire of Broome referring to, 'I, along with the other two operators ...' (Exhibit A, page 75).

126 On 16 May 2008, John Geappen forwarded to Ms Barber an email he had sent to the Shire of Broome (Exhibit A, pages 77 ­ 78). That email to the Shire stated:

Could you please explain the reference in your recent letter, concerning the need for all three operators to operate independent of each other at all times? Am I to assume that in making the decision to position the respective operators in the defined configuration, that the Shire has done so in a deliberate attempt to put a significant space between Red Sun Camels and Ships of the Desert? If so, surely another example of subjective decision making instead of what is best for the operators, all beach users, the tourism industry and therefore the town of Broome. This is supported by the lack of consideration given to the letters provided by both of the two described operators with regards to their preferred sit down arrangements and demonstrable reasons against the proposed sit down requirements as determined by the Shire/Council.

127 On 16 May 2008, Ms Barber wrote to the Shire advising that 'I continue to act on behalf of Red Sun Camels Pty Ltd ...'. The letter further stated 'I now formally put you on notice that my client does not accept the Policy and will now issue proceedings to have this matter determined by SAT.'

128 On 19 May 2008, John Geappen sent an email to the Shire which stated:

Surely the Shire's fundamental responsibility here is to issue three camel licenses [sic], not to tell those three businesses how to run their business. It is not like the Shire has any experience, knowledge or understanding of the logistics and practices relevant to such an industry. Given all three business [sic] have Tourism Accreditation, that alone should reassure the Shire and Council we are professional and experienced operators who should be provided some degree of discretion and flexibility in running their businesses.

129 Despite the fact that the purchase of Ships had taken place in June 2007, there was no indication in any of this correspondence in May 2008 that there was any financial or ownership association between Red Sun and Ships or that Red Sun controlled Ships.

130 It is clear that Red Sun continued to conceal its beneficial ownership of Ships from the Shire and, from the forwarded email, that Ms Barber was aware of this.

131 The Shire wrote to Red Sun by letter of 21 May 2008 requiring Red Sun to accept the conditions of the licence (Exhibit A, page 83). This letter was treated as the reviewable decision in the 2008 Proceedings.

[Ms Barber] filed and served the applications, or caused them to be filed and served, on instructions from Mr Geappen and at all times in relation to the proceedings acted on instructions from Mr and Mrs Geappen and Red Sun, and not from Mr Hill.

[Ms Barber] agrees that her firm met with Mr Geappen to obtain instructions and thereafter opened a file in the name of Red Sun.

In the first half of 2008, Ms Barber took instructions from Mr Geappen to file applications with SAT, on behalf of both Red Sun Camels Pty Ltd and Ships of the Desert, to challenge licence conditions imposed by the Shire on both businesses. The file was opened in the name of Mr and Mrs Geappen and all fees (including the fees of the barrister Jason McLauren, engaged by the Geappens) were paid by them.

(26 August 2010, Exhibit A, page 385 [12])

There were two parties to parties to the proceedings, Red Sun Camels Pty Ltd and Ships of the Desert. Ms Barber acted for the Geappens and the company. Mr Hill was a shareholder of the company but was never a director. He was an employee of the company for which Ms Barber acted. Any instructions which Mr Hill gave to Ms Barber were given as an employee of the company for which she acted, and she did not take any instructions to act for him. There was one file only, and that was in the name of the Geappens, to whom all accounts were rendered and by whom such accounts were paid. (26 November 2010, Exhibit A, page 390)

135 Ms Barber's firm position was that Mr Hill was never her client.

136 Ms Barber brought both applications the subject of the 2008 proceedings, including the application by Ships, on instructions from Mr Geappen alone (T: 72­74).

137 Ms Barber charged all costs with respect to the proceedings to Red Sun and knew that all her costs, and counsel fees paid to Mr MacLaurin of counsel (counsel), were paid by Red Sun and not by Mr Hill (Committee SIFC and Barber SIFC [33]).

138 The Tribunal accepts that Ms Barber received instructions from, and only from, Mr Geappen, as set out in the extracts of the letters of 26 August 2010 and 26 November 2010 above. (i.e., substantially as alleged by the Committee in paragraph 32 of its SIFC).

139 On 27 May 2008, Julia Barber & Co filed and served an application (DR 198 of 2008) naming Red Sun and Ships as applicants (Exhibit A, pages 86 ­ 90). The application sought a review of, relevantly, the decision to impose the condition that 'no individual or business shall hold more than one trading licence at any time and will operate independently at all times' (Committee SIFC [31], Barber SIFC [31]).

140 The Tribunal ordered that Ships make a separate application (DR 222 of 2008). Orders were then made that the two applications be heard together.

141 Ms Sadleir, a solicitor employed by Ms Barber's firm, prepared Red Sun's application (Exhibit A, page 92). This was Ms Sadleir's first recorded involvement in the matter.

142 On 10 June 2008, Ms Barber's firm instructed counsel in the matter (Exhibit A, pages 97 ­ 99). The letter of instructions was prepared by Ms Sadleir (Exhibit A, page 227). Ms Sadleir was not aware of Red Sun's true ownership of Ships.

143 Ms Barber formally admits that the witness statements of both Mr Geappen and Mr Hill were prepared under her supervision, and she accepts responsibility for both statements. She also accepted, by reference to her itemised accounts and various emails between Red Sun and herself, that she had significant personal involvement in the preparation of the witness statements of Mr Geappen and Mr Hill.

144 Although Ms Barber ultimately admitted this on 12 May 2015 in her SIFC, her initial position in her Response dated 26 August 2014, was to deny that she either prepared or supervised the preparation of a witness statement from either Mr Geappen or Mr Hill.

145 In fact, between 24 and 26 June 2008, Ms Barber prepared, or alternatively caused to be prepared under her supervision, witness statements of Mr Geappen and Mr Hill for the purpose of being filed and served in the Tribunal and otherwise relied upon in the proceedings. This is evidenced from Ms Barber's time sheets and other documents (Committee SIFC and Barber SIFC [35], Exhibit A, pages 124, 125, 127, 128, 131 ­ 152, 153, 228 ­ 229, T: 57­ 60, T: 75­82).

146 A letter from Ms Barber's counsel, dated 31 January 2013 states:

The conduct of the matter was significantly carried out by Ms Catherine Sadleir, a solicitor in the employment of Ms Barber.

(Exhibit A, page 400)

147 Mr Cuerden's cross­examination of Ms Barber makes it clear that the statement was incorrect. The Tribunal rejects Ms Barber's explanation that the reason why the incorrect statement was made was because Ms Barber did not have the relevant documents (T: 83­90).

148 The Tribunal finds that the statement was made so as to minimise Ms Barber's involvement in and knowledge of the contents of the witness statements. She did so because she appreciated the implication of her involvement in the preparation of the statements (i.e. that she knew that Red Sun's beneficial ownership of Ships was not disclosed). Similarly, Ms Barber initially sought to conceal her involvement in approving counsel's opening submissions for the 2008 proceedings.

149 On 25 June 2008, Ms Barber caused Mr Geappen's witness statement to be signed by him (Committee SIFC and Barber SIFC [36], Exhibit A, pages 159 ­ 182).

150 On 26 June 2008, Ms Barber caused Mr Hill's witness statement to be signed by him (Committee SIFC and Barber SIFC [37], Exhibit A, pages 183 ­ 205).

151 On 26 June 2008, Ms Barber filed or caused Mr Geappen's and Mr Hill's witness statements to be filed in the Tribunal for use in the proceedings (Committee SIFC and Barber SIFC [38], Exhibit A, page 158).

152 Ms Barber sent those statements to counsel on 26 June 2008 (Exhibit A, pages 206 ­ 207).

153 On 30 June 2008, counsel emailed to Ms Barber a draft of his opening submissions (counsel's submissions) for use in the hearing of the proceedings. His email stated:

...

As time's getting on (my/my server's fault) I thought I should send it to you right now.

Could you please give it a careful read through (I have just got it back from some typing and sent it straight on) especially as you're right on top of the facts and lived through it.

Could you please feel free (and please please do) change add/delete anything you think appropriate, before filing and serving as I may have got some factual matters of evidence not quite right.

Also - please change anything re- the tone of it (it is a little bullish) that you don't think is right or is unhelpful/off the track/Barker J won't like, from your dealings with him on this matter to date. It is a little light on the actual law side of things, but I'm not sure how much of that will be central to the argument (Wittkin may have something up his sleeve there, we won't know till we see his).

(Committee SIFC and Barber SIFC [41], Exhibit A, page 209)

154 Ms Barber spent about 2.4 hours perusing those submissions and other matters (Exhibit A, page 229).

155 On 30 June 2008, Ms Barber caused counsel's submissions to be filed in the Tribunal and served on the Shire without correction (Committee SIFC and Barber SIFC [44]). The submissions as filed and served were, in all material respects, identical to the draft provided to Ms Barber for her review and comment.

156 The 2008 Proceedings were heard before Justice Barker.

157 On or about 1 or 2 July 2008, counsel's submissions and the witness statements of Mr Geappen and Mr Hill were admitted into evidence and were otherwise relied upon by counsel at the hearing of the proceedings (Committee SIFC and Barber SIFC [46] and [47]).

158 Ms Barber attended the hearing of the 2008 Proceedings as instructing solicitor on 1 July 2008 (when there was a viewing on Cable Beach), on 2 July 2008 (when counsel's submissions were tendered and otherwise relied upon and when the witness statements of Mr Geappen and Mr Hill were tendered and otherwise relied upon (T: 14)) and on 19 August 2008 (Committee SIFC and Barber SIFC [34(b)] and [45]).

159 Ultimately, Ms Barber had the conduct of the proceedings on behalf of the named applicants Red Sun and Ships including, but not limited to, the preparation and/or supervision of witness statements and preparation and/or supervision of the matter for hearing (Committee SIFC and Barber SIFC [34(a)]). Ms Barber was fully aware of the contents of the statements and the brief to counsel.

160 The Tribunal finds that Ms Barber was fully aware of all aspects of the 2008 Proceedings including the contents of the applications, the content of the witness statements and counsel's submissions, prior to the commencement of the hearing of the 2008 Proceedings before Justice Barker. In particular, the Tribunal finds that she was actively involved in the preparation of Mr Geappen and Mr Hill's statements and approved counsel's opening submissions.

An analysis of John Geappen's statement filed in the 2008 Proceedings (JG6/08)

161 Paragraph 14 of Mr Geappen's statement (JG6/08) stated:

On July 1, 2007 Abdul Casley sold Ships to Chris Hill ('Chris'). Prior to the sale, Chris had been camel operations manager for Red Sun.

(Exhibit A, page 161)

162 Paragraph 14 refers to a sale to Mr Hill. There is no reference to the fact that Mr Hill only acquired the legal interest. In the absence of that explanation, a sale would be understood in its ordinary meaning of acquiring the legal and beneficial interest. Further, the clear implication is that Mr Hill had left Red Sun as operations manager when he purchased Ships, when in fact he remained an employee of Red Sun.

163 Under the heading 'Independence/Ownership' JG6/08 referred to a number of matters. At paragraph 25, Mr Geappen notes that:

The consultant did not however state that one operator could not conceivably own or be involved in more than one licence. Indeed, it makes no sense when the consultant's report is considered to read that in. The number of camels and the number of trains will not be affected whether or not Chris and I work together. As such, the concerns of the Consultant are still being adhered to.

(Exhibit A, page 162)

164 Obviously, the statement is alive to the issue of common ownership and involvement. Mr Geappen then goes on to refer to 'Chris and I' working together ­ not to the common beneficial ownership.

... I do not recall that the consultant, who was specifically engaged to present a report on the industry prior to the original tender process in 2005, had any specific concerns about one operator having more than one licence. The Consultant recommended that there be 3 licences; one with 20 camels, one with 15 and one with 10. His report did not recommend a restriction on how the licences should be held or that any operator was obliged to operate independently.

(Exhibit A, page 163)

166 Mr Geappen notes that the consultant did not recommend a restriction on how the licences should be held.

167 Mr Geappen goes on to state at paragraphs 29 to 30:

In my experience in the industry, the most qualified and appropriate 'expert' evidence is Chris Hill, who is a demonstrated expert in tire field. Chris himself obviously does not believe that co-operation and or joint ownerships presents a problem for the industry, especially given it has worked successfully in Alice Springs.

Similarly, when this matter came before the SAT in 2006, there were no adverse comments made by the Tribunal, in its decision, concerning one operator having all 3 licences but rather the concern was the lack by the Shire of setting its fee and the operators knowing the fee structure before it is levied.

(Exhibit A, page 164)

168 Despite these statements, Mr Geappen did not disclose Red Sun's beneficial ownership of Ships. One might have thought that this was the perfect opportunity to establish that common beneficial ownership was not a breach of the condition.

I have grave concerns about what the word 'independent' actually means and what it entails and actually prohibits.

I have concerns in this regard as to what extent the Shire is claiming that it can dictate how a business should operate. Surely the prime consideration should be to adhere to its policy and objectives with respect to tourism. Nowhere in its objectives does it state that it intends to regulate how businesses will operate, Whilst councillors and the Shire have given views on why they believe the businesses should be separate and independent, there is no evidence to support the beliefs and nothing to support the assertion that collaboration would not be in the best interests of the industry.

The Shire seems to assert that Chris and I working together may result (indeed will result) in price fixing and nudging the other operator out of the market. In addition, suggestions are made that the end result could be no work during quiet time winch would affect the industry. The fact of the matter is that the Shire has restricted the number of licences and the number of camels on the beach, if operators are not able to access, economies of scale then, the reality is that prices have the potential to rise dramatically as the cost of living continues to rise and the prices of all commodities increase. By working together, Chris and I are able to offer full time permanent employment to a number of our staff, which we could not otherwise afford to. This has a double benefit; it means that competent and experienced staff are retained on a permanent basis and staff have certainty of tenure.

(Exhibit A, pages 164 ­ 165)

170 Again, it is difficult to see how the relationship between Red Sun and Ships could be described as 'working' together when there is common beneficial ownership and Mr Hill is an employee of Red Sun.

Finally, given that the transfer of any camel licence must go to Council for approval, surely any legitimate concerns about ownership could be addressed on merit at that time.

(Exhibit A, page 168)

172 That sits uneasily with the fact that Ships was transferred to Mr Hill with the purpose of evading scrutiny of ownership by the Shire.

In order to service a large amount of customers such as the cruise ship's passengers, it is necessary for Red Sun to be able to work closely with another operator such as Ships. Further, when larger scale events such as weddings or incentive and conference groups want camel rides, it is equally important. Of equal importance to these groups is for the members to stay together where possible, complete the activity together and within then; time restraints. This can only be achieved through mutual collaboration of two or more businesses. Attempts to work with BCS in the past to cater for this market have been either unsuccessful due to the speed of their operation or simply rejected outright by Mrs Bird, owner of BCS.

(Exhibit A, pages 166 ­ 167)

174 Again, it is difficult to see that Red Run and Ships can be seen as simply working closely with another operator when there is common beneficial ownership.

In about September 2007, following Chris and Paul Dixon, of the Shire, having discussions about the problems with the sit down position of Ships, and following the suggestion by Paul Dixon that Chris liaise with me as to the possibility of sharing the position, I agreed that Chris and I would share the position and that Ships' camels would sit parallel to Red Sun's.

(Exhibit A, page 169)

176 Paragraph 52 gives the impression that the sit down arrangement was a voluntary arrangement. What it neglects to do is to identify the common beneficial ownership and thus the common financial interest.

1. For all intents and purposes all visitors to Broome and all those seeing three different camel trains operating at all times have no other perception than three different camel businesses. There is nothing to suggest that there are not 3 independent camel trains because visually there clearly, to the outside observer, are. Whether or not 2 operators are linked does not alter the visual appearance.
2. I have had formal meetings with members of the Broome Visitors' Centre. I explained to them that we would be having a centralized booking system and that clientele would be booked on either Red Sun or Ships depending on availability to ensure that the beach did not have 2 separate trains if not booked and, equally, that if required, all customer needs could be met. The response from file booking agencies has been nothing but positive,
3. In my experience most clients and booking facilities find the present arrangement to their liking.
4. The industry is better served as me the clients and visitor's to Broome by way of a flexible, cohesive, consistent product and service and ability to meet the needs of all requests where possible. In my experience such requests are often only possible by such cohesion and ability to facilitate large group requests and simply meet the high demand of peak season with better efficiencies for all. In the last five years I have observed significant growth in bus groups, conference groups, incentive market, cruise ships etc. Without the ability to work closely with another operator such groups would not be accommodated and leave without the opportunity to' experience the icon of Broome - sunset camel ride on Cable Beach. From my observation of customers they do not wish to be split up, they all want to do it together, and time restraints often make this necessary. Why is it not realistic for people to expect the icon of the town to be available to do what they are nationally and internationally renowned for doing?

178 Mr Geappen fails to identify the likely financial benefit arising from a common beneficial ownership.

Councillor Maher made statements to those in attendance at a public forum in support of those operators who had missed out through the tender process, when Red Sun was awarded 3 licences. During this presentation, to several hundred people in attendance, he declared his concern with one operator securing all three camel licenses and proceeded to give advice on the best way to bring down this business or simply ensure a limited number of people would ride with them.

(Exhibit A, page 174)

180 It is clear from paragraph 69 that Mr Geappen continued to be concerned about the Shire's opposition to common ownership, the very thing he had sought to hide from the Shire when Red Sun acquired beneficial ownership of Ships.

Ms Weavers' Statement: The Shire has known of the close working relationship between Chris and me. Indeed, I was quoted in the Broome Advertiser as confirming that Chris and I would be working close together soon after Chris bought Ships. Notwithstanding this knowledge, the Shire did not consult with us prior to the draft policy which included the clause reading one business one license and operating independently. The set down points were not bought to the attention of camel operators until meeting of May 4th. Even then the details were incorrect - they had reversed the proposed arrangement. (Exhibit A, page 174)

182 The Shire may have been aware of the close working relationship but they were not aware of the common beneficial ownership. The Shire would have been none the wiser at the conclusion of the 2008 Proceedings given the contents of the statements.

In my experience, the two businesses Red Sun and Ships working co­operatively has increased employment within camel industry.

184 In fact, Red Sun and Ships were more than working co­operatively. They were in common beneficial ownership.

... I consider there is clear evidence to show the industry and clients have benefited from the close and shared working relationship presently undertaken by the owners of Red Sun and Ships - greater employment, establishment of retail and office complex in China Town, greater numbers of camels on Cable Beach than ever before and a level of customer service and satisfaction not previously achieved within this industry.

(Exhibit A, pages 175 ­ 176)

186 Again, there is more than a close and shared working relationship. There is a common beneficial ownership. This was not disclosed.

Irrespective of same check-in points, any similarities in blanket colour, meeting times or prices, Red Sun and Ships operate their respective camel trains independent of each other. This and only this should be of concern to the Shire. Many businesses have similar colours, similar prices and opening hours, yet still operate independent of each other. Many of these same businesses may share a number of logistical advantages gained by cost sharing, collaboration, outsourcing and the use of information technology.

(Exhibit A, page 180)

188 The clear inference that Mr Geappen sought the Tribunal to draw is that the relationship between Red Sun and Ships was nothing more than working co­operation. There was nothing to alert the Tribunal to the common beneficial ownership. The context in which the Tribunal accepted Mr Geappen's statements would have been completely different if that common beneficial ownership had been revealed.

An analysis of Christopher Hill's statement filed in the 2008 Proceedings (CH6/08)

189 Paragraph 1 of Mr Hill's statement (CH6/08) stated:

I am the owner of the second applicant ('Ships') having bought the business in approximately July 2007.

(Exhibit A, page 187)

190 There is nothing in Mr Hill's statement to suggest that 'bought' was limited only to acquisition of the legal title and that the transaction did not involve any of Mr Hill's personal funds.

... Finally, the initial clause relating to independence required no personal or financial interest of any kind whatsoever. Once again, this did not affect BCS but certainly had the potential to affect Red Sun and Ships and the Shire well knew that we did have a personal interest in each other's operation if for no other reason but the fact that I had been the manager of Red Sun's business which was well known to the Shire.

(Exhibit A, pages 185 ­ 186)

192 Mr Hill fails to mention that he was a shareholder in Red Sun and that Red Sun beneficially owned Ships.

The owner of Ships then approached me in the first week of June, 2007 with a view to selling me his business which I ultimately purchased on or about July 1, 2007.

From the time I purchased the business there was no secret (and we kept it no secret) that John and I would continue to operate closely, notwithstanding we had agreed that regardless of ownership we would continue to operate 2 separate camel trains whilst sharing business expenses,

The owner of Ships had not sold his camels with the business. That suited both John and myself given I had already brought my own camels across to Broome for Red Sun and had assisted in the securing of additional camels. I therefore leased 20 camels from Red Sun for my business.

(Exhibit A, page 188)

194 There is nothing to suggest that the words 'purchase' or 'sale' were used other than in their normal sense.

Given my previous employment by Red Sun and the fact that I had previously owned a number of the camels, it made good sense that Red Sun and I would continue to work in harmony.

Having said that it has been our intention that we keep the 2 business names, continue to operate 2 separate camel trains and maintain the colours that both businesses have used for a number of years.

(Exhibit A, page 188)

196 The use of the words 'work in harmony' suggests a voluntary arrangement rather than common beneficial ownership.

197 In paragraph 40, Mr Hill sets out the specific benefits and things Red Sun and Ships share. No one reading that would understand that the arrangement was anything other than voluntary.

198 Paragraph 41 of CH6/08 appears under the heading 'What does independent mean'.

1. As a result of the way our businesses operate, it is difficult to know how the Shire envisages its 'independent ownership' to operate.
2. I am very concerned about the potential width of that term and what it can, on the Shire's reading of it, capture. For example, are we independent because we have separate business names, discrete blankets and separate camel trains?
3. Conversely, if, for example, my train is full am I not permitted to send customers to the other operators? Similarly, if I am empty can I offer to assist the other operators or would I fall foul of the policy?
4. Likewise, I am aware that the cruise ships need to utilize a minimum of 2 combined camel trains to facilitate their passenger numbers. The majority of the passengers are elderly. Red Sun has always run the big tourist groups, because it had, for many years, 18 camels whereas the other operators had a maximum of 10. Given my previous employment by Red Sun it made sense that Red Sun camels would approach me to assist with the cruise ships. Does this mean 1 am not an independent operator if I assist?
5. If BCS was to need another camel it is conceivable that it may well look to Red Sun to purchase a camel or, having already purchased a camel, look to Ships for me to train the camel for BCS. Would this fall foul of the 'independence' requirement?
6. Similarly, I am the only operator in Broome to make my own saddles. If either Red Sun or BCS needed saddles, it would make commercial sense for them to approach me to make the saddles. Would this fall foul of 'independence'?
7. Ms Alison Bird, in her statement, confirms that she previously worked for Steve Madden (the previous owner of Red Sun) and, later, continued to work for him whilst she was running her own camel business. This would (I assume) fall, or be capable, on a view possibly taken by the Shire, to fall foul of 'independence', yet it makes sense. The industry is a specialized one. If, for example, one of the operators decided to sell their business it is conceivable that they might work for another operator (presuming of course that their sale contract allowed it).

200 There is nothing in paragraphs 42 to 47 to give any indication of common beneficial ownership or employment by Red Sun (T: 49), a matter far more relevant to independence than the making of saddles for another operator.

Both Red Sun and Ships made it clear to all (given we publicly stated our intention to work closely together in the Broome Advertiser) that we would be working together although we would continue to run 2 separate trains. In the past Ships offered a completely different service given it took the customers though the Hidden Valley. Nowadays we are all offering much the same service. The fact is that Red Sun and Ships worked for a period of 8 months together, before the draft policy was announced. There had been no consultation with either John Geappen or myself about the policy nor had there been any indication that the Shire had any concerns as to our association nor was there any indication from the Shire that anyone had made any complaint about our association.

(Exhibit A, page 193)

202 Again, 'working together' does not lead to an inference that there is common beneficial ownership.

(a) both Mr Geappen and Mr Hill's witness statements contained express statements to the effect that Mr Hill was the owner of Ships;

(b) neither witness statement disclosed that Red Sun was in fact the owner of Ships;

(c) neither witness statement indicated that ownership was used other than in its normal sense and conversely, neither statement suggested that the reference was to legal ownership only;

(d) nor did either witness statement disclose or suggest (as Ms Barber now alleges) that Mr Hill held Ships on trust for Red Sun or that Red Sun was the beneficial owner of Ships. Neither witness statement suggested that Red Sun had any interest at all in Ships; and

(e) both witness statements explained the relationship between Red Sun and Ships in terms of separately owned businesses that were 'working together', in a collaborative or cooperative arrangement. In context, this necessarily conveyed that Red Sun and Ship_s_ were separately owned.

1. Both Mr Geappen and Mr Hill, in their witness statements, queried the meaning or width of the condition in question; in Mr Hill's case, by a series of rhetorical questions which queried compliance with the condition in various scenarios and which suggested that because of the relationship between the two businesses which he described, he was in some genuine doubt as to whether they fell foul of the condition as to independence. Again, in context, this necessarily conveyed that Red Sun and Ships were separately owned.
2. Mr Hill's witness statement purported to disclose a 'personal interest [of Red Sun and himself] in each other's operations' such that the independence condition 'had the potential to affect Red Sun and Ships' but did so in terms limited to disclosure of the fact that he (Mr Hill) had been the manager of Red Sun's business, which he said was well known to the Shire, and without mentioning that in fact Ships was owned by Red Sun (or even that Red Sun had any interest at all in Ships).
3. Somehow the statements failed to disclose that Mr Hill remained an employee of Red Sun.

205 The witness statements concealed the fact that Ships was beneficially owned and controlled by Red Sun and were directed to establishing only a close working relationship. Given the common beneficial ownership the statements were misleading.

An analysis of the applicants' opening submissions 08 (the 08 submissions)

The applicants seek review of the respondent (the Shire's) decision to grant a licence for commercial camel activities, subject to acceptance of certain conditions. The most relevant conditions, for the purpose of this review are purportedly imposed by reason of the Shire's Commercial Camel Activities on Cable Beach Policy, and are as follows:

(a) 5(b)(i) and 6(i) 'no individual or business shall hold more than one (1) trading licence at any time and will operate independently at all times ...'.

(b) ...

(Exhibit A, page 230)

1. an individual or business holding more than one trading licence at any time; and
2. individuals or businesses operating independently at all times

208 Paragraph 2 of the applicants' 08 submissions stated:

The full facts that RSC and Ships rely upon are set out in the witness statements of Mr Geappen (owner of RSC) and Mr Hill (owner of Ships). However, a summary of facts for the applicants' opening is as follows.

(Exhibit A, page 231)

209 The 08 submissions make it clear that the statements of 'Mr Geappen (owner of RSC) and Mr Hills (owner of Ships)' were relied upon.

210 The Tribunal accepts that there is a distinction between legal ownership and beneficial ownership. However, there is nothing in the applicants' 08 submissions to support the contention that ownership was being used in the limited sense of legal ownership.

In about July 2007 Mr Chris Hill, who had been an employee of RSC purchased Ships. From that time, it was common knowledge, and the Shire was aware, that the applicants would work in a co­operative manner. Nevertheless RSC and Ships maintain a separate name and identity, different coloured and distinctly marked blankets (indeed, the same colors they have been rising for years prior to Mr Hill purchasing Ships). The nature of the relationship and the businesses association (and the extent and limitations of those arrangements) and the benefits that arise from those arrangements, are set out in detail in Mr Hill and Mr Geappen's witness statements.

(Exhibit A, pages 231 ­ 232)

212 There is no suggestion that the word 'purchased' is used in any narrow sense to mean that Mr Hill acquired only the legal title.

213 The statement that the 'applicants would work in a co­operative manner' does not suggest that there was any basis for the applicants to work together other than on a voluntary basis.

214 The 08 submissions went on to state that the nature of the relationship and the businesses' association (and the extent and limitations of those arrangements) and the benefits that arose from these arrangements, were set out in detail in Mr Hill and Mr Geappen's witness statements.

215 On any view, the beneficial ownership of Ships by Red Sun constitutes a 'relationship' and a 'business association'. Red Sun and Ships set out the basis upon which they sought to put their case. Clearly, they failed to disclose the fact that Red Sun was the beneficial owner of Ships. Had they done so, it would inevitably have raised questions as to whether Red Sun held more than one trading licence ­ a matter that Red Sun was clearly anxious to avoid.

As a whole, the applicants contend that the Shire's evidence demonstrates that the conditions are sought to be justified after the fact upon the basis of certain unsubstantial 'beliefs' and speculations of witnesses as to the desirability of independence in operations, and the desirability of having separate set down areas and routes in the configuration the Shire has insisted upon.

(Exhibit A, page 236)

217 Paragraph 31 again raises the issue of 'independence in operations'.

218 Paragraphs 37 to 43 of the 08 submissions stated:

1. Many businesses in Broome are licenced to the same owner. Indeed, the Shire was prepared to issue all three licences to Red Sun previously.
2. The Shire's condition cuts across and seeks to prohibit a co­operative and collaborative arrangement between RSC and Ships which is entirely proper, and within the bounds of sensible business arrangements, including providing flexibility and efficiency and delivery to die customer (for reasons explained in Mr Hill and Mr Geappen's evidence). Ms Bird of BSC has been offered by Mr Geappen in the past to participate in some aspects of these general co-operative arrangements, but BSC has not been interested in doing so.
3. Further, one of the tests under the condition (i.e. 'operate independently at all times') is vague and its wide operation makes it unworkable, potentially prohibiting all manner of activity which is completely unobjectionable.
4. However, fundamentally, the condition seeks to impose an improper restraint of trade upon how a licencee conducts their business. This is in respect to an area in which, if there is to be any such legitimate restraint, it is dealt with pursuant to the legislative provisions of Part IV of the Trade Practices Act (Cth) (1974). In the absence of conduct which offends against, for instance section 45 or 46 of the Trade Practices Act, there is no basis or justification (quite the opposite) for seeking to impose vague and oppressive requirements of 'independence'. It is simply not a field the Shire can enter into, in the way it seeks to. It is inconsistent with the practice for other businesses in Broome. Indeed, in putting, forward confused reasons like 'confusion', the Shire seems also to be seeking to delve into Part V of the Trade Practices Act (even though, it is to be noted, that 'mere confusion' and in any event confusion which does not arise objectively from the conduct of a defendant would not in any event fall foul of section 52 of the TPA).
5. Furthermore, the way the conditions are sought to be imposed suggests a 'prejudgment' of 'guilt' that RSC and Ships' conduct is in breach of some principle of competition or consumer law.

1. Save to say the condition appears entirely directed to simply 'splitting up' the current arrangements between RSC and Ships, it is still (notwithstanding, and in fact because of, the Shire's witness statements) not clear what the basis for the imposition of these conditions in the terms the Shire seeks to put them, is. (Exhibit A, page 237 ­ 238)

219 Most significantly, paragraph 38 refers to 'a co­operative and collaborative arrangement between RSC and Ships'.

220 Clearly, the beneficial ownership of Ships by Red Sun goes beyond a co­operative and collaborative arrangement. Common beneficial ownership is at the basis of the arrangement between Red Sun and Ships rather than a voluntary co­operative and collaborative arrangement.

221 It is clear from paragraph 39 of the 08 submissions that both issues identified above were live because the paragraph refers to 'one of the tests under the condition'.

222 Paragraph 43 refers to the Shire seeking to 'split up' the current arrangements between Red Sun and Ships. Mr Geappen plainly believed that the Shire was still hostile to Red Sun.

223 Paragraphs 49 to 50 of the 08 submissions stated:

1. Some of the Shire's witnesses (Ms Bird in particular) put it on the basis of a commercial advantage allegedly being derived by the applicants by reason of their association. This again, is an untenable basis for the conditions. However, there is no evidence whatsoever of any improper taking advantage of market power, or collusive arrangements such as would be prohibited by the Trade Practices Act (indeed, the ACCC has seen no problem in such arrangements). In fact, the applicants' evidence is to the contrary.
2. For instance, the applicant's prices are both higher than the other licencee. It is not a matter of good governance for the Shire to seek to interfere with the efficient commercial operations of the applicants.

224 Paragraph 49 refers to a 'commercial advantage allegedly being derived by the applicants by reason of their association' (Exhibit A, page 239).

225 Paragraph 49 goes on to say there is no 'evidence of collusive arrangements ... In fact, the applicants' evidence is to the contrary'.

226 Paragraph 50 then gives an example. That statement would have been seen in an entirely different light if the common beneficial ownership had been revealed.

The applicants' witness statements otherwise describe in detail the reasons for their co-operation, the benefits to the industry and customers, and the extent of that co-operation and why it is proper.

(Exhibit A, page 240)

228 Paragraph 52 asserts that 'the applicants' witness statements otherwise describe in detail the reasons for their co­operation ...' (Exhibit A, page 240).

229 The reasons for Red Sun's and Ships' co­operation cannot be said to have been described 'in detail' because of the absence of any evidence in the applicants' witness statements as to the beneficial ownership of Ships by Red Sun.

230 Justice Barker's reasons are instructive as to what the Tribunal believed to be relevant in assessing whether the operators were independent. Justice Barker stated at [38] ­ [63] in Red Sun Camels:

1. The first issue that arises concerns the validity and appropriateness of the condition providing:

No individual or business shall hold more than one (1) trading licence at any time and will operate independently at all times.

1. In this case, the question really is what the justification for the independence condition is, what ends does it serve and whether, in the context of the grant of a trading licence in respect of the operation of camel tours on Cable Beach, such a condition makes good practical sense as far as the governance of the municipal district of Broome is concerned.

1. The starting point on a review of the independence condition is the Commercial Camel Activities on Cable Beach Policy itself that was adopted by the Council of the Shire on 14 February 2008. That policy was first proposed in a draft and then, following some modifications, adopted. It is clear from the terms of the introduction to the policy, quoted earlier in these reasons, that the Shire considers trading activities on Cable Beach should be regulated in order to protect 'a highly valued environmental, cultural and social asset' that is 'enjoyed by visitors and residents alike'.

1. The question now before the Tribunal is whether the Shire can go further and effectively say that licences will only be given to persons who operate independently of other licence holders. The intention here plainly is that the Shire is entitled to, and should, facilitate the operation of separate businesses. The Shire's stated intent in the policy is that a number of residents of Broome should have a reasonable opportunity to engage in the camel tour business and that all licences should not in effect go to one person. Allied to that consideration, although in truth a separate issue, is an issue raised in the course of the Tribunal hearing by Councillor Wevers, to the effect that a better service for consumers is likely to be provided if there is real competition between three independent operators of camel tours.
2. The current policy explicitly reflects the first, resident business opportunity consideration where it provides that:

The Shire's Plan for the Future identifies that the Shire will work with the community and other agencies to encourage appropriate investment and business development to ensure a diverse economic base from which all members of the community may benefit. To support economic development the Shire supports the granting of three Trading Licences for commercial camel activities on Cable Beach.

1. Leaving aside then the views of Councillor Wevers for the moment that the requirement for three operators is more likely to produce a competitive environment for the benefit of consumers of camel tours, the question is whether it is open, as a matter of law, and desirable, as a matter of approach, for the policy under which the Shire grants these trading licences and imposes conditions on them explicitly to pursue the object of encouraging 'appropriate investment of business development to ensure a diverse economic base from which all members of the local community may benefit'.
2. It seems to the Tribunal that it is at least arguable that such an objective may be achieved by the imposition of an independence condition. If a trading licence in respect of camels enables a licence holder to have up to 16 camels in a tour (it being understood that the sunset tours are the most popular and therefore the most profitable), then that licence may well form the basis of a viable business. If no one person can hold more than one such trading licence, then it means that three persons in the local economy may 'obtain jobs' in that sector of the economy. It seems, from the Shire's assessment of the situation, that having three persons engaged in profitable endeavour, rather than just one or two, is a worthy objective. While one might argue with this proposition along the lines that there is no reason why a single operator, operating under appropriate conditions, might not provide an excellent service to the community, and employment opportunities to a range of persons engaged in the camel tour business in Broome, the idea that three operators helps sustain a better, more diverse local economy, cannot be dismissed out of hand.
3. As a matter of law, in some areas of regulation of activities by statute it is well understood that factors such as competition reduction (or promotion) are not necessarily relevant to the exercise of a statutory power. For example, in the decision of the High Court of Australia in Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675, which had to do with town planning controls, Barwick CJ at 681 said that:

economic competition feared or expected from a proposed use is not a planning consideration within the terms of the planning ordinance governing this matter.

The result in that case was that, in deciding whether or not a particular land use should be permitted or refused, it was not open to the planning authority to make a decision based on the objective of protecting an existing business operator from competition.

1. It is not, however, immediately obvious to the Tribunal that the powers of the Shire under the Local Law when granting trading licences, necessarily exclude consideration being given to economic factors generally or competition factors in particular. Nonetheless, when a local government decides to become, in effect, an economic regulator and protector or promoter of competitive forces, it is likely to find its role an increasingly complex and difficult one and often it would be best advised to avoid undertaking such a role.
2. In this case, the primary objective of the Shire seems to be to ensure that no one person can, in effect, have control of all 48 camels that might be on Cable Beach in camel tours at the one time (that is to say, three approved camel tours with up to a maximum of 16 camels in each). The background to this particular policy approach of the Shire is that there was much consternation in Broome when the Shire initially sought tenders for the three licences and, in the result, granted all three licences to the highest tenderer - Red Sun Camels. That was the decision set aside on legal grounds by the Tribunal in Bird and Shire of Broome.
3. As a result, the Council of the Shire have had the opportunity to reconsider the tenets of the policy that they want in place. The Shire have made it quite clear, through the policy adopted on 14 February 2008, that they do not believe that, in effect, all three licences should go to one person. The intention is that up to three people should each have the opportunity to run a camel tour business under a licence.
4. In all of the circumstances, it seems to the Tribunal that this is not an unreasonable approach to the resolution of what criteria should be relevant to the grant of the three licences. While the Tribunal could conceivably come to a different view and say that, as noted above, a single operator of three camel tours could provide a good service and do so safely, and the like, the Council of the Shire has adjudged the situation differently. The Tribunal can see why the Council of the Shire has come to that view. It wants to ensure, as it has stated in its policy, a diverse economic base from which all members of the local community may benefit. In the circumstances, it seems to the Tribunal that the correct and preferable decision is that there should be three separate licences granted to ensure that the maximum number of people in the Shire of Broome who want to be engaged in the business of providing camel tours have the opportunity to apply for and be granted a licence. The Shire, to that extent, has reasonably set itself against the notion that there should be just one or perhaps two operators of camel tours on Cable Beach.

1. It also seems to follow that the requirement for separate licences, and the rationale behind that decision, should not easily be circumvented by the holders of separate licences in effect folding their businesses one into the other, so that they are no longer in substance separate. However, having said that, it is not an entirely easy thing to say that operators under separate licences cannot and should not be able to agree to cooperate in various respects in the running of their business. Why two operators should not share a booking business, should not share staff, and the like, is not immediately obvious to the Tribunal. It does not necessarily mean they are not independent of each other.
2. Where, however, the overall assessment of two allegedly independent operations is such that they are, for all intents and purposes, the same operation, then one may seriously question whether there is independence and, as a consequence, whether there are two separate operations each supported by a separate licence, or just one operation. The general degree of cooperation in respect of booking and staff may be one thing, but if the two allegedly separate operations actually agree a pricing structure or have an agreement or understanding in this regard, then one would begin to question whether there really are two separate and distinct operations or just one.
3. The overall impression the Tribunal is left with, having regard to the background circumstances in which Mr Hill and Mr Geappen came to their current arrangements, and the expression of the arrangements both by Mr Hill and Mr Geappen in evidence at the Tribunal hearing, is that for all intents and purposes the operations are very closely intermingled at the moment and, to a large extent, are not operating independently of each other. The fact ultimately that the two camel teams sit down very close by to each other, just north of the rocks on Cable Beach North, albeit that Ships of the Desert has a different livery to that used by Red Sun Camels, rather invites the view that there is but one and not two separate operations.

231 The underlined paragraphs above make it plain that Justice Barker regarded a common financial (i.e. business) interest was relevant to whether the operations were independent.

232 It is clear from Justice Barker's reasons that he proceeded on the assumption that there was no common beneficial interest between Red Sun and Ships. This is the reason that the Tribunal made no finding that Mr Hill was the beneficial owner of the Ships business, contrary to Ms Barber's assertion in her response to the Committee's grounds.

Ms Barber's submissions as to the issues to be determined by the Tribunal

233 Ms Barber submitted that the only issue to be determined by the Tribunal in the 2008 Proceedings was whether the conditions imposed on the licensees issued by the Shire were valid or reasonable; in particular, whether the condition that the camel businesses operate 'independently ' of each other, was reasonable (Exhibit A, page 259).

234 Ms Barber's submitted that as a result of this:

1. the first part of the condition, that is, that no individual or business shall hold more than one licence was not relevant because a common beneficial interest was not relevant; and
2. the meaning of the term 'operating independently' was at issue and whether Red Sun and Ships were in fact operating independently was irrelevant.

235 Ms Barber submitted that, as a matter of law, Mr Hill was the owner of the business. Secondly, the fact that Mr Hill held the business in trust for Mr Geappen had no conceivable relevance to, and could not (either directly or indirectly) have affected, the decision of the Tribunal on the issue for determination. That is to say, if the statements of Messrs Hill and Geappen did imply that Mr Hill was both the legal and beneficial owner (which they did not) that could not have led the Tribunal 'astray', in deciding whether the Shire's policy conditions were valid.

236 The basis for Ms Barber's first submission relied heavily on the 14 February Amendment of the Policy to delete the reference to 'financial or indirect financial interest'.

237 Ms Barber submitted in those proceedings that the 14 February Amendment to the Draft Policy meant that the Shire accepted that, although no individual could hold more than one licence, there was no bar to an owner of one licensed business having an interest, direct or indirect, in another business operated by a separate licence­holder. The 14 February amendment meant that although Mr Geappen could not hold more than one licence, it was open to him to have a 'financial interest' - which encompasses a 'beneficial interest' ­ in the 'Ships business'. It was not proposed to prevent one individual holding, or having, any financial or indirect financial interest in more than one trading licence.

238 Ms Barber submitted that, therefore, it was open to a licence holder for one business to have a 'financial interest' in the licensed business operated by another licence holder. Hence, that part of the condition would not have prevented Red Sun from continuing to have a beneficial interest in Ships, the licensed business operated by Mr Hill.

239 The importance of the 14 February Amendment to Ms Barber was emphasised by the post hearing filing of further submissions, dated 25 May 2015, on behalf of Ms Barber. She submitted that Councillor Maher's evidence in the 2008 Proceedings:

... made it clear that what the Policy in the first form was intended to do was not to prevent a licenced business having a financial interest in another licenced business, but to ensure that their method of operation was physically separate, at different parts of the beach (although it was never intended that they should not to some extent co­operate with each other).

(Tribunal emphasis added)

240 The Committee responded on 26 May 2015. The Committee correctly submitted that an individual councillor cannot ordinarily speak as to the collective intention of the Council. The Committee submitted inter alia:

1. At Ex B p 51, Mr MacLaurin asked Cr Maher (fifth paragraph): 'Would you accept that the current situation with camel tours can't ever be a monopoly or a duopoly because the council controls the issuing of the licences?' The reference to monopoly or duopoly is a reference to ownership, not method of operation. Cr Maher did not know that Red Sun Camels Pty Ltd was the true owner of Ships. Cr Maher agreed: 'If the current policy is upheld, then I would accept that, yes'.
2. Cr Maher then agreed with the proposition that it was not the policy 'but the fact that the licenses have been issued to three separate operators' (Ex B p51).
3. Cr Maher's answers (and the questions themselves) were premised on ignorance as to the true ownership of Ships. The evidence must be understood in that light.
4. Nevertheless, nothing in Cr Maher's evidence supports the proposition in the letter on behalf of [Ms Barber] dated 25 May 2015 that the policy was intended 'not to prevent a licensed business having a financial interest in another licensed business, but to ensure that their method of operation was physically separate ... '. That was not the effect of Cr Maher's evidence. To the extent it is relevant, his evidence was to the contrary.

241 It is unnecessary to resolve the characterisation of the evidence. However, the exchange does illustrate that it was by no means clear what the effect of the 14 February Amendment was on the meaning of the Policy. One could, for example, argue that the reference to financial interest was deleted because it was obvious that it was not possible to operate independently if there was a common financial interest.

242 Certainly, Justice Barker regarded a common financial/business interest as relevant to whether the camel tours were operating independently. His judgment specifically mentioned the amendment to the Policy.

243 If the effect of the 14 February Amendment was, as contended by Ms Barber, she would have used it to argue that a proper interpretation of the condition was that the question of independence was not related to a common financial interest.

244 If the submission was as obvious as Ms Barber now contends, it is difficult to understand why the point was not put forward in the 2008 Proceedings.

245 The 2008 Proceedings were a perfect opportunity for Red Sun and Ships to clarify that a common beneficial ownership did not impact upon the businesses operating independently. Yet nothing was said about the common beneficial ownership.

The (in)significance of Mr Hill's legal ownership to Ms Barber

246 As stated above, it does not follow that because Mr Hill held Ships in a resulting trust that he acted as a trustee in any practical sense in relation to Ships.

It is commonplace for a business to be operated by a Trustee, for the benefit of the beneficiaries of the Trust (who may or may not include the Trustee). The Trustee, not the beneficiaries, is the only person entitled to deal with and manage the trust property. If a claim is made by reason of some activity of the business, or a debt is claimed, it is a claim against the Trustee, the legal owner of the business carried on by the Trustee, not the beneficiaries. The beneficiaries of a trust do not 'own' the trust property, unless and until it is vested in them by the Trustee, or Court order.

248 Ms Barber's counsel's submissions contend that 'Mr Hill, as licence holder for Ships, was correctly described as the owner. It would not have been open to Mr Geappen to appear as the owner of either the licence or the business of Ships'. Ms Barber took instructions from Mr Geappen to initiate the appeals (T: 70).

249 Ms Barber's conduct was completely inconsistent with the above submissions.

250 Ms Barber took instructions only from Mr Geappen. Such information as was provided to Ms Barber by Mr Hill was provided in his capacity as an employee of Red Sun. Despite her professed belief that Mr Hill was the legal owner of the Ships business as trustee for Red Sun, and that therefore only Mr Hill could give instructions to bring proceedings in respect of the business, Ms Barber acknowledged that it was Mr Geappen alone who gave instructions to make the application on behalf of Ships and otherwise gave her instructions in the 2008 Proceedings (T: 70­74).

251 There is a certain incongruity in the fact that in the 2008 Proceedings, Ms Barber completely disregarded Mr Hill's trustee status and now seeks to rely on that status.

252 Given that Ms Barber never treated Mr Hill as a trustee of Ships, it is difficult to see how she can now argue that she believed he was a trustee at the time of the 2008 Proceedings. The reality is Ms Barber never treated Mr Hill as the legal owner/trustee in the context of the 2008 Proceedings.

253 Ms Barber was given several opportunities in cross­examination to explain how she was able to bring proceedings on behalf of Ships on instructions from Mr Geappen and not Mr Hill, if Mr Hill was the legal owner of the business. She was unable to do so (T: 70­74).

254 The Tribunal finds that the fact that Mr Hill may have been the legal owner of Ships was of no significance to Ms Barber.

255 Ms Barber's submissions illustrate clearly the yawning gap between the capital 'L' Law and the reality of what actually happened. Control of both Red Sun and Ships was clearly with Mr Geappen and Ms Barber plainly knew that.

256 Ms Barber's conduct was consistent with her understanding of the true ownership of Ships as stated in her proof of evidence, and in the letter of 26 August 2010. She did not need instructions from Mr Hill because Mr Hill was merely the 'nominal' purchaser and owner of Ships, for the purpose of concealing Red Sun's true ownership of the business from the Shire.

257 In the course of the 2008 proceedings, Ms Barber gave no thought to a distinction between legal and beneficial ownership (T: 73­74). The sense in which Ms Barber understood Red Sun's ownership (albeit that it was beneficial) was as if Red Sun was the legal and beneficial owner. She did not see Mr Hill as having any right (as legal owner or otherwise) to direct Ships, other than as an employee of Red Sun.

258 Ms Barber's letter to Eagle & Partners of 21 July 2009 (Exhibit A, page 298), reflected her belief that the Ships business belonged to Red Sun:

Mr Hill does not have a business rather the business belongs to Red Sun. Camels and Mr Hill has an equitable interest in the overall company structure.

259 The reliance placed by Ms Barber on beneficial ownership versus true ownership is a false dichotomy. The evidence clearly establishes that however the ownership is described the 2008 Proceedings did not disclose to the Tribunal that there was any ownership of Ships by Red Sun.

260 The fact that Mr Hill was the legal owner as a matter of law does not detract from the fact that the purpose behind Mr Hill being named as the purchaser in the Ships Agreement was to conceal Red Sun's involvement in the purchase. The fact that Mr Hill was the legal owner does not alter the fact that Red Sun was the beneficial owner and in fact had control of Ships.

261 Ms Barber's explanation for not disclosing the true position is that Mr Hill was the 'legal' owner of the licence and the Ships business, and she did not believe that the question of beneficial ownership of the business was relevant to the matter before the Tribunal.

262 The explanation is premised on a distinction between the 'legal' and the 'beneficial' ownership of the Ships business. All the contemporaneous documents record the fact that Ms Barber knew and understood that Red Sun was the 'true purchaser', the 'true owner' or the 'real buyer' of the Ships business, that the Ships business was 'owned by' Red Sun, and that Mr Hill was merely nominated by Mr Geappen as the 'nominal purchaser' to conceal the true position of Red Sun's ownership from the Shire.

263 The obvious explanation for the fact that Red Sun and Ships common beneficial ownership was not disclosed was that Ms Barber believed that if the true relationship was disclosed in the course of the 2008 proceedings, the Shire would have taken steps to force Red Sun to divest itself of its interest in Ships. Not only is that the obvious explanation, the Tribunal finds that this was Ms Barber's subjective intention.

264 The Tribunal accepts the Committee's submission that Ms Barber's professed understanding of the position at the time should be rejected. She knew the true position, and she knew that the witness statements and counsel's submissions were misleading in asserting that Mr Hill was the owner of Ships and in concealing that Red Sun was in fact the common beneficial owner.

265 Paragraphs 37 ­ 40 of the 08 submissions, which are set out above, illustrate clearly that Ms Barber regarded common ownership as relevant to resolution of the independence issue.

266 The submissions made specific reference to 'businesses in Broome licensed to the same owner'. They refer specifically to the fact that all three licences were issued to Red Sun previously. Yet, there is no reference to the common beneficial ownership of Red Sun or Ships. In these circumstances, to suggest that the fact that Mr Hill was the legal owner made common beneficial ownership irrelevant is simply not credible. Ms Barber never held the belief that common beneficial ownership was irrelevant.

267 Ms Barber submitted that in commencing the 2008 Proceedings, Red Sun and Ships were only seeking clarity as to whether Red Sun and Ships were 'operating independently'. Ms Barber submitted that:

1. The meaning of 'operate independently' was unclear to Red Sun and Ships who were concerned that their existing mode of operation of the two businesses might not be considered to be 'operating independently.
2. Specifically, they were concerned whether a certain degree of co­operation might breach the condition. See Hill Witness Statement paras 39, 40, which explain that, while the two businesses had discrete, separate entities, and were operated as two separate businesses, they co-operated in various ways ­ see para 40(a) ­ (f).
3. At paras 41 ­ 49, Mr Hill expressed his concerns about how the Shire envisaged the 'operate independently' condition would be applied, and the potential width of its operation, giving instances where co­operation would be sensible and reasonable, but might fall foul of the vague 'independence' condition.
4. On the same issue ('operate independently' and its possible application) in paras 50 ­ 67 Mr Hill explained the benefits of a degree of co­operation between the operators.
5. Mr Hill's evidence was that he operated Ships as a discrete business separately from the other two businesses, but that in a number of respects Ships and Red Sun co­operated. That evidence was not directed to the question of whether or not, given the extent of co­operation, they still met the condition of independence. It was in order to contest the validity of that condition, because of its uncertainty, and the potential for it to be applied, in practice, in a way that would prevent that co­operation, either wholly or in part, from continuing, that an application was made to the Tribunal.

268 Ms Barber argued that she did not believe the question of the common beneficial ownership of the Ships business was a matter before the Tribunal. Ms Barber explained in her evidence that because Red Sun and Ships were challenging the independence condition and not that part of the condition that concerned ownership (T: 95­96).

269 Both Mr Geappen's and Mr Hill's witness statements asserted concerns over the meaning or width of the independence condition and, particularly in Mr Hill's statement, a concern that because of the relationship between the two businesses which the witness statements described, there was some genuine doubt as to whether they fell foul of the independence condition. Those apparent concerns were based on various scenarios. Those scenarios paled into insignificance in comparison with the fact, which was known to Ms Barber, that both businesses were actually owned and controlled by Red Sun.

270 As a matter of common sense, it is obvious that the fact that one person is the 'beneficial' owner (or, moreover, the 'true' or 'real' owner) of both businesses is at least potentially relevant to the question of whether the businesses are operating 'independently'.

271 Aside from the obvious fact that common ownership of two businesses must be relevant to the question whether they operated independently, it is easy to think of particular examples of the way in which the common ownership creates an issue as to independence in operation of the two businesses.

272 On Ms Barber's evidence, Mr Hill was an employee of Red Sun at the relevant time (although the witness statements conveyed that he had ceased employment with Red Sun when he had purchased Ships). As an employee of Red Sun, Mr Hill was subject to the lawful directions of Mr Geappen on behalf of Red Sun who was the owner of both businesses. This of itself raised an obvious issue of independence. Yet, Ms Barber refused to accept this in cross­examination.

273 As an employee of Red Sun, Mr Hill would have been bound to prefer Red Sun over the other operator. That too raised an obvious issue of independence. Again, Ms Barber refused to acknowledge that in her evidence.

274 Ms Barber asserted in her evidence that her clients were completely unclear as to what 'operating independently' actually meant, and it was for this reason that Mr Hill posed rhetorical questions as to whether one business selling a camel or a saddle to another, for example, would breach it.

275 Yet on the other hand, Ms Barber now suggests that she was in absolutely no doubt that for one entity to own two businesses could not possibly be relevant to the question of whether those two businesses were operating independently (T: 93­96).

Do you agree that by omitting reference to the fact that, in fact, Red Sun Camels was the true or beneficial owners of Ships that it was incomplete? --- No.

Okay. Did you turn your mind to the question at the time? --- No. I didn't.

It didn't occur to you that you might want to mention the fact that Ships was beneficially or, in truth, owned by Red Sun Camels. Didn't even occur to you to mention that? --- No, it didn't occur to me to mention that.

278 Mr Levy SC, who was then acting for Ms Barber in relation to this matter, acknowledged in his letter of 31 January 2013, written on instructions from Ms Barber that:

If Mr Geappen's/RCS (sic ­ RSC) were the beneficial owners of both businesses, and the condition imposed by the Shire was upheld, it would then have been necessary for RCS (sic ­ RSC) to divest itself of the beneficial ownership of Ships.

(Exhibit A; page 400)

279 In cross­examination, Ms Barber was forced to contend that Mr Levy's statement was wrong (T: 99).

280 Ms Barber had an obvious motivation for misleading the Tribunal as to the true ownership of Ships, namely to prevent the true position being disclosed to the Shire who was a party to those proceedings (Exhibit A, page 400).

281 Whilst it may have been in her client's (Red Sun's) interests to conceal the true position, Ms Barber subordinated her duty of candour and honesty to the Tribunal to the interests of her client.

282 Ms Barber submitted that the review of the conditions did not entail a determination of whether the applicants were then complying with the conditions, as at that point they each held a licence to which such conditions did not apply. She submitted that the new licences had not yet been issued. Therefore, the appeal was as to conditions that were proposed to be imposed upon the issue of new licences (Exhibit A, RDO8, page 259). She submitted that the Tribunal's reasons made it clear that it was only called upon to consider whether it was within power for the Shire to impose the condition as to independence.

283 Mr Barber submitted that the Tribunal was not asked to decide, and did not decide, whether the two businesses were operating 'independently' (Exhibit A, RDO8, pages 276 - 277 [61] ­ [63]; page 290 [114] - [116]). If, at some later point, the Tribunal had been asked to decide whether the two businesses were in fact operating 'independently', then the Tribunal would have had to determine what 'independently' meant; and it would then (probably) have been relevant (although not conclusive) that the Ships business was held on trust for the Geappens.

284 The way in which Red Sun and Ships sought to challenge the condition was by a detailed analysis of the facts of the operation (albeit omitting any reference to their common beneficial ownership). The fact that the condition had not yet come into operation does not derogate from the factual analysis that the Tribunal was required to consider and invited to consider by the way in which Red Sun and Ships put their case.

285 In effect, this submission amounts to a contention that the Geappens could tailor the facts to limit the Tribunal's inquiry to what they, and only they, regarded as relevant.

286 It is not the case that the Tribunal was only called upon to consider whether it was within power for the Shire to impose the condition as to independence. The entire condition was put in issue in counsel's opening submissions.

287 Further, even if it be the case that the Shire was not asked to decide and did not decide whether the two businesses were operating independently, a decision as to whether the condition was within power is not something to be decided in a vacuum. A decision as to whether a condition is within power needs to be grounded in facts.

288 The analysis of the witness statements set out above reveals that Ms Barber considered the question of the ownership of Ships, and the explanation of the relationship between Ships and Red Sun consistent with their asserted separate ownership, to be relevant and important to the issues for determination by the Tribunal.

289 Both witness statements went into considerable detail in seeking to explain the working relationship between Red Sun and Ships in terms consistent with the illusion of separate ownership of the two businesses.

290 A determination of whether Ms Barber intended to mislead the Tribunal in the 2008 Proceedings is to be made on the case as presented in those proceedings. It cannot be an answer to a complaint of misleading the Tribunal that, in retrospect, the evidence led was not relevant to the issue.

291 The issue for the Tribunal was not merely whether the condition as to independence was ultra vires, but also whether it was 'the correct and preferable decision'. As is apparent from counsel's written opening submissions, the separate ownership of Ships and Red Sun was seen as being relevant and indeed important to the question of whether the condition ought to have been imposed (Exhibit A, pages 237 ­ 240, especially paragraphs 38, 39, 43, 45, 48, 49, 52).

A further aspect of Ms Barber's credibility - her proof of evidence

292 Ms Barber's evidence (JB08/09) is unsigned, but in his letter to the Committee of 26 August 2010, her counsel described it as setting out much of the history of the matter (Exhibit A, page 384). Ms Barber agreed that her counsel's letter was written on her instructions (T: 60).

293 In her witness statement in these proceedings (Exhibit D, [35]), Ms Barber accepted that what was recorded in the draft statements which she prepared (including the one dated 14 September 2009) 'is a fairly accurate record of what I was told'.

294 Ms Barber prepared those proofs pursuant to Mr Fleming's request. Mr Fleming had said: 'These statements need to detail exactly what the verbal agreement between you was' (Exhibit A, page 299).

295 The proof of evidence was prepared in August and September 2009 (T: 57­60) when the events were relatively fresh in Ms Barber's mind. Nothing in the document itself, nor in her counsel's letter of 26 August 2010, suggested that Ms Barber's recollection of events as described in either document was qualified in any way by her memory or otherwise.

296 Ms Barber asserted that despite its title, it was not in fact intended to be a proof of evidence. It was merely 'background' and was not intended to be a complete statement of the relevant facts (T: 67).

297 The Tribunal agrees with the Committee's submission that Ms Barber's assertion should be rejected. The Tribunal agrees that the proof of evidence (JB 8/09) sets out a comprehensive account of the relevant events. The Tribunal finds that Ms Barber's evidence was not credible. The documents make it clear that she was asked to prepare and sought to prepare a proof of evidence.

298 The Tribunal had the opportunity to observe the manner in which Ms Barber gave her evidence. Having regard to this and the matters set out above the Tribunal finds that Ms Barber was not a credible witness.

The requisite finding as to Ms Barber's state of mind

299 The central issue is Ms Barber's state of mind at the relevant time; that is, whether Ms Barber knowingly misled the Tribunal as to the ownership of Ships.

300 The Tribunal accepts that the allegation of intention to mislead, is an allegation of dishonesty. Ms Barber has clearly stated in her evidence that she certainly did not have that intention. The Tribunal accepts that the Tribunal has to be satisfied that Ms Barber subjectively knew, and deliberately withheld information, as to the common beneficial ownership. It would not be enough to consider that Ms Barber should have known.

301 Paragraphs 39 ­ 43 of the Committee SIFC and Ms Barber's response are set out below:

1. As the practitioner, at all relevant times well knew, the witness statements of Mr Geappen and Mr Hill each:

(a) conveyed, either expressly or impliedly, the impression that Mr Hill was the owner of the Ships business; and

(b) concealed the fact that Red Sun was the owner of the Ships business.

Denied. The practitioner says further that Mr Hill, trading as Ships of the Desert, was the legal owner of the business and applicant for the licence.

1. At all material times, the practitioner well knew that:

(a) Red Sun, and not Mr Hill, was the owner of the Ships business; and

(b) the witness statements of Mr Geappen and Mr Hill were thereby misleading.

Denied. The practitioner says further that Mr Hill was the legal owner of the business.

1. The draft of counsel's submissions which she provided to the practitioner contained statements that:

(a) the full facts that Red Sun and Ships relied upon were set out in the witness statements of Mr Geappen and Mr Hill;

(d) in or about July 2007 Mr Hill purchased the Ships business;

(e) the nature of the relationship and the association between the Red Sun business and the Ships business was merely one of co-operation and was set out in detail in Mr Hill's and Mr Geappen's witness statements.

The practitioner agrees with paragraphs (a), (b), (c) and (d) and that the nature of the relationship and the business association between them and the co-operation between them was set out in detail in Mr Hill's and Mr Geappen's witness statements but denies that the submissions said that the relationship was merely of co-operation.

1. The practitioner failed to inform counsel that any of the statements referred to in the preceding paragraph were untrue or otherwise misleading.

The practitioner admits that she did not tell counsel that Red Sun was the beneficial owner of the Ships business but otherwise denies the paragraph.

302 For the reasons set out above, the Tribunal finds that paragraphs 39 ­ 43 of the Committee SIFC are proved. Ms Barber's denials are rejected.

303 Even starting from the presumption that it was improbable that Ms Barber would mislead the Tribunal, the Tribunal is satisfied that Ms Barber's subjective intention was to conceal Red Sun's beneficial ownership in Ships from the Tribunal and that in the course of the 2008 Proceedings, she knowingly mislead or attempted to mislead the Tribunal.

1. The practitioner's conduct with respect to the matters the subject of Ground 1 was professional misconduct within the meaning of s 403 of the LP Act in that it was:

(a) conduct occurring in connection with the practice of law that fell substantially short of the standard of competence and diligence that a member of the public was entitled to expect of a reasonably competent Australian legal practitioner;

(b) further and alternatively, 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;

(c) by reason of the matters at sub-paragraph (b) herein, unprofessional conduct and therefore unsatisfactory conduct within the meaning of the Legal Practice Act 2003.

The practitioner agrees that her conduct with respect to the matters the subject of Ground 1 was conduct occurring in connection with the practice of law, but otherwise denies the contentions contained in (a), (b) and (c).

1. Further and in the alternative, the practitioner's conduct with respect to the matters the subject of Ground 2 was professional misconduct within the meaning of s 403 of the LP Act in that it was:

(a) conduct occurring in connection with the practice of law that fell substantially short of the standard of competence and diligence that a member of the public was entitled to expect of a reasonably competent Australian legal practitioner;

(b) further and alternatively, 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;

(c) by reason of the matters at sub-paragraph (b) herein, unprofessional conduct and therefore unsatisfactory conduct within the meaning of the Legal Practice Act 2003.

The practitioner agrees that her conduct with respect to the matters the subject of Ground 2 was conduct occurring in connection with the practice of law, but otherwise denies the contentions contained in (a), (b) and (c).

306 The principles set out above make it clear that Ms Barber's obligation was not merely to not deceive the Tribunal but to be fully frank with the Tribunal. Ms Barber sought to deceive the Tribunal and was not, on any basis, fully frank with the Tribunal.

307 The Tribunal is satisfied that the allegations of professional misconduct stated in grounds 1 and 2 of the Committee SIFC are made out. Having regard to the Tribunal's findings, it is unnecessary to make a finding as to recklessness.

308 Ms Barber's actions in misleading the Tribunal amounted to a calculated course of conduct. Her actions were not an isolated act of responding to a question from the Tribunal under pressure. Ms Barber's actions were so calculated to mislead the Tribunal that they must amount to professional misconduct under both limbs of s 403 of the LP Act.

309 The Tribunal finds that Ms Barber, between or on about 30 June 2008 and 19 August 2006, engaged in professional misconduct within the meaning of s 403 and s 438 of the LP Act in that in the course of acting as instructing solicitor for Red Sun and Ships in the 2008 Proceedings, Ms Barber knowingly caused the Tribunal to be misled by submissions of counsel and by the tender of and reliance upon the Geappen Statement and the Hill Statement which as Ms Barber well knew:

(a) conveyed the impression, either expressly or impliedly, that from 1 July 2007 or thereabouts and at all material times thereafter, Mr Hill was the owner of the Ships business; and

(b) concealed the fact that from 1 July 2007 or thereabouts and at all material times thereafter, Red Sun was the owner of the Ships business;

when in fact, from 1 July 2007 or thereabouts, and at all material times thereafter, as Ms Barber well knew, Red Sun (and not Mr Hill) was the true owner of the Ships business.

310 For the reasons set out above, the Tribunal rejects the paragraphs set out by Ms Barber in response to Ground 2 of the Committee's SIFC.

311 This finding reflects Ground 2 of the complaint made by the Committee. The Committee also alleged in Ground 1 of the complaint that Ms Barber engaged in professional misconduct by preparing the submissions, Geappen Statement and the Hill Statement, causing Mr Geappen and Mr Hill to sign those statements and causing them to be filed at the Tribunal. Given that the statements and the submissions were actually used in the hearing of the 2008 Proceedings, and that Ms Barber's actions amounted to a single course of conduct, Ground 1 is effectively subsumed in Ground 2. It is not appropriate to make a separate finding in relation to Ground 1.

1. The Tribunal finds that Ms Barber between or on about 30 June 2008 and 19 August 2008, engaged in professional misconduct within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA) in that in the course of acting as instructing solicitor for Red Sun Camels Pty Ltd and Ships of the Desert in the 2008 Proceedings, Ms Barber knowingly caused the Tribunal to be misled by submissions of counsel and by the tender of and reliance upon the Geappen Statement and the Hill Statement which as Ms Barber well knew:

(a) conveyed the impression, either expressly or impliedly, that from 1 July 2007 or thereabouts and at all material times thereafter, Mr Hill was owner of the Ships of the Desert; and

(b) concealed the fact, that from 1 July 2007 or thereabouts and at all material times thereafter, Red Sun Camels Pty Ltd was the owner of Ships of the Desert;

when in fact, from 1 July 2007 or thereabouts, and at all material times thereafter, as Ms Barber well knew, Red Sun Camels Pty Ltd (and not Mr Hill) was the true owner of Ships of the Desert.

1. Costs are reserved.
2. The Legal Profession Complaints Committee is to file its submissions on penalty and costs by 1 October 2015.
3. Ms Barber is to file her submissions on penalty by 15 October 2015.
4. The matter is adjourned to a directions hearing on 27 October 2015 at 10 am to fix a date for the hearing of submissions as to penalty and costs.

I certify that this and the preceding [311] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

ACT : LEGAL PROFESSION ACT 2008 (WA)

CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE and BARBER [2015] WASAT 99 (S)

BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE

Knowingly misleading Tribunal - Suspension - Reprimand

Corruption and Crime Commission Act 2003 (WA), s 168, s 171

Legal Profession Act 2008 (WA), s 403, s 438

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

Practitioner suspended for six months, reprimanded and to pay Committee's costs

On 18 September 2015, the Tribunal published reasons for its decision in respect of allegations brought by the Legal Professional Complaints Committee against a legal practitioner, Ms Julia Barber. The Tribunal found that the practitioner had engaged in unprofessional conduct in 2008. The parties then made written submissions as to penalty.

The Tribunal considered the principles to be applied in relation to disciplinary penalties, the nature of the findings against Ms Barber and the parties' respective submissions.

The Committee sought an order that the practitioner be struck off.

The Tribunal found that Ms Barber's conduct in 2008 established that she had fallen below the high standards to be expected of a practitioner, but not in such a way as to indicate that she lacks the necessary qualities of character to be a practitioner.

The Tribunal was satisfied that upon completion of a partial suspension, she will be fit to resume practice.

The Tribunal determined that a period of suspension of six months is appropriate. If it were not for Ms Barber's conduct since 2008 and her particular circumstances in Broome, the period of suspension would have been much longer.

The Tribunal also determined that it was appropriate that Ms Barber be reprimanded.

Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1977) 41 NSWLR 630

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

Legal Profession Complaints Committee and Barber [2015] WASAT 99

Legal Profession Complaints Committee and Wells [2014] WASAT 112 (S)

Legal Profession Complaints Committee v Brickhill [2013] WASC 369

Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202

1 On 18 September 2015, the Tribunal found that Ms Barber, between on or about 30 June 2008 and 19 August 2008, engaged in professional misconduct within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA) (LP Act) in that in the course of acting as instructing solicitor for Red Sun Camels Pty Ltd and Ships of the Desert in proceedings before this Tribunal, she knowingly caused the Tribunal to be misled by submissions of counsel and by the tender of and reliance upon a witness statement of Mr John Geappen, dated 25 June 2008 and a witness statement of Mr Christopher Hill, dated 26 June 2008 which as Ms Barber well knew:

1. conveyed the impression, either expressly or impliedly, that from 1 July 2007 or thereabouts and at all material times thereafter, Mr Hill was the owner of Ships of the Desert; and
2. concealed the fact that from 1 July 2007 or thereabouts and at all material times thereafter, Red Sun Camels Pty Ltd was the owner of Ships of the Desert;

when in fact, from 1 July 2007 or thereabouts, and at all material times thereafter, as Ms Barber well knew, Red Sun Camels Pty Ltd (and not Mr Hill) was the true owner of Ships of the Desert.

2 These reasons deal with the appropriate penalty for Ms Barber.

3 The Tribunal's findings in Legal Profession Complaints Committee and Barber [2015] WASAT 99 established that the practitioner engaged in conduct that strikes at the heart of the relationship between lawyers and the Tribunal.

4 In Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 (Vogt) an affidavit sworn by the practitioner was misleading and at the time he swore the affidavit the practitioner knew it was misleading or was reckless as to whether or not it was misleading. Further, submissions made orally by the practitioner were misleading and at the time the practitioner made those submissions he knew they were misleading, or was reckless as to whether or not they were misleading.

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 the 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 [67].

6 In Legal Profession Complaints Committee v Brickhill [2013] WASC 369 (Brickhill), the practitioner was convicted of:

1. giving misleading evidence contrary to s 168 of the Corruption and Crime Commission Act 2003 (WA) (2003 Act); and
2. knowing that a document or thing was or may be required by the Corruption and Crime Commission, counselled a person to destroy that document or thing with the intention of preventing it from being effectively used in evidence, contrary to s 171 of the 2003 Act.

7 In Brickhill at [21]­[22] the Court stated:

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].

8 The principles relevant to penalty are set out in this Tribunal's decision in Legal Profession Complaints Committee and Wells [2014] WASAT 112 (S) (Wells).

1. The jurisdiction of the Tribunal is protective rather than punitive, and such protection runs to both the public and the profession (Re Maraj (a Legal Practitioner) (1995) 15 WAR 12 at 25 (Maraj)); Legal Profession Complaints Committee v Love [2014] WASC 389 (Love) at [19]; Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 (Foreman) at 440G - 441A - B; Legal Profession Complaints Committee and in de Braekt [2013] WASAT 124 at [24] - [26]; NSW Bar Association v Hamman [1999] NSWCA 404 (Hamman) at [21] and at [77]).
2. The appropriate sanction is to be considered at the time of the making of the sanction and not by reference to the date of the unprofessional acts (Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37(S) (A Legal Practitioner (S)) at [23]; Legal Profession Complaints Committee v Segler [2014] WASC 159 (Segler) at [7]; A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253 (A Solicitor [2004] NSW) at [15]; Love at [16]).
3. It is the practitioner's conduct that attracts any sanction (A Legal Practitioner (S) at [24]; Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 267 - 268 and 271 - 272; A Solicitor [2004] NSW).
4. As the Tribunal explained in A Legal Practitioner (S) at [24]:

... [I]n 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[.]

1. Where there is a choice of sanctions, the Tribunal will choose that sanction which maximises the protection of the public (Quinn v Law Institute of Victoria [2007] VSCA 122 at [31]).
2. The dominant purpose of the disciplinary regulation of the legal profession is the protection of the public by the maintenance of proper standards within the profession. Hence, the impact which an appropriate penalty would have upon a practitioner guilty of misconduct, and personal hardship to a practitioner, are necessarily secondary considerations (see Legal Profession Complaints Committee v Detata [2012] WASCA 2014 (Detata) at [47] and Legal Profession Complaints Committee v Masten [2011] WASC 71 at [29]; Legal Profession Complaints Committee and Leask [2010] WASAT 133 at [54]).

1. The jurisdiction of the Tribunal to remove a practitioner from the Roll is exercised not for the purpose of punishing the practitioner concerned, but for the protection of the public and the reputation and standards of the legal profession: Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 at [43].
2. Where an order for removal from the Roll is contemplated, the ultimate question is whether the material demonstrates that the practitioner is not a fit and proper person to remain a legal practitioner: A Solicitor v The Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253 at [15].
3. A practitioner is not a fit and proper person to be a registered practitioner and should be removed from the register where the unprofessional conduct is so serious that the practitioner is permanently or indefinitely unfit to practise (Howe (No 2) at [27]; Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 (Darveniza) at [38]; Love at [17] - [18]; A Legal Practitioner (S) at [21] - [25]; Legal Profession Complaints Committee v Brickhill [2013] WASC 369 at [19] - [20] (Thomas JA, McMurdo P and White J agreeing); New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [26] - [28]); Love at [17] - [18].

1. Suspension is a less serious result and differs from removal from the Roll because suspension is for a specified limited period and the practitioner has a preserved right to resume practice without any further onus upon them to prove that they are a fit and proper person to practice (A Legal Practitioner (S) at [26]; LPCC v Pepe [2009] WASC 39 at [12]).
2. The proper use of suspension is in cases where the 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/she lacks the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of a practitioner (A Legal Practitioner (S) at [26]; Re A Practitioner (1984) 36 SASR 590, at 593 per King CJ). That is, suspension is suitable where the Tribunal is satisfied that, upon completion of the period of suspension, the practitioner will be fit to resume practice (A Legal Practitioner (S) at [27]).

10 In Wells at [20], the Tribunal identified the following 12 relevant considerations, noting they are interrelated, and neither mutually exclusive nor exhaustive:

(1) any need to protect the public against further misconduct by the practitioner;

(2) the need to protect the public through general deterrence of other practitioners from similar conduct;

(3) the need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions and thereby articulating the high standards expected of the profession, such that, even where there may be no need to deter a practitioner from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval;

(4) in the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner;

(5) whether the practitioner has breached any Act, regulations, guidelines or code of conduct, and whether the practitioner has done so knowingly;

(6) whether the practitioner's conduct demonstrated incompetence, and if so, to what level;

(7) whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future;

(8) the practitioner's disciplinary history;

(9) whether or not the practitioner understands the error of his or her ways, including an assessment of any remorse and insight (or a lack thereof) shown by the practitioner, since a practitioner who fails to understand the significance and consequences of misconduct is a risk to the community;

(10) the desirability of making available to the public any special skills possessed by the practitioner;

(11) the practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction; however the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and in the maintenance of proper standards of legal practice; and

(12) the Tribunal may consider any other matters relevant to the practitioner's fitness to practice and other matters which may be regarded as aggravating the conduct or mitigating its seriousness; in general, mitigating factors such as no previous misconduct or service to the profession are of considerably less significance than in the criminal process because the jurisdiction is protective not punitive.

11 In Wells at [20(10)] the Tribunal identified the desirability of making available to the public any special skills possessed by the practitioner as a factor to be considered. The Tribunal has concluded that the availability of the skills of a practitioner in a geographical area, particularly a remote area, is sufficiently analogous to special skills, to be considered in fixing penalty.

12 In Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1977) 41 NSWLR 630 (Litchfield) at 637C, the New South Wales Court of Appeal held:

In cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. As Walsh JA said in Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461; 84 WN (NSW) (Pt 2) 275 at 286:

... Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man.

13 A mere lapse of time is not sufficient to establish that a practitioner has reformed. Something more is required.

Practice in Broome and personal financial circumstances

14 Of necessity, given the nature of practice in Broome, Ms Barber practices in a number of areas of law. A breakdown of Ms Barber's practice files was provided. She currently has over 400 files open.

15 Ms Barber is engaged in approximately 90% of the matters on the list in the Family Court when it comes to Broome on circuit six times during the year (three times with a Magistrate and three times with a Judge).

16 Ms Barber is the only independent children's lawyer between Geraldton and Kununurra and the only private lawyer in the Kimberley who is on the legal aid panel for appointments in care and protection matters in the Children's Court and in the Family Court.

17 Between 20 to 30% of Ms Barber's work is legally aided and about 10% is pro bono, usually in the Family Law area. Until recently she was the only private lawyer in Broome. There is now one other who would undertake any legal aid work including criminal law.

18 There are only two other private firms in Broome and in those firms only three private legal practitioners. Those firms undertake only a small amount of the family law work in Broome and due to the small number of firms, conflicts often arise.

19 Ms Barber has been a member of the Family Law Practitioners Association as the country representative for approximately six years and a member of the Country Law Practitioners Committee of the Law Society.

20 Ms Barber employs a restricted practitioner, Mr Michael Bycroft, who requires ongoing supervision.

21 Ms Barber also supports Mr Bauman, a very experienced criminal lawyer, by paying for his practice certificate and briefing him to provide services in criminal matters. She has given him a room in her practice for 11 years without requiring any rent or contributions to outgoings. He is able to offer significantly reduced rate criminal law services particularly to indigenous clients because of her support.

22 Ms Barber submits that a suspension from practice will result in most of those clients being unable to obtain legal representation. Despite enquiry, Ms Barber has been unable to source a locum to supervise her practice during any period of suspension.

23 Ms Barber provided tax returns for herself, her company and her trust. She has also provided details of her assets and liabilities. The Tribunal does not need to set out those details in these reasons. It accepts that Ms Barber is financially pressured and would have difficulty paying any substantial fine in addition to the Committee's costs.

24 Ms Barber was a single mother of three children in 2008. She still supports two of her children.

25 At the time of the offending behaviour, Ms Barber was under a great deal of stress and worry dealing with her son's problems and her secretary of four years had cancer.

26 Ms Barber was supporting not only her own but her secretary's teenage children through the period of her secretary's illness and death.

27 A number of references for Ms Barber were admitted into evidence. Extracts are set out below.

I consider Julia's dealings with the Court and her clients to at all times have been appropriate and honest. She has properly counselled clients about the inclusion of matters against interest in their material, including (for example) appropriate disclosure and sought to negotiate and settle matters where possible to assist clients to a more speedy and cost effective resolution to their affairs. Julia also acts as an Independent Children Lawyer from time to time in family law matters and undertakes both pro bono and Legal Aid work.

I have been instructed on several trials for Julia over the years both in Broome and in Perth, and have not had cause for concern about the state of the evidence, the documents drafted and produced or the realistic expectations of the clients. Julia's clients seem very happy with her representation and I am aware that much of her work is 'word of mouth' referral from previous clients or family members. Julia is however sensitive to inappropriate representation and has referred close friends to alternate solicitors rather than compromise herself in that regard.

I am also the President of the Family Law Practitioners's Association of WA (Inc) and have held that position for 3 years, having previously been the Vice President for several years and prior thereto, the Secretary. For much of that time (and currently) Julia has been the elected Country Representative. Julia has in that time identified some of the particular practical and procedural issues which affect regional practitioners and sought to highlight those for the Court. Further, Julia has been active in the past in promoting arid arranging CPD events in Broome for all local practitioners by asking visiting Counsel or Judiciary to meet with and address them about a range of issues, and often resulting in engaging discussion about practice. Julia is an active participant in seminars and conferences that FLPA arrange over a year and regularly attends our annual conference.

Throughout our professional working relationship Ms Barber has always maintained professional, ethical and honest dealings with both myself and our clients. [She] has assisted a number of my clients who have been very happy with her work.

Ms Barber undertakes a considerable amount of pro-bono work in family law cases as well as teenagers and young adults in relation to crime. Ms Barber was a long standing president of the local primary school's P&C and does voluntary work for the Broome Turf Club each year and has done for a number of years. The most admirable trait I have learnt is that Ms Barber has a history of caring and housing troubled teenagers one of which was a past staff member of my business.

In Broome as a regional centre it is very difficult to obtain professional services including legal services due to the lack of local professionals and retention of staff. Local residents prefer to deal with local businesses to have that long term relationship. In my view it would be very detrimental to the community of Broome to lose a professional, for any length of time, for which they trust and have built a long term relationship. It would be very difficult for those clients to be able to replace those services locally. Ms Barber is well regarded in the community with a very good reputation as a practicing lawyer and we are very fortunate to have Ms Barber's expertise and services available in our town.

30 Ms Vicki Platt of the Legal Aid Commission stated:

I have always found and observed Ms Barber to conduct herself in both her personal and professional relationships with the upmost probity. I am confident that she has in the past and will continue in the future to make a valuable contribution to both the Broome and wider Kimberley community, and the profession at large.

I appreciate that the guilty verdict has been pronounced but I can categorically say that the finding is completely at odds with the person I have now known and closely worked with for 11 years and whilst I fully appreciate that the matter is a very serious one I believe that the matter was certainly a one off and not part of Julia's usual character or behaviour and I hope that this Honourable Court is minded to look favourably on the overall contribution Julia has made to the legal practice, particularly within Broome and I hope that she will be able to continue with her practice and the service she has provided to Kimberley residents for the past 14 years.

32 Mr Antoine Bloeman, a former Magistrate in Broome stated:

During my time as Kimberley Magistrate from 1999 to 2008, many barristers and solicitors appeared before me.

One outstanding one who came to my attention very early on was Julia Barber. She appeared in my court on numerous occasions. My observation was that she was a very competent, committed and caring barrister and solicitor for her clients and for the Court.

Julia consistently represented her clients in the most open way and never misled the Court in any way. In fact, knowing that the Kimberley courts were often late in getting updates on rules and alterations in legislation, she would always update me on any relevant changes either prior to or at the beginning of a hearing.

I had my full trust in Julia Barber as an officer of the Court and as a barrister and solicitor. She consistently demonstrated her professional and personal integrity both inside and outside of court.

Julia is a key member of the Broome legal fraternity as well as volunteer in the wider community. I know, as a Broome resident, how much she is respected by many people for her contributions. In addition, she often represents many people on a pro bono basis when they cannot obtain legal aid.

I consider the Kimberley fortunate to have such an outstanding barrister and solicitor who is also a committed citizen in our local community.

In relation to the decision by the Tribunal, although the question of ownership of the business was not an issue in the 2008 proceedings and the 2008 Tribunal made no finding as to that, I am, of course, fully cognisant of the seriousness of such a finding against a legal practitioner and of the absolute obligation of, in particular, practitioners, to be completely candid with the Court. I know that Julia is also fully aware of, and committed to, that principle.

It would not be appropriate for me to make any comment on the facts, or the finding made against her. However, I must say that, based on my observations of Julia Barber over the years that I have known her, both as a Magistrate and as a Broome resident, for her to attempt to mislead a court would have been completely out of character and an aberration from the high standards which she has always observed. I can only attribute this to the pressures and personal difficulties which I understand she was experiencing at that time in her life.

In summary, I have the highest opinion of Julia Barber both professionally and personally. It would be a tremendous loss not only to the Kimberley but the West Australian legal community if this intelligent, committed and hard working lawyer of great integrity was disbarred after contributing so much to the work of the courts in which she has appeared during her practice.

I was previously the Shire President and was on the Shire as a committee member for 16 years. I am again the Shire President. I also have a number of business associations within the town. I therefore hear much about what is going on. I know of Julia's professional reputation and I am aware of the volume of work that she does on a pro bono or heavily discounted basis and that she has done so for the entire time she has practised in Broome. I also know that she raised her children by herself and that, on top of that, she assisted in raising the children of others who for various reasons were unable to look after them themselves.

...

Whilst I have read the papers and scanned the judgment about Julia, I can say that this is not a representation of the person who I have known for many years and when people comment to me about Julia both on a personal level and on their dealings with her, there has been nothing but positive things said about her and the professionalism and honesty she has consistently demonstrated. Many people have expressed their support for her and their dismay at the prospect that Broome and the Kimberley could lose her services as a lawyer, and the contribution she makes, generally, to the Community.

I found Julia to be a competent practitioner, committed to her clients, and who, as a country practitioner, recognised when she might need assistance and took steps to seek it out. On the one occasion that an issue arose regarding her ethical obligations, she sought and accepted advice.

35 Ms Barber's references are all extremely complimentary. They evidence a woman committed to her work, to her clients and to the larger Broome community. The references indicate that Ms Barber's conduct in this matter was out of character.

(1) Having considered the references and Ms Barber's contribution to the legal and the wider community, the Tribunal is satisfied that there is no need to protect the public against any further misconduct by Ms Barber.

(2) & (3) Ms Barber's conduct does require an emphatic indication of the Tribunal's disapproval.

(4) & (5) The Tribunal is satisfied that Ms Barber's conduct, although sustained, was in context a single extended act and that the public and fellow practitioners and therefore this Tribunal can place reliance on Ms Barber's word.

(6) Ms Barber's conduct does not demonstrate incompetence.

(8) Ms Barber has no disciplinary history.

(9) Ms Barber had not demonstrated any remorse. The Tribunal notes that Ms Barber either admitted or did not dispute many of the Committee's allegations of fact. However, Ms Barber's involvement in the carriage of the matter was not conceded until very shortly before the hearing.

The Tribunal notes with some concern that Mr Bloeman's reference states:

In relation to the decision by the Tribunal, although the question of ownership of the business was not an issue in the 2008 proceedings and the 2008 Tribunal made no finding as to that ...'.

and the Tribunal could infer that the source of that statement was Ms Barber. Ms Barber should save her arguments for the appeal court.

The failure to express remorse may demonstrate that a practitioner maintains a risk to the community, the Tribunal is satisfied in these particular circumstances that Ms Barber's conduct is not such that she remains a risk to the community following a period of suspension.

The lack of remorse leads the Tribunal to infer that Ms Barber has not fully appreciated the gravity of her conduct.

(10) Although Ms Barber does not possess special skills per se, she is a practitioner in a remote community. The need to service that community is an important consideration. This is not a situation where a practitioner is incompetent. If it were so, then it would be inappropriate to allow her to continue to practise even in a remote community.

(11) At the time of Ms Barber's conduct, she was under considerable personal strain due to the illness and death of her secretary. She was also experiencing problems with her son. This goes some of the way to explain her conduct. Although her son remains a potential problem the stress associated with her secretary's illness has passed.

(12) Ms Barber has given significant service to the Broome legal community and the wider community.

36 Ms Barber was not acting at the direction of, or under pressure from any other more senior practitioner.

37 Ms Barber had briefed counsel and could have, and should have, discussed the issue with him.

38 Ms Barber's conduct since 2008 has satisfied the Tribunal that her conduct in 2008 was not characteristic of her general practice and character.

39 The Committee sought an order that Ms Barber be struck off. Obviously, in many cases where a court or tribunal is misled, striking off will be the appropriate penalty, for example, Brickhill. However, that is not always the appropriate penalty, for example, Vogt.

40 Ms Barber's conduct in 2008 establishes that she has fallen below the high standards to be expected of a practitioner, but not in such a way as to indicate that she lacks the necessary qualities of character.

41 The Tribunal is satisfied that upon completion of a period of suspension, whilst recognising Mrs Barber's unique circumstances, she will be fit to resume practice.

42 The Tribunal regards Ms Barber's conduct as more serious than that of Mr Vogt. Her conduct was over a longer period and involved a range of documents that were prepared for the 2008 proceedings.

43 However, since Ms Barber's offending conduct took place, she has behaved in a manner that satisfies the Tribunal that the offending conduct was an isolated incident. She has made a significant contribution to the legal profession and the wider Broome community as evidenced by her references. If it were not for Ms Barber's conduct since 2008 and her particular circumstances in Broome, the period of suspension would have been much longer.

44 The Tribunal has determined that a period of suspension of six months is appropriate. A period of suspension of six months shows the Tribunal's emphatic disapproval.

45 It is also appropriate that Ms Barber be reprimanded.

46 The Tribunal appreciates the significant personal impact this will have on Ms Barber, but a lesser period of suspension would not amount to a significant deterrent to other practitioners.

47 Notwithstanding the general position stated in s 87(1) of the State Administrative Tribunal Act 2004 (WA), where disciplinary proceedings have been commenced in the public interest by a vocational regulatory body and the vocational regulatory body has been successful in those proceedings, ordinarily the affected person should be ordered to pay the costs of the proceedings incurred by the vocational regulatory body: Legal Practitioners Complaints Committee and Benari [2005] WASAT 213 (S) at [25].

48 The Committee sought costs of $38,812 inclusive of GST. Ms Barber did not dispute the costs. The Tribunal has considered the schedule provided by the Committee. The costs sought by the Committee are fair. Ms Barber is ordered to pay the Committee's costs of $38,812.

1. Ms Julia Barber is suspended from practice for a period of six months from 14 December 2015.
2. Ms Julia Barber is reprimanded pursuant to s 439(d) of the Legal Profession Act 2008 (WA).
3. Ms Julia Barber is to pay the Legal Profession Complaints Committee's costs of $38,812 by 12 February 2016.

I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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