BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE

Vocational regulation ­ Legal practitioners ­ Unsatisfactory professional conduct ­ Incompetence ­ Whether practitioner advanced 'untenable' or 'unarguable' case and therefore acted incompetently ­ Whether practitioner could reasonably argue that an agreement remained enforceable after previously sending correspondence repudiating the agreement ­ Privilege - Whether it was reasonably arguable that the correspondence was subject to settlement or 'without prejudice' privilege - Practitioner admitted to unsatisfactory professional conduct by failing to confer with opposing counsel as directed by trial judge and by requiring witness for unnecessary cross­examination

Legal Practice Act 2003 (WA)

Legal Profession Act 2008 (WA), s 402, s 428, s 438(1), s 622

State Administrative Tribunal Act 2004 (WA), s 60(2)

Ainsworth v Roberts [2008] WASC 289

Field v Commissioner of Railways (NSW) [1957] HCA 92; (1957) 99 CLR 285

Legal Profession Complaints Committee and Fitzpatrick [2011] WASAT 20

Tenstat Pty Ltd v Permanent Trustee Australia Ltd (1992) 28 NSWLR 625

1 The Legal Profession Complaints Committee brought professional disciplinary proceedings against Mr Eapon Carlose, a legal practitioner, alleging three instances of unsatisfactory professional conduct under the Legal Profession Act 2008 (WA), committed while the practitioner acted for a client in defending a civil proceeding in the Supreme Court of Western Australia.

2 Two of the allegations, that the practitioner failed to confer with counsel for the plaintiffs as directed by the trial judge, and that the practitioner unnecessarily required a witness to attend court for cross­examination when that witness had to travel to Perth from Kojonup, were admitted by the practitioner and found by the Tribunal to amount to unsatisfactory professional conduct.

3 The third allegation, that the practitioner acted incompetently in conducting the client's case, was contested by the practitioner. It was alleged that it was untenable for the practitioner to contend at the trial of the proceeding that a family agreement remained enforceable, because the practitioner had, at an earlier stage, sent a letter repudiating the agreement on behalf of the client, received acceptance of the repudiation from the plaintiffs' solicitors, and filed five prior versions of a defence to the proceedings consistent with the repudiation of the family agreement.

4 The Tribunal found that it was not reasonably arguable and, indeed, was untenable for the practitioner to contend prior to and at the trial that the family agreement was enforceable, in light of the earlier position he had taken repudiating the agreement on behalf of the client. The Tribunal also found that the practitioner ought to have appreciated that this was an unarguable position to maintain at the trial and that he was therefore pursuing an untenable case.

5 The Tribunal determined that, for a practitioner to advance a case before a court or tribunal that is not reasonably arguable, and ought to have appeared as not reasonably arguable to a reasonably competent legal practitioner, is conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect from a reasonably competent practitioner. The Tribunal was therefore satisfied that the practitioner had acted incompetently and that the conduct amounted to unsatisfactory professional conduct.

6 The Tribunal's reasons, taken from the transcript and edited in minor respects for clarity, were as follows.

7 Pursuant to s 428 of the Legal Profession Act 2008 (WA) (LP Act), the Legal Profession Complaints Committee (Committee) has referred three matters concerning Mr Eapon Carlose (practitioner) to the Tribunal seeking findings under s 438(1) of the LP Act that the practitioner has engaged in unsatisfactory professional conduct in three respects. Only one of those matters, namely, ground (a), is contested. Ground (a) involves an allegation that the practitioner acted incompetently in relation to certain litigation in the Supreme Court of Western Australia. The Committee contended that the practitioner advanced an untenable proposition on behalf of his client. The essential difference between the Committee and the practitioner was whether, as the practitioner contended, the case advanced by the practitioner on behalf of the client was reasonably arguable.

8 Ground (a), which is in dispute, contains two paragraphs. As explained by Mr JC Vaughan of counsel, who appeared on behalf of the Committee with Mr RI Fletcher, para 1 under ground (a) is not put forward as an independent allegation, but rather, serves to inform para 2. In essence, the finding that the Committee seeks the Tribunal to make is in terms of para 2 of ground (a). Ground (a) states as follows:

That the practitioner Eapon Carlose (practitioner) engaged in unsatisfactory professional conduct between about May 2006 and 20 June 2008 when acting on behalf of Judith Dawn Roberts (client) as solicitor and as counsel appearing at trial in relation to the dispute, the subject of Supreme Court of Western Australia action CIV 1677 of 2006 (action) in that he acted incompetently in:

1. Contending by a letter dated 31 May 2006 (31 May letter), written in response to the client's father's facsimiles dated 23 May 2006 (23 May facsimiles), that:

(a) the family agreement (as defined in paragraphs 5 to 6 below) (Family Agreement) was unenforceable; and

(b) the first of the 23 May facsimiles amounted to a repudiation of the family agreement which the practitioner accepted on behalf of the client; and

1. Subsequently defending the plaintiff's claim in the action and prosecuting a counterclaim by the client in the action on the basis the family agreement continued to be enforceable at the suit of the client when that was untenable given:

(a) the contents of the 31 May letter (and the responses thereto on behalf of the plaintiffs in the action); and

(b) the first five version[s] of the client's defence in the action as prepared by the practitioner and being:

(ii) a minute of proposed substituted defence dated 5 September 2006;

(iii) a minute of proposed substitute defence dated 14 September 2006;

(iv) a minute of proposed substitute defence dated 26 September 2006; and

(v) a minute or proposed substituted defence dated 10 October 2006.

9 Ground (b), which is not contested, states as follows:

That the practitioner engaged in unsatisfactory professional conduct on 11 June 2008 and 12 June 2008 in failing to confer with counsel for the plaintiffs in the action, either after court on 11 June 2008 or before court on 12 June 2008, in circumstances where:

1. The practitioner appeared as counsel for the client on the trial of the action (trial) before the Chief Justice of Western Australia the Hon Wayne Martin (Chief Justice); and
2. At around 4.15 pm on 11 June 2008, during the trial, the Chief Justice directed counsel for the parties to confer after court that afternoon, in relation to a proposed statement of agreed facts.

10 Ground (c), which is not in dispute, states as follows:

That the practitioner engaged in unsatisfactory professional conduct on or about 12 June 2008, during the trial, in requiring the attendance of a witness, Glenys Estelle Russell (Ms Russell), for cross­examination at the trial in circumstances where:

1. The practitioner was appearing as counsel for the client on the trial;
2. Ms Russell had provided a sign witness statement prior to the commencement of the trial and a copy of the witness statement had been provided to the practitioner;
3. Ms Russell lived in Kojonup and was obliged to travel from Kojonup to Perth to attend court to give evidence; and
4. The practitioner's cross­examination of Ms Russell consisted of four brief non­contentious questions.

11 The essential facts are not in dispute and can be briefly summarised as follows. The practitioner acted for the client in proceedings involving her parents and four siblings. The dispute concerned an agreement for restructure of assets held by the family through certain trusts. The agreement was referred to as the 'family agreement'. The family agreement enabled the client to obtain, in substance, full control of the family cherry farm business and land which the parties to the agreement accepted had a value of $658,000. Documents were executed pursuant to the family agreement. The documents included a transfer of land in registerable form. On execution in February 2006, the documents were held by a solicitor pending completion. Completion required the client to pay $94,000 to each of the four siblings. While the parents were also entitled to $94,000 each under the family agreement, that is a total of $188,000, they agreed to provide an interest­free loan to the client for that amount.

12 On 23 May 2006, the client's father sent two facsimiles to the client. The facsimiles demanded payment of the $94,000 amounts to the four siblings by 7 June 2006 and payment of the $188,000 loan from the parents by 30 June 2006. The client's father said that the $188,000 was required for entry bond to a retirement village. The client then attended the solicitor's office and, although not having paid any of the $94,000 amounts to her siblings or the $188,000 to her parents, obtained and took possession of the documents. The client lodged the transfer and obtained registration as sole proprietor of the land.

13 The practitioner responded to the 23 May 2006 facsimiles by a letter dated 31 May 2006. The practitioner's letter dated 31 May 2006 was headed 'WITHOUT PREJUDICE' (underlining omitted) and referred to the 'Family Dispute'. The letter stated as follows:

Your letter dated 23 May 2006 and the enclosed demand both addressed to Judith Dawn Roberts has been referred to me with instructions to respond.

At the outset, my client has requested that I convey her deep regret and concern that the family has been alienated into two separate camps with her on one side and the remaining family members, including you, acting in concert against her. I assume that the reference to 'we' in the above letter, represents you and all the remaining members of the family ­ Eric, Kaye, Joan and Lesley [­] and that the letter has their approval and consent.

As regards the document captioned 'Family agreement', my client is of the view that the agreement is unenforceable. In any event, and without prejudice to the above, the above letter amounts to a repudiation of the 'family agreement', which I hereby accept.

Suffice to say, at this stage, that my client will resist all attempts to have the 'agreements' enforced.

As you may be aware, my client has lodged the Transfer of Land document, duly executed by the transferors and the transferee with the Registry of Titles, effecting the transfer of the property on which the business Chippendale Cherry Farm is being carried on. The document expressly states that the consideration for the transfer is the Deed of Appointment of New Trustee dated 17 Feb 2006. The question of ownership of the property is no longer a live one.

Notwithstanding the above, my client is prepared, and has at all times been ready and willing to pay Kaye, Joan and Lesley their share provided[:]

1. they each sign and return the release and discharge document handed to them earlier[;] and
2. a sum equivalent to their share of the balance of expenses and charges for your stay at the Bethel Village be deducted from the amount payable to them.

As far as Eric is concerned, in addition to his share of the above expenses and charges, the sum due and owning from him to my client has also to be deducted. I am instructed that this will leave my client in credit. Eric will also need to sign a Release and Discharge reflecting his acknowledgement that the amount payable to him has been offset by the above deduction and partial payment of the sum due and owing to my client. As far as you are concerned, the whole sum payable to you will be utilised to meet the above expenses and charges.

As regards the vehicle, you have been made aware that the sum of $11,000 has been put in the safe together with the other amounts I have been keeping in trust for you.

If the above is accepted in principle, I believe the amounts and the mechanism should not, and will not, be the subject of controversy.

I await your urgent response.

14 The client's parents and siblings considered that the client's conduct, including the 31 May 2006 letter from the practitioner to the client's father, was a repudiation of the family agreement. By letter from their solicitor, the parents and siblings of the practitioner's client accepted the repudiation. Litigation was then commenced in the Supreme Court seeking to undo the transfer of land. In particular, the plaintiffs sought a declaration that the family agreement is void and of no effect, an order for the re­transfer of the land and other relief.

15 The practitioner acted for the client in the litigation. In the initial defence filed on behalf of the client by the practitioner on 20 July 2006, it was contended that the client had not repudiated the family agreement but that the family agreement was unenforceable for reasons of illegality. The practitioner also pleaded that the 31 May 2006 letter was inadmissible as a 'without prejudice' communication. In four subsequent defences or minutes of proposed defence, the client, by the practitioner, persisted in the contention that the family agreement was unenforceable for reasons of illegality.

16 However, from 13 November 2006, the client, by the practitioner, withdrew the allegation that the family agreement was unenforceable and, in a substituted defence and counterclaim filed on 13 November 2006, the client, by the practitioner, denied that the family agreement was at an end. Instead, orders were sought for its performance. That continued to be the way the practitioner conducted the client's case up to and including the trial in June 2008.

17 By the time of the trial, the case that the practitioner was advancing on behalf of the client also involved contentions that the 31 May 2006 letter was inadmissible as a without prejudice communication and, further, that the client was, and had always been, willing to pay the $94,000 amounts, other than a set off claimed in respect of one sibling, on being appointed sole guardian and appointor of one of the trusts.

18 The hearing of the case took place before Martin CJ in June 2008 and the practitioner appeared as counsel for the client. His Honour delivered judgment on 12 December 2008 in which the plaintiff's application was allowed and the practitioner's client's counterclaim was dismissed: see Ainsworth v Roberts [2008] WASC 289 (Ainsworth). Among other things, the Chief Justice held that:

• the 31 May 2006 letter was admissible; that is, it was not inadmissible as being subject to a settlement or 'without prejudice' privilege (at [65] ­ [67]);
• the 31 May 2006 letter constituted a renunciation of the family agreement which was accepted by the plaintiffs as having brought the agreement to an end by their solicitor's letter (at [105] ­ [106]); and
• in any event, the first five versions of the client's defence as prepared by the practitioner also constituted a renunciation of the family agreement 'and would of themselves have been quite sufficient to justify the plaintiffs treating the agreement as at an end (as they did in their pleading)' (at [106]).

The Committee's case and the practitioner's response in relation to ground (a)

19 The Committee contended that, in conducting the client's case, the practitioner acted 'incompetently', which term was used as a shorthand expression for the practitioner being relevantly guilty of 'unsatisfactory professional conduct' under the LP Act. The Committee's case was that there were no reasonable grounds to contend at the trial, if not before, that the family agreement continue to be enforceable at the suit of the client. The Committee argued that the case as advanced by the practitioner on behalf of the client was untenable, given three factors, namely:

1. the contents of the 31 May 2006 letter as prepared by the practitioner;
2. the response to that letter from the plaintiffs' solicitor; and
3. the first five versions of the client's defence as prepared by the practitioner.

20 The practitioner denied any unsatisfactory professional conduct for reasons which will be discussed below.

21 The conduct that is the subject of the referral occurred prior to the commencement of the LP Act on 1 March 2009. Nevertheless, s 622 of the LP Act provides that Pt 13, which relates to complaints and discipline, applies in relation to conduct of Australian lawyers and Australian legal practitioners 'whether the conduct occurred before or after the commencement day'. As observed in Legal Profession Complaints Committee and Fitzpatrick [2011] WASAT 20 at [7], the Tribunal must be, in a case involving conduct occurring prior to the commencement of the LP Act, 'satisfied that the conduct established constitutes unsatisfactory conduct under the [Legal Practice Act 2003 (WA), which applied at the time of the conduct in this case] and that any penalty is within the range permitted by that legislation'. The Committee contended, and the Tribunal accepts, that the former condition will be satisfied if there is a finding of 'unsatisfactory professional conduct' under the LP Act.

22 Section 402 of the LP Act provides that unsatisfactory professional conduct includes the following:

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

23 In this case, the impugned conduct the subject of ground (a) clearly occurred in connection with the practice of law, as it was conduct in relation to the conduct of litigation.

24 For a practitioner to advance a case before a court or tribunal that is not reasonably arguable, and ought to have appeared as not reasonably arguable to a reasonably competent legal practitioner, is conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect from a reasonably competent practitioner. As Professor GE Dal Pont has observed in Lawyers' Professional Responsibility (4th ed, 2010) at [17.235]:

The challenge is to distinguish cases that are weak but arguable from those that are destined to failure. A lawyer may legitimately represent a client in the former event ­ provided, of course, that the client is informed as to the weakness of the case and the likely consequences of pursuing the matter ­ but not in the latter. So a lawyer may ethically put forward a claim or an argument based upon a good faith argument for an extension, modification or reversal of existing law but[,] as explained by Davies JA in Steindl Nominees Pty Ltd v Laghaifar:

[I]t is one thing to present a case which is barely arguable (but arguable nevertheless) but most likely to fail; it is quite another to present a case which is plainly unarguable and ought to be so to the lawyer who presents it. In my opinion, with respect, it is improper for counsel to present, even on instructions, a case which he or she regards as bound to fail because, if he or she so regards it, he or she must also regard it unarguable. (Steindl Nominees Pty Ltd v Laghaifar [2003] QCA 157; [2003] 2 Qd R 683 at [24], citations otherwise omitted)

25 The principal issue for determination by the Tribunal in this case is whether the case advanced by the practitioner on behalf of the client between 13 November 2006 and 20 June 2008 was not reasonably arguable.

Did the practitioner advance a case that was not reasonably arguable?

26 In the Tribunal's view, the practitioner acted incompetently by advancing a case that the family agreement was enforceable at the suit of the client. This case was not reasonably arguable and, indeed, we find was untenable. In his letter dated 31 May 2006, the practitioner said:

As regards the document captioned 'Family agreement', my client is of the view that the agreement is unenforceable. In any event, and without prejudice to the above, the above letter amounts to a repudiation of the 'family agreement', which I hereby accept.

27 As the Chief Justice said in Ainsworth at [105] ­ 106]:

There are many cases dealing with the circumstances in which a party will be found to have evinced an intention no longer to be bound by the contract, or only willing to perform it in a manner substantially inconsistent with the party's obligations (sometimes described as anticipatory breach). The principles are well enunciated, and some of the older cases conveniently collected in Rigg v Lee Joy Singh [1987] WAR 333. If this case were at all marginal, it might be necessary or appropriate to refer to those authorities. However, on the facts which I have found, it is hard to imagine a clearer case of renunciation. The letter of 31 May 2006 written by a solicitor acting on behalf of Ms Roberts clearly and unequivocally denied the existence or enforceability of any agreement between the parties and foreshadowed resistance to any attempts to enforce the agreement. To the extent that a suggested payment might be made by Ms Roberts in the future, it was in terms that were substantially inconsistent with her obligations under the agreement.

The renunciation was accepted by the plaintiffs as having brought the agreement to an end by the letter which their solicitors sent prior to the commencement of these proceedings.

28 Neither the practitioner, who was not a party in the proceeding before the Chief Justice, nor the Tribunal, is bound by the Chief Justice's findings. However, the Tribunal respectfully agrees with the findings quoted and would make, in substance, the same findings independently. The relevant part of the letter; namely:

As regards the document captioned 'Family agreement', my client is of the view that the agreement is unenforceable. In any event, and without prejudice to the above, the above letter amounts to a repudiation of the 'family agreement', which I hereby accept.

Suffice to say, at this stage, that my client will resist all attempts to have the 'agreements' enforced.

contains a clear and unequivocal assertion that the family agreement was at an end; indeed, it could not have been a clearer assertion. The term 'repudiation' has an established legal meaning. Any reasonably competent legal practitioner would be expected to know that meaning.

29 The practitioner submitted that, when read in its entirety, the letter of 31 May 2006 did not amount to an unequivocal assertion by the client that the family agreement was at an end. However, the Tribunal finds, reading the letter as a whole, that there is a clear renunciation of the family agreement in the relevant part of the letter referred to. That plain and unequivocal assertion that the family agreement was at an end was not, in the Tribunal's view, qualified by the remainder of the letter. Furthermore, the practitioner characterised the client's father's letter of 23 May 2006 as a 'repudiation' of the family agreement which he purported to accept.

30 The practitioner also emphasised the next paragraph in the letter quoted earlier, namely:

Suffice to say, at this stage, that my client will resist all attempts to have the 'agreements' enforced.

31 The practitioner emphasised in particular the words 'at this stage'. However, we consider that these words do not qualify the unequivocal assertion that the family agreement was at an end, because it was said to be unenforceable, and, in any case, was repudiated, and the repudiation was accepted.

32 The practitioner also submitted that, while he used the word 'repudiation' and the words 'which I hereby accept', he did not use those words in their established legal sense, but rather, as part of a negotiation.

33 The Tribunal finds it is surprising that a lawyer would use these words in correspondence of this nature or in any other professional context other than in their strict legal meaning. However, accepting that the practitioner had the intention that the words should not have their ordinary legal meaning, nevertheless, the use of the term had the legal effect of repudiation and was reasonably understood by the parents and siblings to have that effect. The parents and siblings then accepted the repudiation of the practitioner's client by the practitioner.

34 The practitioner also submitted that it was reasonably arguable that the letter of 31 May 2006 was privileged and was therefore not admissible as subject to settlement or 'without prejudice' privilege.

35 The Chief Justice addressed the admissibility of the letter at [65] ­ [67] of Ainsworth. His Honour noted that he received the letter into evidence over objection:

... because it was clear from the evidence that the letter was not written as part of a genuine attempt to compromise an existing dispute. Rather, the letter was written in a circumstance in which Ms Roberts had received a demand that she perform the terms of her agreement, and had then breached her agreement by obtaining registration of title without prior payment. As will be seen, the terms of the letter do not propose a compromise, or any process of negotiation towards a compromise but rather, maintain Ms Roberts' refusal to perform her agreement according to its terms.

36 The Tribunal considers and finds that the relevant part of the letter quoted earlier which, for the avoidance of doubt, is as follows:

As regards the document captioned 'Family agreement', my client is of the view that the agreement is unenforceable. In any event, and without prejudice to the above, the above letter amounts to a repudiation of the 'family agreement', which I hereby accept.

Suffice to say, at this stage, that my client will resist all attempts to have the 'agreements' enforced.

was not privileged and, further, that it was plainly unarguable that this part of the letter was privileged and that a reasonably competent legal practitioner would have formed that view. It is well recognised that the words 'without prejudice', which were stated at the commencement of the letter and were emphasised by the practitioner, are neither absolutely necessary nor determinative as to whether a document or a part of a document is privileged on the basis of settlement. As Justice JD Heydon stated in Cross on Evidence (7th Australian ed, 2004) (the edition which was current in November 2006) at [25355]:

... the statement in respect of which privilege is claimed must have some bearing on negotiations for a settlement.

37 Cross on Evidence cites Field v Commissioner of Railways (NSW) [1957] HCA 92; (1957) 99 CLR 285 in support of this proposition.

38 As the Committee submitted, the 'relevant assertions in the 31 May 2006 letter were not in context a genuine attempt to compromise an existing dispute'. Rather, the Tribunal finds that the relevant part of the letter was an emphatic statement that the family agreement was at an end.

39 The practitioner submitted that it was not unarguable that the relevant part of the letter was privileged, because, not only was the letter headed 'WITHOUT PREJUDICE' (underlining omitted), but the letter later contained a proposal to resolve the family dispute. However, as we have said, there is no magic in the words 'without prejudice', and what is necessary is analysis of the substance of the statement in respect of which privilege is claimed. The relevant part of the letter does not have, in the Tribunal's view, and could not be reasonably taken to have, a bearing on negotiations for a settlement. Furthermore, in the Tribunal's view, a reasonably competent legal practitioner would have been aware that the relevant part of the letter did not have any bearing on negotiations for a settlement, but rather, was an unequivocal statement in relation to the family agreement being at an end.

40 Furthermore, and in any case, as the Committee submitted, the relevant part of the letter could be relied on as an objective act having legal consequences. The Committee referred the Tribunal to the decision of McClellan J in the NSW Supreme Court in Tenstat Pty Ltd v Permanent Trustee Australia Ltd (1992) 28 NSWLR 625 (Tenstat) at 633:

The privilege attached to 'without prejudice' communications is 'founded upon the public policy of encouraging litigants to settle their differences rather than litigate them to a finish' [citation omitted] and is 'directed against the admission in evidence of express or implied admissions': Field v Commissioner of Railways (NSW) [1957] HCA 92; (1957) 99 CLR 285 at 291. It does not however extend to preclude the proof of communications or statements relied on not as an express or implied admission, but as an objective act having legal consequences [citations omitted]. A notice of exercise of option would be such an act and the letters would therefore be admissible if they constituted such a notice.

41 In the Tribunal's view, the relevant portion of the letter involves an objective act having legal consequences in terms of the repudiation of the family agreement by the practitioner on behalf of his client. The relevant part of the letter therefore falls squarely within the exception discussed in Tenstat. Furthermore, in the Tribunal's view, a reasonably competent legal practitioner would have appreciated at the time that the letter of 31 May 2006 was written, and certainly during the period November 2006 to June 2008, that the relevant portion of the letter would be admissible under this exception.

42 The practitioner submitted that the statements in the letter that the agreement was unenforceable, had been repudiated and the repudiation accepted, were statements 'as to the nature and strength of the client's case to provide the context for the proposal advanced later in the letter'. However, as the Tribunal has found earlier, this characterisation is simply not open on an objective reading of the relevant words in context. To assert that the letter from the client's father amounted to a repudiation of the agreement and that that repudiation was accepted involves an objective act of purported acceptance of repudiation, or an objective act of repudiation, and is not a statement as to the nature and strength of the client's case.

43 The practitioner also advanced a number of arguments which were based on a misunderstanding of the case put against him by the Committee. The Committee did not contend, as assumed in the practitioner's submissions at certain points, that the practitioner was incompetent because the plaintiffs succeeded and the practitioner's client 'lost' at the trial. The Committee also did not contend, as assumed in the practitioner's submissions at certain points, that the practitioner was incompetent because there were inconsistencies between the defence, as originally pleaded, that the family agreement was unenforceable, and the defence and counterclaim, as then put from November 2006 to June 2008, that the family agreement was enforceable. Rather, the Committee's case was that the practitioner was incompetent in presenting the latter position because it was untenable in light of his letter of 31 May 2006, the subsequent correspondence from the plaintiffs' solicitor, and the early defences in the proceedings.

44 The practitioner also submitted in his written submissions that the case he advanced for the client was not untenable, because it was that the family agreement was unenforceable at all material times until a condition was fulfilled, when it became, or would become, enforceable. However, assuming that that was, in fact, the case advanced, it was untenable to contend that the family agreement became, or would become, enforceable when a condition was fulfilled, because the practitioner's letter of 31 May 2006 denied the existence or enforceability of the family agreement and amounted to a renunciation of the family agreement that was accepted by the plaintiffs as having brought the family agreement to an end.

45 The practitioner also submitted that what he described as 'drastic and extreme' remedial steps in terms of an adjournment and amendments to the plaintiff's pleading were 'required to salvage a hopeless situation the plaintiffs were placed in twice, namely, their claim and the amended claim were doomed to failure'. The practitioner submitted that this 'in turn leads to the conclusion that the practitioner was justified in resisting the demand in the letter dated 23 May 2006 and defending the claim and amended claim ­ irrespective of the stated grounds for doing so'. However, assuming that the plaintiff's case was 'doomed to failure' prior to the amendments, that does not mean that it was arguable, or other than unarguable, for the practitioner to have run a case asserting that the family agreement was enforceable when he had previously renounced the agreement on behalf of the client and the renunciation was accepted on behalf of the plaintiffs.

46 Finally, the practitioner argued that the application should be dismissed in relation to ground (a) because it, in effect, required him to have been what he called a 'clairvoyant', knowing in advance the findings that the Chief Justice would make when he delivered judgment in December 2008 that the family agreement had been varied orally. However, the letter of 31 May 2006 renounced the family agreement as a whole. Furthermore, the practitioner is being held to account in terms of professional conduct, having regard to the facts and circumstances known to him in November 2006 and until June 2008. He is not being judged against matters that were not known to him until the publication of the decision in the proceeding.

47 The Tribunal therefore finds that it was not reasonably arguable that the letter of 31 May 2006 did not amount to an unequivocal assertion that the family agreement was at an end or that the letter was privileged from production.

48 Furthermore, and in any case, as the Chief Justice found at [106] of Ainsworth:

[T]he first five defences filed in these proceedings clearly renounced the obligation of Ms Roberts to perform her agreement and would, of themselves, have been quite sufficient to justify the plaintiffs treating the agreement as at an end (as they did in their pleading).

49 Again, the Tribunal is not bound by the finding or decision of the Chief Justice. However, with respect, the Tribunal entirely agrees. The effect of the first five defences in the proceeding between July 2006 and November 2006 renounced the obligation of the client to perform her agreement, and would be sufficient to justify the plaintiffs having treated the family agreement as at an end as they did in their pleading, irrespective of the letter of 31 May 2006 and the response from the plaintiffs' solicitors.

50 There were, in the Tribunal's view, no reasonable grounds for the practitioner to contend that the family agreement continued to be enforceable at the suit of the client when that assertion was made in the proceeding in November 2006 and maintained in the proceeding up to and at trial. The practitioner therefore acted incompetently by defending the plaintiffs' claim in the action and by prosecuting the counterclaim on theࡰbasis that the family agreement continued to be enforceable at the suit of the client, which contention was untenable. This conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect from a reasonably competent legal practitioner.

51 The position advanced by the practitioner was untenable because of the letter of 31 May 2006 in its relevant part, the plaintiffs' acceptance of that repudiation by their solicitor's letter prior to the commencement of the proceeding, and the five initial defences in the proceeding. Those factors were known to the practitioner in November 2006 and throughout the period until June 2008. As Mr Vaughan submitted on behalf of the Committee, the 'die was cast' as a result of that 'basket of facts'.

52 The family agreement was plainly and clearly at an end and, on the basis of the letter of 31 May 2006, the acceptance of the repudiation by correspondence of the plaintiffs' solicitor, and the initial defences in the Supreme Court proceeding, a reasonably competent practitioner would have appreciated that. The practitioner is not being judged with the benefit of hindsight which, as the Committee accepted, and the Tribunal agrees, would be unfair and inappropriate, but rather, objectively, on the basis of the facts and circumstances which were known to him in November 2006. Based on the facts known to the practitioner in November 2006 and until June 2008, the practitioner pursued a case that was untenable and which he ought to have appreciated to be unarguable. To pursue a case that was untenable and ought to have been appreciated as such by a practitioner, based on the facts known to the practitioner at the time, constitutes unsatisfactory professional conduct. The Tribunal is therefore satisfied and finds that the practitioner engaged in unsatisfactory professional conduct in terms of ground (a).

53 On the basis of the agreed facts in relation to grounds (b) and (c), the Tribunal also finds, as is conceded, that the practitioner engaged in unsatisfactory professional conduct in terms of those grounds. Failing to confer during a trial with counsel for the other party in relation to a statement of agreed facts when directed to do so by the trial judge and requiring the unnecessary attendance for cross­examination of a witness, particularly one who has to travel from the country, falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner, and therefore falls within unsatisfactory professional conduct under the LP Act.

54 For these reasons, the Tribunal makes the following orders:

1. The Tribunal finds that the practitioner, Mr Eapon Carlose (practitioner), engaged in unsatisfactory professional conduct between about November 2006 and 20 June 2008 when acting on behalf of Ms Judith Dawn Roberts (client) as solicitor and as counsel appearing at trial in relation to the dispute the subject of Supreme Court of Western Australia action CIV 1677 of 2006 (action), in that he acted incompetently in defending the plaintiffs' claim in the action, and prosecuting a counterclaim by the client in the action on the basis that an agreement continued to be enforceable at the suit of the client when that was untenable, given:

(a) the contents of the practitioner's letter dated 31 May 2006 (and the responses thereto on behalf of the plaintiffs in the action); and

(b) the first five versions of the client's defence in the action, as prepared by the practitioner, and being:

(ii) a minute of proposed substituted defence dated 5 September 2006;

(iii) a minute of proposed substituted defence dated 14 September 2006;

(iv) a minute of proposed substituted defence dated 26 September 2006; and

(v) a minute of proposed substituted defence dated 10 October 2006.

1. The Tribunal finds that the practitioner engaged in unsatisfactory professional conduct on 11 June 2008 and 12 June 2008 in failing to confer with counsel for the plaintiffs in the action, either after court on 11 June 2008 or before court on 12 June 2008, in circumstances where:

(a) the practitioner appeared as counsel for the client on the trial of the action (trial) before the Chief Justice of Western Australia, the Hon Wayne Martin (Chief Justice); and

(b) at around 4.15 pm on 11 June 2008, during the trial, the Chief Justice directed counsel for the parties to confer after court that afternoon, in relation to a proposed statement of agreed facts.

1. The Tribunal finds that the practitioner engaged in unsatisfactory professional conduct on or about 12 June 2008 during the trial, in requiring the attendance of a witness, Glenys Estelle Russell (Ms Russell), for cross­examination at the trial in circumstances where:

(a) the practitioner was appearing as counsel for the client on the trial;

(b) Ms Russell had provided a signed witness statement prior to the commencement of the trial, and a copy of the witness statement had been provided to the practitioner;

(c) Ms Russell lived in Kojonup and was obliged to travel from Kojonup to Perth to attend court to give evidence; and

(d) The practitioner's cross­examination of Ms Russell consisted of four brief non­contentious questions.

1. The issues of penalty and costs are to be determined, if not agreed, at a hearing on a date to be fixed.
2. If the parties are able to agree on consent orders in relation to penalty and costs, the issues are to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
3. If the parties are unable to agree on consent orders in relation to penalty and costs, the applicant is to file and serve no less than seven days prior to the hearing a statement of the penalty and costs sought and a breakdown of costs sought.

I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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