Furthermore, ... it is also clear from the orders made by the Magistrates Court on 27 August 2016, at page 66 of the book of documents, adjourning the pre[-]trial conference to 27 September 2016, that the Magistrates Court did not make an order under [s] 35 of the [MCCP Act,] but rather made an order adjourning the pre[-]trial conference under the minor cases procedure of that [C]ourt.

And furthermore, it is clear from the Magistrates Court order at page 69 of the book of documents made on 27 September 2016 further adjourning the pre[-]trial conference to 22 November 2016, that the [C]ourt did not make an order under [s] 35 of the [MCCP Act] [that] the case or any issue arising in the case be mediated. Rather, on its face, the [C]ourt adjourned the pre[-]trial conference within the minor [cases] jurisdiction of the Magistrates Court. Consequently, [s 37(2)] of the [MCCP Act] is not applicable in relation to the circumstances of this case.

1. Immediately after making this ruling, the Tribunal raised for Mr Walker's consideration 'in fairness ... to your client',[15] 'particularly in relation to [the complainant's] evidence, but [also] more broadly',[16] the terms of s 27 of the MCCP Act, and in particular s 27(1) and s 27(3) of the MCCP Act. Section 27 of the MCCP Act states as follows:

(1) The primary object of the Court when dealing with a minor case is to attempt to bring the parties to a settlement acceptable to all the parties.

(2) The Court may, at any stage of the proceedings, do all things and take all such steps as it considers to be appropriate to achieve that primary object.

(3) Anything said or done by a party for the purpose of attempting to settle a minor case is to be taken to be said or done without prejudice to any evidence or submission that the party -

in or in respect of the proceedings, and the saying or doing of that thing does not disqualify the person or persons constituting the Court from sitting or continuing to deal with the case.

(4) If the Court is unable to bring the parties to a settlement acceptable to all the parties, the Court must deal with the minor case.

1. Mr Walker subsequently objected to the admissibility of the paragraphs of the complainant's witness statement in which she states that the practitioner made the PTC statements alleged in ground 2,[17] 'primarily' on the basis of s 27 of the MCCP Act and also on the basis that 'I do renew ... or reiterate my submissions about [s] 37 [of the MCCP Act]', although Mr Walker said that 'of course I recognise that the [T]ribunal has ruled against me a short while ago regarding the application of [s] 37 to a pre[-]trial conference of a minor case'.[18] Mr Walker said that 'for the record, and as a formality, I do rely on those submissions about [s] 37'.[19]
2. Mr Walker made essentially two submissions in support of the practitioner's objection under s 27 of the MCCP Act to the admissibility of the parts of the complainant's evidence in which she says that the practitioner made the PTC statements. Firstly, Mr Walker submitted that:[20]

... the section as a whole, particularly subsections 1, 2 and 3, when taken together, clearly demonstrate an intention on the part of the legislature that, so far as minor cases are concerned, it is of great significance to encourage parties to such a case to attempt to come to a settlement, or as subsection 1 says, to be brought, in effect, to a settlement, that is, by the [C]ourt. It is submitted that even before one gets the precise words on which in a moment in the second limb of my submission I will seek to rely - even before one gets there, one readily identifies and easily identifies a clear intention on the part of the legislature that things said or done in a minor case for the purpose of attempting to settle it are to be treated, in my words, confidentially.

And so that provides a foundation for a submission that the legislature has evinced an intention that a mediation privilege be recognised, and that intention, I respectfully submit, is to be [weighed] by this [T]ribunal when considering, particularly by reference to [s] 32 of the SAT Act, whether it is appropriate to permit evidence of something said at a minor case pre[-]trial conference to be heard. We would submit that this is a matter of very considerable weight.

That is to say, the confidential nature of what is said in an attempt to settle a minor case, and that it weighs very heavily in favour of excluding the admission of the evidence, it may be that the [T]ribunal will consider it should conduct the balancing exercise in putting on one side of the scales the confidential nature of what is said at the minor case pre[-]trial conference and the importance of preserving that so as to encourage settlement discussions, against other considerations such as - no doubt Mr Yovich would say, and I think properly if he said it - the public interest in the [C]ommittee being able to rely on such evidence in order to support ... the allegations contained really in ... ground 2.

But it's our submission that if such a weighing exercise is to be undertaken, then very considerable attention has to be given to the undesirability of undermining a perception that litigants would have in minor case pre[-]trial conferences, a perception that things that they say in the course of settlement discussions may in fact be used in some respect against them in the future. If such an undermining is to occur then the efficacy of pre[-]trial conferences in this setting will be severely or may be severely reduced, I would submit.

... the clear character that the [P]arliament has clearly intended that such discussions or statements would have confidentiality, gives rise to a submission that the [Tribunal] would, particularly looking at [s] 32 [of the SAT Act], decline to accept such evidence.

1. Mr Walker's second submission was as follows:[22]

The second limb of my submission here though refers not to those general considerations about legislative intention of confidentiality to be - or things said that such a pre[-]trial conference to be characterised as of a confidential nature, instead I refer now to some of the precise words in subsection 3. ... [F]irst of all, the proposed evidence is of things allegedly said by a party. There can be no doubt about that. Ms Chang being a party to those proceedings in the Magistrates Court.

Anything said, therefore, by her for the purpose of attempting [to settle] that minor case, is to be taken to be said or done without prejudice to any evidence or submission that she [has] adduced or later - I don't rely on that but I do rely on (b) - any evidence or submission that she may subsequently adduce or make in or in respect of the proceedings. My submission here is that [s 27(3)] is not to be construed narrowly so as to mean that it merely has the effect that any submission that she might have subsequently made, or indeed any evidence she might have subsequently adduced in the Magistrates Court, is, in my words, not to be affected by anything said at the pre[­]trial conference.

That's one possible and narrow way of reading the provision. But in my submission, it's far too narrow because in particular as well as not giving sufficient weight to the confidential nature of such things that are said at the pre[-]trial conference. It gives no work to be done so the key words "or in respect of", that is, in or in respect of the proceedings. It would have been simple enough if a narrow meaning was intended for the legislature to be able to insert the words, "or in respect of", and for it simply to provide that anything said for the purposes of attempting to settle a minor case is to be taken to be said or done without prejudice to any legal submission that the party may subsequently use or make in the proceedings.

That would be an obvious and straightforward way of expressing and giving content to a notion that a party at a minor case pre[-]trial conference and in confidence that anything they say for the purpose of attempting to settle it is not going to be used against them in further - in a further or future hearing of the minor case. If that's all that was intended and the only target to be achieved by the legislature, then it would not have used the additional words "or in respect of".

In my submission, the insertion of those words evinces an intention that the protection - if I put it that way - to be accorded to a person who says something at a minor case pre[-]trial conference, is to extend beyond the minor case proceeding itself and is to shroud anything said in those circumstances at the pre[-]trial conference with protection from it being used in any derivative or indirect way which is - and such a proposed use would be in respect of the proceeding.

So, specifically in this case, [the complainant] issued proceedings against Ms Chang in the Magistrates Court. [The complainant] says that Ms Chang said things at a pre[-]trial conference which, in my submission, was for the purpose of attempting to settle the minor case, and if the [C]ommittee is permitted to lead the evidence, it will impact upon and be to the prejudice of Ms Chang in this proceeding and this [T]ribunal, which is a proceeding that is in respect of the proceedings in the Magistrates Court.

1. After adjourning to consider the practitioner's objection to the admissibility of the complainant's evidence in relation to the PTC statements and the submissions made in relation to that objection, we returned and said the following:[23]

For four reasons which we will detail fully in writing as part of the [T]ribunal's reasons for decision in relation to this proceeding, the objection to the evidence foreshadowed at paragraphs 58 and 59 of [the complainant's] witness statement of 1 March 2019 is dismissed. The four reasons, in brief outline, to be detailed fully in writing as part of our reasons for determination of this matter, are as follows. ...

1. Our first reason for dismissing the objection to admissibility was that a pre-trial conference in a minor case under Pt 4 of the MCCP Act is not a 'compulsory mediation' under and for the purposes of s 37(2) of the MCCP Act. In addition to the reasons we gave orally, which are set out at [26] above, we note that s 35 of the MCCP Act (which refers to an order of the Magistrates Court that a case, or an issue arising in it, 'be mediated' and to the appointment by the Magistrates Court of a registrar or another person as the 'mediator') and s 37(2) of the MCCP Act (which prescribes the privilege from admissibility of anything said or done in the course of, or for the purpose of, attempting to settle a case by 'compulsory mediation' in very broad terms, extending to 'any proceedings before any court, tribunal or body ...') are contained in Pt 5 of the MCCP Act, which is entitled 'Mediation', whereas the provisions of the MCCP Act relating to minor cases are contained in Pt 4 of that Act, which is entitled 'Minor case procedure'. Moreover, s 34 of the MCCP Act, which defines the terms 'compulsory mediation' and 'mediator', states that those definitions apply '[i]n this Part [that is, Pt 5 'Mediation'], unless the contrary intention appears'. The fact that s 35 of the MCCP Act, which enables the Magistrates Court to appoint a registrar or another person as the 'mediator', and s 37(2) of the MCCP Act, which prescribes the broad privilege attaching to anything said or done in the course of, or for the purpose of, attempting to settle a case by 'compulsory mediation', are in a different Part of the MCCP Act to the provisions of the MCCP Act concerning minor cases procedure, and, indeed, the fact that s 34 of the MCCP Act defines the terms 'compulsory mediation' and 'mediator' '[i]n this Part [and not elsewhere in the Act]', further supports our determination that the 'pre-trial conferences' which took place in the Magistrates Court proceedings, during the course of which, the complainant says in her evidence, the practitioner made the PTC statements, were not a 'compulsory mediation' and the Registrar conducting the pre­trial conferences was not a 'mediator', as those terms are defined in s 34 of the MCCP Act, and, consequently, the pre-trial conferences were not 'compulsory mediation' within the meaning and for the purposes of s 37(2) of the MCCP Act.
2. We also note that our determination is consistent with the terms of the Magistrates Court (Minor Cases Procedure) Rules 2005 (WA) (Minor Cases Rules), which are made pursuant to s 33 of the MCCP Act (contained in Pt 4 of the MCCP Act). Section 33 of the MCCP Act states as follows:

Rules of court made for the purposes of this Part may -

(a) provide for the procedures to be followed when conducting a minor case;

(b) specify the circumstances in which any of the Court's powers in Part 3 may be exercised;

(c) provide that all or some of the general procedure, with or without modifications, applies to minor cases.

1. The Minor Cases Rules recognise and distinguish between a 'pre-trial conference' in a minor case and a 'mediation' in a minor case. The procedures for 'pre-trial conferences' are prescribed in Pt 5 of the Minor Cases Rules (which is entitled 'Pre-trial conferences'), whereas the procedures for mediation are prescribed in Pt 6 of the Minor Cases Rules (which is entitled 'Mediation'). Rule 28(2) of the Minor Cases Rules, which is contained within Pt 5, essentially restates s 27(3) of the MCCP Act.[24] Part 6 of the Minor Cases Rules comprises r 29 - r 32, which state as follows:[25]
   1. Mediation conference

(1) If the Court orders you and the other parties to attend before a mediator, you must ensure that a mediation conference before the mediator is arranged.

(2) A mediation conference must be conducted in private.

1. Attendance of parties at mediation conferences

Unless the mediator otherwise approves, you must attend a mediation conference in person.

If you are the claimant you must, within 14 days after the mediation conference, lodge a notice of the outcome of the mediation in the approved form.

1. Further pre-trial conference if case not settled

If the case is not settled at the mediation conference a registrar must list the case for a further pre-trial conference and notify you and the other parties in writing.

1. The Magistrates Court did not order the complainant and the practitioner to attend 'before a mediator' under r 29(1) of the Minor Cases Rules. Furthermore, the Minor Cases Rules expressly distinguish between a 'pre-trial conference', on the one hand, and a 'mediation conference', on the other hand, in the terms of r 32, which states that '[i]f the case is not settled at the mediation conference a registrar must list the case for a further pre­trial conference and notify you and the other parties in writing'.[26] Plainly, a 'pre-trial conference' is not the same as a 'mediation' under the Minor Cases Rules.
2. Our second reason for dismissing the practitioner's objection to the admissibility of the complainant's evidence that the practitioner made the PTC statements was that the PTC statements were not something said 'for the purpose of attempting to settle a minor case', within the meaning and for the purposes of s 27(3) of the MCCP Act. Indeed, we accept the submission made by Mr P Yovich SC, on behalf of the Committee, that 'they are on their face, words said for the opposite of the purpose of attempting to settle a minor case',[27] because, as we find below, the practitioner made the PTC statements knowingly seeking to mislead the Magistrates Court and the complainant, so as to defer or delay the Magistrates Court proceedings.
3. Our third reason for dismissing the practitioner's objection was that the expression 'in or in respect of the proceedings' in s 27(3) of the MCCP Act does not include vocational disciplinary proceedings in the Tribunal arising out of statements made by a practitioner as a party in a minor case before the Magistrates Court. As we said:[28]

... any evidence or submission that [the practitioner] ... may wish to give, call or make in this disciplinary proceeding in the State Administrative Tribunal is not any evidence or submission that would be made "in or in respect of the proceedings" within the meaning of [s 27(3)] of the [MCCP Act].

1. In our view, the expression 'in or in respect of the proceedings' refers to the minor case proceedings, an appeal arising from those proceedings, a rehearing following a successful appeal, and any supplementary application to the minor case proceedings, such as for enforcement of the outcome of those proceedings. However, vocational disciplinary proceedings in this Tribunal, even if arising in consequence of statements made at a pre-trial conference in a minor case before the Magistrates Court, is not 'in or in respect of the proceedings' in the Magistrates Court. Contrary to the practitioner's submission, this does not involve a 'far too narrow' reading of the words 'in respect of the proceedings'. Rather, it reflects the grammatical meaning of those words. A vocational disciplinary proceeding is not 'in respect of' a minor case proceeding, even if it arises out of statements made in the minor case proceeding. The vocational disciplinary proceeding is relevantly 'in respect of' the professional regulation of the conduct of the practitioner, not 'in respect of' the minor case proceeding in which she was a party.
2. Furthermore, contrary to the practitioner's submission, the interpretation of s 27(3) of the MCCP Act which we consider is correct does not undermine the utility or purpose of the privilege reflected in that provision. The admissibility in vocational disciplinary proceedings of statements made by a legal practitioner as a party in minor case proceedings before the Magistrates Court, by which the practitioner knowingly sought to mislead the Magistrates Court and the other party to those proceedings, does not harm, much less 'undermine' or 'severely reduce' the 'efficacy' of pre­trial conferences or the 'primary object' of the Magistrates Court, when dealing with a minor case, 'to attempt to bring the parties to a settlement acceptable to all the parties' under s 27(1) of the MCCP Act and the privilege in s 27(3) of the MCCP Act, which is obviously related to the achievement of that object. It is hardly inimical to the efficacy of the minor cases procedures of the Magistrates Court for a legal practitioner, who knowingly seeks to mislead the Court and the other party in that jurisdiction, to face vocational disciplinary proceedings arising in consequence of the practitioner's conduct. To the contrary, such a prospect buttresses the efficacy of the minor cases jurisdiction. Moreover, a 'settlement' achieved by a false and misleading statement by a party is not a settlement that the legislature has evinced an intention to achieve.
3. Our fourth reason for overruling the practitioner's objection to admissibility was:[29]

[F]urthermore[,] and in any case, for the reasons given at paragraphs 83 to 84 of the decision of the [T]ribunal in Legal Practitioners Complaints Committee [and] Fleming [2006] WASAT 352 [; (2006) 48 SR (WA) 29], with which we respectfully agree and which are, in our view, fully applicable in the context of [s 27(3)] and [s] 37 of the [MCCP Act] as in relation to negotiations privilege at common law.

1. In Legal Practitioners Complaints Committee and Fleming [2006] WASAT 352; (2006) 48 SR (WA) 29, the Committee alleged that Mr Fleming, a legal practitioner, was guilty of unprofessional conduct by, in the course of professional communications with another practitioner seeking to settle a testamentary dispute, making representations to the other practitioner which were, to Mr Fleming's knowledge, misleading. The Tribunal determined that the practitioner's statements were misleading and that, although they were made in the context of negotiations which were subject to negotiations privilege at common law (sometimes called 'without prejudice privilege'), the statements were admissible in professional disciplinary proceedings arising out of the making of those statements. The Tribunal reasoned as follows at [83]-[84]:
   1. The public interest in practitioners acting professionally both in the conduct of litigation and in matters ancillary to it is extremely important. The proposition which the practitioner appears to advance is that unless the wrongdoing can be categorised as "unambiguous impropriety", a solicitor can engage in some minor impropriety in the course of without prejudice dealings with impunity. That proposition is clearly untenable. There is no room for unfairness or deception in negotiations for the compromise of litigation, or otherwise in dealings between solicitors.
   2. Where an allegation of unprofessional conduct is made in relation to conduct taking place in the course of without prejudice negotiations, the public interest demands that those allegations be properly considered and dealt with. A solicitor is not entitled to be shielded from the allegations simply by asserting the existence of without prejudice privilege.
2. As we said when giving our outline of reasons for dismissing the practitioner's objection to the admissibility of the complainant's evidence as to the making of the PTC statements,[30] we respectfully agree with the Tribunal's decision in Legal Practitioners Complaints Committee and Fleming at [83]-[84] and consider that its reasoning is 'fully applicable' in the context of s 27(3) and s 37 of the MCCP Act. Furthermore, the reasoning applies equally whether a practitioner is engaged in proceedings on behalf of a client or in their own matter. Indeed, as the Tribunal observed in Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37; (2013) 84 SR (WA) 158 at [28]:

... The case [of professional misconduct] is all the stronger when it is the practitioner's own case which he [or she] is seeking to advance by such means.

1. As counsel for both parties in this case recognised, s 32 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), which, among other things, concerns evidence in SAT proceedings, contemplates the balancing of competing aspects of public interest, where there is a conflict, in determining whether to admit evidence in proceedings before the Tribunal. Section 32 of the SAT Act includes the following provisions:

(2) The Evidence Act 1906 does not apply to the Tribunal's proceedings and the Tribunal -

(a) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures or the regulations or rules make them apply; and

(b) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

(4) The Tribunal may inform itself on any matter as it sees fit.

(a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in a proceeding; ...

1. For the reasons given by the Tribunal in Legal Practitioners Complaints Committee and Fleming at [83]­[84], even if it were necessary (which it is not, given out first three reasons for dismissing the objection as to admissibility) to seek to balance competing aspects of public interest in this case between the primary object of the minor cases procedure (or, more generally, the public interest in facilitating the settlement of legal disputes without the need for litigation), on the one hand, and the protection of the public in their dealings with legal practitioners and the maintenance of the proper standards of the legal profession, by referral of a matter arising out of the making of false and misleading statements by a legal practitioner in seeking to settle a dispute and the determination of such a matter by the Tribunal, on the other hand, in our view, the latter public interest would prevail.

1. The facts of this case are either admitted by the practitioner in her response to the Committee's statement of facts and contentions[31] or, where the practitioner has put the Committee to proof in that document, were not seriously contested by her at the hearing. Although the complainant was cross­examined by counsel for the practitioner, she was not challenged in cross-examination in relation to her credibility or seriously in relation to her recollection of events, and no submission was made on behalf of the practitioner to the effect that the complainant's evidence should not be believed or accepted. We add that we found the complainant to be a credible and truthful witness. She was responsive, measured and consistent in the evidence she gave and, when she did not recall something she was asked about, she immediately said so. Furthermore, the complainant's evidence was not contradicted by any other evidence. Indeed, the practitioner did not give evidence, although ground 2 concerns oral statements alleged to have been made by her at pre-trial conferences in the Magistrates Court proceedings and the complainant gave evidence that the practitioner said words to the effect of the alleged statements, and the practitioner did not call or present any other evidence, with the exception of tendering a single exhibit, being the practitioner's PAYG payment summary for the period 14 September 2015 to 30 June 2016.[32] We, therefore, have no hesitation in accepting the entirety of the complainant's evidence.
2. On the basis of the facts admitted by the practitioner in her response to the Committee's statement of facts and contentions, the evidence of the complainant and the documentary evidence we refer to, we make the following findings of fact.
3. As indicated earlier, the practitioner was admitted to legal practice in Western Australia on 4 February 1985 and has been a registered migration agent since about September 1992.[33] At all material times, the practitioner was an Australian legal practitioner within the meaning of s 5(a) of the LP Act, and was also a registered migration agent.[34] The practitioner was:
   • an employee of James Chong Lawyers (JCL) from 3 July 2012 to 1 May 2015;
   • an employee of iLaw Barristers and Solicitors (iLaw) from 4 May 2015 to 21 September 2015; and
   • a sole practitioner practising as Christina Chang Lawyers from 17 December 2015 to 7 February 2018.
4. In 2012, the complainant, who was then living with her family in Italy, instructed the practitioner to lodge a temporary working visa application (known as a '457 visa') for her husband and herself, sponsored by an employer which was a restaurant owned and operated by her mother and her mother's husband in Perth. On 15 May 2012, the complainant undertook and passed the IELTS test in Rome. In December 2012, the 457 visa application was granted and the complainant and her family moved from Italy to Perth in January 2013.[35]
5. In August 2013, the complainant met with the practitioner to discuss when and how the complainant's family could apply for a permanent residency visa. The complainant understood that one of the requirements for such an application was that she had to live in Australia for a least two years. Towards the end of 2014, the complainant started preparing the paperwork and assembled the documents for an application for a permanent residency visa for her and her family. Her mother and her mother's husband agreed that their restaurant would act as the employer sponsor for the visa application. The supporting documents for the visa application included the IELTS test. The complainant understood that the IELTS test was only valid for three years and would expire on 15 May 2015.[36]
6. In or about March 2015, the complainant engaged the practitioner, in her capacity as a registered migration agent employed by JCL, to prepare and lodge a permanent residency visa application, on behalf of the complainant, her husband and their children (visa application), with DIBP. The complainant provided the practitioner with her draft application and supporting documents. The practitioner reviewed the draft application and supporting documents and explained the process for the visa application and what further information and documents the practitioner required.[37]
7. In April 2015, the complainant had a telephone discussion with the practitioner in which the complainant said that she was concerned about the IELTS test expiring and said that she was anxious for the visa application to be lodged shortly. In response, the practitioner said words to the effect:[38]

Don't worry your mark [is] high. It won't be a problem.

1. The practitioner's response gave the complainant 'peace of mind, at least in relation to the IELTS test'.[39]
2. On 23 April 2015, the complainant emailed the practitioner as follows:[40]

I'd like to know if there are [sic] some news regarding the visa application. When will we be ready to apply? Can you please tell me how much (more or less) will it cost, fees and honorarium? We are planning a travel [sic] to Italy and really need to calculate my finances as soon as possible.

1. On 30 April 2015, the practitioner wrote the following letter to the complainant:[41]

I refer to your letter dated 7 April 2015 and our telephone conversation today. I apologise for my delayed response due to heavy commitments.

In preparation for visa lodgement, please budget for the following fees:

• DIBP fees primary application $3,520
• Husband $1,760
• Children (each) $880

In addition to the above you will need to budget for penal clearances, Australian Federal Police clearances for you and your husband and also medical tests.

You can do the medical tests only after the application is lodged because an electronic health referral letter will be generated at the time of lodgement.

You will need to take such referral letter to BUPA to organise your health tests.

1. Also on 30 April 2015, Ms Jacqui Channing from JCL sent the following email to the complainant on behalf of the practitioner, attaching the letter from the practitioner to the complainant set out in the preceding paragraph:[42]

PLEASE NOTE that as from 4 May 2015, Ms Christina Chang will commence at a new law practice, namely iLaw Barristers & Solicitors 7-9 Scarborough Beach Road, North Perth WA 6006, Tel: 9444 3300.

To ensure your matter is dealt with with continuity and with as little disruption, subject to any contrary instruction from you, Ms Chang will continue to represent you from her new practice and will be in touch with a new email address as and from 4 May 2015. Accordingly, as and from 4 May 2015, you will officially be represented by iLaw Barristers and Solicitors with Ms Chang as your nominated representative. Ms Chang thanks you in anticipation of your ongoing support.

The principal of this practice Mr Denning Chong extends to you his best wishes as a client of James Chong Lawyers whilst Ms Chang was under its employ.

Commercial | Property & Settlements | Migration | Litigation

1. At 3.15 pm on 14 May 2015, the practitioner emailed the complainant confirming that 'I am now at i-LAW [sic] and will continue with your matter from I-Law [sic]' and stating that 'I will write to you again shortly in preparation for lodgement [of the visa application]'.[43] At 4.41 pm on 14 May 2015, the practitioner emailed the complainant again stating 'Just to let you know DIBP fees increase on 1 July 2015 so you should lodge asap'.[44]
2. Over the period 15 to 18 May 2015, the complainant and the practitioner exchanged emails clarifying that the practitioner would lodge the visa application upon receipt of the DIBP lodgement fee from the complainant.
3. At 9.52 am on 31 May 2015, the complainant emailed the practitioner informing her that 'we finally transferred the amount of [$]7203 AUD to the account that you provided' and requesting the practitioner to '[p]lease lodge the application as soon as you can'.[45] The practitioner responded to the complainant by email at 12.13 pm that day: 'Will do'.[46]
4. On 8 June 2015, the complainant emailed the practitioner saying 'I'm sure you have it under control, but just following up with the lodgement...is everything ok?'.[47] It does not appear that the practitioner responded to this email.
5. At 7.02 am on 30 June 2015, the complainant emailed the practitioner as follows:[48]

Before fees rise. I won't pay a dollar more than what I have already paid, so please Christina lodge this application.

1. At 2.36 pm on 30 June 2015, the practitioner responded to the complainant by email as follows:[49]

We are reviewing now but in fact you have not paid me any legal fees at all...the 7k you sent us covers dibp fees only!

1. On 14 July 2015, the practitioner wrote to the complainant confirming that the complainant had 'only provided me with sufficient funds to pay the Immigration Department charges' and stating as follows:[50]

Would you be good enough to send me additional funds which will cover my legal fees as per my original estimate of AU $2090.00. In addition there is $1230 for my legal fees to cover [the employer sponsor's] nomination approval so that total amount which I would need for legal fees to do the visa and the nomination is AU $3300.00.

1. The complainant paid the sum of $3,300.00 to iLaw's trust account by about 7 August 2015.[51]
2. On 31 August 2015, Australia World Link Pty Ltd (AWL) and the practitioner entered into a written agreement the terms of which provided, among other things, as follows:
   • AWL agreed to supply the practitioner, for the purposes of her 'carrying on business as a sole practitioner law practice' (law practice), with, among other things, the use of an office, administrative staff, and litigation­related funding; and
   • the practitioner agreed to assign to AWL fees and disbursements paid by clients of the law practice for the period 15 September 2015 to 31 October 2017.[52]
3. By emailed letter on AWL letterhead sent on 8 October 2015, the practitioner wrote to the complainant, her mother and her mother's husband as follows:[53]

I advise that I have ceased employment at Ilaw [sic] and now practise on my own account.

Please find attached TRUST TRANSFER AUTHORITY, please sign and send back to me here, so I can progress the visa application[.]

Barrister, Solicitor and Registered Migration Agent: MARN9254751

1. On 9 October 2015, the complainant, her mother and her mother's husband signed the Trust Transfer Authority.[54] On 16 October 2015, iLaw transferred the sum of $8,847.70 from its trust account to the bank account held by AWL (being the balance of trust monies held on behalf of the complainant)[55] and AWL issued an invoice to the complainant in the sum of $9,586.76 inclusive of GST with a handwritten note stating that $8,847.70 had been '[p]aid' and that 'Balance still to pay [is] $789.06'.[56] The complainant paid the '[b]alance' in two instalments on 1 December 2015 ($350) and 7 December 2015 ($389.06).[57]
2. Also on 16 October 2015, the practitioner lodged the visa application with DIBP, together with supporting documents.
3. On 25 February 2016, the complainant emailed the practitioner saying that she would 'like to check the status of my application' and requesting the DIBP transaction reference number.[58] On 21 March 2016, Nhu Pham, 'legal assistant', emailed the complainant on behalf of the practitioner attaching 'acknowledgement of application received from DIBP as requested'.[59]
4. On 15 April 2016, Nhu Pham emailed the complainant on behalf of the practitioner attaching 'further request from [DIBP] regarding your application [for the visa]' and then stating, in part, as follows:[60]

As noted in the request checklist, here is the detail that you need to provide to us asap:

• As your IELTS certificate was valid for 3 years from the result date which was 15 May 2012, please send us update of your IELTS test (or any other alternative English test). Please find the details of request in the attached Checklist.

1. At 12.05 pm on 18 April 2016, the complainant responded to Nhu Pham's email saying that 'I'm a bit confused regarding your request' as 'I have already provided all the documents required in the attached list to my migration agent, Mrs. Chang'.[61] The practitioner herself responded to the complainant's email at 2.39 pm on the same day confirming that the IELTS test, as well as a number of other documents submitted with the visa application, had expired. The practitioner's email includes the following:[62]

an IELTS score WAS valid for a two year period for Australian General Skilled Migration (GSM) applications. this IELTS score validity period will be extended to three years. This is part of the numerous changes to the GSM visa program which occurred from July 1, 2012.

1. At 5.27 pm on the same day (18 April 2016), the complainant emailed the practitioner as follows:[63]

How is it possible that you NEVER mentioned this possibility?!?!? You lodged in mid-October, so two and a half months before the health examinations expired (and I didn't know they had a validity period of 12 months, because THIS IS NOT MY JOB BUT YOURS) and you didn't say a word, while you were aware that due to heavy workloads, DIBP would have never been able to process the application in such a short time.

I knew about the 3 years validity of IELTS, that's why I recall me to be very anxious about lodging last April, but you were too busy moving from one office to the other and you said that my IELTS was still ok.

Do you understand that they want everything within 28 days and next IELTS test will be held on 30th April and results will be released after the 9th May? And if I knew I could prepare the test properly, instead of rushing at the very last minute like you ALWAYS have done!

I am sorry to speak like this but that's the truth, you have been very inaccurate, it has always been very difficult and stressful to get in touch with you, you refrained in many occasion to deliver proper information to us (I found out that we are entitled to Medicare myself and I didn't know we can't leave Australia while on [a] bridging visa and we were about to plan a Christmas holiday with the risk of losing money), and this is just the last drop.

1. At 7.00 pm on the same day (18 April 2016), the practitioner responded to the complainant's email as follows:[64]

I will respond to your email tomorrow. Suffice to say I regret that I cannot accept responsibility that you would like to cast upon me and I will explain why in detail tomorrow due to the lateness of the hour.

The 28 day period is STANDARD and if it cannot be met for reasons beyond the control of the applicant, then DIBP will invariably agree to a reasonable period of extension sought. Overseas penals are known to take time and I have NEVER had any requests for extension refused. The same goes for IELTS and medicals - usually all DIBP requires is to be told that they are being arranged and DIBPO [sic] will usually extend a period for compliance.

I know what my job is and I also know what are factors within my control and what are simply not.

1. The practitioner failed to further respond to the complainant's email the following day, as the practitioner said she would.[65]
2. At 7.40 am on 19 April 2016, the complainant emailed the practitioner as follows:[66]

I understand you don't have responsibility over what happens in DIPB, but l think you have it before the lodgement. Anyway, sorry for being so harsh but I am pretty angry and disappointed at the moment and I made up my mind to dismiss you from your duty for what I am concerned. I will come this morning to your office to collect my file. Again, I regret this nasty situation and wouldn't opt for this solution but I do it for good living's sake.

1. Also on 19 April 2016, the complainant completed Part D of the DIBP Form 956 '[e]nding [the practitioner's] appointment' and signed the '[d]eclaration by client' on that day.[67] The complainant and her husband then attended at the practitioner's office, but the practitioner was not present. The complainant spoke to a staff member who told her that the practitioner would sign the Form 956 and email it to her. On 21 April 2016, the practitioner signed the Form 956 and emailed it to the complainant.[68]
2. The complainant made arrangements to sit another IELTS test on 30 April 2016. On the morning of 30 April 2016, before she sat the test, DIBP telephoned her and informed her that a new IELTS could not be used for the visa application, because a valid test had to be provided at the time of lodgement (that is, on 16 October 2015) and that, unless the complainant withdrew the visa application, it would be rejected by DIBP. The complainant sat the IELTS test on 30 April 2016.[69]
3. After an exchange of emails with DIBP in early May 2016, the complainant withdrew the visa application.[70] The complainant was 'extremely upset and frustrated by DIBP's advice that the [v]isa application would be rejected because of the expired IELTS test'.[71] The complainant:[72]

... couldn't believe that an experienced migration agent and lawyer like [the practitioner] had made such a basic error. I was extremely angry at her, but more importantly [the complainant's husband] and I were tremendously worried about our visa outcome and therefore our future in Australia. I remember days and nights of anxiety and stress.

1. On 4 May 2016, the complainant and her husband emailed the practitioner as follows:[73]

[W]e would like to inform you about the situation you left us in, as it is even worse than what we supposed it to be and not just because of the high amount of documents DIBP asked us to provide again that you say you are not responsible for:

-IELTS test: if you are not responsible for immigration office procedure and processing time, you definitely are for the correct lodgment of documentation. This is way [sic] we paid you.

DIBP informed us that the IELTS test must be lodged at the time of application and NOT at the time of decision and this is an inadmissible [sic] mistake that cost us the WHOLE application from the beginning. Money that we don't have anymore and money we consider you responsible for.

Therefore, we expect you to take some action in terms of reimbursement.

1. By early June 2016, the complainant had all the necessary updated documents, including the updated IELTS test, and had completed the paperwork for lodging a fresh visa application.[74] On 2 June 2016, the complainant sent the letter of demand to the practitioner by registered post. The complainant did not make a photocopy of the letter of demand. However, as she had not received any response from the practitioner to the letter of demand, on 8 June 2016, the complainant sent the practitioner 'an email version of the letter'[75] 'in identical terms'[76] to the letter of demand as follows:[77]

to the attention of Mrs Christina Chang - IMPORTANT

[Complainant's name and email address] Wed, Jun 8, 2016 at 10:41 PM

I am writing you in regards to my Regional Sponsored Migration Scheme Visa Subclass 187.

You have been my migration agent since 2012 when myself and my husband applied for a 457 visa.

Our 457 visa was granted in January 2013 after which we moved to Perth, Western Australia. In 2013 I received a letter from you dated 21 May 2013 instructing us on which pathway to take to get our permanent residency in Australia.

My visa was granted until January 2017 [sic] and I engaged you again in mid 2013 in relation to permanent residency for my family.

You instructed us on what to do and we followed your instructions. We paid a significant amount of money and expected your expertise in return.

You did the paperwork for the nomination for my employer in which you were successful. After that you did the paperwork for the Regional sponsored migration scheme visa subclass 187.

In April 2016 I received correspondence from the immigration department stating that they needed more information such as:

• New medical tests
• Proof of English
• Police clearance from Australia
• Police clearance from Italy

I applied for all the required documents and we had to pay for all of this again. On the day that I was supposed to sit my IELTS test the [D]epartment of Immigration called me and informed me that my IELTS test was not up to date and a new one could not be attached to the existing application, since the application form states clearly that you have to provide an up to date test at the time of lodgment. I had 2 options due to a clear mistake made by you, which were either withdraw my application or wait for it to be rejected. I chose to withdraw my application as I was told that it would have been refused.

Due to the mistakes made by you as a migration expert who I trusted had the expertise to deal with my immigration matter, we are now in the process of lodging yet another application. The mistake was a simple one. It is stated on the applicant documentation checklist and should not have been overseen by an experienced migration agent and lawyer.

I would like to explain to you what the impact on my family has been and what I am seeking from you.

First of all, the emotional stress has been overwhelming. My visa expiries in January 2017 and it is not far away. Our children go to school here and we have a life here. I hope you can imagine some of the stress that we are experiencing plus the time we now have to spend to apply for another visa.

Secondly, there are consequences to not being a permanent resident yet. Such as paying $4000 for public schooling each year and other benefits we do not receive. Thirdly, the costs that have been made in the process which I will list below.

Western Australian police clearances $ 120 (wrong document that you added to the the [sic] application anyway)

The total amount is $ 20150 which is significant. We have been impacted greatly by your mistakes and we are seeking compensation. We recognize that applying for a visa comes at a cost and we are willing to pay for 1 visa application and the documents we would have had to acquire for that visa application. We would like you to refund us your fee, one application fee and all the documents that we obtained due to your incorrect advice. This comes to the total amount of $ 10000.

You can deposit the sum into the following bank account

I have written to you before and you have not responded. Please let me know before 17 June 2015 [sic] in writing. If I do not hear from you before such time I will assume that you are not willing pay us any compensation.

In that case you will leave me no other choice than [to] take legal action. I am sending a hard copy of this letter to your office. If you have any queries, please do not hesitate to contact me.

1. On 3 June 2016, the complainant lodged a fresh visa application and paid fees of $7,277.76 to DIBP.

1. At 1.08 pm on 23 June 2016, the practitioner sent, and the complainant received, the following email, which is the first email referred to in ground 1:[78]

Your recent correspondence (registered post) has been shown to me.

I will notify my Insurers and will await their response. Once I have that I can then respond to you in detail.

Barrister, Solicitor and Registered Migration Agent: MARN 9254751

1. At 9.54 pm on 29 June 2016, the complainant sent an email in response to the practitioner's email on 23 June 2016 as follows:[79]

Hi the way insurance works is that all claims must be reported to the insurers and I am required by my insurers not to discuss the claim with you directly. It is nothing personal cheers[.]

1. As the complainant did not receive any further correspondence from the practitioner, at 2.07 pm on 7 July 2016, the complainant sent an email to the practitioner requesting her to '[p]lease let me know asap what is your intention regarding my request'.[81] Two minutes later, at 2.09 pm on 7 July 2016, the practitioner sent, and the complainant received, the following email response, which is the third email referred to in ground 1:[82]

Hi I am waiting for [a] reply from my insurer[.] I should hear by next week. They know its [sic] urgent. Regards[.]

1. On 25 July 2016, the complainant commenced the Magistrates Court proceedings against the practitioner by lodging a Form 6 'Minor Case' in the Fremantle Registry of the Magistrates Court seeking '[t]he payment of an amount of money', namely $10,000 as well as 'Court fee' of $118.20.[83] As we said in our reasons for dismissing the practitioner's objection to the admissibility of documents relating to the Magistrates Court proceedings, that proceeding was a 'minor case' for the purposes of Pt 4 of the MCCP Act, because the value of the claim was not more than the minor cases jurisdictional limit of $10,000 and the complainant elected to have the claim dealt with under the minor cases procedure by filing the Form 6 to commence the proceedings. In the Form 6, the complainant stated the 'Details of Claim' as follows:[84]

I have appointed Mrs Christina Chang, a registered migration agent, to prepare, revise and lodge the application for a permanent visa for myself and my husband and our two children.

I trusted her and after various months of waiting, two changes of practice for Mrs Chang and our payment of Immigration fees (7200AUD), fees for documents (1500 AUD approx.) and agent honorarium (3300 AUD), Mrs Chang was finally able to lodge the application in October 2015. In April 2016 though, we have been contacted by the Immigration [D]epartment and informed that our application should have been withdrawn or would be refused as it had been lodged with an expired English test and as clearly stated in the immigration website, English test must be provided at the time of lodgment, not at the time of decision. I had no choice other than withdraw my application, undertake a new test, pay a new application (another 7200 AUD) and new documentation.

I trusted Mrs Chang and I thought she was an expert and professional lawyer and migration agent, while in reality she did not even revised [sic] my application before lodging, an oversight that is costing my family lots of money, as well as stress and anxiety regarding our future in Australia.

I therefore ask her or her practice to pay the amount of 10000 AUD as (part of) reimbursement for one [visa] application and her honorarium.

1. On the same day as the complainant commenced the Magistrates Court proceedings, the Court issued a 'Notice of Pre-Trial Conference Minor Case' to the complainant and the practitioner which stated as follows:[85]

You are required to attend a pre-trial conference at the Magistrates Court held at Pre-Trial Conference Room, 8 Holdsworth Street, FREMANTLE on Tuesday the 23rd day of August 2016 at 10:15am.

The primary role of the registrar at a pre-trial conference is to attempt to bring the parties to a settlement acceptable to all parties.

1. Determine what facts, if any, are agreed by the parties;
2. Direct the parties to exchange further documents or other information;

1. Make any other directions necessary to facilitate settlement; and

1. List the case for a further pre-trial conference.

If the case is not settled the registrar must list the case for trial and notify the parties in writing.

You must attend the pre-trial conference in person.

If you are not ready, or if you are unable to attend the pre-trial conference, you should make a prior application to the Court for an adjournment with the written consent of the other party. If you are unable to obtain the other party's consent you may apply to the Court by lodging a Form 23 Application. Do not leave it until the day of the conference as the Registrar may give default judgment against a party who fails to attend a pre-trial conference.

If you need an INTERPRETER, you must immediately advise the COURT of the language and dialect you require. Give your name, case number and the date of the conference.

1. At about 10.15 am on 23 August 2016, the complainant and her husband and the practitioner attended a pre-trial conference in the Magistrates Court proceedings before Registrar Louisa Woods at the Fremantle Magistrates Court.[86] During the pre-trial conference, the practitioner said to Registrar Woods words to the effect:[87]

I cannot disclose any details because the matter is in the insurer's hands. I will discuss it as soon as I have more information on what they are going to do[.]

1. The practitioner then requested the adjournment of the pre-trial conference.[88] Registrar Woods said words to the effect that she would adjourn the pre-trial conference to allow the practitioner time to talk to the insurer or for the insurer to send their lawyer to the next pre-trial conference, however there would be no further adjournments of the pre­trial conference.[89] Registrar Woods then made the following orders:[90]
   1. The Pre-Trial Conference is adjourned to 10.15am on Tuesday, 27 September 2016.
   2. No further adjournments of the Pre-Trial Conference.
2. On 27 September 2016, the complainant and her husband attended the Fremantle Magistrates Court for the pre-trial conference listed for 10.15 am on that day.[91] On their arrival, the Registrar informed them that the practitioner was running late and said that the complainant's husband could not attend the pre-trial conference, as he was not a party to the case, even though he was present at the earlier pre-trial conference. The practitioner then arrived and the pre-trial conference proceeded.[92] The practitioner said to the Registrar words to the effect that the practitioner had been dealing with a matter in the Family Court and then said to the Registrar words to the effect that:[93]

I cannot speak about the matter because there is an insurer involved[.]

1. The practitioner then requested a further adjournment of the pre-trial conference.[94] The complainant did not say anything in response to what the practitioner had said to the Registrar. The complainant was nervous being in the pre-trial conference, and thought that, if an insurer was involved and the Registrar appeared to accept what the practitioner said, then 'that must be the way things were done' and there was nothing that she (the complainant) could say.[95] The Registrar then made the following order:[96]
   1. The Pre-Trial Conference is adjourned to 10.15am on Tuesday 22 November 2016.
2. On 6 November 2016, the complainant sent the following email to the practitioner:[97]

[W]e would appreciate if you can provide us the name and contacts of the lawyer from the insurer [sic] company in charge of dealing with our claim.

1. The practitioner did not respond to the complainant's email set out in the preceding paragraph.[98]
2. On 22 November 2016, the complainant and her husband attended the Fremantle Magistrates Court for the pre-trial conference listed for 10.15 am that day, but the complainant's husband did not enter the PTC room.[99] The Registrar said to the complainant words to the effect that the practitioner had left a message with the Court that she was unwell and was unable to attend that day.[100] The Registrar then said to the complainant words to the effect that she would enter judgment against the practitioner, because the practitioner had been 'given many chances to defend the claim'.[101] The Registrar then made the following order:[102]
   1. Judgment for [the complainant] against [the practitioner] in the sum of $10,118.20 inclusive of costs and interest.
3. As at the date of the complainant's witness statement (1 March 2019), the practitioner had not paid, or offered to pay, any of the judgment sum of $10,118.20.[103] As at the date of her witness statement, the complainant had not taken any steps to enforce the judgment, initially because she believed that the practitioner was 'obliged to pay' and, after the complainant found out that she had to apply to enforce the judgment herself, she did not have 'the time or energy to do the necessary research and the Court paperwork'.[104]

1. On 20 January 2017, the complainant made a complaint about the practitioner to the Committee under s 410 of the LP Act. Section 410(1)(e) of the LP Act enables a complaint about an Australian legal practitioner to be made by 'any ... person who has or had a direct personal interest in the matters alleged in the complaint'.
2. By letter dated 15 September 2017, the Committee formally notified the practitioner of, and requested her submissions in relation to, the Committee's investigation of the complaint made by the complainant about the practitioner (first notification letter).[105] Among other things, the first notification letter set out the email statements, which are the subject of ground 1, and the PTC statements, which are the subject of ground 2. In relation to the 'nature of the complaint', the letter refers to 'possible unsatisfactory professional conduct or professional misconduct', including '[p]ossibly falsely representing to the [R]egistrar of the Magistrates Court and the client' at the pre-trial conferences on 23 August 2016 and 27 September 2016 'that you could not discuss the circumstances of the Claim ... because the matter was being dealt with by your insurer when you had not, in fact, notified your insurer of the Claim'.[106] The first notification letter then states as follows:[107]

You have the right to make submissions to the Committee about the complaint and you are requested to do so.

Please provide your submissions including such facts and explanations as will enable the Committee to give consideration to the complaint by 4pm on Thursday, 5 October 2017.

• You must be open and candid in your dealings with the Legal Profession Complaints Committee: Legal Profession Conduct Rules 2010 (WA), Rule 50(2).
• You must provide a full and accurate account of your conduct: Legal Profession Conduct Rules 2010 (WA), Rule 50 (3).

1. Enclosed with the first notification letter was a Summons to Produce Documents dated 15 September 2017 issued by the Committee to the practitioner under s 520(1)(a) of the LP Act (first summons). The first summons required the practitioner to produce at or before 4.00 pm on Thursday 5 October 2017 to the Law Complaints Officer at the Committee '[a]ll your entire original files and all documents held by you and [AWL]' relating to the visa application and the Magistrates Court proceedings, including:[108]

(a) all correspondence and communications (including email communications) including with your insurer or insurers (including but not limited to Law Mutual);

(e) your notification or notifications to your insurer (including, but not limited to, Law Mutual) of the [complainant's] claim seeking compensation in relation to the work performed by you in the matter and/or in relation to the [Magistrates Court] proceedings;

(g) all correspondence between you and your insurer or insurers (including, but not limited to, Law Mutual) regarding the matter and/or the [Magistrates Court] proceedings, including file notes recording the contents of telephone discussions;

1. The first notification letter and the first summons were sent to the practitioner by registered post to the address of the practitioner's legal practice (and delivered to that address on 19 September 2017) and by email to the email address of her legal practice.[109] The practitioner admits that she received the first notification letter and the first summons.[110] As indicated earlier, the first notification letter requested the practitioner's submissions in relation to the complaint to be provided by 4.00 pm on Thursday 5 October 2017. The first summons required the practitioner to provide the documents sought by the same time and date. The Committee contends ­ and the practitioner admits ­ that she failed to respond to the first notification letter and to the first summons within the period specified in those documents or subsequently.[111]
2. By letter dated 17 October 2017, the Committee formally notified the practitioner of, and requested her submissions in relation to, a conduct investigation commenced on the Committee's own initiative, under s 421 of the LP Act, in relation to the practitioner's failure to respond to the first notification letter and the first summons (second notification letter).[112] The second notification letter concludes as follows:[113]

You have a right to make submissions to the Committee about your conduct and are requested to do so.

Please provide your written submissions including such facts and explanations as will enable the Committee to give consideration to all 6 aspects of your conduct by 4 pm on Tuesday, 7 November 2017.

If your submissions are not received by that date the complaint and conduct investigation may be referred to the Committee for determination without further notice to you.

1. The second notification letter was sent to the practitioner by registered post to the address of the practitioner's legal practice (and was delivered to that address on 19 October 2017) and by email to the email address of AWL.[114] The Committee contends ­ and the practitioner admits ­ that the practitioner did not respond to the second notification letter by 7 November 2017 or subsequently.[115]
2. By letter dated 15 November 2017, the Committee formally notified the practitioner of, and requested her submissions in relation to, a conduct investigation commenced on the Committee's own initiative, under s 421 of the LP Act, in relation to the practitioner's failure to respond to the second notification letter and again requested the practitioner's submissions in relation to the complainant's complaint about the practitioner and the conduct investigation in relation to the practitioner's failure to respond to the first notification letter (third notification letter).[116] The third notification letter states, in part, as follows:[117]

You have the right to make submissions to the Committee about the complaint (as set out in paragraphs 1 to 5, above) and the conduct investigation (as set out in paragraphs 6 and 7, above) and you are requested to do so.

Please provide your submissions, including such facts and explanations as will enable the Committee to give consideration to the complaint and the conduct investigation by 4pm on 6 December 2017.

• You must be open and candid in your dealings with the Legal Profession Complaints Committee: Rule 50(2) of the Conduct Rules.
• You must provide a full and accurate account of your conduct: Rule 50(3) of the Conduct Rules.

1. Enclosed with the third notification letter were copies of the first notification letter, the first summons and the second notification letter, together with a Summons to Produce Documents and Provide Written Information Verified by Statutory Declaration dated 15 November 2017 issued by the Committee to the practitioner under s 520(1)(a), (c) and (d) and 520(3) of the LP Act (second summons).[118] The second summons required the practitioner to produce to the Law Complaints Officer at the Committee by 4.00 pm on 6 December 2017:[119]
   1. All your original files and all documents held by you and [AWL] relating to you acting for [the complainant] in relation to ... [the] visa application ... and [the] Magistrates Court ... proceedings[.] ...
   2. All documents held by you and AWL relating to notification or notifications made by or on behalf of you and/or AWL to an insurer or insurers (including, but not limited to, Law Mutual) in relation to the [complainant's] claim for compensation set out in her email to you/AWL dated 8 June 2016 regarding the work performed by you in the matter and/or in relation to the [Magistrates Court] proceedings (together, the Claim) and the management of the Claim by the insurer or insurers[.] ... [and]
   3. In respect of the notification or notifications made by or on behalf of you and/or AWL to an insurer or insurers (including, but not limited to, Law Mutual) in relation to the Claim and the management of the Claim by the insurer or insurers, set out in writing:

(a) the name/s of the insurer or insurers which were notified of the claim[.]

1. The third notification letter and the second summons were served personally on the practitioner at the address of her legal practice at 4.58 pm on 17 November 2017.[120]
2. As indicated earlier, the practitioner was requested to provide submissions in relation to her conduct in the third notification letter by 4.00 pm on 6 December 2017 and was required by the second summons to provide the documents and information specified by the same time and date. The Committee contends ­ and the practitioner admits ­ that she did not respond to the third notification letter or comply with the second summons by 6 December 2017 or subsequently.[121]

Ground 1 ­ Knowingly seeking to mislead the complainant

1. As indicated earlier, ground 1 alleges engagement in professional misconduct against the practitioner in the following terms:[122]

That the practitioner, CHRISTINA MARIE CHANG (practitioner), between 23 June 2016 and 7 July 2016, in the course of corresponding with a former client, [the complainant], in response to a letter of demand from [the complainant] dated 2 June 2016 for a refund of $10,000 for fees paid by [the complainant] in relation to an unsuccessful visa application the practitioner had prepared and lodged on behalf of [the complainant] and her family on 16 October 2015 (Claim), the practitioner engaged in professional misconduct within the meaning of [s] 403 and [s] 438 of the Legal Profession Act 2008 (WA) (Act) in that her conduct would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, and further and alternatively, would justify a finding that she is not a fit and proper person to engage in legal practice, by preparing and sending:

1. an email to [the complainant] dated 23 June 2016 in which she stated "I will notify my Insurers and will await their response. Once I have that I can then respond to you in detail";
2. an email to [the complainant] dated 29 June 2016 in which she stated "Hi the way insurance works is that all claims must be reported to the insurers and I am required by my insurers not to discuss the claim with you directly";
3. an email to [the complainant] dated 7 July 2016 in which she stated "Hi I am waiting for [a] reply from my insurer[.] I should hear by next week. They know its [sic] urgent",

(a) the email statements were false and misleading, as, in truth, at no time between 23 June 2016 and 7 July 2016 did the practitioner notify, or correspond with, any insurer or insurers regarding the Claim;

(b) the practitioner knew the email statements were false and misleading and intended that [the complainant] be misled by the email statements, so as to defer or delay [the complainant] from commencing proceedings against the practitioner in respect of the Claim.

Issues for determination in relation to ground 1

1. The following four principal issues arise for determination in relation to ground 1:
   1. Whether the email statements were made by the practitioner.
   2. Whether the email statements were false and misleading.
   3. Whether the practitioner knew that the email statements were false and misleading and intended that the complainant be misled by the email statements, so as to defer or delay the complainant from commencing proceedings against the practitioner in respect of the claim.
   4. Whether the practitioner engaged in professional misconduct by making the email statements.
2. We will address each of these issues in turn.

Were the email statements made by the practitioner?

1. We are satisfied on a balance of probabilities and feel an actual persuasion (in accordance with the Briginshaw approach) on the documentary evidence reproducing the three emails[123] and the complainant's evidence that she received the emails from the practitioner at the time and date stated on the relevant email that the practitioner prepared and sent the emails and made the email statements alleged in ground 1.
2. The email statements were emailed from the practitioner's email address (AWL@aus-global.com.au) to the complainant's email address. The email containing the first email statement on 23 June 2016 was responsive to the letter of demand which had been sent by the complainant to the practitioner by registered post ('Your recent correspondence (registered post) has been shown to me') and concluded with the sign-off 'Regards Christina Chang'. The emails containing the second and third email statements on 29 June 2016 and 7 July 2016, respectively, were each responsive to emails sent shortly before by the complainant to the practitioner. Furthermore, there is no evidence suggesting that anyone other than the practitioner sent the emails containing the three email statements. There is therefore absolutely no doubt on the evidence that the practitioner prepared and sent the three emails conveying the email statements. Indeed, although the practitioner did not formally admit that she made the email statements, in closing submissions made on her behalf, Mr Walker frankly conceded that:[124]

... there's no contest, as will be apparent to the [T]ribunal members, that indeed the three emails were prepared and sent [by the practitioner].

Were the email statements false and misleading?

1. The practitioner does not admit that the email statements were false and misleading. However, we are satisfied on a balance of probabilities and feel an actual persuasion on the evidence (in accordance with the Briginshaw approach) that the email statements were false and misleading. We accept the Committee's submission that the email statements are to be considered 'in their totality in the meaning that they convey' and that:[125]

... [t]hey convey the meaning that [the practitioner] had been in contact with her insurer, [and] that her insurer had told her that she was not to discuss the matter. In truth, the Committee submits, the evidence is overwhelming that [the practitioner] had not been in contact with her insurer.

1. During the period from 30 September 2015 to 4.00 pm on 1 October 2016 (which includes the period between 23 June 2016 and 7 July 2016 during which the practitioner made the email statements), the practitioner held registered migration agents professional indemnity insurance with AAI Limited trading as Vero Insurance under a Certificate of Currency issued by Glenowar Pty Ltd trading as Fenton Green & Co (Fenton Green professional indemnity insurance policy). The Certificate of Currency for the Fenton Green professional indemnity insurance policy which was held by the practitioner during the relevant period is reproduced below:[126]

1. On 22 February 2019, on the application of the Committee, the Tribunal issued a Summons to Witness to The Proper Officer, Glenowar Pty Ltd trading as Fenton Green & Co seeking production of the following documents:[127]
   1. All documents relating to any notification(s) made by or on behalf of Christina Marie Chang ("Ms Chang") and/or Australia World Link Pty Ltd t/as Australia World Link ("AWL") regarding:

(a) a claim for compensation by [the complainant] ("[the complainant]") as particularised in a letter from [the complainant] to Ms Chang dated 2 June 2016 and/or an email from [the complainant] to Ms Chang dated 8 June 2016;

(b) Magistrates Court of Western Australia proceedings case no. [Magistrates Court proceedings] commenced by [the complainant] against Ms Chang filed on 26 July 2016 ("Proceedings"); and/or

(c) a judgment sum of $10,118.20 entered against Ms Chang in the Proceedings on 22 November 2016, (together, the "Claim")

and the management of the Claim, including but not limited to:

(ii) all correspondence and communications (including emails and telephone attendances) with Ms Chang and/or AWL staff in hard copy and electronic form;

(iii) all telephone records showing any telephone calls made by Ms Chang and/or AWL staff.

1. The policy schedule, wording, and endorsements applicable to each of professional indemnity insurance policy no. LPS018938616-00003575, LPS019735298-00004631 and LPS020541833-00005591 issued to Ms Chang.
2. On 4 March 2019, Fenton Green produced documents in answer to the Summons to Witness by email. In the covering email to the Executive Officer to the Tribunal, Mr Michael Drever, Account Executive at Fenton Green stated as follows:[128]

Please find the requested documents below attached for you to review:

-Email from Vero confirming to provide terms for Ms Chang when she first applied for cover

To date we have no correspondence from Ms Chang in relation to any claim notification relating to [the complainant]. I have confirmed this with the Vero claims team.

Should you require anything further please let me know.

1. The documents produced by Fenton Green in answer to the Summons to Witness do not include any claim notification or correspondence relating to the complainant, as the covering email states.
2. It is highly unlikely that the practitioner held more than one policy of professional indemnity insurance as a registered migration agent during the currency of the Fenton Green professional indemnity insurance policy. Indeed, when the practitioner filled out the proposal form for 'registered migration agents professional indemnity & optional public liability insurance' with Glenowar Pty Ltd trading as Fenton Green & Co on 14 November 2016 for the entities 'Christina Marie CHANG and Australia World Link', which insurance was granted to the practitioner and AWL from 14 November 2016 to 4.00 pm on 1 December 2017, the practitioner answered and declared in response to a question on the proposal form 'Do you have Professional Indemnity Insurance Cover currently in place?': 'No'.[129]
3. Although the practitioner also held professional indemnity insurance as a legal practitioner with Law Mutual (WA) between 19 October 2015 and 30 June 2016 and between 30 June 2016 and 30 June 2017, as we said earlier, the complainant retained the practitioner as a registered migration agent, not as a legal practitioner. Furthermore, on 15 February 2019, on the application of the Committee, the Tribunal issued a Summons to Witness to the Manager Claims of Law Mutual (WA) seeking production of the following documents:[130]
   1. All documents relating to any notification(s) made by or on behalf of Christina Marie Chang ("Ms Chang") regarding:

(a) a claim for compensation by [the complainant] ("[the complainant]") as particularised in a letter from [the complainant] to Ms Chang dated 2 June 2016 and/or an email from [the complainant] to Ms Chang dated 8 June 2016;

(b) Magistrates Court of Western Australia proceedings case no. [Magistrates Court proceedings] commenced by [the complainant] against Ms Chang filed on 26 July 2016 ("Proceedings"); and/or

(c) a judgment sum of $10,118.20 entered against Ms Chang in the Proceedings on 22 November 2016, (together, the "Claim")

and the management of the Claim, Including but not limited to:

(ii) all correspondence and communications (including emails and telephone attendances) with Ms Chang and/or her staff in hard copy and electronic form;

(iii) all telephone records showing any telephone calls made by Ms Chang and/or her staff.

1. The policy schedule, wording, and endorsements applicable to the professional indemnity insurance policies issued to by Law Mutual (WA) to Ms Chang covering the period 2 June 2016 to 7 February 2018.
2. On 1 March 2019, Law Mutual (WA) produced documents in answer to the Summons to Witness. Law Mutual (WA) did not produce any documents in response to par 1 of the Summons. In a covering letter to the Tribunal enclosing documents in response to par 2 of the Summons, the Manager Claims of Law Mutual (WA) said the following:[131]

Ms Chang has not notified Law Mutual (WA) in respect to a claim for compensation by [the complainant] and no such claim has been registered on Law Mutual (WA)'s database. There is no record of any correspondence and communications (either by emails, letters or telephone calls) received from Ms Chang and/or her staff in respect to a claim by [the complainant].

1. On the evidence referred to at [112]-[118] above, we are satisfied on a balance of probabilities and feel an actual persuasion (in accordance with the Briginshaw approach) that the email statements were false and misleading, as, in truth, at no time between 23 June 2016 and 7 July 2016 did the practitioner notify, or correspond with, any insurer or insurers regarding the claim. The fact that the practitioner failed to respond to the complainant's request in her email of 6 November 2016 for the insurer's lawyer's details 'in charge of dealing with our claim' also supports this finding.[132]
2. As indicated earlier, the practitioner did not give evidence or present any evidence other than a PAYG payment summary. Furthermore, it was not contended on her behalf that there is any evidence that she notified, or corresponded with, any insurer or insurers regarding the claim between 23 June 2016 and 7 July 2016, or at any other time. Rather, Mr Walker submits, on behalf of the practitioner, that the Committee:[133]

... stands or falls on ground 1 by reference to whether it establishes that each and all of the three emails were false and misleading.

1. In particular, Mr Walker submits that the statement made by the practitioner in the email dated 23 June 2016 ('I will notify my Insurers and will await their response. Once I have that I can then respond to you in detail') is 'a statement of ... future intent'[134] and is, therefore, 'incapable of being false and misleading'.[135] In relation to the statement in the email dated 29 June 2016 ('Hi the way insurance works is that all claims must be reported to the insurers and I am required by my insurers not to discuss the claim with you directly'), Mr Walker submits that it:[136]

is of a different character, but, likewise, in my submission, [it] does not express the, or by invitation, claim or suggest that the practitioner had notified or corresponded with any insurer or insurers, let alone between the identified dates.

It's capable of making sense and of being read as a statement about what would happen, or will happen, or may happen if an insurance claim or a claim is made on the insurer. And it sits comfortably with the earlier email statement in subparagraph 1 made six days earlier:

It really builds upon that and is conformable with it.

1. In relation to the statement made in the practitioner's email on 7 July 2016 ('Hi I am waiting for [a] reply from my insurer[.] I should hear by next week. They know its [sic] urgent.'), Mr Walker submits:[137]

... email 3 in what it implies is - the [T]ribunal may well find that it's misleading.

I would submit it's not false, it implies that a claim has been made, it doesn't expressly assert it. And if this [T]ribunal came to the conclusion that email 3 was misleading but not false, then I submit it follows that it's not established that that email statement, the third one, was both false and misleading. And that's the necessary conclusion for the [T]ribunal to find that ground 1 is made out.

1. Mr Walker also submits in relation to the practitioner's email dated 7 July 2016 that the Tribunal 'needs to consider whether it clearly establishes the statement', given that it is 'a casual and hurriedly put together email'.[138]
2. However, as the Committee submits, it is not open to 'compartmentalise and sever the statements relied upon' in the manner contended by the practitioner.[139] As the Committee submits:[140]

The [C]ommittee's pleaded case is that in relation to ground 1, the email statements together were false and misleading because, together, in combination, they created a false and misleading impression that [the practitioner] had contacted an insurer and the insurer had told [her] certain things.

1. In our view, the email statements, which, as the Committee submits, are pleaded in relation to ground 1 together, were plainly false and misleading, because, together and in combination, 'they created a false and misleading impression that [the practitioner] had contacted an insurer and the insurer had told [her] certain things', namely that she may not discuss the claim with the complainant directly. This was false and misleading, because the practitioner had not contacted her professional indemnity insurer during the relevant period, or subsequently. Read as they are pleaded, collectively, the email statements were false and misleading.
2. Furthermore, we do not accept the practitioner's submission that the second email is 'capable of making sense and of being read as a statement about what would happen, or will happen, or may happen if an insurance claim or a claim is made on the insurer'.[141] In our view, the clear implication from the use of the present tense and the definite article 'the' before 'claim' in the statement 'I am required by my insurers not to discuss the claim with you directly' is that the practitioner had already notified her insurers of 'the claim' that had been made by the complainant in the letter of demand and that the practitioner was required 'by my insurers' not to discuss the complainant's claim made in the letter of demand with the complainant directly. This was false and misleading, because the practitioner had not, in fact, notified her insurer of the claim or corresponded with the insurer in relation to the claim.
3. We also do not accept the practitioner's submission that the statement made in the email dated 7 July 2016 'was misleading but not false', because 'it doesn't expressly assert' that a claim had been made on the practitioner's insurer. The only reasonable inference from the practitioner's words 'Hi I am waiting for [a] reply from my insurer' and 'I should hear by next week' is that she had notified the insurer of the complainant's claim and was in correspondence with the insurer about that claim.
4. Finally, the fact that the practitioner's email of 7 July 2016 (and also her email of 29 June 2016) was 'casual and hurriedly put together' does not affect our finding that the email statements, taken together, were false and misleading. Although the expression is 'casual' and the emails were sent shortly after the complainant's emails to which they replied were received, we have no doubt that the emails of 29 June 2016 and 7 July 2016 'clearly establish the statement[s]' set out in those emails. The clear and obvious implication from the email statements is that the practitioner had notified and corresponded with her insurer in relation to the claim made by the complainant in the letter of demand. This was both false and misleading.

Did the practitioner know that the email statements were false and misleading and did she intend that the complainant be misled by the email statements, so as to defer or delay her from commencing proceedings against the practitioner in respect of the claim?

1. The clear and, indeed, only reasonable inference which is open on the evidence is that the practitioner knew that the email statements were false and misleading and intended that the complainant be misled by the email statements, so as to defer or delay her from commencing proceedings against the practitioner in respect to the claim. As the Committee submits, this inference is 'irresistible'.[142] The practitioner obviously knew that she had not notified, or corresponded with, any insurer regarding the complainant's claim in the letter of demand. Particularly given that the letter of demand said that, if the practitioner was not willing to pay any compensation, 'you will leave me no other choice than [to] take legal action' and the complainant's email on 29 June 2016 said that 'I was going to lodge the paperwork with the [M]agistrates [C]ourt tomorrow but I will refrain from this if we can work this out between us as that is my preference', the only reasonable inference available from the practitioner knowingly making the false and misleading email statements is that she intended to defer or delay the complainant from commencing legal proceedings against her.
2. We note that, although it appears the complainant was misled for a period of time into deferring or delaying the commencement of the Magistrates Court proceedings, it is not necessary for the complainant to have in fact been misled for the practitioner to have committed professional misconduct. Rather, it was the making of the false and misleading statements, with the intention that the complainant be misled by them into deferring or delaying commencing legal proceedings, that, we find below, constitutes professional misconduct.

Did the practitioner engage in professional misconduct by making the email statements?

1. In our view, the practitioner engaged in professional misconduct by making the email statements, as her conduct would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, within the first limb of the restatement of the common law concept of unprofessional conduct in Kyle v Legal Practitioners' Complaints Committee at [61].
2. In her response to the Committee's facts and contentions (although not in submissions made by counsel on her behalf at the hearing), the practitioner submits that she:[143]

... has no case to answer in relation to Grounds 1 and 2 as the conduct alleged (if proven) arise out of the Practitioner providing immigration assistance as defined in [s] 276 of the Migration Act as an employee of Australia World Link ("AWL'') to [the complainant] who at all material times was a client of AWL and not a client of the law practice which was conducted by the Practitioner as a sole practitioner under the style "Christina Chang Lawyers".

The Law Council of Australia is of the view that "Immigration Assistance" is not considered legal work that is subject to legal services regulators such as the Applicant.

1. This submission is misconceived. As indicated earlier, the Committee does not contend, in relation to grounds 1 and 2, that the practitioner engaged in professional misconduct in her capacity as a lawyer. Rather, the Committee contends that the practitioner engaged in professional misconduct in those grounds in her personal capacity or capacity as a registered migration agent.
2. In Chamberlain v Law Society of the Australian Capital Territory [1993] FCA 527; (1993) 43 FCR 148, Lockhart J observed at 163 as follows:

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

1. Furthermore, as the Full Court of the Supreme Court observed in Kyle v Legal Practitioners' Complaints Committee at [61], the first limb 'is not confined to ... conduct which occurs in the course of legal practice'.
2. Mr Walker submits on behalf of the practitioner that although 'the conduct in making and sending the three emails containing the relevant statements is poor conduct, it is inappropriate, it's to be criticised',[144] it would not be reasonably regarded as 'disgraceful or dishonourable' by practitioners of good repute and competence. Mr Walker submits:[145]

... with a rhetorical question if I may - is it disgraceful, and would it be so regarded by the relevant people as disgraceful to prepare and send any one of those three emails? I submit not. I submit they, they the reasonable the practitioners of [good repute and competence] would [criticise] it, and perhaps [criticise] it strongly, but would resist from saying it is disgraceful.

It is not so bad as to be disgraceful, to bring disgrace upon perhaps the practitioner or the profession. Disgraceful is a strong word, I submit, it's intended as part of the test to attach only to conduct at - towards one end of the spectrum of wrong behaviour or behaviour to be criticised. Is it dishonourable? Would it be regarded, reasonably, as dishonourable by those practitioners? In my submission, again, it doesn't get to that level.

It may be close to the level, it may be in the ballpark, if I can put it that way. But is it dishonourable for a person, focussing on email 3, to, arguably, mislead the litigant who's issuing the [proceedings] to imply that a claim has been made to an insurer? In my submission, no. Poor behaviour, not to be encouraged, to be criticised; not dishonourable.

Dishonourable is an adjective like, perhaps, disgraceful that, in my submission, to preserve its meaning and the full range of connotations that are properly attached to it, it can't be stretched though as to include conduct of a lesser character. Otherwise, it loses the place it should have, that is to say, reserved for severe cases. ...

1. As counsel for the practitioner submits, the adjectives 'disgraceful' and 'dishonourable' are 'strong words'. These words bear the following meanings:[146]

disgraceful ... bringing or deserving disgrace; shameful; dishonourable; disreputable. ...

dishonourable ... 1. showing lack of honour; ignoble; base; disgraceful; shameful: a dishonourable act. 2. having no honour or good repute: a dishonourable man. ...

1. Significantly, in this case, as the Committee submits, '[b]y the time of ground 1[,] a court proceeding was certainly in contemplation'.[147] As indicated earlier, in the letter of demand, the complainant said that, if the practitioner was 'not willing [to] pay us any compensation ... you will leave me no other choice than [to] take legal action'. Furthermore, in her email to the practitioner on 29 June 2016, the complainant said that 'I was going to lodge the paperwork with the [M]agistrates [C]ourt tomorrow' and that '[i]f I do not hear from you I will proceed with lodging the paperwork with the [C]ourt'.
2. Thus, the email statements were made by the practitioner in the knowledge of, and in response to, contemplated and foreshadowed court proceedings against her. Furthermore, although the complainant considered that the work that the practitioner was doing for her 'was as a migration agent' and '[n]ot as a lawyer',[148] she certainly understood at the time of the email statements, which are the subject of ground 1, that the practitioner was a lawyer. As indicated earlier, some of the practitioner's emails to the complainant stated that she was a 'Barrister, [and] Solicitor' as well as a 'Registered Migration Agent'. Furthermore, in the letter of demand, the complainant said that, as 'an experienced migration agent and lawyer', the practitioner should have known that the IELTS test was not current.[149]
3. In our view, the circumstances in this case in relation to ground 1 are somewhat analogous to the circumstances in Legal Profession Complaints Committee and Amsden [2014] WASAT 57 in which the Tribunal determined that a legal practitioner engaged in professional misconduct in a personal capacity by demanding payment of $2,022 from the owners of a strata unit in a complex in which the practitioner owned the other two units (and in commencing and prosecuting a minor case claim for that amount against them in the Magistrates Court) in circumstances where the recipients of the demand had no existing liability to pay the amount the practitioner demanded from them. The Tribunal determined in Legal Profession Complaints Committee and Amsden at [49]-[51] as follows:
   1. In our view, the practitioner's conduct in demanding payment of the amount of $2,022 from Mr A and Ms A, when they were under no existing liability to pay that amount, and in commencing and prosecuting the Magistrates Court proceeding, in circumstances where she had no cause of action, the proceeding lacked any legal foundation and was therefore an abuse of the Court's process, would reasonably be regarded as disgraceful or dishonourable by practitioners of good repute and competence, within the first limb of the restatement of the common law concept of unprofessional conduct in Kyle, and constitutes professional misconduct under the LP Act. The practitioner's conduct involved the breach of duties of fairness to Mr A and Ms A not to demand payment from them when they had no existing liability to make payment and not to bring legal proceedings against them when she had no founding cause of action, and the breach of a duty of propriety to the Court not to commence and prosecute proceedings which involve an abuse of process. The practitioner's conduct was grossly unfair to Mr A and Ms A and wasted valuable court time and resources.
   2. Moreover, the letter of demand and the Magistrates Court proceeding was clearly intended to apply inappropriate and improper pressure on Mr A and Ms A to pay the amount of $2,022. Although the practitioner did not write the letter of demand on her professional letterhead, Mr A and Ms A knew that the practitioner is a lawyer, because the practitioner said so in the documents she filed in the proceeding she commenced against Mr A and Ms A under the [Strata Titles Act 1985 (WA)]. Indeed, in a letter that Mr A and Ms A wrote to the practitioner on 4 April 2011, they said that '[y]ou have used your majority ownership of 2 of the 3 lots and your knowledge as a lawyer to bully and disadvantage us since buying unit 3 on 2 May 2006' (emphasis added).
   3. The clear implication to Mr A and Ms A from the letter of demand written to them by a lawyer was that Mr A and Ms A had an obligation to pay the practitioner the sum demanded. Similarly, the clear implication to Mr A and Ms A from the commencement of legal proceedings against them by a lawyer was that they had an obligation to pay the amount claimed in the proceeding. And, indeed, the practitioner gave evidence in this proceeding that, before the Magistrates Court proceeding was listed for hearing, Mr A 'made an offer to settle for an amount less the cost of private repairs he had done at the property that he said I was responsible for causing', although the practitioner 'refused his offer'.
4. The practitioner in this case did not commit the same ethical breach as the practitioner in Legal Profession Complaints Committee and Amsden. In that case, the practitioner relevantly issued a letter of demand in circumstances where the recipients of the demand were under no existing liability to pay the amount demanded. In this case, the practitioner responded to the complainant's letter of demand knowingly seeking to mislead the complainant so as to defer or delay her from commencing proceedings against the practitioner in respect of the claim made in the letter of demand. However, the circumstances are somewhat analogous, because in both Legal Profession Complaints Committee and Amsden and in this case, the practitioner's conduct, although in a personal, rather than (legal) professional, capacity, occurred in the context of a letter of demand for payment of money and contemplated and foreshadowed court proceedings if the money demanded is not paid, and the other party to the letter of demand knew that the practitioner was a lawyer.
5. In our view, for a legal practitioner, in a personal capacity, to knowingly seek to mislead a person who has issued a letter of demand to the practitioner for payment of money, so as to defer or delay that person from commencing legal proceedings against the practitioner in respect of the claim in the letter of demand, would be reasonably regarded as disgraceful, that is bringing or deserving disgrace, shameful and disreputable, or dishonourable, that is showing lack of honour, ignoble, base and shameful, by practitioners of good repute and competence. The practitioner's conduct was grossly unfair to the complainant and dishonest. Such conduct would certainly be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence if it occurred in circumstances where the practitioner was acting on behalf of a client who had received a letter of demand. It is no less the case when a practitioner is responding to a letter of demand in a personal capacity. Such conduct involves a breach of a lawyer's fundamental ethical duties of candour and fairness, whether representing a client or acting in a personal capacity, not to knowingly seek to mislead the other party to a demand for payment of money.
6. As the Tribunal said in the context of different ethical duties (of fairness, honesty and propriety in relation to third parties and not to mislead a court or tribunal) in Legal Profession Complaints Committee and A Legal Practitioner at [28], a legal practitioner's ethical duties of candour and fairness when responding to a letter of demand are:

... so fundamental and self-evident for the proper conduct of a legal practitioner, that it is unnecessary for them to be recorded in a written rule or practise in order to be binding on members of the profession.

1. In Legal Profession Complaints Committee and A Legal Practitioner, the Tribunal referred to High Court authority to this effect at [123]­[124] as follows:
   1. Even in the absence of an express authority on point, we have no doubt such duty exists. As Rich J said in Kennedy v The Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJR 563:

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

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

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

1. Furthermore, as the Tribunal also said in Legal Profession Complaints Committee and A Legal Practitioner at [28], breach of an ethical duty by a practitioner when acting for themselves in a court proceeding, and in our view, in this case, when responding to a letter of demand in a personal capacity, is no less than when acting for a client. Indeed, as the Tribunal said at [28]:

The case is all the stronger when it is the practitioner's own case which he [or she] is seeking to advance for such means.

1. In our view, therefore, ground 1 is made out. The practitioner engaged in professional misconduct within the meaning of s 403 and s 438 of the LP Act, because her conduct in terms of ground 1 would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, within the first limb of the restatement of the common law concept of unprofessional conduct in Kyle v Legal Practitioners' Complaints Committee at [61]. By knowingly seeking to mislead the complainant, so as to defer or delay her from commencing legal proceedings against the practitioner, the practitioner breached her fundamental ethical duties of candour and fairness when responding to a letter of demand.
2. In the circumstances, it is unnecessary to determine whether the practitioner's conduct would also constitute professional misconduct on the alternative basis contended by the Committee in terms of the statutory definition of the term in s 403(1)(b) of the LP Act.

Ground 2 ­ Knowingly seeking to mislead the Magistrates Court and the complainant

1. As indicated earlier, ground 2 alleges engagement in professional misconduct against the practitioner in the following terms:[150]

That the practitioner, between 23 August 2016 and 27 September 2016, in the course of defending Fremantle Magistrates Court (Court) proceedings [number] lodged by [the complainant] against the practitioner on 25 July 2016 in respect of the Claim, by which [the complainant] sought the sum of $10,118.20 (including allowable Court fees) (Proceedings), engaged in professional misconduct within the meaning of [s] 403 and [s] 438 of the Act in that her conduct would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, and further and alternatively, would justify a finding that she is not a fit and proper person to engage in legal practice, by:

1. at a pre-trial conference (PTC) before a registrar of the Court (Registrar) on 23 August 2016, saying words to the effect "I cannot disclose any details because the matter is in the insurer's hands. I will discuss it as soon as I have more information on what they are going to do";
2. at a further PTC before the Registrar on 27 September 2016, saying words to the effect "I cannot speak about the matter because there is an insurer involved",

(a) the PTC statements were false and misleading as, in truth, at no time prior to 23 August 2016, and between 23 August 2016 and 27 September 2016, did the practitioner notify, or correspond with, any insurer or insurers regarding the Claim or the Proceedings;

(b) the practitioner knew the PTC statements were false and misleading and intended that the Court and [the complainant] be misled by the PTC statements, so as to defer or delay the Proceedings.

Issues for determination in relation to ground 2

1. The following four principal issues arise for determination in relation to ground 2:
   1. Whether the PTC statements were made by the practitioner.
   2. Whether the PTC statements were false and misleading.
   3. Whether the practitioner knew that the PTC statements were false and misleading and intended that the Magistrates Court and the complainant be misled by the PTC statements, so as to defer or delay the Magistrates Court proceedings.
   4. Whether the practitioner engaged in professional misconduct by making the PTC statements.
2. We will address each of these issues in turn.

Were the PTC statements made by the practitioner?

1. We are satisfied on a balance of probabilities and feel an actual persuasion on the evidence presented by the Committee (in accordance with the Briginshaw approach) that the practitioner made the PTC statements alleged in ground 2.
2. As indicated earlier, the complainant gave evidence that during the pre­trial conference on 23 August 2016, the practitioner said to Registrar Woods words to the effect:[151]

I cannot disclose any details because the matter is in the insurer's hands. I will discuss it as soon as I have more information on what they are going to do[.]

1. As also indicated earlier, the complainant gave evidence that during the pre­trial conference on 27 September 2016, the practitioner said to the Registrar words to the effect that:[152]

I cannot speak about the matter because there is an insurer involved[.]

1. We accept the complainant's evidence on these matters (and generally), because we find her to be a credible and truthful witness. She was responsive, measured and consistent in her evidence. She frankly conceded when she could not remember something, such as, when the practitioner moved workplaces, how the practitioner had informed the complainant that she had moved workplaces.[153] The complainant also accepted that, when she told the officer of the Committee, who recorded her witness statement, what the practitioner said at the pre­trial conferences, it was about two-and-a-half years later and so she could not remember 'the exact wording' of what the practitioner said, but she said that 'I remember the message that was given to us by [the practitioner]'.[154]
2. Other aspects of the pre-trial conferences referred to by the complainant also indicate that it is highly likely that she has accurately recalled the relevant statements made by the practitioner at the pre­trial conferences. The complainant gave evidence that the pre­trial conference on 23 August 2016 lasted '[p]robably no more than five, 10 minutes' and was '[v]ery[,] very short'.[155] The complainant also recalled that after the practitioner said to Registrar Woods words to the effect:[156]

I cannot disclose any details because the matter is in the insurer's hands. I will discuss it as soon as I have more information on what they are going to do[.],

the Registrar said words to the effect that she would adjourn the pre-trial conference to allow the practitioner time to talk to the insurer or for the insurer to send their lawyer to the next pre-trial conference, however there would be no further adjournments.[157] The complainant's recollection of the Registrar's response to the practitioner is consistent with the practitioner having made the statement alleged by the Committee, as is the fact that the Registrar adjourned the pre-trial conference to 27 September 2016. Furthermore, the '[v]ery[,] very short' length of the pre-trial conference on 23 August 2016 makes it highly likely that the complainant accurately recalled words to the effect of the practitioner's statement.

1. After the complainant said in evidence that the practitioner said to the Registrar at the pre-trial conference on 27 September 2016 words to the effect that 'I cannot speak about the matter because there is an insurer involved', the complainant said that the practitioner requested a further adjournment of the pre-trial conference that she (the complainant) 'didn't say anything to that' and that she 'was nervous being in the conference, and thought that if an insurer was involved and if the Registrar appeared to accept what [the practitioner] said then that must be the way things were done and there was nothing I could say'.[158] Again, the context makes it highly likely that the complainant accurately recalled the relevant statement made by the practitioner at the second pre-trial conference. The complainant was nervous, being a non-lawyer in a pre-trial conference, and recalled that the Registrar appeared to accept what the practitioner said about an insurer being involved. Furthermore, although the Registrar had, on 23 August 2016, ordered that there would be '[n]o further adjournment of the Pre-Trial Conference',[159] the Registrar in fact adjourned the second pre-trial conference, which is consistent with the complainant's evidence that the practitioner requested a further adjournment after saying 'I cannot speak about the matter because there is an insurer involved'.
2. Another aspect of the evidence which is consistent with the practitioner having made the PTC statements, as the complainant said in evidence, is that, as indicated at [92] above, on 6 November 2016, that is between the second and third pre-trial conferences, the complainant emailed the practitioner requesting her to 'provide us [with] the name and contacts of the lawyer from the insurer [sic] company in charge of dealing with our claim'. The complainant's request for the insurer's lawyer's details on 6 November 2016 is consistent with the practitioner having said words to the effect that 'the matter is in the insurer's hands' at the pre-trial conference on 23 August 2016 and words to the effect that 'there is an insurer involved' at the pre-trial conference on 27 September 2016. The complainant's request for the insurer's lawyer's details on 6 November 2016 is also consistent with Registrar Woods having said at the pre-trial conference on 23 August 2016 words to the effect that she would adjourn the pre-trial conference to allow the practitioner time to talk to the insurer or for the insurer to send their lawyer to the next pre­trial conference which, in turn, is consistent with the practitioner having said to Registrar Woods words to the effect:

I cannot disclose any details because the matter is in the insurer's hands. I will discuss it as soon as I have more information on what they are going to do[.]

1. Furthermore, although the complainant was cross-examined by counsel for the practitioner, it was not suggested to her in cross­examination (nor was it submitted) that her evidence about what the practitioner said at the first pre-trial conference that 'the matter is in the insurer's hands' and at the second pre-trial conference that 'I cannot speak about the matter because there is an insurer involved' was untrue, incorrect or even mistaken.
2. Finally, no contrary evidence to the complainant's evidence was presented. Indeed, as indicated earlier, the practitioner gave no evidence.

1. On the evidence referred to at [112]-[118] above, we are satisfied on a balance of probabilities and feel an actual persuasion (in accordance with the Briginshaw approach) that the PTC statements were false and misleading as, in truth, at no time prior to 23 August 2016 and between 23 August 2016 and 27 September 2016, did the practitioner notify, or correspond with, any insurer or insurers regarding the claim in the letter of demand or the Magistrates Court proceedings. The fact that the practitioner failed to respond to the complainant's request in her email of 6 November 2016 for the insurer's lawyer's details also supports this finding.[160]
2. Mr Walker submits that the Tribunal should not be satisfied that the PTC statements were false and misleading, because:[161]

It is significant, I submit, that - and thinking back also to the evidence of [the complainant] - that she does not assert, and the [C]ommittee does not assert, that the practitioner said, in effect, "The matter is in my insurer's hands". Implying, "I have made a report or notification to my insurer". Instead, in quite a striking way, given that it appears in both of the two subparagraphs on both of the two occasions, instead, the identification is just that the matter is in either the or an insurer's hands. Which is a statement in each case that is perfectly capable, without stretching the meaning, of referring to the matter being in the hands of someone else's insurer who has made a claim, by the implication.

Who might that other body or person be? Of course it might be AWL. And so the identified statements made at the pre-trial conferences are equally capable of being seen as implying that (a) the practitioner has made a report and a claim upon her insurer or (b) AWL as her employer has made a claim on AWL[']s insurer. For those reasons, I submit that the [T]ribunal should not find that the words uttered on the two occasions at the pre-trial conferences were, as asserted in paragraph [(a)], false and misleading, or either false or misleading.

1. In our view, the clear inference from the PTC statements is that the practitioner had contacted her insurer and was awaiting advice from her insurer, because the Magistrates Court proceeding was brought by the complainant against the practitioner personally, alleging that her failures cost the complainant 'lots of money, as well as stress and anxiety'.[162] The proceeding was not taken against AWL. Furthermore, and in any case, on the Committee's application, on 16 November 2018, the Tribunal made an order, pursuant to s 35(1) of the SAT Act, requiring the proper officer of AWL to produce nominated documents to the Tribunal at a directions hearing at 3.00 pm on 30 November 2018. The nominated documents included the following set out in order 1(b) of the orders made by the Tribunal on 16 November 2018:[163]

All documents held by AWL relating to the notification or notifications made by or on behalf of Christina Marie Chang and/or AWL to an insurer or insurers (including, but not limited to, Law Mutual) in relation to the client's claim for compensation set out in her email to Christina Marie Chang dated 8 June 2016 regarding the work performed in the matter and/or in relation to the proceedings (together, the Claim) and the management of the Claim by the insurer or insurers including, but not limited to:

(i) the notification or notifications to the insurer or insurers of Christina Marie Chang or AWL (including, but not limited to, Law Mutual) of the Claim;

(ii) any grant or denial of indemnity by the insurer or insurers;

(iii) all correspondence and communications (including email communications) in hard copy and electronic form;

(iv) all internal correspondence, file notes (including notes of attendances and telephone discussions), memoranda, reports, advice, draft documents and administrative information in hard copy and electronic form;

(v) all telephone records showing telephone calls made by Christina Marie Chang to any insurer or insurers (including, but not limited to, Law Mutual) regarding the Claim; and

(vi) all documents which may be held in electronic form only.

1. Mr James Bruce McTernan, a paralegal employed by the Legal Practice Board of Western Australia at the Committee, gave evidence that, on 3 December 2018, he attended at the Tribunal's premises and inspected and photocopied the documents produced by AWL pursuant to the order of the Tribunal on 16 November 2018 and that 'none of the ... documents [produced by AWL] fell within the terms' of the order set out in the preceding paragraph.[164] Mr McTernan was not required for cross­examination. We have no hesitation in accepting Mr McTernan's evidence and find that AWL did not produce any documents to the Tribunal pursuant to the order made on 16 November 2018 relating to any notification or notifications made by or on behalf of the practitioner and/or AWL to an insurer or insurers in relation to the complainant's claim for compensation in the letter of demand and/or in relation to the Magistrates Court proceedings. Consequently, although we do not accept that the PTC statements could reasonably refer to AWL's insurer, even if they could potentially do so, we are satisfied on a balance of probabilities and feel an actual persuasion (in accordance with the Briginshaw approach) that neither the practitioner nor AWL notified, or corresponded with, any insurer or insurers regarding the claim in the letter of demand or the Magistrates Court proceedings, at any time prior to 23 August 2016, or between 23 August 2016 and 27 September 2016.
2. The PTC statements were false and misleading.

Did the practitioner know that the PTC statements were false and misleading and did she intend that the Magistrates Court and the complainant be misled by the PTC statements, so as to defer or delay the Magistrates Court proceedings?

1. We are satisfied on a balance of probabilities and feel an actual persuasion on the evidence (in accordance with the Briginshaw approach) that the practitioner knew that the PTC statements were false and misleading and intended that the Magistrates Court and the complainant be misled by the PTC statements, so as to defer or delay the Magistrates Court proceedings. As Mr Yovich submits, 'the conclusion that the statements were false and that [the practitioner] knew they were false when she made them is irresistible'.[165] Indeed, not only is this inference clear on the evidence, it is the only reasonable inference that is open on the evidence. The practitioner obviously knew there was no notification of, or correspondence with, an insurer in relation to the complainant's claim in the letter of demand and in the Magistrates Court proceedings, because the practitioner had not notified, or corresponded with, any insurer in relation to the claim. It is also clear that the practitioner knowingly sought to mislead the Magistrates Court and the complainant, in order to defer or delay the Magistrates Court proceedings, because the practitioner requested each of the first two pre-trial conferences to be adjourned after she made the relevant statement concerning the insurer and the Registrar then adjourned the first two pre-trial conferences. In short, we find, the practitioner lied to the Magistrates Court and to the complainant at the first two pre-trial conferences in order to defer and delay the proceedings.
2. Finally, in relation to this issue, we note that, as in relation to ground 1, it appears the practitioner succeeded in misleading the Magistrates Court and the complainant by making the PTC statements, because the Registrar twice adjourned the Magistrates Court proceedings and the complainant thought 'there was nothing I could say' at the pre-trial conference on 27 September 2016 and on 6 November 2016, and requested the practitioner to provide her with 'the name and contacts of the lawyer from the insurer [sic] company in charge of dealing with our claim'. However, it is not necessary for the Magistrates Court or the complainant to have in fact been misled for the practitioner to have committed professional misconduct. Rather, it was the making of the PTC statements, with the intention we have found the practitioner had, that is the conduct constituting professional misconduct.

Did the practitioner engage in professional misconduct by making the PTC statements?

1. In Legal Profession Complaints Committee and A Legal Practitioner, the Tribunal reviewed authorities in relation to professional misconduct by knowingly or intentionally misleading a court or tribunal at [148]­[151] as follows:[166]
   1. Knowingly or intentionally misleading a court or tribunal constitutes unprofessional conduct of a most serious nature (historically, professional misconduct) at common law (and under the Legal Practice Act), in that it is conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, and is therefore professional misconduct under the LP Act. In Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 at [61] and [70], the Court of Appeal said the following:

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

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

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

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

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

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

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

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

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

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

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

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

1. The Registrar of the Magistrates Court was aware that the practitioner is a lawyer and would therefore have placed significant trust and confidence in what the practitioner said at the pre-trial conferences. In the 'Details of Claim' in the Form 6 by which the complainant commenced the Magistrates Court proceedings, she said that she thought that the practitioner was 'an expert and professional lawyer and migration agent'.[167] Furthermore, at the second pre-trial conference on 27 September 2016, after having arrived late, the practitioner said to the Registrar words to the effect that she had been dealing with a matter in the Family Court before she said words to the effect 'I cannot speak about the matter because there is an insurer involved'.
2. Mr Walker submits on behalf of the practitioner, in relation to the PTC statements which are the subject of ground 2, that although 'such statements, if false and misleading, ... would warrant criticism and would reflect poorly on the practitioner', they:[168]

... would not be so egregious as to amount to - or to warrant the appellations or the adjectives disgraceful or dishonourable. It's not an appalling instance in either case of misleading someone. It's a person, albeit a practitioner, who's a litigant in person, I accept. But the actions of a practitioner as a litigant in person, still called to be assessed in the relevant way, but it is in regard to a minor claim in the Magistrates Court. If these statements were false and misleading, they would be towards the bottom and not towards the top of the scale of seriousness. Remembering how extreme many cases could be imagined, if I put it inelegantly.

1. However, as the Court of Appeal said in Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 at [61], for a practitioner to mislead a court 'goes to the very heart of a practitioner's duty as an officer of the court and therefore to the proper administration of justice'. As the Court of Appeal said in the same case at [70]:

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

1. Furthermore, as the Tribunal said in Legal Profession Complaints Committee and Segler [2010] WASAT 135 at [69]:

It is no less the case when a member of the legal profession is engaged in court or tribunal proceedings in an individual capacity as when he or she represents a client.

1. In our view, ground 2 is made out. The practitioner engaged in professional misconduct, within the meaning of s 403 and s 438 of the LP Act, because her conduct in terms of ground 2 would be reasonably regarded as disgraceful, that is bringing or deserving disgrace, shameful and disreputable, or dishonourable, that is showing lack of honour, ignoble, base and shameful, by practitioners of good repute and competence, within the first limb of the restatement of the common law concept of unprofessional conduct in Kyle v Legal Practitioners' Complaints Committee at [61]. By knowingly seeking to mislead the Magistrates Court and the complainant, so as to defer or delay the Magistrates Court proceedings, the practitioner breached her fundamental ethical duties of candour and fairness to the Court and to the complainant. As the authorities referred to in Legal Profession Complaints Committee and A Legal Practitioner at [148]-[151] show, courts and tribunals necessarily place significant trust and confidence in legal practitioners in order to be able to administer justice effectively and efficiently. Knowingly seeking to mislead a court (and the other party to litigation), whether in a professional or personal capacity, strikes at the very heart of, and is an anathema to, a legal practitioner's core ethical duties as an officer of the court and fundamentally undermines the trust and confidence between court and practitioner which is essential to the administration of justice. The practitioner's conduct in terms of ground 2 is therefore most serious professional misconduct.
2. In the circumstances, it is unnecessary to determine whether the practitioner's conduct would also constitute professional misconduct on the alternative basis contended by the Committee in terms of the statutory definition of the term in s 403(1)(b) of the LP Act. However, as the authorities show, knowingly seeking to mislead a court, whether in a professional or personal capacity, displays a lack of integrity, which is a basic requirement for the privilege of legal practice.

Ground 3 ­ Without reasonable excuse, failing to respond to three notification letters and two summonses.

1. As indicated earlier, ground 3 alleges professional misconduct against the practitioner in the following terms:[169]

That the practitioner, on and after 6 October 2017, following a complaint to the Legal Profession Complaints Committee (Committee) by [the complainant] against the practitioner arising from the practitioner's response to the Claim, her conduct in the Proceedings and her failure to pay the Judgment sum (Complaint), engaged in professional misconduct within the meaning of [s] 403, [s] 404(a) and [s] 438 of the Act in that her conduct would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence and fell short, consistently and to a substantial degree, of the standard of professional conduct observed or approved by members of the profession of good repute and competence, and further and alternatively, would justify a finding that she is not a fit and proper person to engage in legal practice, by, without reasonable excuse, failing to respond to:

1. by 5 October 2017 or at all, a letter from the Committee to the practitioner dated 15 September 2017 which formally notified her of, and requested her submissions in relation to, the Complaint (First notification letter), in breach of rule 50(3) of the LPCR and/or [s] 531(2) of the Act;
2. by 5 October 2017 or at all, a Summons to Produce Documents dated 14 September 2017 issued to the practitioner by the Committee pursuant to [s] 520(1)(a) of the Act (First summons), in breach of [s] 520(5) and [s] 532(3) of the Act;
3. by 7 November 2017 or at all, a letter from the Committee to the practitioner dated 17 October 2017 which formally notified her of, and requested her submissions in relation to, a conduct investigation commenced on the Committee's own initiative pursuant to [s] 421 of the Act in relation to the practitioner's failure to respond to the First notification letter and the First summons (Second notification letter), in breach of rule 50(3) of the LPCR and/or [s] 531(2) of the Act;
4. by 6 December 2017 or at all, a letter from the Committee to the practitioner dated 15 November 2017 which formally notified her of, and requested her submissions in relation to, a conduct investigation commenced on the Committee's own initiative pursuant to [s] 421 of the Act in relation to the practitioner's failure to respond to the Second notification letter, in breach of rule 50(3) of the LPCR and/or [s] 531(2) of the Act;
5. by 6 December 2017 or at all, a Summons to Produce Documents and Provide Written Information Verified by Statutory Declaration dated 15 November 2017 issued to the practitioner by the Committee pursuant to [s] 520(1)(a), (c), and (d) and [s] 520(3) of the Act, in breach of [s] 520(5) and [s] 532(3) of the Act.

Issues for determination in relation to ground 3

1. The following four principal issues arise for determination in relation to ground 3:
   1. Whether the practitioner received the notification letters and summonses.
   2. Whether the practitioner failed to respond to the notification letters and summonses.
   3. Whether the practitioner had a reasonable excuse for not responding to the notification letters and summonses.
   4. Whether the practitioner engaged in professional misconduct by, without reasonable excuse, failing to respond to the notification letters and summonses.
2. We will address each of these issues in turn.

Did the practitioner receive the notification letters and summonses?

1. As indicated earlier, in her response to the Committee's facts and contentions, the practitioner admits that she received the notification letters and summonses. In his submissions on behalf of the practitioner, Mr Walker frankly conceded that:[170]

[T]here's really no dispute that the letters in question and the ... summonses in question ... were [sent] by the [C]ommittee and received by the practitioner and that there was no response to any of those letters or summonses.

Did the practitioner fail to respond to the notification letters and summonses?

1. As indicated earlier, the practitioner admits that she failed to respond to the notification letters and summonses.

Did the practitioner have a reasonable excuse for not responding to the notification letters and summonses?

1. In her response to the Committee's facts and contentions, the practitioner says that she was 'under significant stress, was emotionally labile and felt overwhelmed' by having to deal with various personal and professional issues at the time when she received the notification letters and summonses.[171] However, the practitioner did not give any evidence, nor did she present any evidence, to establish any of those matters. As Mr Yovich submits:[172]

There is no evidence whatsoever as to the practitioner's workload at the relevant time, as to her state of physical or mental health at the relevant time, [or] as to her financial circumstances at the relevant time.

1. Furthermore, and in any case, we accept the Committee's submission that:[173]

... in any event, as the authorities make clear, none of those can have primacy over her overriding duty to cooperate with the regulator.

1. In support of this submission, Mr Yovich refers to the reasoning and decision of the Tribunal in Legal Profession Complaints Committee and Lee-Steere [2010] WASAT 189 at [22]- [27].[174] We adopt and reiterate what the Tribunal said in that decision for the purposes of these reasons:
   1. The reputation of the legal profession in the eyes of the public and among its members depends to a large extent upon the power and ability of the Board and the Committee to regulate effectively the activities of all legal practitioners. The purpose of the Act is expressly stated in its long title 'to provide for the regulation of legal practice in Western Australia'.
   2. It is incumbent upon all legal practitioners to ensure that the above purpose is realised in all respects. To that end, legal practitioners are obligated to cooperate with the reasonable requests of their regulatory body to the fullest extent. It is a duty owed to the Board and the Committee in a measure not less than the duty owed by a practitioner to his or her client and to a Court or Tribunal.
   3. In our view it is unacceptable, both to members of the public and to the profession, for a practitioner to undermine the authority of a regulatory body by ignoring its requests for information or failing to respond to those requests with alacrity and with complete honesty. To flaunt that authority is to fly in the face of the legislative intent and disables the body from executing its statutory functions. Such conduct is viewed by this Tribunal in a most serious light and will not be countenanced.
   4. The conduct and the inaction of the practitioner described above cried out for explanations which he gave in evidence at the last hearing (the penalty hearing). He deposed amongst other things that the reason he did not respond to the various requests for information by the Board and the Committee was that he was preoccupied with the affairs of his clients and did not have sufficient time to deal with the regulatory body's requests.
   5. We need do little more than to state that explanation in order to reject it, particularly since the unanswered requests for information extended over a period of more than two years. As we stated above, the omission to respond to requests from the Board and the Committee within a reasonable time (and the time allowable must depend on the nature and extend [sic] of the information sought) manifests a total failure to appreciate the obligation of the practitioner to the regulatory body.
   6. As indicated above, such behaviour can only be viewed in a most serious light ­ a fact which counsel for the practitioner, (correctly in our view) readily conceded. In our view, any pressure of work, no matter how severe, must yield to a request for information from the regulatory body. We have no doubt that should a practitioner find himself under such intense pressure, (such as for example, being actively involved in a lengthy trial), the regulatory body would favourably consider a reasonable extension of time to comply with its request.
2. The practitioner also contends that she could not comply with the summonses because:[175]

[S]he is not in a position to produce [the complainant's] files as the files are not in her power[,] possession or control as they are files belonging to her employer[,] AWL[,] who provided immigration assistance to [the complainant].

1. However, even assuming that all of the documents and information required by the summonses issued to the practitioner were in files belonging to AWL, that does not provide a reasonable excuse for the practitioner's failures to comply with the requirements of the summonses. The practitioner had a legal obligation (under s 520 of the LP Act, non-compliance with which constitutes a criminal offence: s 520(5)) as well as an ethical duty (under s 532(3) of the LP Act) to obtain and provide the documents sought by the summonses. Even if all of the documents sought in the summonses were in files belonging to AWL, the practitioner had a legal obligation and ethical duty to obtain and provide them to the Committee. As the Committee submits:[176]

... if ... [an] employed practitioner could plead that ... they weren't the custodian of a file as an excuse for not providing it, then no employed practitioner would ever be able to be obliged to comply with the [C]ommittee's necessary regulatory powers.

1. The practitioner also 'asks the Tribunal to take into account factors unique to the practice environment which place make [sic] solo or small firm practitioners more "at risk" to falling into default'.[177] The practitioner contends as follows:[178]

Lawyers who practice [sic] in the context of a large firm or institutional practice have the practical advantage of ready access to mentors, peer support and office management systems. They usually practice under a system of built-in procedures that prevent many rule violations. This support goes a long way toward helping them avoid running afoul of the discipline system. Peers are available to return client calls, cover court appearances, step in when they fall ill or assist when they simply become overwhelmed. Solo practitioners such as the Practitioner lack these support systems and she was completely overwhelmed at the time.

1. The fact that the practitioner conducted a sole legal practice does not provide a reasonable excuse, or indeed any excuse, for her sustained and repeated failures to comply with the Committee's requests for submissions and the summonses for production of documents and provision of information. If practising on one's own or in a small firm would provide a reasonable excuse, or any excuse, for failure to respond to a letter from the Committee requesting submissions from a practitioner in relation to a complaint made about the practitioner or a summons issued by the Committee to the practitioner, it would mean that practitioners would be subject to differential ethical obligations depending on the manner in which they choose to practise law. This proposition needs only to be stated to be seen as untenable. Furthermore, the practitioner could have sought assistance from a barrister, without cost, in responding to the notification letters and summonses. Each of the notification letters included the following statement:[179]

Assistance in answering complaints is also available from the WA Bar Association in appropriate cases. For more information regarding this assistance please refer to the Pro Bono section at www.wabar.asn.au and click on Representation of Practitioners.

1. On the evidence before the Tribunal, we find that the practitioner did not have any reasonable excuse for failing to respond to the notification letters and summonses.

Did the practitioner engage in professional misconduct by, without reasonable excuse, failing to respond to the notification letters and summonses?

1. Mr Walker acknowledges that 'the failure to respond at all to the two summonses is really quite serious' and '[q]uite a serious failure'.[180] However, Mr Walker submits that the practitioner's failure to respond to the three notification letters is less serious, because of 'some aspects of the letters',[181] which have the consequence that the letters fall:[182]

... somewhere in the no-man's land, I would submit, between a clear direction or forceful request and a polite indication that, look, we've got a complaint about you. You might want to tell us what you think about it or have to say about it. So, again, I don't say it's of no significance, but it's that kind of failure.

1. In support of this submission, Mr Walker refers to the expression in the letters that the practitioner has 'the right to make submissions to the Committee about the complaint and you are requested to do so' and that the practitioner was requested to '[p]lease provide your submissions, including such facts and explanations as will enable the Committee to give consideration to the complaint' by the specified time and date.
2. However, in our view, the fact that the letters refer to the practitioner's 'right' to make submissions and 'request' that her submissions be made by a specified time and date does not in any way reduce the seriousness of the practitioner's failures to respond to the letters within the periods specified, or subsequently. Immediately after the parts of the first notification letter and the third notification letter referred to by Mr Walker, those letters state as follows:[183]

• You must be open and candid in your dealings with the Legal Profession Complaints Committee: Rule 50(2) of the Conduct Rules.
• You must provide a full and accurate account of your conduct: Rule 50(3) of the Conduct Rules.

1. As the Committee submits, this part of the letter makes it clear (if there could have been any doubt at all) that, notwithstanding the reference to her 'right' to make submissions and however politely the 'request' for submissions was couched, the practitioner, being a legal practitioner, had a mandatory professional duty to respond to the regulatory authority. The words '[y]ou must provide a full and accurate account of your conduct'[184] can leave no room for doubt as to the mandatory nature of the practitioner's obligation to respond to the letter and provide information to the regulatory authority for the purposes of its assessment of the complaint. Furthermore, as indicated earlier, r 50 of the Conduct Rules, to which the first notification letter and the third notification letter expressly referred, states as follows:

regulatory authority means a local regulatory authority and an interstate regulatory authority.

(2) A practitioner must be open and candid in his or her dealings with a regulatory authority.

(3) A practitioner who is requested by a regulatory authority to provide comments or information in relation to the practitioner's conduct or professional behaviour must -

(a) respond to the request within a reasonable time and in any event within 14 days (or such extended time as the regulatory authority may allow); and

(b) provide in writing a full and accurate account of his or her conduct in relation to the matters covered by the request.

1. The terms of r 50(3) of the Conduct Rules that '[a] practitioner who is requested by a regulatory authority to provide comments or information in relation to the practitioner's conduct or professional behaviour must ... respond to the request ...'[185] plainly imposes a mandatory ethical duty to respond to the three notification letters sent by the Committee to the practitioner in this case. As the Committee submits:[186]

The fact that it is couched as a request does not mean that it can be ignored; that it is permitted to be ignored. It was the practitioner's professional obligation under the [C]onduct [R]ules to comply.

1. Furthermore, as the Committee submits:[187]

... if there were any ambiguity about it, the second [notification] letter ... makes it clear that the [C]ommittee, as a consequence of the failure to respond to the first [notification] letter, was now investigating, as possible unsatisfactory professional conduct or professional misconduct, [the practitioner's] failure to respond to the first [notification] letter.

1. Thus, there could be no misunderstanding on the part of the practitioner as to her ethical duty to respond to the Committee's notification letters.
2. Nor could there have been any misunderstanding on the part of the practitioner as to her legal obligation and ethical duty to comply with the summonses. The summonses issued by the Committee to the practitioner each contain a note referring to s 520(5) of the LP Act. Section 520(5) of the LP Act imposes a legal obligation to comply with a summons issued by the Committee as follows:

A person who is subject to a requirement under subsection (1), (2) or (3) must comply with the requirement.

1. Furthermore, s 532(3) of the LP Act imposes an ethical duty to comply with a summons issued by the Committee as follows:

(b) a requirement under provisions of a corresponding law that correspond to that section,

must not, without reasonable excuse, fail to comply with the requirement.

1. The practitioner breached her ethical duty under r 50(3) of the Conduct Rules to respond to each of the notification letters and her ethical duty under s 532(3) of the LP Act and her legal obligation under s 520(5) of the LP Act to comply with each of the summonses.
2. As indicated earlier, the Committee contends in [1], [3] and [4] of ground 3 that, without reasonable excuse, the practitioner's failures to respond to the notification letters involved a breach not only of r 50(3) of the Conduct Rules, but also, or alternatively, of s 531(2) of the LP Act. As indicated earlier, s 531 of the LP Act states as follows:

obstruct includes hinder, delay, resist or attempt to obstruct.

(2) A person must not, without reasonable excuse, obstruct or mislead an investigator exercising a power under this Act.

1. Neither party made any submissions as to whether the practitioner's conduct falls within the scope of s 531(2) of the LP Act, in particular whether it involves 'obstruct[ing] or mislead[ing] an investigator exercising a power under [the LP] Act'. We therefore make no determination in this regard.
2. Mr Walker submits that the practitioner's conduct which is the subject of ground 3 should properly be characterised as follows:[188]

It's remarkably stupid, apart from anything else, to ignore the cascading series of requests, including two summonses, and it's creating enormous trouble for yourself and it is seriously discourteous to not respond to the correspondence and the summonses, and it is to be criticised. And yet, I submit, it may be that it is not so appalling, not so striking as to be properly described as either disgraceful or dishonourable.

1. In our view, the practitioner's conduct which is the subject of ground 3 falls within both the first limb of the restatement of the common law concept of unprofessional conduct in Kyle v Legal Practitioners' Complaints Committee at [61] ('conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence') and also within the second limb of that restatement ('conduct that ... , to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence', and did so, as the Committee contends, 'consistently'), and rises to the level of 'professional misconduct' rather than (merely) unsatisfactory professional conduct under the LP Act, for the following three reasons.
2. First, the practitioner's failures, without reasonable excuse, to respond to the notification letters and summonses were sustained and repeated over three stages of investigation by the Committee. As the Committee submits, even when the Committee formally advised the practitioner of, and requested her submissions in relation to, a conduct investigation commenced on the Committee's own initiative, under s 421 of the LP Act, in relation to the practitioner's failure to respond to the first notification letter and the first summons (and subsequently formally notify the practitioner of, and requested her submissions in relation to, a further conduct investigation commenced on the Committee's own initiative, under s 421 of the LP Act, in relation to the practitioner's failure to respond to the second notification letter), the practitioner still failed to respond within the time specified in the second notification letter (and within the time specified in the third notification letter), or subsequently.
3. Secondly, the practitioner not only failed to respond to the notification letters and to comply with the summonses within the periods specified in those documents, but has failed to do so, now, for over one­and­a­half years.
4. Finally, the practitioner never sought an extension nor engaged at all with the Committee in relation to the investigation of the complainant's complaint about the practitioner and the subsequent conduct investigations resulting from the practitioner's failures to respond to notification letters. For a legal practitioner to fail to engage at all with, and to simply ignore correspondence from, and summonses issued by, the Committee, which is investigating a complaint of unsatisfactory professional conduct or professional misconduct against the practitioner, is manifestly unacceptable, because it fundamentally undermines the authority of the Committee and its capacity to effectively investigate complaints about legal practitioners and thereby to seek to protect members of the public in their dealings with lawyers and to maintain the proper standards of the legal profession.
5. In the circumstances of this case, we find that the practitioner engaged in professional misconduct by, without reasonable excuse, failing to respond to the first notification letter, the first summons, the second notification letter, the third notification letter and the second summons, in that her conduct would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence and fell short, consistently and to a substantial degree, of the standard of professional conduct observed or approved by members of the profession of good repute and competence.
6. In the circumstances, it is unnecessary to determine whether, further and alternatively, the practitioner's conduct would justify a finding that she is not a fit and proper person to engage in legal practice.

1. We have determined that the practitioner engaged in professional misconduct in terms of each of the three grounds alleged by the Committee. The matter should now proceed to consideration of the appropriate professional disciplinary consequence of the practitioner's conduct, and the issue of costs.

Findings of professional misconduct and orders

1. The Tribunal makes the following findings of professional misconduct against Christina Marie Chang (practitioner):

(1) Between 23 June 2016 and 7 July 2016, in the course of corresponding with a former client, the complainant, in response to a letter of demand from the complainant dated 2 June 2016 for a refund of $10,000 for fees paid by the complainant in relation to an unsuccessful visa application the practitioner had prepared and lodged on behalf of the complainant and her family on 16 October 2015 (claim), the practitioner engaged in professional misconduct, within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA), in that her conduct would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, by preparing and sending:

1. an email to the complainant dated 23 June 2016 in which she stated 'I will notify my Insurers and will await their response. Once I have that I can then respond to you in detail';
2. an email to the complainant dated 29 June 2016 in which she stated 'Hi the way insurance works is that all claims must be reported to the insurers and I am required by my insurers not to discuss the claim with you directly'; and
3. an email to the complainant dated 7 July 2016 in which she stated 'Hi I am waiting for [a] reply from my insurer[.] I should hear by next week. They know its [sic] urgent';

(a) the email statements were false and misleading, as, in truth, at no time between 23 June 2016 and 7 July 2016 did the practitioner notify, or correspond with, any insurer or insurers regarding the claim; and

(b) the practitioner knew the email statements were false and misleading and intended that the complainant be misled by the email statements, so as to defer or delay the complainant from commencing proceedings against the practitioner in respect of the claim.

(2) Between 23 August 2016 and 27 September 2016, in the course of defending Magistrates Court proceedings lodged by the complainant against the practitioner on 25 July 2016 in respect of the claim, by which the complainant sought the sum of $10,118.20 (including allowable Court fees) (proceedings), the practitioner engaged in professional misconduct, within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA), in that her conduct would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence by:

1. at a pre-trial conference before a registrar of the Court (Registrar) on 23 August 2016, saying words to the effect 'I cannot disclose any details because the matter is in the insurer's hands. I will discuss it as soon as I have more information on what they are going to do'; and
2. at a further pre-trial conference before the Registrar on 27 September 2016, saying words to the effect 'I cannot speak about the matter because there is an insurer involved';

(a) the PTC statements were false and misleading as, in truth, at no time prior to 23 August 2016, and between 23 August 2016 and 27 September 2016, did the practitioner notify, or correspond with, any insurer or insurers regarding the claim or the proceedings; and

(b) the practitioner knew the PTC statements were false and misleading and intended that the Court and the complainant be misled by the PTC statements, so as to defer or delay the proceedings.

(3) On and after 6 October 2017, following a complaint to the Legal Profession Complaints Committee (Committee) by the complainant against the practitioner arising from the practitioner's response to the claim, her conduct in the proceedings and her failure to pay the judgment sum (complaint), the practitioner engaged in professional misconduct, within the meaning of s 403, s 404(a) and s 438 of the Legal Profession Act 2008 (WA), in that her conduct would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence and fell short, consistently and to a substantial degree, of the standard of professional conduct observed or approved by members of the profession of good repute and competence, by, without reasonable excuse, failing to respond to:

1. by 5 October 2017 or at all, a letter from the Committee to the practitioner dated 15 September 2017 which formally notified her of, and requested her submissions in relation to, the complaint (first notification letter), in breach of r 50(3) of the Legal Profession Conduct Rules 2010 (WA);
2. by 5 October 2017 or at all, a Summons to Produce Documents dated 14 September 2017 issued to the practitioner by the Committee under s 520(1)(a) of the Legal Profession Act 2008 (WA) (first summons), in breach of s 520(5) and s 532(3) of the Legal Profession Act 2008 (WA);
3. by 7 November 2017 or at all, a letter from the Committee to the practitioner dated 17 October 2017 which formally notified her of, and requested her submissions in relation to, a conduct investigation commenced on the Committee's own initiative, under s 421 of the Legal Profession Act 2008 (WA), in relation to the practitioner's failure to respond to the first notification letter and the first summons (second notification letter), in breach of r 50(3) of the Legal Profession Conduct Rules 2010 (WA);
4. by 6 December 2017 or at all, a letter from the Committee to the practitioner dated 15 November 2017 which formally notified her of, and requested her submissions in relation to, a conduct investigation commenced on the Committee's own initiative, under s 421 of the Legal Profession Act 2008 (WA), in relation to the practitioner's failure to respond to the second notification letter, in breach of r 50(3) of the Legal Profession Conduct Rules 2010 (WA); and
5. by 6 December 2017 or at all, a Summons to Produce Documents and Provide Written Information Verified by Statutory Declaration dated 15 November 2017 issued to the practitioner by the Committee under s 520(1)(a), (c) and (d) and s 520(3) of the Legal Profession Act 2008 (WA), in breach of s 520(5) and s 532(3) of the Legal Profession Act 2008 (WA).
6. The Tribunal makes the following orders:
   1. By 1 October 2019 the applicant is to file and serve its submissions in relation to penalty and costs together with a schedule of the amount of costs and disbursements it seeks and supporting accounts.
   2. By 22 October 2019 the respondent is to file and serve her submissions in relation to penalty and costs and any evidence, including character references, on which she relies.
   3. By 29 October 2019 the applicant is to file and serve a statement of the names of the authors of any character references filed in accordance with the preceding order who are required for cross­examination at the hearing in relation to penalty and costs.
   4. The issues of penalty and costs are listed for hearing to commence at 10.00 am on 4 November 2019 for half a day.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

ACT : LEGAL PROFESSION ACT 2008 (WA)

CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE and CHANG [2019] WASAT 67 (S)

BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE

Vocational regulation - Legal practitioners - Professional misconduct - Penalty - Practitioner also registered migration agent - Client of practitioner in her capacity as registered migration agent issued notice of demand claiming refund of fees paid in relation to unsuccessful visa application and subsequently commenced minor case proceedings in Magistrates Court against practitioner seeking refund of fees - Ethical duties of candour and fairness when responding to letter of demand - Professional misconduct by knowingly seeking to mislead client by email statements referring to notification of, and correspondence with, practitioner's insurer regarding claim, in circumstances where practitioner did not notify or correspond with any insurer regarding claim, in order to defer or delay client from commencing proceedings against practitioner seeking refund of fees - Ethical duties of candour and fairness in court proceedings - Professional misconduct by knowingly seeking to mislead Magistrates Court and client by statements to the effect that 'the matter is in the insurer's hands' and 'there is an insurer involved', in circumstances where practitioner did not notify or correspond with any insurer regarding claim, in order to defer or delay proceedings - Legal and ethical duties to respond to notification letters and summonses for production of documents from regulatory authority - Professional misconduct by, without reasonable excuse, failing to respond to three notification letters of complaint and conduct investigations requesting practitioner's submissions, a Summons to Produce Documents and a Summons to Produce Documents and Provide Written Information Verified by Statutory Declaration within the periods specified in the letters and summonses or at all - Mental health - Practitioner diagnosed with Post-Traumatic Stress Disorder and Depression/Anxiety - Whether medical and psychological evidence provides explanation for professional misconduct - Report on findings of professional misconduct to Supreme Court (full bench) with recommendation that name of practitioner be removed from roll of persons admitted to legal profession - Costs

Legal Practitioners Act 1893 (WA)

Legal Profession Act 2008 (WA), s 3, s 28(1), s 56, s 275, s 428(1), s 438, s 438(1), s 438(2), s 438(2)(a), s 438(2)(b), s 438(3), s 438(4)(a), s 438(4)(b), s 439, s 439(a), s 439(b), s 439(c), s 439(d), s 440, s 441, s 441(a), s 441(m)

State Administrative Tribunal Act 2004 (WA), s 9, s 46(1), s 56(1), s 60(2), s 87(1), s 87(2), s 89

State Administrative Tribunal Rules 2004 (WA), r 43

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

The practitioner is to pay the Legal Profession Complaints Committee's costs in terms of disbursements fixed in the amount of $20,761.35, such costs to be paid to the Legal Practice Board within 30 days of the Tribunal's order or as otherwise agreed between the practitioner and the Legal Practice Board

The Tribunal previously made findings that Ms Christina Marie Chang, a legal practitioner, engaged in professional misconduct:

1. Between 23 June 2016 and 7 July 2016, in the course of corresponding with a client who had instructed the practitioner as a registered migration agent to prepare and lodge a permanent residency visa application, and who subsequently terminated the practitioner's instructions, withdrew the visa application and sent a letter of demand to the practitioner seeking 'compensation' of $10,000 'to refund us your fee, one [visa] application fee and all the documents that we obtained due to your incorrect advice' and stating that, if the practitioner was 'not willing [to] pay us any compensation', then 'you will leave me no other choice than [to] take legal action', by knowingly seeking to mislead the client by email statements referring to notification of, and correspondence with, the practitioner's insurer in relation to the claim for compensation, when, in truth, the practitioner did not notify, or correspond with, any insurer during that period regarding the claim for compensation, so as to defer or delay the client from commencing proceedings against the practitioner in respect of the claim;

2. Between 23 August 2016 and 27 September 2016, in the course of defending Magistrates Court minor case proceedings brought by the client against the practitioner seeking the payment of $10,000 'as (part of) reimbursement for one [visa] application and her honorarium' plus court fees, by knowingly seeking to mislead the Magistrates Court and the client by making statements at pre-trial conferences to the effect that:

'I cannot disclose any details because the matter is in the insurer's hands. I will discuss it as soon as I have more information on what they are going to do', and

'I cannot speak about the matter because there is an insurer involved',

when, in truth, at no time prior to 23 August 2016, and between 23 August 2016 and 27 September 2016, did the practitioner notify, or correspond with, any insurer regarding the claim for compensation or the Magistrates Court proceedings, so as to defer or delay the Magistrates Court proceedings; and

3. On and after 6 October 2017, following a complaint to the Legal Profession Complaints Committee by the client against the practitioner, by, without reasonable excuse, failing to respond to three notification letters, a Summons to Produce Documents and a Summons to Produce Documents and Provide Written Information Verified by Statutory Declaration.

The Tribunal required the parties to file submissions in relation to penalty and costs and listed these issues for determination. Ultimately, the Tribunal determined the issues of penalty and costs entirely on the documents comprising written submissions and a schedule of the amount of costs and disbursements sought and supporting accounts filed by the Committee and character references, medical and psychological reports and written submissions filed by the practitioner.

The practitioner has been diagnosed with Post-Traumatic Stress Disorder and Depression/Anxiety. The medical evidence indicates that avoidance, which is a coping mechanism that the practitioner appears to have adopted to deal with anxiety and consequent long-term stress, provides some explanation for her failing to respond to the notification letters and summonses. However, the medical and psychological evidence does not indicate that the practitioner's Post-Traumatic Stress Disorder or Depression/Anxiety caused, contributed to, or is in any way related to, the practitioner knowingly seeking to mislead the client by making the email statements or knowingly seeking to mislead the Magistrates Court and the client by making the statements at the pre-trial conferences.

The Tribunal determined that the appropriate professional disciplinary consequence of the practitioner's professional misconduct by knowingly seeking to mislead the client by making the email statements and by knowingly seeking to mislead the Magistrates Court and the client by making the statements at the pre-trial conferences, in the circumstances of this case, is to make and transmit a report on the Tribunal's findings that the practitioner is guilty of professional misconduct to the Supreme Court (full bench) with a recommendation that the practitioner's name be removed from the roll of persons admitted to the legal profession under the Legal Profession Act 2008 (WA).

The Tribunal also determined that the practitioner should pay costs in terms of the disbursements incurred by the Committee in the proceeding fixed in the amount of $20,761.35, such costs to be paid to the Legal Practice Board within 30 days of the Tribunal's order or within such further period as agreed between the practitioner and the Board.

Barristers' Board v Young [2001] QCA 556

Khosa v Legal Profession Complaints Committee [2017] WASCA 192

Legal Practitioners Complaints Committee and Chang [2007] WASAT 86

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

Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37; (2013) 84 SR (WA) 158

Legal Profession Complaints Committee and Bower [2017] WASAT 47 (S)

Legal Profession Complaints Committee and Chang [2018] WASAT 121

Legal Profession Complaints Committee and Chang [2019] WASAT 67

Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S); (2012) 80 SR (WA) 194

Legal Profession Complaints Committee and Park [2017] WASAT 89; (2017) 92 SR (WA) 33

Legal Profession Complaints Committee and Skerritt [2012] WASAT 221

Legal Profession Complaints Committee and Skerritt [2013] WASAT 7

Legal Profession Complaints Committee v Love [2014] WASC 389

Medical Board of Western Australia and Roberman [2005] WASAT 81 (S); (2005) 39 SR (WA) 47

Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

Western Australian Planning Commission and Scutti [2019] WASAT 99

Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81

Parties' contentions as to appropriate penalty 19

Practitioner's background 23

Practitioner's disciplinary history 26

Character references 26

Medical and psychological evidence 31

Legal framework and principles 37

Appropriate penalty 55

1. On 9 September 2019, we published reasons for decision in Legal Profession Complaints Committee and Chang [2019] WASAT 67 (conduct reasons) in which, on the referral of a matter by the Legal Profession Complaints Committee (Committee) to the Tribunal under s 428(1) of the Legal Profession Act 2008 (WA) (LP Act), we made the following findings of professional misconduct under s 438(1) of the LP Act against Ms Christina Marie Chang (practitioner):[189]

(1) Between 23 June 2016 and 7 July 2016, in the course of corresponding with a former client, the complainant, in response to a letter of demand from the complainant dated 2 June 2016 for a refund of $10,000 for fees paid by the complainant in relation to an unsuccessful visa application the practitioner had prepared and lodged on behalf of the complainant and her family on 16 October 2015 (claim), the practitioner engaged in professional misconduct, within the meaning of s 403 and s 438 of the [LP Act], in that her conduct would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, by preparing and sending:

1. an email to the complainant dated 23 June 2016 in which she stated 'I will notify my Insurers and will await their response. Once I have that I can then respond to you in detail';
2. an email to the complainant dated 29 June 2016 in which she stated 'Hi the way insurance works is that all claims must be reported to the insurers and I am required by my insurers not to discuss the claim with you directly'; and
3. an email to the complainant dated 7 July 2016 in which she stated 'Hi I am waiting for [a] reply from my insurer[.] I should hear by next week. They know its [sic] urgent';

(a) the email statements were false and misleading, as, in truth, at no time between 23 June 2016 and 7 July 2016 did the practitioner notify, or correspond with, any insurer or insurers regarding the claim; and

(b) the practitioner knew the email statements were false and misleading and intended that the complainant be misled by the email statements, so as to defer or delay the complainant from commencing proceedings against the practitioner in respect of the claim.

(2) Between 23 August 2016 and 27 September 2016, in the course of defending Magistrates Court proceedings lodged by the complainant against the practitioner on 25 July 2016 in respect of the claim, by which the complainant sought the sum of $10,118.20 (including allowable Court fees) (proceedings), the practitioner engaged in professional misconduct, within the meaning of s 403 and s 438 of [LP Act], in that her conduct would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence by:

1. at a pre-trial conference before a registrar of the Court (Registrar) on 23 August 2016, saying words to the effect 'I cannot disclose any details because the matter is in the insurer's hands. I will discuss it as soon as I have more information on what they are going to do'; and
2. at a further pre-trial conference before the Registrar on 27 September 2016, saying words to the effect 'I cannot speak about the matter because there is an insurer involved';

(a) the PTC statements were false and misleading as, in truth, at no time prior to 23 August 2016, and between 23 August 2016 and 27 September 2016, did the practitioner notify, or correspond with, any insurer or insurers regarding the claim or the proceedings; and

(b) the practitioner knew the PTC statements were false and misleading and intended that the Court and the complainant be misled by the PTC statements, so as to defer or delay the proceedings.

(3) On and after 6 October 2017, following a complaint to the [Committee] by the complainant against the practitioner arising from the practitioner's response to the claim, her conduct in the proceedings and her failure to pay the judgment sum (complaint), the practitioner engaged in professional misconduct, within the meaning of s 403, s 404(a) and s 438 of the [LP Act], in that her conduct would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence and fell short, consistently and to a substantial degree, of the standard of professional conduct observed or approved by members of the profession of good repute and competence, by, without reasonable excuse, failing to respond to:

1. by 5 October 2017 or at all, a letter from the Committee to the practitioner dated 15 September 2017 which formally notified her of, and requested her submissions in relation to, the complaint (first notification letter), in breach of r 50(3) of the Legal Profession Conduct Rules 2010 (WA);
2. by 5 October 2017 or at all, a Summons to Produce Documents dated 14 September 2017 issued to the practitioner by the Committee under s 520(1)(a) of the [LP Act] (first summons), in breach of s 520(5) and s 532(3) of the [LP Act];
3. by 7 November 2017 or at all, a letter from the Committee to the practitioner dated 17 October 2017 which formally notified her of, and requested her submissions in relation to, a conduct investigation commenced on the Committee's own initiative, under s 421 of the [LP Act], in relation to the practitioner's failure to respond to the first notification letter and the first summons (second notification letter), in breach of r 50(3) of the Legal Profession Conduct Rules 2010 (WA);
4. by 6 December 2017 or at all, a letter from the Committee to the practitioner dated 15 November 2017 which formally notified her of, and requested her submissions in relation to, a conduct investigation commenced on the Committee's own initiative, under s 421 of the [LP Act], in relation to the practitioner's failure to respond to the second notification letter, in breach of r 50(3) of the Legal Profession Conduct Rules 2010 (WA); and
5. by 6 December 2017 or at all, a Summons to Produce Documents and Provide Written Information Verified by Statutory Declaration dated 15 November 2017 issued to the practitioner by the Committee under s 520(1)(a), (c) and (d) and s 520(3) of the [LP Act], in breach of s 520(5) and s 532(3) of the [LP Act].
6. Consequent upon our findings of professional misconduct against the practitioner, on 9 September 2019, we made the following orders:[190]
   1. By 1 October 2019 the [Committee] is to file and serve its submissions in relation to penalty and costs together with a schedule of the amount of costs and disbursements it seeks and supporting accounts.
   2. By 22 October 2019 the [practitioner] is to file and serve her submissions in relation to penalty and costs and any evidence, including character references, on which she relies.
   3. By 29 October 2019 the [Committee] is to file and serve a statement of the names of the authors of any character references filed in accordance with the preceding order who are required for cross­examination at the hearing in relation to penalty and costs.
   4. The issues of penalty and costs are listed for hearing to commence at 10.00 am on 4 November 2019 for half a day.
7. On 1 October 2019, the Committee filed its submissions in relation to penalty and costs together with a schedule of the amount of costs and disbursements it seeks and supporting accounts, in accordance with Order 1 made on 9 September 2019. However, the practitioner did not comply with Order 2 made on 9 September 2019 requiring her to file and serve her submissions in relation to penalty and costs and any evidence, including character references, on which she relies, by 22 October 2019. On 30 October 2019, Mr Stephen Walker, who appeared for the practitioner at the conduct hearing on 13 June 2019 (conduct hearing), filed a notice stating that he no longer represents the practitioner.
8. At 7.40 pm on Sunday, 3 November 2019, which was the evening prior to the hearing in relation to the issues of penalty and costs listed to commence at 10.00 am on 4 November 2019, Ms Nguyet Doan sent the following email to Mr Stephen Merrick, the Senior Legal Officer of the Committee:

To: [email address]

I want to send you the attached medical report relating to [the practitioner].

[The practitioner] fainted last week and is under medical treatment[.]

Please postpone the hearing for a few weeks as she is too unwell at present.

1. In an earlier email to Mr Merrick sent at 10.48 am on Friday, 1 November 2019, which Mr Merrick forwarded to the Tribunal at 1.44 pm on 1 November 2019, Ms Doan said 'I am a friend of [the practitioner] and also her employer'.
2. Although the email sent by Ms Doan to Mr Merrick at 7.40 pm on 3 November 2019 was addressed to both Mr Merrick and Ms Faller, Judge Parry's Associate, Ms Doan did not in fact send the email at that time to Ms Faller. At 7.49 pm on Sunday, 3 November 2019, Ms Doan sent the following email to Ms Faller forwarding her email to Mr Merrick:

Please see below my letter which I sent to Mr Merrick regarding [the practitioner].

1. Ms Doan attached the following medical certificate/report from Dr Ray Cibulskis to her emails sent to Mr Merrick and to Ms Faller at 7.40 pm and 7.49 pm, respectively, on 3 November 2019:

I have been [the practitioner's] GP for the past 12 years. [The practitioner] has suffered from depression, anxiety and panic attacks. [The practitioner] has also been the principal carer for her elderly sick parents. Currently [the practitioner] is suffering from an acute stress reaction relating to her pending legal proceedings and financial problems. I have referred [the practitioner] to see a clinical psychologist and Psychiatrist. I would hope that you would would [sic] defer the proceedings against her for four weeks to allow her to seek appropriate treatment and not exacerbate her current Acute Stress Reaction.

1. On 4 November 2019, we made orders including the following:
   1. On the basis of the medical report of Dr Ray Cibulskis dated 31 October 2019, the hearing in relation to costs and penalty listed for 4 November 2019 is vacated.
   2. The issues of penalty and costs are listed for hearing to commence at 10.00 am on 12 December 2019 for a duration of half a day.
2. Later on 4 November 2019, the Committee emailed the Tribunal indicating that Mr Paul Yovich SC, who appeared for the Committee at the conduct hearing and settled the Committee's written submissions in relation to penalty and costs, would be unavailable on 12 December 2019 (and generally for at least six months, other than on six nominated days, owing to a lengthy criminal trial) and stating that 'it would significantly disadvantage the Committee if it was required to engage alternative counsel to appear at the hearing on 12 December 2019'.
3. On 5 November 2019, we made orders including the following:[191]
   1. On the application of the applicant dated 4 November 2019 the hearing in relation to the issues of penalty and costs listed for 12 December 2019 is vacated.
   2. The issues of penalty and costs are listed for hearing to commence at 9 am on 23 December 2019 for a duration of three hours.
4. At 11.50 am on 18 December 2019, which was the third-last working day prior to the hearing in relation to the issues of penalty and costs listed to commence at 9.00 am on 23 December 2019, the practitioner, in an email to the Committee copied to the Tribunal, requested the Committee's agreement for a further adjournment of the hearing in relation to the issues of penalty and costs 'to say 4 weeks AFTER my scheduled appointment with Dr [Murray] Chapman, Psychiatrist on 23 January 2020',[192] in order to enable her to attend that appointment, obtain a medical report from Dr Chapman and 'seek legal representation in relation to this matter as trying to deal with [this] myself is enormously stressful'. In support of her request for a further adjournment, the practitioner attached the following letter from Dr Cibulskis:

I provide this letter to strongly support [the practitioner's] application for further adjournment.

I confirm that I have referred [the practitioner] to Dr Murray Chapman (Psychiatrist) but there are no available appointments until 23rd January 2020.

There was an aggravation of her symptoms recently when [the practitioner] was required to attend to some personal legal matters.

I am managing her psychological symptoms with anti[-]depressants and sleeping tablets. She is also undertaking weekly psychological counselling under a Mental Health Care Plan and has had 4 sessions so far which I understand is going well.

1. At 2.22 pm on 18 December 2019, the Tribunal emailed the parties as follows:

In light of [the practitioner's] correspondence and the attached letter from Dr Cibulskis, and in light of the Committee's earlier indication that Mr Yovich SC is engaged in a lengthy criminal trial which is expected to occupy the first half of 2020, the Tribunal seeks the parties' positions as to the issues of penalty and costs being (subject to any further order) determined entirely on the documents under s 60(2) of the State Administrative Tribunal Act 2004 (WA), with [the practitioner] having until 7 February 2020 to file and serve any evidence on which she relies and her written submissions, and the Committee having until 14 February 2020 to file any submissions in reply.

1. Following emails received from the parties on 19 December 2019, on 20 December 2019, the Tribunal made the following orders:
   1. The hearing listed at 9am on 23 December 2019 is vacated.
   2. By 4pm on 21 February 2020 the [practitioner] is to file and serve any submissions in relation to penalty and costs and any evidence, including character references, in relation to penalty and costs, on which she proposes to rely.
   3. By 4pm [on] 6 March 2020, the [Committee] is to file and serve any submissions in reply.
   4. Subject to any further order, the issues of penalty and costs are to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
2. At 11.29 am on Thursday 20 February 2020, which was the day immediately before the date by which the practitioner was required, by Order 2 made on 20 December 2019, to file and serve any submissions in relation to penalty and costs and any evidence, including character references, in relation to penalty and costs, on which she proposes to rely, the practitioner sent the following email to the Tribunal:

I refer to the Tribunal's order dated 20 December 2019 which inter alia obliges me to file and serve any submissions in relation to penalty and costs and any evidence, including character references, in relation to penalty and costs, on which I propose to rely.

Regrettably I must again seek further indulgence from the Tribunal for a short extension by reason of the fact that I am unable to finalise my submissions because I am waiting to receive some forensic medical evidence from my GP, Psychiatrist and Psychologist.

Attached is a request for an extension by my Psychologist Professor Miguel Fernandez dated 19 February 2020. I am due to have a further session with Professor Fernandez on the 28 February 2020. I have had several sessions with him already pursuant to a Mental Health Care [P]lan.

I have also seen my Psychiatrist Dr Murray Chapman on 3 occasions. Dr Chapman also requires further time to prepare a detailed report and wishes to receive a formal letter of instruction to do so from my legal representative. My first appointment with Dr Murray [Chapman] was only on 23 January 2020. I also attach Dr Chapman's letter to the Tribunal dated 19 February 2020.

Finally I am also waiting for my GP to prepare a report.

I fully appreciate that the contravention decision was first delivered on 9 September 2019 and this matter has been put back several times already. I am grateful for the Tribunal's indulgence in this regard.

Having spoken with my medical practitioners, I would seek a further period of 14 days. Understandably I would also agree for the time for the Committee to file submissions in reply to be extended by a further 14 days calculated from 6 March 2020.

I will write a letter to the [Committee] with a view to the Committee agreeing to the above. I have written to the Tribunal in the first instance due to time constraints as I do not wish the Tribunal to be of the view that I am being intentionally dilatory. I have copied the Committee into this email.

1. The following letter from Professor Fernandez dated 19 February 2020 was attached to the practitioner's email to the Tribunal on 20 February 2020:

Given my practice and teaching load, I am requesting an extension of 14 days (2 weeks) to provide a more thorough report on my work with [the practitioner].

__________________________

1. The following letter from Dr Chapman dated 19 February 2020 was also attached to the practitioner's email to the Tribunal on 20 February 2020:

sat@justice.wa.gov.au

[The practitioner] has attended three appointments with me now, and she has invited me to write a report for the SAT. I am unable to provide a report for this coming Friday however, as I have not as yet received instruct [sic]. I understand that lawyers have declined to represent her due to time constraints and security for their fees, and she is currently seeking a new lawyer.

1. At 5.11 pm on 20 February 2020, the Tribunal emailed the parties requesting the Committee to advise its position in response to the practitioner's application for a two-week extension for the filing and service of her submissions and any evidence on which she proposes to rely in relation to penalty and costs.
2. At 10.59 am on 21 February 2020, the Committee emailed the Tribunal opposing the practitioner's application for an extension and requesting that, if the practitioner's application is granted, then the Committee should be granted a corresponding extension.
3. At 12.30 pm on 21 February 2020, the practitioner emailed the Tribunal, attaching and filing a medical report from Dr Cibulskis dated 18 February 2020, in accordance with Order 2 made on 20 December 2019, and again requesting 'the short extension of 14 days so that I may also receive a report from my Psychiatrist and Psychologist'.
4. On 21 February 2020, the Tribunal made the following orders:
   1. The time for compliance with Order 2 of the orders made by the Tribunal on 20 December 2019 is extended to 4pm on 6 March 2020 ([practitioner's] submissions in relation to penalty and costs and any evidence, including character references, in relation to penalty and costs, on which she proposes to rely).
   2. The time for compliance with Order 3 of the orders made by the Tribunal on 20 December 2019 is extended to 4pm on 20 March 2020 ([Committee's] submissions in reply).
   3. The [practitioner] is to provide a copy of these orders to Professor Fernandez and Dr Chapman.
5. At 12.46 pm on 6 March 2020, the practitioner emailed the Tribunal as follows:[193]

Medical reports and references have been sent by the medicos to Mr Bennett as they only arrived yesterday.

I understand that Mr Bennett will contact the Tribunal today.

Please advise if you need anything from me DIRECTLY as I am aware of the impending deadline today. I do not want the Tribunal to think I am doing nothing to comply with my obligations.

1. At 1.19 pm on 6 March 2020, Mr Martin Bennett, the principal of Bennett + Co, sent a letter to the Tribunal by email, referring to Order 2 made by the Tribunal on 20 December 2019 (as extended on 21 February 2020) requiring the practitioner to file and serve her submissions in relation to penalty and costs and any evidence, including character references, in relation to penalty and costs, on which she proposed to rely, by 4.00 pm on that day (6 March 2020), and stating as follows:

[The practitioner] has instructed me to assist her in finalising these submissions and I respectfully write to request a short extension until 4.00pm on Tuesday, 10 March 2020.

1. At 1.53 pm on 6 March 2020, the Committee emailed the Tribunal indicating that it had no objection to the extension sought by Mr Bennett.
2. On 6 March 2020, the Tribunal made the following orders:
   1. The time for compliance with Order 2 of the orders made by the Tribunal on 20 December 2019, as amended on 21 February 2020, is extended to 4pm on 10 March 2020 ([practitioner's] submissions in relation to penalty and costs and any evidence, including character references, in relation to penalty and costs, on which she proposes to rely).
   2. The time for compliance with Order 3 of the orders made by the Tribunal on 20 December 2019, as amended on 21 February 2020, is extended to 4pm on 24 March 2020 ([Committee's] submissions in reply).
3. On 10 March 2020, Mr Bennett filed, on behalf of the practitioner:
   • five character references;
   • a medical report by Dr Chapman dated 3 March 2020;
   • a report by Professor Fernandez dated 4 March 2020; and
   • the practitioner's 'penalty submissions' dated 10 March 2020,[194]

in accordance with Order 2 made by the Tribunal on 20 December 2019 (as extended on 21 February 2020 and further extended on 6 March 2020).

1. On 24 March 2020, the Committee filed its 'submissions in reply to [practitioner's] submissions in relation to penalty and costs dated 10 March 2020', in accordance with Order 3 made by the Tribunal on 20 December 2019 (as extended on 21 February 2020 and further extended on 6 March 2020).

Parties' contentions as to appropriate penalty

1. Consequent upon the Tribunal's findings that the practitioner engaged in professional misconduct and its reasons for those findings in the conduct reasons, the Committee seeks a 'global' penalty in the form of an order, under s 438(2)(a) of the LP Act, that the Tribunal make and transmit a report on the findings to the Supreme Court (full bench), with a recommendation, under s 438(4)(b) of the LP Act, that the name of the practitioner be removed from the roll of persons admitted to the legal profession under the LP Act. The Committee also contends that a 'consequential order' should be made, under s 439(b) of the LP Act, that 'no local practising certificate be granted to the practitioner pending the determination of the Supreme Court (full bench)'.[195] The Committee also seeks an order for the payment by the practitioner of its costs in terms of disbursements of the proceeding, fixed in the amount of $22,091.10, such costs to be paid to the Legal Practice Board (Board) within 30 days of the Tribunal's order or as otherwise agreed between the practitioner and the Board.
2. The practitioner also contends that a 'global' penalty is appropriate. However, the practitioner submits that 'an appropriate penalty to be imposed would be as follows':[196]

[1] The [p]ractitioner be privately reprimanded;

[2] [T]he [p]ractitioner undergo, at her own cost, continuing psychological counselling at least once every month for a period of 4 months under GP Mental Health Care Plan from the date of this Order and provide a mental health assessment to the [Board] after each session; and

[3] [T]he [p]ractitioner to make a contribution to the [Committee's] costs to be taxed in default of agreement. And the parties to have liberty to make further submissions on the issue of costs;

[4] [U]pon compliance with paragraph 2, [t]he [Board] is to issue the [p]ractitioner with a local practising certificate for the year commencing 1 July 2020;

[5] [O]ngoing psychiatric review on a monthly basis for 6 months from the date of the Tribunal orders; [and]

[6] GP review as necessary for ongoing monitoring of pharmaceutical treatment regime.

1. The practitioner also contends that the penalty should include a three year period of supervised practice. The practitioner submits as follows:[197]

Supervision of practice management will also assist in ensuring compliance with the [LP] Act. The [p]ractitioner's local practising certificate and any practising certificate to be granted be subject to the following specified conditions:

[1] [F]or the period of three years commencing on 1 July 2020 and ending on 30 July 2023 (Supervision Period), unless or until the conditions are removed or varied by the [Board] in the event of a change in the practitioner's practice arrangements, the practitioner may practise the profession of the law only if under the supervision of a legal practitioner of not less than 10 years' post-admission experience (supervisor)[.]

[2] [A]t the end of the Supervision Period, the supervisor must report to the Board as to whether, in the opinion of the supervisor, the [s]upervision of the practitioner should continue[.]

[3] [U]ntil otherwise agreed by the [Committee] and the Board, the supervisor will be (to insert name), an Australian legal practitioner in the State of Western Australia[.]

[4] [T]he [p]ractitioner will notify the Committee and the Board within seven days of the practitioner becoming aware that the supervisor is unable or unwilling to continue in the role of supervisor. In those circumstances, the practitioner must nominate an alternative supervisor for consideration by the Committee and the Board, and any replacement is to be authorised by the Committee and the Board.

[5] [T]he [p]ractitioner will pay the costs of the supervisor in relation to the supervision of the [p]ractitioner's practice[.]

[6] [T]he [p]ractitioner will within seven days of the date of this Order, provide written notification to existing clients of the practitioner's practice, or of any legal practice in which the [p]ractitioner is engaged as a legal practitioner, of the following matters:

[a] [T]he name of the supervisor as a person who will be assisting; and at times may provide guidance as to the progress of the matter; and

[b] [T]hat client confidentiality and legal professional privilege will be strictly maintained[.]

[7] [T]he [p]ractitioner will, at the commencement of any new retainer with a client during the Supervision Period, whether a client of the practitioner's practice or of any other practice in which the practitioner is or may be engaged as a legal practitioner, provide notification to the client of the following matters:

[a] [T]he name of the supervisor as a person who will be assisting; and at times may provide guidance as to the progress of the matter; and

[b] [T]hat client confidentiality and legal professional privilege will be strictly maintained.

[8] [T]he [p]ractitioner will request each client referred to at paragraphs 6 and 7 above to provide written acknowledgement of the notification given in accordance with paragraph 6 or 7 together with their written consent for the practitioner's file in relation to the client's matter to be viewed by the supervisor for the purposes of supervision/oversight[.]

[9] [T]he [p]ractitioner will allow unrestricted access by the supervisor to the practitioner's diary and/or electronic calendar, to all client files and records of the practitioner's practice, and to any client files of any other legal practice in which the practitioner is or may be engaged[.]

[10] [T]he [p]ractitioner will meet with the supervisor at intervals of not less than once each calendar month, or more frequently should the supervisor determine in his sole discretion that is necessary, save that the practitioner shall not be in breach of these conditions if the practitioner and/or the supervisor are absent from their respective practices on a period of leave. The first of such meetings is to take place by 31 July 2020[.]

[11] [P]rior to the first meeting required by the terms of paragraph 10 above, the [p]ractitioner will prepare and provide to the supervisor a written summary of all current client matters (Client Summary), including but not limited to the following for each client:

[c] [A] brief description of the nature of the matter;

[d] [T]he date and detail of the last action by the practitioner on the file;

[e] [P]rovision for the supervisor to note or make comment to indicate when specific matters are discussed and whether the practitioner's file has been sighted; and

[f] [A]ny other matter that is reasonably required by the supervisor.

[12] [T]he [p]ractitioner must update the Client Summary referred to in paragraph 11 above, including by the addition of any new client matters, prior to the periodic meetings with the supervisor as referred to in paragraph 10 above[.]

[13] [T]he [p]ractitioner will provide to the supervisor such information as the supervisor may reasonably require in relation to the practitioner's client matters and will respond to any enquiries made by the supervisor as soon as is reasonably practicable[.]

[14] [A]t three monthly intervals during the Supervision Period, the [p]ractitioner will provide to the Board a report prepared by the supervisor addressing the following:

[a] [T]he practitioner's level of cooperation with the supervisor including his attendance at meetings and his response to the supervisor's requests for information;

[b] [T]he practitioner's responsiveness to advice and guidance offered by the supervisor;

[c] [T]he supervisor's opinion of the practitioner's management of his [sic] practice;

[d] [T]he supervisor's opinion on whether the practitioner has complied with his [sic] obligations as an officer of the Court;

[e] [W]hether the practitioner has provided notification to clients as required by paragraphs 6 and 7 above;

[f] [W]hether the practitioner has dealt with all client matters competently and diligently; and

[g] [T]he areas of law in which the practitioner has conducted his [sic] legal practice during the Supervision Period. The first such report is to be provided to the Board on or before 31 December 2020.

[15] [B]y consenting to this Order, the [p]ractitioner authorises the supervisor to respond to requests for information in relation to the practitioner's practice that are reasonably made by the Committee and the Board.

[16] [B]y consenting to this Order, the [p]ractitioner authorises the supervisor to report immediately to the Board and the Committee any matter of concern that the supervisor may have in relation to:

[b] [T]he practitioner's conduct of her legal practice; and

[c] [T]he practitioner's compliance or non[-]compliance with these Orders.

[17] [T]he [p]ractitioner will notify the Board in writing within seven days if the practitioner ceases sole practice and/or commences employment as an employed practitioner and/or ceases legal practice[.]

[18] [B]y consenting to this Order, the [p]ractitioner authorises the Committee to provide to the supervisor copies of any complaints received by the Committee about the practitioner's conduct during the Supervision Period and any information or material obtained by the Committee in the course of any investigation by the Commissioner [sic] into the practitioner's conduct[.]

[19] [D]uring the Supervision Period, the [p]ractitioner will not conduct or engage in legal practice other than in accordance with these Orders.

1. We will now refer to the practitioner's background, as related in her submissions, the practitioner's disciplinary history, character references filed by the practitioner, and medical and psychological reports filed by her. We will then review the legal framework and principles in relation to penalty, before considering and determining the appropriate penalty in the circumstances of this case. Finally, we will consider and determine the issue of costs.

1. The practitioner did not give evidence in this proceeding in relation to conduct or penalty. The following background in relation to the practitioner is given in her penalty submissions, which were '[p]repared [b]y' her and '[s]ettled by' Mr Bennett.[198] This part of the practitioner's submissions was not disputed by the Committee in its submissions in reply and we accept the following background in relation to the practitioner stated in her submissions as accurate for the purposes of these reasons:[199]
   1. The [p]ractitioner was born on 2 April 1962 in Brunei. She is primary carer for her Chinese [f]ather (now aged 94) and her Eurasian mother (now aged 83) and lives with them. She has only one sibling, a brother 5 years her [s]enior who is married with adult children. Her immediate family are not lawyers although her paternal [g]randfather was an attorney in pre­communist China who worked for an American company in Shanghai. She is and has always been proud that she was able to resume the paternal connection to the profession of law.
   2. The [p]ractitioner came to Australia with her parents and brother in 1970.
   3. The [p]ractitioner's primary schooling was in WA, NSW and NT. She completed the final 2 years of primary education in 12 months in Darwin so was a year younger compared to other students when she commenced [h]igh [s]chool.
   4. Her secondary education was in WA when the family relocated to WA shortly before Cyclone Tracy.
   5. The [p]ractitioner finished her secondary education in 1978 and then studied at UWA at a compulsory pre-law faculty year in order to compete for the 50 places in [l]aw school at that time when there was only one law school in WA and there was no such thing as getting a law degree online.
   6. The [p]ractitioner commenced her studies in 1979 at UWA and was awarded BJuris in 1982 and LLB in 1983. She served her articles in 1984, and was admitted on 4 [February] 1985. The [p]ractitioner has been employed as a salaried solicitor ever since her admission until she established her own (sole) practice in [approximately] December 2015.
   7. The [p]ractitioner's 2016 Practising Certificate was cancelled on 8 February 2018 by the Board. The Board held over her application for renewal of Practising Certificate for a 2017 Practising Certificate from month to month awaiting determination of VR 183/2016.
   8. However, on 8 February 2018, the Board cancelled her 2016 Practising Certificate without deciding not to renew her application for 2017 Practising Certificate.
   9. The [p]ractitioner has no children and have [sic] not re-partnered since her 15 year relationship with her partner ended in January 2013.
   10. The [p]ractitioner['s] working history is summarised below:

18.1 1984: Articles with Brian A McMahon, a sole practitioner;

18.2 1985: Employed by John Gladstone, a sole practitioner who later became Registrar of Titles;

18.3 1986: Employed by Tom Bannerman and Bannerman & Co in their Kalgoorlie & Perth offices;

18.4 July 1990 to 30 June 2001: Employed by Murie & Edward until the partnership was dissolved;

18.5 1 July 2001 to 1 March 2002 (approximately): Employed by Verschuer Edward;

18.6 5 March 2002 (approximately): Employed by Wojtowicz Kelly until it ceased to trade in January 2011 and her employment was transferred to an ILP Civic Legal Pty Ltd (Civic was ultimately owned by the parent ASX company ILH) ILH ultimately went into administration;

18.7 2011: Employed by Civic Legal Pty Ltd until terminated in June 2012.

18.8 July 2012 to May 2015: Employed by James Chong Lawyers;

18.9 July 2015 to September 2015: Employed by I-Law and resigned in September[ ]2015;

18.10 December 2015 (approximately): Commenced sole practice and also worked as Consultant Migration Agent by [sic] Australia World Link from approximately September 2015.

1. The [p]ractitioner had exposure to [m]igration law in the early days of her professional career and was thus able to become registered as a Migration Agent in 1992 when the registration regime for those practising in [m]igration [l]aw came into operation.

1. In Legal Practitioners Complaints Committee and Chang [2007] WASAT 86, the Tribunal[200] found the practitioner guilty of 'unprofessional conduct', within the meaning of the Legal Practitioners Act 1893 (WA), 'by receiving cheques from a client and depositing them in her personal account, by failing to make an adequate record of the receipt of the cheques and by setting aside the funds from the cheques while failing to take steps to ensure that the cash was promptly dealt with'.[201] The Tribunal also found the practitioner guilty of unprofessional conduct 'by failing to make an adequate record of the receipt or disposition of the client's funds'.[202] The practitioner was reprimanded and fined the sum of $6,000 for the unprofessional conduct, and was also ordered to pay costs fixed in the sum of $25,000. However, the misconduct in that case did not involve dishonesty and took place in March and May 2001, which was more than 15 years before the misconduct in this case.
2. On 13 September 2017, the Tribunal made consent orders, under s 56(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), finding that the practitioner engaged in professional misconduct. The consent orders were reproduced as Annexure A to the Tribunal's reasons for decision in Legal Profession Complaints Committee and Chang [2018] WASAT 121.[203] However, the practitioner sought to withdraw admissions made in signing the consent orders and the matter is the subject of a pending appeal. We accept the practitioner's submission that 'very little weight should be accorded by the Tribunal to these matters given that they are under [appeal]'.[204]
3. We do not consider that the practitioner's disciplinary history is an aggravating factor in relation to penalty in the circumstances of this case.

1. The practitioner filed five character references.[205] None of the character referees were required for cross-examination. We will review each of the character references shortly. However, we observe that, significantly, none of the character referees appear to have any, or any detailed, knowledge of the Tribunal's conduct findings.[206] None of the character referees refer to, or say that they have read, the conduct reasons or the summary of the Tribunal's decision published with the conduct reasons (summary). Most significantly, none of the character referees say that they are aware that the Tribunal has found that the practitioner knowingly sought to mislead the complainant by making the email statements and knowingly sought to mislead the Magistrates Court and the complainant by making the PTC statements. Furthermore, none of the character references are from members of the legal profession and none speak to the practitioner's honesty and integrity as a legal practitioner.[207]
2. The first character reference is from Dunuwila Ialin Rajeewa Jayawickrema and is dated 3 March 2020. This character referee has known the practitioner for approximately 25 years and was first introduced to her when the character referee required urgent assistance in relation to a visa-related issue. That issue was resolved with the practitioner's help. The practitioner has also resolved immigration issues for the character referee's daughter, who had a health condition at the time. The character referee states that '[w]hen I think about everything [the practitioner] has done for me and my family I have no words to thank her or show my gratitude to her' and '[m]y family and I now call Australia home and we would not have had opportunities open to us if it had not been for [the practitioner's] efforts'.
3. The character referee states that '[the practitioner's] character has not changed with the passage of time' and that 'I was shocked to learn that [the practitioner] had her Practising Certificate cancelled in 2018 and I know [the practitioner] was devastated'. The character referee states that the practitioner was 'looking forward to growing her small suburban practice and be able to help disadvantaged and impecunious clients to access justice as well as those whose [m]other tongue is not English'. However, we note that the cancellation of the practitioner's practising certificate by the Board, which took place on 8 February 2018, under s 56 of the LP Act, occurred in consequence of the matters the subject of proceeding VR 183 of 2016 and is unrelated to the circumstances of this proceeding. [208]
4. The first character reference concludes as follows:

[The practitioner] has told me about the pending disciplinary proceedings and her Supreme Court appeal. While I cannot speak to the legal issues I can say that [the practitioner] has not taken leave of her desire to act ethically and properly at all times. An example is that recently I asked [the practitioner] to advise me about strata levies and debt collection. She immediately informed me that owing to the fact that she does not hold a current [p]ractising certificate she could not give legal advice or do legal work even for long time friends like me.

I am more than happy to present my self [sic] personally if needed.

1. The character referee does not say what the practitioner said 'about the pending disciplinary proceedings'. It is unclear whether this relates to these proceedings or proceeding VR 183 of 2016. The words 'her Supreme Court appeal' obviously concern the appeal related to proceeding VR 183 of 2016. The character referee does not say that he or she has read the conduct reasons or the summary and does not say that he or she is aware that the Tribunal has found that the practitioner knowingly sought to mislead the complainant by making the email statements and knowingly sought to mislead the Magistrates Court and the complainant by making the PTC statements. The example of the practitioner's 'desire to act ethically and properly at all times' given in the character reference does not bear testament to the practitioner's honesty and integrity in conducting legal practice, but only to the fact that she recognises that she cannot give legal advice or do legal work, 'even for long time friends like me', when she does not hold a current local practising certificate.
2. The second character reference is from the Venerable Thich Vien Tri of the Phap Hoa Buddha Temple in Pennington, South Australia and is dated 3 March 2020. This character referee states that the practitioner has provided immigration assistance to the Temple and that '[i]n all her dealings with us [the practitioner] has acted professionally and responsibly'. The character referee 'request[s] the Tribunal to extend forgiveness[,] mercy and compassion to [the practitioner]' and expresses the understanding that '[the practitioner] has experienced an anxiety disorder and depression together with health concerns which she is addressing and this I feel would have contributed to her lapses'. The character referee does not refer to possessing qualifications or experience on the basis of which he or she can express an opinion as to whether the practitioner's anxiety and depression 'contributed to her lapses'. The character referee also does not state his or her understanding of the practitioner's 'lapses'. Certainly, knowingly seeking to mislead the complainant by making the email statements and knowingly seeking to mislead the Magistrates Court and the complainant by making the PTC statements could not reasonably be characterised as mere 'lapses'. This professional misconduct involved deliberate dishonesty, not mere 'lapses'.
3. The third character reference is from Sony Tang of the International Buddhist University Students Association (WA) Inc and is dated 6 March 2020. This character referee has known the practitioner 'for years as she has provided immigration advice and representation ... as a Migration Agent concerning a visa for a member of my family'. The character referee states that '[the practitioner] informs me that she has issues concerning a compliant [sic] from a former client of the migration agency' and expresses the view that '[the practitioner] has always behaved appropriately[,] ethically and professionally in her dealings with me as a client'. However, the practitioner's 'issues' do not merely concern 'a [complaint] from a former client of the migration agency'. Rather, they involve findings of the Tribunal that she knowingly sought to mislead that former client and also knowingly sought to mislead the Magistrates Court and the former client when the former client sought compensation in proceedings in that court.
4. The fourth character reference is from the practitioner's employer as a registered migration agent, Ms Doan, and is dated 10 March 2020. Ms Doan has known the practitioner for almost five years and they have developed 'a social as well as professional relationship'. Ms Doan says that after she offered the practitioner employment as a consultant registered migration agent, 'it became clear within a short space of time that there was a need to have an "in house" but separate law firm to provide legal services as my migration agency could not provide immigration legal assistance', and consequently the practitioner established a legal practice in December 2015. Ms Doan thinks 'well enough of [the practitioner] to continue her employment as a consultant Migration Agent ... albeit in a limited capacity'. However, Ms Doan does not indicate that she has read the Tribunal's conduct reasons or the summary and does not say that she is aware of the Tribunal's conduct findings.
5. Ms Doan states that she knows 'only too well the great emotional and financial impact that these proceedings have had on [the practitioner] and indeed other unresolved litigation with the [Committee] and the [Board]'. Ms Doan asked the practitioner 'to seek medical help earlier[,] but she told me that she was too afraid she would lose her licence and also [be] stigmatised'. Ms Doan also states that, when the practitioner's 'licence was cancelled, she was devastated and spoke about dying from time to time'.
6. The final character reference is from Mr Paul Geoghegan, who was the practitioner's (domestic) partner for about 15 years, until February 2013.[209] Although Mr Geoghegan has 'not seen [the practitioner] for the last six years', he 'can confidently say that I would expect that [the practitioner's] innate good character would not and never will change, despite the passage of time'. Mr Geoghegan says that the practitioner was 'close to a nervous breakdown at the time she was dismissed from her employment in June 2012', with the weeks leading up to her dismissal being 'extremely stressful for her and she felt devastated by her termination which she considered unfair'. Mr Geoghegan also says that he has 'no doubt that [the practitioner] would have suffered emotional upheaval' from their separation and that 'the fact of separation would have added additional stress for her in her professional life'. However, the practitioner's dismissal from her former employment (in June 2012) occurred about four years prior, and her separation (in February 2013) occurred about three-and­a­half years prior, to her professional misconduct by knowingly seeking to mislead the complainant by making the email statements and by knowingly seeking to mislead the Magistrates Court and the complainant by making the PTC statements. Furthermore, the stress associated with her dismissal from her former employment and emotional upheaval from her separation does not provide a satisfactory explanation for knowingly seeking to mislead the complainant by making the email statements or knowingly seeking to mislead the Magistrates Court and the complainant by making the PTC statements.
7. Mr Geoghegan appears to have the greatest knowledge of the Tribunal's conduct findings of all of the character referees. He states:

I understand that the present proceedings revolve around a complaint stemming from [the practitioner's] failure to engage with the [Committee] (ie [sic] not answering communications timeously and not complying with subpoenas) and also about statements made to a client and to the Fremantle Court.

While I do not know the circumstances, I can only say that if [the practitioner] is in any way blameworthy then it is the result of exceptional and extraordinary circumstances in her life at the time.

1. As Mr Geoghegan concedes, he does 'not know the circumstances'. Furthermore, he only refers to 'a complaint' and does not refer to the Tribunal's findings of professional misconduct. Significantly, he does not refer to the Tribunal's findings of professional misconduct by knowingly seeking to mislead the complainant by making the email statements and knowingly seeking to mislead the Magistrates Court and the complainant by making the PTC statements. Furthermore, the 'exceptional and extraordinary circumstances in [the practitioner's] life at the time' appears to be a reference to her dismissal from her employment and the breakup of her relationship, which occurred three to four years before the professional misconduct in question.

1. As indicated earlier, the practitioner filed a report from Dr Cibulskis, her general practitioner, dated 18 February 2020, a report from Dr Chapman, her psychiatrist, dated 3 March 2020, and report from Professor Fernandez, her psychologist, dated 4 March 2020. None of the authors of the medical and psychological reports were required for cross-examination. We will review each of these reports shortly. However, we observe that, significantly, the medical and psychological evidence does not indicate that the practitioner's (now) diagnosed Post­Traumatic Stress Disorder (PTSD) or Depression/Anxiety caused, contributed to, or is in any way related to, the practitioner knowingly seeking to mislead the complainant by making the email statements or knowingly seeking to mislead the Magistrates Court and the complainant by making the PTC statements. Indeed, it appears from their reports that Dr Cibulskis, Dr Chapman and Professor Fernandez are not aware of these findings of serious professional misconduct. None of the three reports refer to these findings and none of the authors of the reports states that he has read the conduct reasons or the summary.[210]
2. It is clear that Dr Cibulskis, who has been the practitioner's general practitioner for the past 15 years, is not aware of the Tribunal's findings of professional misconduct by knowingly seeking to mislead the complainant by making the email statements and by knowingly seeking to mislead the Magistrates Court and the complainant by making the PTC statements, because he states in the third paragraph of his report:[211]

I am pleased to provide a medical report on [the practitioner] in relation to disciplinary matter, which stems from [the practitioner's] failure to respond to the regulator's request for information and [the practitioner's] lack of engagement with them.

1. Dr Cibulskis does not refer to any disciplinary matter which stems from statements made by the practitioner to the complainant or to the Magistrates Court.
2. Dr Cibulskis says that the practitioner 'presented to [his practice] in September 2019, complaining of poor mood, poor concentration, poor motivation, helplessness, poor self[-]esteem and lack of confidence'. He says that the practitioner 'also complained of suicidal thoughts but no active suicidal plan'. Although the practitioner had been his patient since 2005, and had only presented with these symptoms in September 2019, Dr Cibulskis expresses the following opinions:[212]

These symptoms seem to stem from an incident in 2011 whilst [the practitioner] was working in a law firm, and the subsequent protracted legal battle, that will culminate in an appeal to the Supreme Court in 2020. These protracted legal proceedings have had a significant impact on [the practitioner's] family life causing her relationship to breakdown in 2013. There has also been a significant impact financially and also on her physical well[-]being. This has left her socially isolated and vulnerable, as she has lost most of her friends. This protracted legal battle and the stress associated with this, has led to a pattern of avoidant behaviour. This is evident in her dealing with the [Board]. This avoidant behaviour also led to poor management of her own medical problems. In the period prior to September 2019, [the practitioner] had presented with poorly controlled asthma, iron deficiency and anaemia and chest pain, possibly ischaemic in nature.

1. As indicated below, in our view, Dr Cibulskis' (and Dr Chapman's) evidence in relation to the practitioner's 'avoidant behaviour', which Dr Cibulskis considers was caused by 'stress' associated with a 'protracted legal battle' stemming from an incident in 2011 and resulting in the practitioner's symptoms presented in September 2019 (and which Dr Chapman considers is a 'coping mechanism' that the practitioner appears to have adopted 'to deal with anxiety' and consequent 'long­term stress'[213]), provides some explanation for the practitioner's professional misconduct by, without reasonable excuse, failing to respond to the notification letters and summonses.
2. Dr Cibulskis states that he referred the practitioner to Dr Chapman for an opinion and management and to Professor Fernandez for psychological counselling, and that the combination of medical management and psychological counselling has 'produced a significant improvement in her insomnia, depression and anxiety'. Dr Cibulskis expresses the opinion that 'I feel that [the practitioner] has learned sufficient strategies that would prevent her from reverting to the previous avoidant behaviour that has led to this disciplinary action'.[214] Again, the expression of this opinion highlights Dr Cibulskis' lack of awareness of the Tribunal's findings that the practitioner knowingly sought to mislead the complainant by making the email statements and knowingly sought to mislead the Magistrates Court and the complainant by making the PTC statements, and that his report does not bear on those matters.
3. Finally, Dr Cibulskis expresses the opinion that the 'current period of being unable to practice [sic] as a [l]awyer has caused [the practitioner] a marked deterioration in her mental and physical health' and that '[s]hould [the practitioner] be disbarred permanently, I fear that this would lead to irreparable mental impairment'.[215]
4. At the commencement of his report, Dr Chapman lists the documents to which he has had access for the purposes of writing his report. Significantly, this list does not include the conduct reasons or the summary.
5. In recounting the '[h]istory of [l]egal [e]vents as [e]xplained to me by [the practitioner]', Dr Chapman states as follows:[216]

[The practitioner] has also worked [as] a Migration Agent, and a complaint was raised in connection with this work, concerning failure to notify an insurance claim, after telling a client she would do so. She states that this should have been a fairly simple matter, but that by this stage she was simply not properly focused, having buried her head in the sand, and with her life in chaos. She felt subject to a 'tsunami of correspondence from the [Committee] with tight deadlines', and she admits she dealt with this by putting it all to one side and avoid[ing] them, as to read them was so depressing that it might push her towards suicidal ideation. She also felt she could not seek help because as soon as she admitted to being under stress and being unable to cope, she feared the regulator would seize on the opportunity to take her licence away.

1. As emphasised in the quotation immediately above, Dr Chapman says that the practitioner told him that a 'complaint' was raised in connection with her work as a migration agent 'concerning failure to notify an insurance claim, after telling a client she would do so'. However, he does not refer to a finding of professional misconduct in this regard. Furthermore, and more significantly, the Tribunal's findings of professional misconduct stemming from the complaint were not that the practitioner '[failed] to notify an insurance claim, after telling a client she would do so'. Rather, the findings of professional misconduct are that the practitioner knowingly sought to mislead the complainant by making the email statements and knowingly sought to mislead the Magistrates Court and the complainant by making the PTC statements. Finally, nowhere in his report does Dr Chapman refer to the Magistrates Court proceedings or to statements made by the practitioner to the Magistrates Court.
2. It is clear from his report that the only finding of professional misconduct of which Dr Chapman appears to be aware is what he describes as the practitioner's 'failure to respond to regulator's communications in a timely manner'.[217] It is in relation to that finding (alone) that Dr Chapman expresses an opinion as to '[t]he contribution of [the practitioner's] psychiatric symptoms' in his report.[218]
3. Dr Chapman has seen the practitioner three times between 23 January 2020 and 27 February 2020. Dr Chapman diagnosed the practitioner as having the following mental illness:[219]
   • Post-Traumatic Stress Disorder - PSTD, of a chronic duration, without dissociative symptoms, accompanied by obsessive rumination of injustice. The precipitant trauma appears to have been bullying and harassment in the workplace, and this has been compounded by ongoing and unresolved legal issues.
   • A differential diagnosis would include:

Major Depression with marked agitation and an anger component.

She exhibited symptoms of ongoing Anxiety, which might suggest a Generalised Anxiety Disorder[.]

1. Dr Chapman expresses the following opinion in relation to '[t]he contribution of [the practitioner's] psychiatric symptoms in her failure to respond to regulator's communications in a timely manner and any impairment in her judgement':[220]

It is always challenging to retrospectively estimate the impact of psychiatric symptoms on their judgement and behaviour, especially over such a long period of time. However, there is evidence to suggest that she has tended to deal with anxiety and the consequences for herself of long-term stress by trying to either deny it or avoid it. She mentions this in her history, and this appears to be corroborated by her former partner's observations. Avoidance is of course a great short­term coping mechanism, as the stress appears to evaporate, however it is a self-defeating mechanism for coping in the long term, and often counterproductive. Avoidance may to [sic] help to explain her failure to respond to communications in a timely manner.

1. Dr Chapman expresses the following opinion in relation to the practitioner's (psychiatric) '[f]itness to [p]ractise as a [l]awyer':[221]

From a psychiatric perspective, at the current time it would seem unlikely that she would be considered to be fit to practise in her profession, given her ongoing depressive, anxiety, anger and negative cognition/ distrust symptoms, in the context of chronic stress. However, where [sic] she to receive a favourable decision from the SAT, it may be that with the ongoing support from her therapist and medication (at least in the short term), she would be able to rehabilitate to the point where she would be fit again to resume practise. This would of course ultimately be a matter for the professional regulator bodies.

1. Finally, we also note the following opinion given by Dr Chapman in relation to '[o]ngoing management which will be conducive to [the practitioner's] mental well-being':[222]

Evidently any decision made by the SAT with regard to [the practitioner's] ability to resume legal practise [sic] or not is likely to have a profound impact upon her mental and material state, given the financial, and reputational impact such decisions may incur for her, and the likely consequences upon her self-esteem and self-image.

1. In his report, Professor Fernandez states that he has conducted psychological testing of the practitioner which produced a score 'indicating severe symptomatology in both Anxiety/Depression'. Professor Fernandez then states:[223]

Her initial symptoms were at a significant level of distress, at having lost her ability to practice [sic] in a profession that she holds dearly. The length [of] time involved since losing her license [sic] has taken a toll on her and it shows in her behaviour.

1. However, Professor Fernandez's indication of the cause of the practitioner's 'initial symptoms', namely 'having lost her ability to practice [sic] in a profession that she holds dearly', occurred in February 2018, that is about a year-and-a-half after the practitioner engaged in professional misconduct by knowingly seeking to mislead the complainant by making the email statements and by knowingly seeking to mislead the Magistrates Court and the complainant by making the PTC statements. It was also after the practitioner was required to provide submissions to the notification letters (by 5 October 2017, 7 November 2017 and 6 December 2017)[224] and after she was required to produce documents by the Summons to Produce Documents dated 15 September 2017 (by 5 October 2017)[225] and by the Summons to Produce Documents and Provide Written Information Verified by Statutory Declaration dated 15 November 2017 (by 6 December 2017).[226]
2. In relation to 'planned future treatment/counselling', Professor Fernandez states as follows:[227]

Given the current [psychological testing] score, planned future treatment in reducing anxiety and depression is around regaining her licence to practice. In gaining her license [sic] back, I predict that her behaviour will drop to an acceptable level i.e., there should be monitoring and maintenance of treatment by me around consolidating solution orientated language that will protect and strengthen her identity as a lawyer. The current disciplinary practices have visibly been destructive.

1. Similarly, Professor Fernandez states that the practitioner's 'ability to regain her license [sic] is a significant aspect of her recovery'.[228]
2. In answer to the question '[d]oes [the practitioner] display any insight and judgement into past conduct and how to better manage stress, depression, anxiety, and seek early intervention[?]', Professor Fernandez states as follows:[229]

This is already happening along the way. All of my work has had both an educative and therapeutic effect (the reduction in the [psychological testing] score). [The practitioner] has to "unlearn" bad habits in order to relearn new ones. I can't fully implement a healing cognitive regime until the situational triggers are minimised or removed. I have, however, identified elsewhere in this letter my proposed approach. Once the current legal process is over, healing can occur and allow her to open up her intellect (cognition) to that powerful identity of hers.

1. However, there is no indication in Professor Fernandez's report that he is aware that the practitioner's 'past conduct' includes knowingly seeking to mislead the complainant by making the email statements or knowingly seeking to mislead the Magistrates Court and the complainant by making the PTC statements. Moreover, as indicated earlier, Professor Fernandez considers that the practitioner's 'initial symptoms' of Anxiety/Depression 'were at a significant level of distress, at having lost her ability to practice [sic] in a profession that she holds dearly'.
2. Finally, and inconsistently with the opinion of Dr Chapman, Professor Fernandez expresses the opinion that 'with the evidence I have, [the practitioner] is fit to practice [sic]'.[230]

1. Sections 438-441 of the LP Act concern the Tribunal's jurisdiction to make a finding that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct and the penalties it may impose if it makes such a finding. Sections 438-441 of the LP Act state as follows:
   1. Jurisdiction of SAT

(1) The State Administrative Tribunal has jurisdiction to make a finding that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct.

(2) If, after it has completed a hearing in relation to a referral under this Part in respect of an Australian legal practitioner, the State Administrative Tribunal is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may -

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

(b) make any one or more of the orders specified in sections 439, 440 and 441.

(3) If the State Administrative Tribunal transmits a report in respect of a legal practitioner to the Supreme Court (full bench) under subsection (2)(a), the Tribunal may, pending the determination of the Supreme Court (full bench), make the following orders -

(a) an order that the Australian legal practitioner's local practising certificate be suspended for a specified period;

(b) an order that specified conditions be imposed on an Australian legal practitioner's local practising certificate restricting the entitlement of an Australian legal practitioner to practise for a specified period.

(4) Where appropriate, a report forwarded under subsection (2)(a) may include either or both of the following -

(b) a recommendation that the name of the practitioner be removed from the local roll.

1. Orders requiring official implementation in this jurisdiction

The State Administrative Tribunal may, under section 438(2)(b), make any one or more of the following orders -

(a) an order that the practitioner's local practising certificate be suspended for a specified period or cancelled;

(b) an order that a local practising certificate not be granted to the practitioner before the end of a specified period;

(i) specified conditions be imposed on the practitioner's practising certificate granted or to be granted under this Act; and

(ii) the conditions be imposed for a specified time; and

(iii) specifies the time (if any) after which the practitioner may apply to the Tribunal for the conditions to be amended or removed;

(d) an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner.

1. Orders requiring official implementation in another jurisdiction

The State Administrative Tribunal may, under section 438(2)(b), make any one or more of the following orders -

(a) an order recommending that the name of the practitioner be removed from an interstate roll;

(b) an order recommending that the practitioner's interstate practising certificate be suspended for a specified period or cancelled;

(c) an order recommending that an interstate practising certificate not be granted to the practitioner before the end of a specified period;

(i) specified conditions be imposed on the practitioner's interstate practising certificate, or existing conditions be amended; and

(ii) the conditions be imposed or amended for a specified time; and

(iii) the conditions specify the time (if any) after which the practitioner may apply to the Tribunal for the conditions to be amended or removed.

1. Orders requiring compliance by practitioner

The State Administrative Tribunal may, under section 438(2)(b), make any one or more of the following orders -

(a) an order that the practitioner pay a fine to the Board of a specified amount not exceeding $25 000;

(b) an order that the practitioner undertake and complete a specified course of further legal education;

(d) an order that the complainant pay the amount of legal costs in dispute or that the amount of legal costs be reduced by a specified amount (not exceeding the amount in dispute);

(e) an order that the practitioner provide specified legal services to the complainant either free of charge or at a specified cost;

(f) an order that the practitioner undertake a specified period of practice under specified supervision;

(g) an order that the practitioner do or refrain from doing something in connection with the practice of law;

(h) an order that the practitioner's practice, or the financial affairs of the practitioner or of the practitioner's practice, be conducted for a specified period in a specified way or subject to specified conditions;

(i) an order that the practitioner's practice be subject to periodic inspection for a specified period;

(j) an order that the practitioner undergo counselling or medical treatment or act in accordance with medical advice given to the practitioner;

(k) an order that the practitioner use the services of an accountant or other financial specialist in connection with the practitioner's practice;

(l) an order that the practitioner seek advice in relation to the management of the practitioner's practice from a specified person;

(m) an order that the practitioner not apply for a local practising certificate before the end of a specified period.

1. If the Tribunal decides to 'make and transmit a report on the finding[s] [that the practitioner is guilty of professional misconduct] to the Supreme Court (full bench)', under s 438(2)(a) of the LP Act, then it may include, under s 438(4)(b) of the LP Act, 'a recommendation that the name of the practitioner be removed from the local roll'. Under s 3 of the LP Act, the expression 'local roll' 'has the meaning given in [s] 28(1) [of the LP Act]'. Section 28(1) of the LP Act states that the Supreme Court 'must maintain a roll of persons admitted to the legal profession under this Act (the local roll)'.[231] Thus, the 'local roll' from which the Tribunal may make a recommendation that the name of the practitioner be removed (if it decides to make and transmit a report on the findings that the practitioner is guilty of professional misconduct to the Supreme Court (full bench)) is the 'roll of persons admitted to the legal profession under [the LP] Act' maintained by the Supreme Court under s 28(1) of the LP Act.
2. In Khosa v Legal Profession Complaints Committee [2017] WASCA 192, the Court of Appeal[232] set out the following principles in relation to penalty at [188]-[195]:[233]
   1. The court's, and the Tribunal's, jurisdiction with respect to the regulation of the profession is not to be exercised for the purpose of punishing the practitioner concerned, but for the protection of the public and the maintenance of the reputation and standards of the legal profession.
   2. The protection of the public includes both general deterrence of other practitioners who might otherwise be tempted to engage in such conduct, as well as personal deterrence.
   3. In New South Wales Bar Association v Hamman, Mason P said, with reference to the decision of Giles AJA in Law Society of New South Wales v Foreman (No 2):

Giles AJA described the basis of the court's jurisdiction: at 470-1. Citing Bannister and other cases, he referred to the protective function of general deterrence in the following terms (at 471):

'But the object of protection of the public also includes deterring the legal practitioner in question from repeating the misconduct, and deterring others who might be tempted to fall short of the high standards required of them. And the public, and professional colleagues who practise in the public interest, must be able to repose confidence in legal practitioners, so an element in deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with.'

These references to the public's perception of the court's reaction to the professional misconduct do not make the court hostage to the public's assumed sense of anger at the misconduct uncovered. The court must be satisfied that its enunciated views give proper weight to widely and reasonably held public attitudes to practitioners in the context of the administration of justice generally and in the particular case.

1. In general terms, where the conclusion is reached that a practitioner is presently unfit to practise, a choice may be made between suspension and striking off. If an order for suspension is made in that event, it must be made on the basis that, at the termination of the period of suspension, the practitioner will no longer be unfit to practise because, at the end of the relevant period, the practitioner's name will still be on the roll of practitioners and may resume practise. Suspension is a 'serious form of discipline which is usually imposed to discipline the legal practitioner, who has committed an act of unprofessional conduct but who, in the opinion of the court, at the end of the period of suspension, will be a fit and proper person to practise the law'. In the context of suspension, present unfitness to practise may be understood to include a serious breach of professional obligations 'reflecting, to a significant degree, upon the practitioner's fitness to practise'.
2. Where, however, the present unfitness to practise reveals that the practitioner lacks the character and trustworthiness necessary to discharge the responsibilities of legal practice, or that the practitioner is permanently or indefinitely unfit to practise, striking off rather than suspension will (at least ordinarily) be the appropriate response.
3. A failure on the part of the practitioner to appreciate the impropriety of his or her conduct may support a finding of unfitness to practise. A reason for this is that the lack of appreciation of impropriety and the lack of insight increases the risk of recurrence of the improper conduct.
4. A suspension order may also be a valuable measure by way of general or personal deterrence, for the protection of the public and the maintenance of the reputation and standards of the legal profession, even without concluding that the conduct demonstrated or should be characterised as indicating that the practitioner was not a fit and proper person. A suspension order entails greater denunciatory and deterrent effect than a reprimand and fine.
5. Fitness to practise for the purpose of penalty orders is to be determined at the time of the relevant hearing, and not at the time of the misconduct. The same is true of the question of the appropriate penalty generally.
6. In Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S),[234] a case in which a practitioner was found to have engaged in professional misconduct by, among other things, intentionally causing a court to be misled that there was no third party who ought to be heard before orders were made in terms of a minute of agreed orders, the Tribunal[235] referred to authorities and principles in relation to penalty, which are also relevant in this case, as follows at [21]­[27]:[236]
   1. A report and recommendation for a strike off order, as proposed by the Committee, would be appropriate where we regard the misconduct as so serious as to mean that the practitioner is permanently or indefinitely unfit to practise: New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [26] - [28]. In assessing the appropriate disciplinary consequence of the practitioner's conduct, other remedies which we must consider include suspension of the practitioner's local practising certificate (s 439(a) of the LP Act) or (more appropriately here, as the practitioner does not have a current practising certificate) that a local practising certificate not be granted to the practitioner (s 439(b) of the LP Act) / not be applied for (s 441(m) of the LP Act) before a certain time, that conditions be placed on his practising certificate (s 439(c) of the LP Act), that the practitioner be reprimanded (s 439(d) of the LP Act), or that he pay a fine of up to $25,000 to the Legal Practice Board (s 441(a) of the LP Act) (see orders specified in s 439, s 440 and s 441 of the LP Act). ...
   2. The relevant principles in this type of case were set out by the Supreme Court (full bench) in Legal Profession Complaints Committee v Brickhill [2013] WASC 369 at [18] - [21] as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. Another way to express this distinction is to say that striking off is reserved to those cases where the practitioner is found to be permanently or indefinitely unfit to practise, whereas suspension is suitable where the Tribunal is satisfied that, upon completion of the period of suspension, the practitioner will be fit to resume practice.
2. In the conduct reasons at [167], we set out the Tribunal's review in Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37; (2013) 84 SR (WA) 158[237] at [148]-[151] of authorities in relation to professional misconduct by knowingly or intentionally seeking to mislead a court or tribunal. As those authorities are also relevant in relation to penalty, we repeat the summary from Legal Profession Complaints Committee and A Legal Practitioner at [148]-[151] here:[238]
   1. Knowingly or intentionally misleading a court or tribunal constitutes unprofessional conduct of a most serious nature (historically, professional misconduct) at common law (and under the Legal Practice Act), in that it is conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, and is therefore professional misconduct under the LP Act. In Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 at [61] and [70], the Court of Appeal said the following:

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

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

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

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

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

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

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

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

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

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

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

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

1. In Legal Profession Complaints Committee and A Legal Practitioner (S), the Tribunal said the following in relation to a 'global' approach to penalty in disciplinary proceedings at [18]-[19]:
   1. Whilst the imposition of separate penalties for each ground is the preferable course, there are circumstances in which a 'global' approach to penalty may be more appropriate in vocational disciplinary proceedings: Stirling v Legal Services Commissioner [2013] VSCA 374 (Stirling) at [72] ­ [75]. This is such a case.
   2. As revealed in the conduct reasons, the practitioner's professional misconduct formed part of a course of conduct over several months such that it is convenient to impose a global penalty in respect of the separate findings of professional misconduct, rather than seeking to impose separate penalties for each charge. That is the basis upon which the parties proceeded and it was also the course followed by the Tribunal when it imposed a penalty in respect of Ms B's conduct in relation to the consent orders and Mr A's interest. ...
2. Referring to the passage in Legal Profession Complaints Committee and A Legal Practitioner (S) set out immediately above, the Committee submits that:[239]

Given the gravity of the dishonesty findings against the practitioner [that is, the findings that she knowingly sought to mislead the complainant by making the email statements and knowingly sought to mislead the Magistrates Court and the complainant by making the PTC statements] and the close factual relationship of all the grounds in this matter, this is a situation in which it is both convenient and preferable to impose a global penalty[.]

1. Although the practitioner contends that the 'dishonesty findings against the practitioner' are less 'grave' than that contended by the Committee, she also, in effect, submits that a 'global' approach to penalty is appropriate in the circumstances of this case.
2. We accept what is, in effect, the joint position of the parties that, in the circumstances of this case, it is both convenient and appropriate to impose a global penalty in respect of the separate findings of professional misconduct, rather than seeking to impose separate penalties for each of the three findings. The practitioner's professional misconduct in terms of knowingly seeking to mislead the complainant by making the email statements and by knowingly seeking to mislead the Magistrates Court and the complainant by making the PTC statements involved a course of conduct over about four months and the false and misleading email statements and PTC statements were made, respectively, for the related purposes 'to defer or delay the complainant from commencing legal proceedings against [the practitioner]'[240] and 'to defer and delay the [Magistrates Court] proceedings'.[241] The practitioner's professional misconduct by, without reasonable excuse, failing to respond to three notification letters and two summonses is also factually related to the other findings of professional misconduct, namely the dishonesty findings, because the letters and summonses stemmed from the complainant's complaint about the practitioner which lead to the dishonesty findings of professional misconduct against the practitioner. As the Committee submits, there is a 'close factual relationship of all the grounds in this matter'.[242]
3. Finally, in relation to the legal framework and principles, we note that, in their submissions, both parties refer to the statement of the (so­called) '12 matters' or '12 factors' set out by the Tribunal in identical terms in Legal Profession Complaints Committee and Bower [2017] WASAT 47 (S)[243] at [16] and Legal Profession Complaints Committee and Park [2017] WASAT 89; (2017) 92 SR (WA) 33[244] at [26]. Under the heading 'The 12 factors', the Committee submits that 'in considering the appropriate penalty to be imposed for misconduct in professional matters, the Tribunal routinely has regard to twelve factors' and then summarises the '12 matters' or '12 factors' stated in Legal Profession Complaints Committee and Bower (S) at [16] and Legal Profession Complaints Committee and Park at [26].[245] Similarly, the practitioner 'accepts that the applicable legal principles are as summarised' in those two decisions and then summarises the first 11 of the '12 matters' or '12 factors' in the expression of headings ('Factor 1: ...', 'Factor 2: ...', 'Factor 3: ...', etc.) and seeks to address each of those 'factors' under the relevant heading.[246]
4. As we have said, the Tribunal stated the (so-called) '12 matters' or '12 factors' in identical terms in Legal Profession Complaints Committee and Bower (S) at [16] and Legal Profession Complaints Committee and Park at [26]. Under the same heading, 'Twelve matters for consideration', the Tribunal said the following in both of those decisions:

In determining an appropriate sanction, twelve matters may require consideration. Those matters are interrelated and are not mutually exclusive. The list of matters is not exhaustive. The twelve matters are:

1. Any need to protect the public against further misconduct by the practitioner (Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S) (Amsden (S)) at [8]; Foreman at 440C; Hamman at [77]).
2. The need to protect the public through general deterrence of other practitioners from similar conduct (Veterinary Practitioners Board of NSW v Johnson [2010] NSWADT 308 (Johnson) at [103]; Hamman at [77]).
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 (Amsden (S)) at [8]; Foreman at 444F; and Hamman at [77] and [79]), 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 (Craig v The Medical Board of South Australia [2001] SASC 169 at [64]; Johnson at [103]).
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 (Johnson at [109]; Foreman at 445B - 445G).
5. Whether the practitioner has breached any:

1. Guidelines or Code of Conduct, issued by the relevant professional body; and

1. whether the practitioner has done so knowingly.
2. Whether the practitioner's conduct demonstrated incompetence, and if so, to what level.
3. Whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future (Foreman at 442E - 442G; New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183; Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62 at [80]; Chamberlain v Law Society of the Australian Capital Territory [1993] FCA 527; (1993) 118 ALR 54 at 62 and 63).
4. The practitioner's disciplinary history (Legal Profession Complaints Committee v O'Halloran [2013] WASC 430 at [93]);
5. Whether or not the practitioner understands the error of his 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 (Law Society of New South Wales v Walsh [1997] NSWCA 185 per Beazley JJA (Walsh); Legal Profession Complaints Committee v Lashansky [2007] WASC 211 (Lashansky) at [31]-[52] and (second) at [35]; Amsden (S) at [8]; Foreman at 444E; Love at [9]).
6. The desirability of making available to the public any special skills possessed by the practitioner.
7. 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 (Love at [59]); Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 (Paridis) at [30(5)]).
8. The Tribunal may consider any other matters relevant to the practitioner's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness (A Legal Practitioner (S) at [25]). 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 (Walsh).
9. The '12 matters' or '12 factors' are neither a statutory pronouncement, nor an authoritative statement by a superior court, of the considerations or principles which are applicable in relation to penalty in disciplinary proceedings in general or in any particular case. Indeed, in identical words in Legal Profession Complaints Committee and Bower (S) at [16] and Legal Profession Complaints Committee and Park at [26], the Tribunal recognised that the '12 matters' are factors that 'may' require consideration (not that they will require consideration in all cases or in any particular case), 'are interrelated and are not mutually exclusive', and are 'not exhaustive'.
10. Notwithstanding these qualifications, the formulation and identical expression of the '12 matters' in the two cases referred to above may give those matters or factors, and their particular expression, the appearance of a code or of having a level of authority which they do not possess. The parties' submissions in this case appear to assume that the '12 matters' or '12 factors' have such a status. As indicated earlier, under the heading 'The 12 factors', the Committee submits that 'in considering the appropriate penalty to be imposed for misconduct in professional matters, the Tribunal routinely has regard to twelve factors', which the submissions then summarise.[247] Similarly, as also indicated earlier, the practitioner submits that 'the applicable legal principles are as summarised'[248] in the two decisions referred to and then summarises the first 11 of the '12 matters' or '12 factors' in the expression of headings ('Factor 1: ...', 'Factor 2: ...', 'Factor 3: ...', etc.) and seeks to address each of those 'factors' under the relevant heading.
11. However, it is not correct that the Tribunal 'routinely has regard to twelve factors' or that all of those factors (or only those factors) are 'the applicable legal principles' in determining the appropriate penalty for unsatisfactory professional conduct or professional misconduct. Rather, the relevant factors and principles are to be determined from statute and case authority in the particular circumstances of the case. In this case, having summarised the '12 matters' or '12 factors' in its submissions, the Committee did not address all of them, obviously because not all of them are relevant in this case. However, having summarised the first 11 of the '12 matters' or '12 factors' in the expression of headings, the practitioner sought to address each of them, whether relevant or not,[249] and with considerable overlap.
12. Furthermore, the expression and formulaic repetition of the '12 matters' or '12 factors' may divert the parties and the Tribunal from focussing on, or even identifying, the key matters which are relevant to determining the appropriate disciplinary consequence of the conduct in question in the particular circumstances of the case at hand.
13. For these reasons, the expression and formulaic repetition of the '12 matters' or '12 factors' in penalty submissions and reasons should be avoided. Rather, the focus of the parties and the Tribunal should be on identifying and assessing the particular matters which are relevant to the determination of the appropriate disciplinary consequence of the conduct in question in the circumstances of the case.

1. As indicated earlier, the Committee contends that the appropriate penalty in this case is for the Tribunal to make and transmit a report to the Supreme Court (full bench) with a recommendation that the name of the practitioner be removed from the roll of persons admitted to the legal profession under the LP Act. The Committee also seeks a 'consequential order' that no local practising certificate be granted to the practitioner pending the determination of the Supreme Court (full bench). In contrast, as also indicated earlier, the practitioner contends that the appropriate penalty in this case is a private reprimand, psychological counselling at least once a month for four months, psychiatric review on a monthly basis for six months, review by a general practitioner as necessary 'for ongoing monitoring of pharmaceutical treatment regime', and a three year period of supervised practice following completion of the four months of psychological counselling.
2. As the authorities referred to earlier indicate, not all instances of professional misconduct involving even deliberate misleading of a court or tribunal will necessarily result in a report to the Supreme Court (full bench) and a recommendation that the practitioner be struck off the roll. However, for the reasons which follow, in our view, the appropriate disciplinary consequence of the practitioner's serious professional misconduct by knowingly seeking to mislead the complainant by making the email statements and by knowingly seeking to mislead the Magistrates Court and the complainant by making the PTC statements, in the circumstances of this case, is that the Tribunal should make and transmit a report on the findings of professional misconduct to the Supreme Court (full bench) with a recommendation that the name of the practitioner be removed from the roll of persons admitted to the legal profession under the LP Act. In our view, the protection of the public in their dealings with legal practitioners (the honesty and integrity of legal practitioners being of paramount importance in that regard) and the maintenance of the reputation and standards of the legal profession require that the practitioner be struck off. Furthermore, for the reasons which follow, in our view, the penalty suggested in the practitioner's submissions would be manifestly inappropriate and inadequate to protect the public in their dealings with legal practitioners and maintain the reputation and standards of the legal profession.
3. As we said in the conduct reasons at [172]-[173]:
   1. ... By knowingly seeking to mislead the Magistrates Court and the complainant, so as to defer or delay the Magistrates Court proceedings, the practitioner breached her fundamental ethical duties of candour and fairness to the Court and to the complainant. As the authorities referred to in Legal Profession Complaints Committee and A Legal Practitioner at [148]-[151] show, courts and tribunals necessarily place significant trust and confidence in legal practitioners in order to be able to administer justice effectively and efficiently. Knowingly seeking to mislead a court (and the other party to litigation), whether in a professional or personal capacity, strikes at the very heart of, and is an anathema to, a legal practitioner's core ethical duties as an officer of the court and fundamentally undermines the trust and confidence between court and practitioner which is essential to the administration of justice. The practitioner's conduct in terms of ground 2 is therefore most serious professional misconduct.
   2. In the circumstances, it is unnecessary to determine whether the practitioner's conduct would also constitute professional misconduct on the alternative basis contended by the Committee in terms of the statutory definition of the term in s 403(1)(b) of the LP Act. However, as the authorities show, knowingly seeking to mislead a court, whether in a professional or personal capacity, displays a lack of integrity, which is a basic requirement for the privilege of legal practice.
4. Knowingly seeking to mislead the complainant by making the email statements, so as to defer or delay the complainant from commencing proceedings against the practitioner, is also serious professional misconduct, because it involves and displays a lack of honesty and integrity. This professional misconduct is all the more serious, because, as we said in the conduct reasons at [139], the practitioner made the email statements '... in the knowledge of, and in response to, contemplated and foreshadowed court proceedings against her'. Lawyers routinely respond to letters of demand foreshadowing legal proceedings, and defend proceedings when commenced, on behalf of clients. Although the practitioner engaged in professional misconduct by making the email statements and the PTC statements in her personal capacity, rather than in her professional capacity as a legal practitioner, her conduct demonstrates that she lacks the honesty and integrity which are necessary to be entrusted with the privilege and responsibility of being a legal practitioner, particularly because she was dishonest in responding to a letter of demand and in defending court proceedings, which are routine aspects of a lawyer's work.
5. Furthermore, not only was the practitioner's professional misconduct in making the email statements and the PTC statements dishonest, it did not involve an isolated instance of dishonesty, but rather comprised three instances and a course of dishonest conduct over a period of about four months. The email statements were made over a two week period. The first PTC statement was made about six weeks after the period during which the email statements were made. By making the second PTC statement five weeks after she made the first PTC statement, the practitioner continued her dishonest course of conduct and compounded her serious professional misconduct by lying to the Magistrates Court and to the complainant again. The practitioner could have ended her dishonest conduct with the email statements. However, she continued the dishonest course by lying to the Magistrates Court and to the complainant at the first pre-trial conference about six weeks later. Rather than ceasing her dishonest conduct at that point, the practitioner again lied to the Magistrates Court and to the complainant five weeks later.
6. In addressing whether her professional misconduct was isolated, the practitioner submits that '[t]he 3 conduct findings, whilst separately identified, arise from the same factual substratum of circumstances' and '[t]he issues arose in respect of the same complainant dealing with this matter'.[250] However, these submissions miss the point. As the Committee correctly submits, '[t]his case involved repeated and continuing dishonesty, not a mere isolated error of judgment'.[251] In 'regard' to her submission that '[t]he issues arose in respect of the same complainant dealing with this matter', the practitioner also submits:[252]

... [I]t is important to note that the complainant, in question, suffered no loss. Any loss suffered had already crystalised by the time the complainant approached the [Committee] complaining of the failure of the [p]ractitioner to pay the judgment sum. There is no allegation of misconduct in dealing with the complainant arising from alleged negligence.

Despite obtaining judgment in default, even to this day, the complainant/judgment creditor has chosen not to enforce the judgment. Indeed, the [Committee] has conceded that the complainant, by suing the [p]ractitioner, sued the wrong party. The [Committee] duly amended its application deleting an allegation of misconduct due to the [p]ractitioner's failure to pay the judgment sum.

In fact, the complainant appears to have conceded that judgment was wrongly entered against the wrong defendant. In this circumstance, there was no benefit flowing to the [p]ractitioner from her conduct - delay had no relevance and the [p]ractitioner had every benefit to be gained by reporting the action to her insurer or otherwise dealing with it. Her conduct demonstrates an irrational response to a stress rather than an act of any calculated dishonesty for personal gain.

1. These submissions also miss the point. It matters not whether the complainant suffered loss as a result of the practitioner's professional misconduct, nor whether the Committee conceded that the complainant sued the wrong party (which the Committee did not concede[253]), nor whether the complainant conceded that judgment was wrongly entered against the wrong defendant (as to which there is no evidence before the Tribunal[254]). The point is that the practitioner knowingly sought to mislead her client and the Magistrates Court. Furthermore, although the complainant did not suffer any 'loss' as a result of the practitioner's dishonesty, there was in fact (misguided) 'benefit flowing to the [p]ractitioner from her conduct', namely deferring or delaying the complainant from commencing legal proceedings against her in respect of the claim made in the letter of demand[255] and deferring or delaying the Magistrates Court proceedings.[256]
2. In relation to the submission that '[h]er conduct demonstrates an irrational response to a stress rather than an act of any calculated dishonesty for personal gain', it appears from elsewhere in her submissions that the practitioner refers to three sources or elements of 'stress'. First, stress associated with her (now) diagnosed mental illness of PTSD and Depression/Anxiety. The practitioner submits that '[i]t is essential to note that ... [her] conduct occurred in the context of enormous personal stress and a temporary mental condition associated with that stress'.[257] Secondly, the practitioner submits that she was 'a practitioner engaged in sole practice and becoming overwhelmed by stress, anxiety and financial pressures [associated with that practice].[258] Thirdly, the practitioner submits that 'she had been the subject of separate disciplinary proceedings (currently the subject of a Supreme Court [a]ppeal) relating to allegations of misconduct dating as far back as 2008 and 2011 and those proceedings gave rise to a constant stress'.[259]
3. However, as we said earlier, the medical and psychological evidence does not indicate that the practitioner's PTSD or Depression/Anxiety caused, contributed to, or is in any way related to, the practitioner knowingly seeking to mislead the complainant by making the email statements or knowingly seeking to mislead the Magistrates Court and the complainant by making the PTC statements. Although the practitioner did not give evidence, we assume, for the purposes of these reasons, that the practitioner's commencement of sole practice in December 2015 led to her becoming 'overwhelmed by stress, anxiety and financial pressures [associated with that practice]' and that the matters the subject of proceeding VR 183 of 2016 and the pending appeal in relation to that proceeding 'gave rise to a constant stress'. However, as the Supreme Court (full bench)[260] said in Legal Profession Complaints Committee v Love [2014] WASC 389 at [59], in relation to a practitioner's submission that 'his misconduct had occurred in the course of a busy and stressful practice when he was under considerable financial pressure':[261]

... At the risk of stating the obvious, that cannot excuse dishonest conduct in the practice of law. As White J stated in Legal Practitioners Conduct Board v Kerin, practitioners are expected to maintain high standards of conduct even in times of personal stress. Moreover, the weight given to personal circumstances cannot override the fundamental obligation of the court 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.

1. Although the practitioner's dishonest conduct occurred in the practitioner's personal capacity, and not 'in the practice of law', she was in fact a legal practitioner, and practising as such, at the time, and her dishonest conduct was in response to a letter of demand foreshadowing legal proceedings against her and in the course of defending legal proceedings brought against her. Of course, as indicated earlier, 'the practice of law' routinely involves responding to letters of demand foreshadowing legal proceedings and defending legal proceedings. Moreover, as we found in the conduct reasons at [139], at the time the practitioner made the email statements, the complainant understood '... that the practitioner was a lawyer', and as we found in the conduct reasons at [168], '[t]he Registrar of the Magistrates Court was aware that the practitioner is a lawyer and would therefore have placed significant trust and confidence in what the practitioner said at the pre­trial conferences'. Adopting the language of the Supreme Court (full bench) in Legal Profession Complaints Committee v Love at [59] in these analogous circumstances, '[a]t the risk of stating the obvious', 'stress, anxiety and financial pressure' associated with the practitioner's sole practice and stress created by disciplinary proceedings against her 'cannot excuse dishonest conduct' in responding to a letter of demand foreshadowing legal proceedings against the practitioner and in defending legal proceedings brought against her.
2. In the circumstances of this case, none of the three sources or elements of 'stress' the practitioner refers to provides a satisfactory explanation for her serious professional misconduct by knowingly seeking to mislead the complainant by making the email statements or by knowingly seeking to mislead the Magistrates Court and the complainant by making the PTC statements.
3. In Legal Profession Complaints Committee v Love, the Supreme Court (full bench) held at [19] as follows:[262]

The degree to which a practitioner appreciates the seriousness of the misconduct is a relevant factor in the choice of the court, exercising a protective jurisdiction, between the alternatives of suspension or striking off. A practitioner who fails to understand the significance and consequences of misconduct is a great risk to the community.

1. The practitioner has demonstrated no real remorse or insight into her wrongdoing in terms of knowingly seeking to mislead the complainant by making the email statements and knowingly seeking to mislead the Magistrates Court and the complainant by making the PTC statements. The practitioner's failure to understand the 'significance and consequences' of knowingly seeking to mislead the complainant and the Magistrates Court is, as the Supreme Court said, in itself 'a great risk to the community'.
2. In relation to whether she has demonstrated remorse and insight, the practitioner submits as follows:[263]

The [p]ractitioner submits that her lapse in professional standards does not indicate she lacked the qualities of character which are necessary attributes of a person entrusted with the responsibilities of a legal practitioner. Her insight has shown and demonstrated contrition. She sought medical intervention and psychological counselling. The [p]ractitioner was entitled to contest the matter before the Tribunal and to require the [Committee] to prove that she was guilty of professional misconduct. It cannot be said the [p]ractitioner's defence was either scandalous or without merit.

1. We accept the submission that the practitioner was 'entitled to contest the matter before the Tribunal'. However, the matters referred to by the practitioner in her submissions do not demonstrate remorse or insight into her wrongdoing. The practitioner acknowledges that 'the [f]indings made by the Tribunal against her are of the utmost seriousness and in particular the finding of knowingly misleading the Court and a litigant',[264] but suggests that her personal circumstances referred to in her submissions 'can satisfactorily explain [her] conduct'.[265] However, the practitioner's personal circumstances referred to in her submissions do not provide a satisfactory explanation for the practitioner knowingly seeking to mislead the complainant by making the email statements or knowingly seeking to mislead the Magistrates Court and the complainant by making the PTC statements. In particular, as we have said, the medical and psychological evidence and submissions about 'stress' do not satisfactorily explain the practitioner's dishonest conduct. Furthermore, although seeking 'medical intervention and psychological counselling' (in September 2019, that is at around the same time as the Tribunal published the conduct reasons on 9 September 2019) may have been a response to the stress created by these proceedings in general or the conduct findings in particular, it is not a reflection of remorse or insight into her wrongdoing. Indeed, the practitioner's language in her submissions in relation to remorse and insight (which, as we noted earlier, she '[p]repared' and Mr Bennett '[s]ettled'[266]), namely that 'her lapse in professional standards does not indicate she lacked the qualities of character which are necessary attributes of a person entrusted with the responsibilities of a legal practitioner',[267] reflects her lack of insight. Deliberately seeking to mislead the complainant and the Magistrates Court cannot be reasonably characterised as a mere 'lapse in professional standards'. Rather, as we said in the conduct reasons at [172], it 'strikes at the very heart of, and is an anathema to, a legal practitioner's core ethical duties as an officer of the court and fundamentally undermines the trust and confidence between court and practitioner which is essential to the administration of justice'. While lack of remorse or insight is not an aggravating factor in relation to penalty, as the Supreme Court (full bench) said in Legal Profession Complaints Committee v Love at [19], the practitioner's failure to understand the significance of her misconduct is a relevant factor in favour of striking off the practitioner rather than suspending her from legal practice.
2. In addressing whether 'the public and fellow practitioners [can] place reliance on the word of the practitioner', the practitioner submits that '[i]t is clear from the [character] references provided on [her] behalf ... that members of the public to whom [the practitioner] is known continue to trust her implicitly and continue to maintain this view in light of the Tribunal's Reasons for Decision and its Findings'.[268] However, as we said earlier, none of the character referees say that they have read the conduct reasons or the summary and none appear to have any, or any detailed, knowledge of the Tribunal's conduct findings. The only character referee who refers to 'statements made to a client and to the Fremantle Court', namely Mr Geoghegan, said that he does 'not know the circumstances'. Furthermore, as we also said earlier, none of the character references are from members of the legal profession and none speak of the practitioner's honesty and integrity as a legal practitioner. Consequently, while relevant to penalty, the character references are of little weight in the circumstances of this case.
3. In our view, the practitioner's professional misconduct by knowingly seeking to mislead the complainant by making the email statements and by knowingly seeking to mislead the Magistrates Court and the complainant by making the PTC statements, in the circumstances of this case, 'erode[s], if not destroy[s], the complete confidence which a client, a fellow practitioner, the courts and the public should be able, without hesitation, to assume' of the practitioner.[269]
4. The practitioner also submits that she:[270]

... has already been the subject of other regulatory disciplinary sanctions such that she has already served a considerable period of suspension of her practice [sic] certificate at enormous personal and professional expense.

... has effectively already served a lengthy period of suspension. Any further period of suspension from legal practice would have a significant personal impact on the [p]ractitioner given her financial state and her age. Her practice, as a start-up practice was not operating at a profit and not generating an income.

1. However, as indicated earlier (and as appears to be acknowledged in the first submission set out in the preceding paragraph), the cancellation of the practitioner's local practising certificate in February 2018 related to matters the subject of other disciplinary proceedings. The practitioner has not 'effectively already served a lengthy period of suspension' in respect of her professional misconduct which is the subject of this proceeding. No doubt the practitioner's inability to practise law since February 2018 has had a significant financial and personal impact upon her. No doubt, also, if the practitioner were struck off by the Supreme Court (full bench), it would have a very significant financial and personal impact upon her. However, as the Supreme Court (full bench) said in Legal Profession Complaints Committee v Love at [59], 'the weight given to personal circumstances cannot override the fundamental obligation of the court 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'.
2. Finally, the practitioner submits that 'it is important for the Tribunal, in assessing penalty, to be guided by a central understanding of the proper role of regulation affecting people (practitioners) experiencing mental illness'.[272] The practitioner is correct in her submission that there is 'consensus' between Dr Cibulskis, Dr Chapman and Professor Fernandez that 'an order restoring [the practitioner's] ability to practise would be in her psychological interest and disbarment or continuing inability to practice [sic] would be catastrophic'.[273] As indicated earlier, Dr Cibulskis said in his report that '[s]hould [the practitioner] be disbarred permanently, I fear that this would lead to irreparable mental impairment'.[274] As also indicated earlier, Dr Chapman said the following in his report:[275]

Evidently any decision made by the SAT with regard to [the practitioner's] ability to resume legal practise [sic] or not is likely to have a profound impact upon her mental and material state, given the financial, and reputational impact such decisions may incur for her, and the likely consequences upon her self-esteem and self-image.

1. Further, as also indicated earlier, Professor Fernandez said in his report that '[the practitioner's] ability to regain her license [sic] is a significant aspect of her recovery'.[276]
2. The Tribunal is certainly conscious of issues of mental illness and psychological distress in the legal profession and the importance of identifying, supporting and encouraging lawyers to obtain appropriate treatment. As the Tribunal[277] said in Legal Profession Complaints Committee and Skerritt [2013] WASAT 7 at [22]- [23], referring to the Law Society's Report on Psychological Distress and Depression in the Legal Profession (March 2011):

The research surveyed by the Law Society report indicates that there is an alarming level of psychological distress and depression within the legal profession and a general reluctance among lawyers to seek help for mental health issues.

Although there has been a significant improvement in general community awareness of the issues associated with mental health and disability, there arguably remains an unfortunate stigma attached to mental illness which may partly explain the reluctance of lawyers suffering from depression and other mental health issues to seek help. The Law Society report is an important and timely wake-up call for the legal profession and legal regulators, as well as for judges and tribunal members before whom lawyers appear and, in particular, who exercise professional disciplinary jurisdiction, that mental illness and psychological distress are real and legitimate health issues facing lawyers and that lawyers who are or may be suffering from such problems should be identified, supported and encouraged to obtain appropriate treatment.

1. However, the weight to be given to the medical and psychological evidence in relation to the psychological impact of disbarment on the practitioner does not, in our view, override the need to impose a penalty which will appropriately protect the public in their dealings with lawyers and maintain the reputation and standards of the legal profession, in all the circumstances of this case. For reasons set out above and below, in our view, these objectives of the disciplinary jurisdiction require the disbarment of the practitioner.
2. Although each case must be considered on its own facts and in its own circumstances, given the significance placed in the practitioner's submissions on the medical and psychological reports and character references she filed, it is instructive to compare the circumstances of this case with the circumstances in Legal Profession Complaints Committee and Skerritt [2012] WASAT 221.[278] In that case, the practitioner admitted that he engaged in professional misconduct by sending a letter, which he knew was misleading, to the Tribunal, in relation to a matter in which he was briefed to appear as counsel. The Tribunal made consent orders finding that the practitioner is guilty of professional misconduct. As the Committee and the practitioner were unable to agree on the appropriate disciplinary consequence of the finding of professional misconduct, and costs of the proceeding, the Tribunal conducted a hearing in relation to penalty and costs. The Tribunal determined as follows at [15]:[279]

Notwithstanding that the practitioner's conduct involved dishonesty and a breach of the confidence that courts and tribunals necessarily place in practitioners involved in proceedings before them ... for the following three reasons we do not consider that the practitioner's conduct demonstrates that he is not a fit and proper person to remain a member of the legal profession or that his character and conduct are inconsistent with the privileges of further practice.

1. The Tribunal's first reason for its decision was as follows at [16]:

First, and most significantly, at the relevant time the practitioner suffered from (and continues to suffer from) mental illness which, while not the cause of his professional misconduct, forms part of the context and circumstances in which his conduct occurred. ...

1. The Tribunal found that 'it is likely that the practitioner's PTSD, Depression and Anxiety was a contributory factor in his failure to address the obvious conflict between the District Court trial [in which he was also counsel and which was increasing in length] and the SAT hearing in a timely manner ...'.[280] Ultimately, on the last business day before the SAT hearing, the practitioner sent the letter, which he knew was misleading, to the Tribunal in relation to the conflict. The Tribunal also found that:[281]

... Although the mental illness did not cause the practitioner to be untruthful, it is nevertheless relevant in relation to whether his character and conduct are such that he is not a fit and proper person to remain a legal practitioner, and, more broadly, in relation to the appropriate disciplinary consequence of his conduct.

1. In contrast, in this case, as we said earlier, the medical and psychological evidence does not indicate that the practitioner's PTSD or Depression/Anxiety caused, contributed to, or is in any way related to, the practitioner knowingly seeking to mislead the complainant by making the email statements or knowingly seeking to mislead the Magistrates Court and the complainant by making the PTC statements.
2. The second reason for the Tribunal's determination in Legal Profession Complaints Committee and Skerritt, 'although less significant than the first', was that '[the practitioner's] character was supported in strong terms by nine character references from practitioners and a non­practitioner advocate who were made aware of the Tribunal's finding of professional misconduct and the agreed facts ...'.[282] In particular, the character referees spoke positively about the practitioner's honesty and integrity as a legal practitioner.
3. In contrast, in this case, none of the character referees appear to have any, or any detailed, knowledge of the Tribunal's conduct findings, none of the character referees are legal practitioners, and none speak of the practitioner's honesty and integrity as a legal practitioner.
4. The third reason for the Tribunal's determination in Legal Profession Complaints Committee and Skerritt was that, although the practitioner lacked 'a complete understanding of the impropriety of his conduct' and had 'not demonstrated any real contrition or remorse', he had 'shown some insight by admitting the allegation and accepting that his conduct constituted professional misconduct'.[283] Although, as we have said, the practitioner in this case was entitled to contest the matter before the Tribunal, she has not shown the same insight as the practitioner in Legal Profession Complaints Committee and Skerritt.
5. A fourth distinction between the circumstances in Legal Profession Complaints Committee and Skerritt and this case is that, in that case, 'the practitioner engaged in a single event of misleading conduct',[284] whereas in this case, after knowingly seeking to mislead the complainant by making the email statements, about six weeks later she knowingly sought to mislead the Magistrates Court and the complainant by making the first PTC statement, and did so again five weeks later by making the second PTC statement.
6. We have considered whether suspension from legal practice for a period of time, by means of an order that 'a local practising certificate not be granted to the practitioner before the end of a specified period' (under s 439(b) of the LP Act) / an order that 'the practitioner not apply for a local practising certificate before the end of a specified period' (under s 441(m) of the LP Act), whether with or without a requirement that 'the [p]ractitioner undergo, at her own cost, continuing psychological counselling at least once every month for a period of 4 months',[285] 'ongoing psychiatric review on a monthly basis for 6 months'[286] and 'GP review as necessary'[287] (as suggested by the practitioner), is an appropriate penalty in this case. However, in our view, suspension from legal practice for a period of time would not be an appropriate penalty, because we are not satisfied that, at the end of the suspension, the practitioner will be a fit and proper person to practise law. Moreover, in our view, in the circumstances of this case, suspension from practice (or a reprimand or fine) would not provide a sufficient personal deterrent to the practitioner or general deterrent to other practitioners who might otherwise be tempted to engage in such conduct, or a sufficient denunciation of the practitioner's serious professional misconduct by knowingly seeking to mislead the complainant by making the email statements and by knowingly seeking to mislead the Magistrates Court and the complainant by making the PTC statements, to achieve the objectives of the disciplinary jurisdiction, namely protection of the public in their dealings with legal practitioners and maintenance of the reputation and standards of the legal profession. We have also considered whether any or all of the forgoing penalties together with a period of supervised practice, as suggested by the practitioner, would be an appropriate penalty. However, in the circumstances of this case, the professional misconduct did not occur because of a lack of supervision or legal knowledge. It occurred because of a lack of honesty.
7. In our view, in the circumstances of this case, the practitioner's professional misconduct by knowingly seeking to mislead the complainant by making the email statements and by knowingly seeking to mislead the Magistrates Court and the complainant in making the PTC statements demonstrates that she is not a fit and proper person to remain a member of the legal profession and that her character and conduct are inconsistent with the privileges of further practice, as she lacks the honesty and integrity which are essential to practise law. We consider that 'the practitioner lacks the character and trustworthiness necessary to discharge the responsibilities of legal practice' and that she is 'permanently or indefinitely unfit to practise'.[288]
8. In the conduct reasons we found at [203] that the practitioner's failure 'to engage at all with, and to simply ignore correspondence from, and summonses issued by, the Committee' is:

... manifestly unacceptable, because it fundamentally undermines the authority of the Committee and its capacity to effectively investigate complaints about legal practitioners and thereby to seek to protect members of the public in their dealings with lawyers and to maintain the proper standards of the legal profession.

1. However, as we said earlier, the medical evidence provides some explanation for the practitioner's professional misconduct in this respect. Dr Chapman said that although '[i]t is always challenging to retrospectively estimate the impact of psychiatric symptoms on their judgement and behaviour, especially over such a long period of time', 'avoidance', which he considers is a 'coping mechanism' that the practitioner appears to have adopted 'to deal with anxiety' and consequent 'long-term stress', 'may ... help to explain her failure to respond to communications in a timely manner'.[289] Similarly, Dr Cibulskis said that 'stress' associated with a 'protracted legal battle' stemming from an incident in 2011 and resulting in symptoms of poor mood, poor concentration, poor motivation, helplessness, poor self­esteem and lack of confidence, and suicidal thoughts, led the practitioner to 'a pattern of avoidant behaviour', which he considers 'is evident in her dealing with the [Board]'.
2. Although the medical evidence does not excuse the practitioner's serious professional misconduct in not responding at all to three notification letters and two summonses, it, together with her engagement with psychiatric and psychological help, mitigates this aspect of her professional misconduct. If we were addressing this aspect of the practitioner's professional misconduct on its own, in the circumstances of this case, the appropriate penalty would be an order publicly reprimanding the practitioner (under s 439(d) of the LP Act) and an order that the practitioner pay a fine of $10,000 to the Board (under s 441(a) of the LP Act). If we were addressing this aspect of the practitioner's professional misconduct on its own, in the absence of the mitigating circumstances, the appropriate penalty would be a suspension from practice for a period of three months by means of an order that a local practising certificate not be granted to the practitioner before the end of that period (under s 439(b) of the LP Act). However, as we have determined that the appropriate disciplinary consequence of the practitioner's professional misconduct by knowingly seeking to mislead the complainant by making the email statements and by knowingly seeking to mislead the Magistrates Court and the complainant by making the PTC statements is that the Tribunal should make and transmit a report on its findings of professional misconduct to the Supreme Court (full bench) (under s 438(2)(a) of the LP Act), with a recommendation that the name of the practitioner be removed from the roll of persons admitted to the legal profession under the LP Act (under s 438(4)(b) of the LP Act), and given that the Committee seeks this global penalty, we will not impose a separate penalty in relation to the practitioner's professional misconduct by, without reasonable excuse, failing to respond to the notification letters and summonses.
3. Finally, as indicated earlier, the Committee seeks 'a consequential order pursuant to s 439(b) of the LP Act that no local practising certificate be granted to the practitioner pending the determination of the Supreme Court (full bench)'. However, in our view, in circumstances where the Tribunal makes and transmits a report on its findings of unsatisfactory professional conduct or professional misconduct to the Supreme Court (full bench) under s 438(2)(a) of the LP Act, it does not have power to make a 'consequential order' under s 439(b) of the LP Act. This is because s 438(2) of the LP Act uses the disjunctive particle 'or' between paragraphs (a) and (b) of that subsection (and not the conjunctive particle 'and'). The particle 'or' is relevantly 'used ... to connect words, phrases or clauses representing alternatives: to be or not to be'.[290] The clear ordinary grammatical meaning indicated by the use of the word 'or' is that the Tribunal may either 'make and transmit a report on the finding[s] to the Supreme Court (full bench)' (under s 438(2)(a) of the LP Act) or 'make any one or more of the orders specified in sections 439, 440 and 441' (under s 438(2)(b) of the LP Act). The Tribunal cannot do both in respect of the same finding of unsatisfactory professional conduct or professional misconduct.
4. The ordinary grammatical meaning of the text of s 438(2) of the LP Act also has contextual support in terms of s 438(3) of the LP Act, which expressly confers power on the Tribunal to make orders suspending the practitioner's local practising certificate and imposing conditions on the practitioner's local practising certificate where the Tribunal makes and transmits a report in respect of the finding of unsatisfactory professional conduct or professional misconduct to the Supreme Court (full bench) under s 438(2)(a). The Tribunal has power under s 439(a) of the LP Act to make an order that the practitioner's local practising certificate be suspended and has power under s 439(c) of the LP Act to make an order that specified conditions be imposed on the practitioner's local practising certificate. If, in circumstances where the Tribunal makes and transmits a report in respect of a finding of unsatisfactory professional conduct or professional misconduct to the Supreme Court (full bench) under s 438(2)(a) of the LP Act, the Tribunal also has power to make an order specified in s 439, s 440 and s 441 of the LP Act, under s 438(2)(b) of the LP Act, then the additional power conferred on the Tribunal under s 438(3) of the LP Act would be otiose. The express conferral of the additional powers by s 438(3) of the LP Act therefore provides a further legislative indication that the Tribunal does not have power, where it decides to make and transmit a report on its finding that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct to the Supreme Court (full bench), to also make an order, relevantly, under s 439(b) of the LP Act, that a local practising certificate not be granted to the practitioner before the end of a specified period (relevantly, pending the determination of the Supreme Court (full bench)).

1. The Committee seeks an order, under s 87(2) of the SAT Act, that the practitioner pay the Committee's costs of these proceedings in terms of disbursements fixed in the amount of $22,091.10. The Committee does not seek an order in respect of its legal officers' time in relation to this matter.
2. The Committee has provided a schedule of disbursements amounting to $23,591.10 (including GST) comprising:
   • Counsel's fees of $16,709 for work done prior to and appearing at a directions hearing and at the conduct hearing;
   • Counsel's fees of $5,929 for work done after the publication of the Tribunal's conduct reasons, including settling submissions on penalty and costs and submissions in reply;
   • $628.60 for Tribunal fees for the filing of the application and the issuing of witness summonses; and
   • $324.50 for company search, photocopying and service of witness summonses.
3. The Committee has 'discounted' its disbursements totalling $23,591.10 by $1,500 on account of the withdrawal, with the Tribunal's leave under s 46(1) of the SAT Act at the commencement of the conduct hearing, of what had formerly been Ground 3 in the application. The Committee had notified the practitioner and her counsel of its intention to withdraw that ground by letter dated 7 May 2019. The ground which was withdrawn had alleged:[291]

That the practitioner, on and after 22 November 2016, following the Court entering judgment for [the complainant] against the practitioner in the Proceedings in the sum of $10,118.20 inclusive of costs and interest (Judgment sum), engaged in professional misconduct within the meaning of sections 403 and 438 of the Act in that her conduct would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence and fell short, consistently and to a substantial degree, of the standard of professional conduct observed or approved by members of the profession of good repute and competence by, without reasonable excuse, failing to pay any or all of the Judgment sum to [the complainant], in breach of rules 6(1)(e) and/or 6(2)(c) of the Legal Profession Conduct Rules 2010 (WA) (LPCR).

1. Counsel's fees have been charged in accordance with the maximum rate for Senior Counsel in Table A of the Schedule to the Legal Profession (State Administrative Tribunal) Determination 2018 (SAT Determination), made under s 275 of the LP Act, of $539 hourly rate and $5,390 daily rate (including GST). Although the SAT Determination strictly only applies to regulate legal fees between lawyer and client (in the absence of a written costs agreement), where the Tribunal makes an order for costs and fixes or assesses the amount of costs, the Tribunal applies 'as a useful guide as to the maximum rates which might be allowed on a party/party basis, the relevant hourly or daily rate specified in the [SAT Determination]'.[292]
2. Subsections (1) and (2) of s 87 of the SAT Act state as follows:

(1) Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.

(2) Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.

1. As is apparent from the terms of s 87(1) of the SAT Act, and as Murphy JA said in Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81 at [50]:[293]

... the presumptive position or starting point under s 87(1) of the SAT Act [is] that each party is to bear its own costs.

1. For this reason, SAT is often referred to as a generally 'no costs' or 'costs­neutral' jurisdiction. However, as is apparent from the terms of s 87(2) of the SAT Act, that provision confers a broad discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party in SAT proceedings. As Murphy JA said in Western Australian Planning Commission v Questdale Holdings Pty Ltd at [51], '[t]he onus is on the party seeking an order [for costs] in its favour'. As his Honour also said there:

... generally speaking, the question is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred.

1. The practitioner does not oppose an order that she pay the Committee's costs of this proceeding, although she says that '[t]he Tribunal should note the [Committee] has no realistic prospect of the [practitioner] being capable of meeting a costs order'.[294] As indicated earlier, as part of her submission as to 'an appropriate penalty to be imposed', the practitioner includes the following proposed order:[295]

[T]he [p]ractitioner to make a contribution to the [C]ommittee's costs to be taxed in default of agreement. And the parties to have liberty to make further submissions on the issue of costs[.]

1. However, for the following reasons, the parties should not have liberty to make further submissions on the issue of costs.
2. It is clear from the Tribunal's programming orders in relation to the issues of penalty and costs that it would be determining both whether to order the practitioner to pay the Committee's costs of these proceedings and, if so, the amount of costs to be fixed, in these reasons. On 9 September 2019, the Tribunal:
   • ordered the Committee to file and serve its 'submissions in relation to penalty and costs together with a schedule of the amount of costs and disbursements it seeks and supporting accounts';[296]
   • ordered the practitioner to file and serve her 'submissions in relation to penalty and costs ...';[297] and
   • listed '[t]he issues of penalty and costs ... for hearing to commence at 10.00 am on 4 November 2019 for half a day'.[298]
3. On 1 October 2019, the Committee filed its submissions, including in relation to costs, and a schedule of the amount of costs and disbursements it seeks together with supporting accounts.
4. On 20 December 2019, the Tribunal ordered that '[s]ubject to any further order, the issues of penalty and costs are to be determined entirely on the documents pursuant to s 60(2) of the [SAT Act]'.[299] Ultimately, on 10 March 2020, the practitioner filed and served her submissions, including in relation to costs.
5. Furthermore, as the Tribunal said in Western Australian Planning Commission and Scutti [2019] WASAT 99 at [42]- [43]:[300]
   1. Section 89 of the SAT Act concerns the assessment of the amount of costs where an order for costs is made by the Tribunal, and states as follows:

If the Tribunal makes an order under this Division for the payment of costs and does not fix the amount of costs, that amount is to be assessed or settled in accordance with the rules.

1. As contemplated by the terms of s 89 of the SAT Act, the Tribunal may ­ and often does ­ fix the amount of costs, if, and at the time when, it makes an order for costs under s 87(2) of the SAT Act. The Tribunal assesses costs 'in a relatively robust fashion', consistently with its main objectives set out in s 9 of the SAT Act, in particular, 'to act as speedily and with as little formality and technicality as is practicable, and to minimise the costs to parties'. As the Tribunal has said, 'any award [of costs] should be approached in a broad fashion and should not have to descend into [an] enquiry into small items of expenditure', and:

[T]he preferable approach is not to look at what has actually been charged to the client, but rather what reasonable allowance should be made, taking a robust and broad brush approach, for the work necessarily done to bring the proceedings to a conclusion.

1. The Tribunal's objective 'to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties', set out in s 9 of the SAT Act, also militates against the parties being granted liberty to make further submissions on the issue of costs and supports the determination of both whether to order the practitioner to pay the Committee's costs of these proceedings and, if so, the amount of costs to be fixed, in these reasons, as contemplated in the Tribunal's programming orders for determination of 'the issues of penalty and costs' referred to above. This is all the more so the case where the practitioner filed and served her submissions in relation to penalty and costs about four-and-a-half months after she was initially ordered to do so and over five months after the Committee filed and served its submissions in relation to penalty and costs, and it is now over eight months since the Tribunal published its conduct reasons.
2. It is also the Tribunal's usual practice in vocational disciplinary proceedings, as contemplated by the terms of s 89 of the SAT Act and consistently with the Tribunal's objective 'to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties', to fix the amount of costs at the time when it makes an order for costs under s 87(2) of the SAT Act.
3. In our view, in the circumstances of this case, it is fair and reasonable that the practitioner should pay the Committee's costs of these proceedings. As the Tribunal has recognised almost since its inception, vocational regulatory bodies, such as the Committee, 'perform a function which promotes the public interest, and usually with limited resources' and '[t]he financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented'.[301] It is clearly in the public interest, in terms of protection of the public in their dealings with lawyers and the maintenance of the reputation and standards of the legal profession, for the Committee to have commenced and prosecuted these proceedings alleging professional misconduct against the practitioner. The Tribunal has found that the practitioner committed serious professional misconduct and, indeed, has determined that she is not a fit and proper person to be a legal practitioner in consequence of two of the findings.
4. We are satisfied that the complexity of the allegations against the practitioner justified the briefing of Senior Counsel and, looking at the matter broadly and having regard to the rates prescribed in the Determination as a guide to the maximum rate which might be allowed, that the work performed by Mr Yovich and the fees charged by him are reasonable and appropriate in the circumstances of this case. As indicated earlier, the Committee has not charged for its own legal officers' time in the conduct of these proceedings.
5. As also indicated earlier, the Committee has 'discounted' the disbursements it incurred by $1,500 to take into account the fact that the Committee withdrew its original Ground 3. As that ground was one of four that were originally alleged against the practitioner, in our view, 25% of the fees charged by Mr Yovich prior to the conduct hearing should be discounted. Mr Yovich's fees prior to the conduct hearing amounted to $11,319 (including GST). Twenty-five per cent of that amount is $2,829.75. It does not appear that any of the other disbursements claimed by the Committee are greater as a result of former Ground 3 then they would have been had the former Ground 3 not been alleged against the practitioner in the application.
6. In our view, in the exercise of discretion under s 87(2) of the SAT Act, it is fair and reasonable that the practitioner should pay the Committee's costs of these proceedings fixed in the sum of $20,761.35, being the disbursements incurred by the Committee ($23,591.10) less $2,829.75.

1. The appropriate disciplinary consequence of the serious professional misconduct committed by the practitioner, by knowingly seeking to mislead the complainant by making the email statements and by knowingly seeking to mislead the Magistrates Court and the complainant by making the PTC statements, is that the Tribunal should make and transmit a report on the findings that the practitioner is guilty of professional misconduct to the Supreme Court (full bench), under s 438(2)(a) of the LP Act, with a recommendation that the name of the practitioner be removed from the roll of persons admitted to the legal profession under the LP Act, under s 438(4)(b) of the LP Act. The Tribunal's report comprises the conduct reasons and these reasons and includes a record of the evidence taken at the hearing, under s 438(4)(a) of the LP Act, namely a copy of the exhibits and transcript of the proceeding and the character references, medical and psychological reports and submissions filed in relation to penalty and costs.
2. The practitioner should pay the Committee's costs of these proceedings in terms of disbursements fixed in the amount of $20,761.35 to the Board within 30 days or as otherwise agreed between the practitioner and the Board.

1. The Tribunal makes the following orders:
   1. Pursuant to s 438(2)(a) of the Legal Profession Act 2008 (WA), a report be transmitted to the Supreme Court (full bench) on the Tribunal's findings that the respondent is guilty of professional misconduct, with a recommendation, pursuant to s 438(4)(b) of the Legal Profession Act 2008, that the name of the respondent be removed from the roll of persons admitted to the legal profession under the Legal Profession Act 2008. The report comprises the Tribunal's reasons for decision in Legal Profession Complaints Committee and Chang [2019] WASAT 67 and Legal Profession Complaints Committee and Chang [2019] WASAT 67 (S) and is to be transmitted with a copy of the exhibits and transcript of the proceeding and the character references, medical and psychological reports and submissions filed in relation to penalty and costs.
   2. Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the respondent must pay the applicant's costs of the proceeding in terms of disbursements fixed in the amount of $20,761.35, such costs to be paid to the Legal Practice Board within 30 days of the date of this order or as otherwise agreed between the respondent and the Legal Practice Board.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

[1] Legal Profession Complaints Committee book of documents dated 1 August 2018 (Exhibit 3) page 57.

[2] Legal Profession Complaints Committee book of documents dated 1 August 2018 (Exhibit 3) page 62.

[3] Further Amended Annexure A to Application dated and filed 14 June 2019 (Exhibit 1) pages 1-4 (original emphasis). In these reasons, we use the expressions 'email statements' and 'PTC statements' as those terms are defined in grounds 1 and 2, respectively.

[4] See Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362 (Dixon J) (a case concerning a petition for the dissolution of a marriage on the grounds of adultery).

[5] Legal Practitioners Complaints Committee and Segler [2009] WASAT 205; (2009) 67 SR (WA) 280 at [97].

[6] Legal Profession Complaints Committee and Caine [2010] WASAT 178; Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58; (2012) 80 SR (WA) 134; Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37; (2013) 84 SR (WA) 158.

[8] Practitioner's response to applicant's facts and contentions dated 28 August 2018 (Exhibit 2) page 2.

[9] Practitioner's response to applicant's facts and contentions dated 28 August 2018 (Exhibit 2) [37] and [38] at page 8.

[10] ts 21, 13 June 2019. The documents objected to are at pages 65, 68, 72 and 73 of the Legal Profession Complaints Committee book of documents (Exhibit 3).

[11] Original emphasis. The Notice of Pre-Trial Conference Minor Case is set out in full at [87] below.

[14] The term 'minor cases jurisdictional limit' is relevantly defined in s 3(1) of the MCCP Act to mean 'on and after 1 January 2009, ... $10 000'.

[17] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [58] and [59].

[24] The only difference between r 28(2) of the Minor Cases Rules and s 27(3) of the MCCP Act is the substitution of the words 'you or the other party' in place of the words 'the party' immediately before the dash prior to par (a) and par (b) in s 27(3) of the MCCP Act.

[25] Emphasis in bold original. Emphasis in italics added.

[31] Practitioner's response to applicant's facts and contentions dated 28 August 2018 (Exhibit 2).

[32] Exhibit 10. Counsel for the practitioner did not refer to this exhibit in his closing submissions.

[33] Legal Profession Complaints Committee statement of facts and contentions (Exhibit 1) [1] and practitioner's response to applicant's facts and contentions (Exhibit 2) [1].

[34] Legal Profession Complaints Committee statement of facts and contentions (Exhibit 1) [2] and practitioner's response to applicant's facts and contentions (Exhibit 2) [2].

[35] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [4]-[7]; Legal Profession Complaints Committee supplementary book of documents dated 14 January 2019 (Exhibit 4) page 1.

[36] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [8]-[10].

[37] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [11].

[38] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [13].

[39] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [13].

[40] Legal Profession Complaints Committee book of documents dated 1 August 2018 (Exhibit 3) page 6.

[41] Legal Profession Complaints Committee book of documents dated 1 August 2018 (Exhibit 3) page 7.

[42] Legal Profession Complaints Committee supplementary book of documents (Exhibit 4) page 2.

[43] Legal Profession Complaints Committee book of documents dated 1 August 2018 (Exhibit 3) page 6.

[44] Legal Profession Complaints Committee book of documents dated 1 August 2018 (Exhibit 3) page 9.

[45] Legal Profession Complaints Committee book of documents dated 1 August 2018 (Exhibit 3) page 11.

[46] Legal Profession Complaints Committee book of documents dated 1 August 2018 (Exhibit 3) page 11.

[47] Legal Profession Complaints Committee book of documents dated 1 August 2018 (Exhibit 3) page 12.

[48] Legal Profession Complaints Committee book of documents dated 1 August 2018 (Exhibit 3) page 13.

[49] Legal Profession Complaints Committee book of documents dated 1 August 2018 (Exhibit 3) page 13.

[50] Legal Profession Complaints Committee book of documents dated 1 August 2018 (Exhibit 3) page 16.

[51] Legal Profession Complaints Committee book of documents dated 1 August 2018 (Exhibit 3) page 18.

[52] Legal Profession Complaints Committee statement of facts and contentions (Exhibit 1) [11] and practitioner's response to applicant's facts and contentions (Exhibit 2) [11]; Legal Profession Complaints Committee book of documents dated 1 August 2018 (Exhibit 3) pages 20-21.

[53] Legal Profession Complaints Committee statement of facts and contentions (Exhibit 1) [12] and practitioner's response to applicant's facts and contentions (Exhibit 2) [12]; Legal Profession Complaints Committee supplementary book of documents (Exhibit 4) page 3.

[54] Legal Profession Complaints Committee supplementary book of documents (Exhibit 4) page 5.

[55] Legal Profession Complaints Committee book of documents (Exhibit 3) page 35.

[56] Legal Profession Complaints Committee book of documents (Exhibit 3) page 34.

[57] Legal Profession Complaints Committee book of documents (Exhibit 3) pages 37 and 38.

[58] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [31] and Annexure 'EKH1'.

[59] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [32] and Annexure 'EKH2'.

[60] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [33]; Legal Profession Complaints Committee book of documents (Exhibit 3) page 43.

[61] Legal Profession Complaints Committee book of documents (Exhibit 3) page 43.

[62] Legal Profession Complaints Committee book of documents (Exhibit 3) page 41 (as written).

[63] Legal Profession Complaints Committee book of documents (Exhibit 3) pages 39-40 (original emphasis).

[64] Legal Profession Complaints Committee book of documents (Exhibit 3) page 39.

[65] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [37].

[66] Legal Profession Complaints Committee book of documents (Exhibit 3) page 39.

[67] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [38]; Legal Profession Complaints Committee supplementary book of documents (Exhibit 4) page 23.

[68] Legal Profession Complaints Committee supplementary book of documents (Exhibit 4) pages 20-23.

[69] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [38].

[70] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [44].

[71] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [41].

[72] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [41].

[73] Legal Profession Complaints Committee book of documents (Exhibit 3) page 54.

[74] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [45].

[75] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [48].

[76] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [46].

[77] Legal Profession Complaints Committee book of documents (Exhibit 3) pages 56-57 (emphasis by underlining original; emphasis in italics added).

[78] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [49]; Legal Profession Complaints Committee book of documents (Exhibit 3) page 58.

[79] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [51]; Legal Profession Complaints Committee book of documents (Exhibit 3) page 59 (emphasis added).

[80] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [52]; Legal Profession Complaints Committee book of documents (Exhibit 3) page 60.

[81] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [53]; Legal Profession Complaints Committee book of documents (Exhibit 3) page 60.

[82] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [54]; Legal Profession Complaints Committee book of documents (Exhibit 3) page 60.

[83] Legal Profession Complaints Committee book of documents (Exhibit 3) page 62 and witness statement of the complainant dated 1 March 2019 (Exhibit 9) [57].

[84] Legal Profession Complaints Committee book of documents (Exhibit 3) page 62.

[85] Legal Profession Complaints Committee book of documents (Exhibit 3) page 63 (original emphasis).

[86] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [58a and b].

[87] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [58c].

[88] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [58e].

[89] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [58d] and Legal Profession Complaints Committee book of documents (Exhibit 3) page 65.

[90] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [58a and b] and Legal Profession Complaints Committee book of documents (Exhibit 3) page 66.

[91] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [59a and b].

[92] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [59c].

[93] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [59e].

[94] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [59e].

[95] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [59f].

[96] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [59g] and Legal Profession Complaints Committee book of documents (Exhibit 3) page 69.

[97] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [60] and Legal Profession Complaints Committee book of documents (Exhibit 3) page 70.

[98] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [60].

[99] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [61].

[100] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [61a].

[101] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [61b].

[102] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [61c] and Legal Profession Complaints Committee book of documents (Exhibit 3) page 74.

[103] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [63a].

[104] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [63d].

[105] Legal Profession Complaints Committee book of documents (Exhibit 3) pages 103-107.

[106] Legal Profession Complaints Committee book of documents (Exhibit 3) pages 105-106.

[107] Legal Profession Complaints Committee book of documents (Exhibit 3) page 106 (original emphasis, as written).

[108] Legal Profession Complaints Committee book of documents (Exhibit 3) pages 108-109.

[109] Legal Profession Complaints Committee book of documents (Exhibit 3) pages 103 and 110.

[110] Practitioner's response to applicant's facts and contentions dated 28 August 2018 (Exhibit 2) pages 3 and 10.

[111] Legal Professional Complaints Committee statement of facts and contentions (Exhibit 1) [54] and Practitioner's response to applicant's facts and contentions dated 28 August 2018 (Exhibit 2) pages 3 and 10.

[112] Legal Professional Complaints Committee book of documents (Exhibit 3) pages 111-113.

[113] Legal Professional Complaints Committee book of documents (Exhibit 3) pages 112-113 (original emphasis).

[114] Legal Professional Complaints Committee book of documents (Exhibit 3) page 114.

[115] Legal Professional Complaints Committee statement of facts and contentions (Exhibit 1) [58] and Practitioner's response to applicant's facts and contentions dated 28 August 2018 (Exhibit 2) pages 3 and 10.

[116] Legal Professional Complaints Committee book of documents (Exhibit 3) pages 116-119.

[117] Legal Professional Complaints Committee book of documents (Exhibit 3) pages 118.

[118] Legal Professional Complaints Committee book of documents (Exhibit 3) pages 120-122.

[119] Legal Professional Complaints Committee book of documents (Exhibit 3) pages 120-122 (original emphasis).

[120] Statutory Declaration of Sheryl Lorraine Harrison dated 4 December 2017 (Legal Profession Complaints Committee book of documents (Exhibit 3) page 124).

[121] Legal Professional Complaints Committee statement of facts and contentions (Exhibit 1) [63] and Practitioner's response to applicant's facts and contentions dated 28 August 2018 (Exhibit 2) pages 3 and 10.

[122] Further Amended Annexure A to Application dated and filed 14 June 2019 (Exhibit 1) page 1 (original emphasis).

[126] Legal Profession Complaints Committee supplementary book of documents dated 14 June 2019 (Exhibit 4) page 24 and Legal Profession Complaints Committee further supplementary book of documents dated 15 May 2019 (Exhibit 5) page 87.

[128] Legal Profession Complaints Committee supplementary further book of documents dated 15 May 2019 (Exhibit 5) page 51 (emphasis in bold original; emphasis in italics added).

[129] Legal Profession Complaints Committee further supplementary book of documents dated 15 May 2019 (Exhibit 5) page 52.

[131] Legal Profession Complaints Committee further supplementary book of documents dated 15 May 2019 (Exhibit 5) page 1.

[133] ts 76, 13 June 2019 (emphasis added).

[143] Practitioner's response to applicant's facts and contentions dated 28 August 2018 (Exhibit 2) page 2.

[146] Macquarie Dictionary (6th edition, 2013) pages 426 and 427 (original emphasis).

[149] Legal Profession Complaints Committee book of documents (Exhibit 3) page 57 (emphasis added).

[150] Further Amended Annexure A to Application dated and filed 14 June 2019 (Exhibit 1) page 2 (original emphasis).

[151] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [58c].

[152] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [59e].

[156] Witness statement of complainant dated 1 March 2019 (Exhibit 9) [58c].

[157] Witness statement of complainant dated 1 March 2019 (Exhibit 9) [58d].

[158] Witness statement of the complainant dated 1 March 2019 (Exhibit 9) [59f].

[159] Legal Profession Complaints Committee book of documents (Exhibit 3) page 66.

[162] Legal Profession Complaints Committee book of documents (Exhibit 3) page 62.

[163] Annexure JBM-1 to the witness statement of James Bruce McTernan dated 25 February 2019 (Exhibit 6).

[164] Witness statement of James Bruce McTernan dated 25 February 2019 (Exhibit 6) [19].

[167] Legal Profession Complaints Committee book of documents (Exhibit 3) page 62 (emphasis added).

[169] Further Amended Annexure A to Application dated and filed 14 June 2019 (Exhibit 1) pages 3-4 (original emphasis).

[171] Practitioner's response to applicant's facts and contentions dated 28 August 2018 (Exhibit 2) pages 3, 10 and 11.

[174] See also Legal Profession Complaints Committee and Segler [2013] WASAT 117 at [359]- [363].

[175] Practitioner's response to applicant's facts and contentions dated 28 August 2018 (Exhibit 2) page 3.

[177] Practitioner's response to applicant's facts and contentions dated 28 August 2018 (Exhibit 2) page 11.

[178] Practitioner's response to applicant's facts and contentions dated 28 August 2018 (Exhibit 2) page 11.

[179] Legal Profession Complaints Committee book of documents (Exhibit 3) pages 107, 112 and 118.

[183] Legal Profession Complaints Committee book of documents (Exhibit 3) pages 106 and 118.

[189] Conduct reasons [207]. In these reasons, the expressions 'the email statements' and 'the PTC statements' have the meanings given in findings (1) and (2), respectively.

[191] 23 December 2019 was one of the six days on which the Committee advised that Mr Yovich would be available.

[193] Original emphasis and as written.

[194] As indicated below, in her 'penalty submissions', the practitioner makes some submissions in relation to costs (and does not oppose the making of an order for her to pay the Committee's costs of the proceedings) ([practitioner's] penalty submissions dated 10 March 2020 [51]-[55]). In her submissions as to 'an appropriate penalty to be imposed', the practitioner includes an order that '[T]he [p]ractitioner to make a contribution to the [Committee's] costs to be taxed in default of agreement. And the parties to have liberty to make further submissions on the issue of costs' ([practitioner's] penalty submissions dated 10 March 2020 [56.3]). However, for reasons set out at [132]-[137] below, we have determined that the parties should not have liberty to make further submissions on the issue of costs.

[195] [Committee's] submissions as to penalty and costs dated 1 October 2019 [1.2].

[196] [Practitioner's] penalty submissions dated 10 March 2020 [56].

[197] [Practitioner's] penalty submissions dated 10 March 2020 [57].

[198] [Practitioner's] penalty submissions dated 10 March 2020 page 1.

[199] [Practitioner's] penalty submissions dated 10 March 2020 [9]-[19].

[200] Justice Barker P, Mr C Edmonds SC S Sess M and Mr K Bradley S Sess M.

[201] Legal Practitioners Complaints Committee and Chang [3].

[202] Legal Practitioners Complaints Committee and Chang [3].

[204] [Practitioner's] penalty submissions dated 10 March 2020 [38].

[205] One of the character referees, Mr Paul Geoghegan, also attached a character reference that he gave for the practitioner in relation to a different disciplinary proceeding, VR 183 of 2016.

[206] Cf Legal Profession Complaints Committee and Skerritt [2012] WASAT 221 (referred to at [108]­[115] below) where the character referees 'were made aware of the Tribunal's finding of professional misconduct and the agreed facts ...' [25].

[207] Cf Legal Profession Complaints Committee and Skerritt [2012] WASAT 221 (referred to at [108]­[115] below) where the practitioner's 'character was supported in strong terms by nine character references from practitioners and a non-practitioner advocate' [25].

[208] [Committee's] submissions as to penalty and costs dated 1 October 2019 footnote 6 and [Practitioner's] penalty submissions dated 10 March 2020 [15]-[16].

[209] This character reference is undated.

[210] See further [55]-[56] below.

[211] Report of Dr Ray Cibulskis dated 18 February 2020 page 1. As written.

[212] Report of Dr Ray Cibulskis dated 18 February 2020 page 3. Emphasis added.

[213] Report of Dr Murray Chapman dated 3 March 2020 page 7.

[214] Report of Dr Ray Cibulskis dated 18 February 2020 page 3. Emphasis added.

[215] Report of Dr Ray Cibulskis dated 18 February 2020 page 4.

[216] Report of Dr Murray Chapman dated 3 March 2020 page 3. Emphasis added.

[217] Report of Dr Murray Chapman dated 3 March 2020 page 7. See [59] below.

[218] Report of Dr Murray Chapman dated 3 March 2020 page 7. See [59] below.

[219] Report of Dr Murray Chapman dated 3 March 2020 page 6.

[220] Report of Dr Murray Chapman dated 3 March 2020 page 7. Emphasis added.

[221] Report of Dr Murray Chapman dated 3 March 2020 page 7.

[222] Report of Dr Murray Chapman dated 3 March 2020 pages 6-7.

[223] Report of Professor Miguel Fernandez dated 4 March 2020 pages 2-3.

[224] Conduct reasons [97], [100] and [102].

[227] Report of Professor Miguel Fernandez dated 4 March 2020 page 6. Original emphasis.

[228] Report of Professor Miguel Fernandez dated 4 March 2020 page 8.

[229] Report of Professor Miguel Fernandez dated 4 March 2020 page 9.

[230] Report of Professor Miguel Fernandez dated 4 March 2020 page 10.

[234] Referred to below as Legal Profession Complaints Committee and A Legal Practitioner (S).

[235] Judge Parry DP, Mr J Mansveld M and Mr C Edmonds SC S Sess M.

[236] As in the case of the practitioner in Legal Profession Complaints Committee and A Legal Practitioner (S), as indicated earlier, the practitioner in this case does not hold a current local practising certificate. Therefore, while suspension of the practitioner's local practising certificate (under s 439(a) of the LP Act) is not open in this case, making an order that 'a local practising certificate not be granted to the practitioner before the end of a specified period' (under s 439(b) of the LP Act) or that 'the practitioner not apply for a local practising certificate before the end of a specified period' (under s 441(m) of the LP Act) is a penalty which is open to the Tribunal under s 438(2)(b) of the LP Act.

[237] Judge Parry DP, Mr J Mansveld M and Mr C Edmonds SC S Sess M.

[239] [Committee's] submissions as to penalty and costs dated 1 October 2019 [60].

[242] [Committee's] submissions as to penalty and costs dated 1 October 2019 [60].

[243] Justice Curthoys P, Ms M Connor M and Mr M Harford S Sess M. Referred to below as Legal Profession Complaints Committee and Bower (S).

[244] Justice Curthoys P, Mr D Aitken SM and Mr P de Villiers M.

[245] [Committee's] submissions as to penalty and costs dated 1 October 2019 [30].

[246] [Practitioner's] penalty submissions dated 10 March 2020 [8].

[247] [Committee's] submissions as to penalty and costs dated 1 October 2019 [30].

[248] [Practitioner's] penalty submissions dated 10 March 2020 [8].

[249] As an example, the practitioner's submissions identify and then seek to address 'Factor 6: Does the [p]ractitioner's conduct demonstrate incompetence?', when the professional misconduct in this case does not involve incompetence.

[250] [Practitioner's] penalty submissions dated 10 March 2020 [32]-[33].

[251] [Committee's] submissions as to penalty and costs dated 1 October 2019 [31].

[252] [Practitioner's] penalty submissions dated 10 March 2020 [33]-[35].

[253] [Committee's] submissions in reply to [practitioner's] submissions in relation to penalty and costs dated 10 March 2020 [30].

[254] We found in the conduct reasons at [95] as follows: 'As at the date of her witness statement, the complainant had not taken any steps to enforce the judgment, initially because she believed that the practitioner was 'obliged to pay' and, after the complainant found out that she had to apply to enforce the judgment herself, she did not have 'the time or energy to do the necessary research and the Court paperwork'.'

[255] As we found in the conduct reasons at [138], in the letter of demand, the complainant said that, if the practitioner was 'not willing [to] pay us any compensation ... you will leave me no other choice than [to] take legal action', and in her email to the practitioner on 29 June 2016, the complainant said that 'I was going to lodge the paperwork with the [M]agistrates [C]ourt tomorrow' and that '[i]f I do not hear from you I will proceed with lodging the paperwork with the [C]ourt'.

[256] As we found in the conduct reasons at [165], 'the practitioner requested each of the first two pre-trial conferences to be adjourned after she made the relevant statement concerning the insurer and the Registrar then adjourned the first two pre-trial conferences'.

[257] [Practitioner's] penalty submissions dated 10 March 2020 [3]-[3.1].

[258] [Practitioner's] penalty submissions dated 10 March 2020 [24].

[259] [Practitioner's] penalty submissions dated 10 March 2020 [21].

[260] Beech, Kenneth Martin and Edelman JJ.

[263] [Practitioner's] penalty submissions dated 10 March 2020 [39].

[264] [Practitioner's] penalty submissions dated 10 March 2020 [5.1].