BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE

Legal practitioner - Professional misconduct - Unsatisfactory professional conduct - Consistent failure to reach a reasonable standard of competence and diligence - Misleading a Court - Misleading another firm of legal practitioners

Legal Profession Act 2008 (WA), s 438(2)

Practitioner guilty of professional misconduct and unsatisfactory professional conduct

1 The Legal Profession Complaints Committee contended that Mr Leonard Gandini was guilty of professional misconduct on three grounds as follows:

1. His conduct involved a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner with respect to an interlocutory hearing held in the Supreme Court on 9 August 2004.
2. By making representations to the Supreme Court at a hearing on 17 November 2004 he intentionally, or alternatively, recklessly mislead the Court; and
3. By making representations to another firm of legal practitioners in writing he intentionally mislead a fellow practitioner.

2 The Tribunal found the practitioner guilty of professional misconduct in relation to the second and third grounds and found the practitioner guilty of unsatisfactory professional conduct in relation to the first ground.

3 The Legal Profession Complaints Committee (the Committee) has brought a complaint of professional misconduct against Leonard Gandini (the practitioner) in terms of s 438(2) of the Legal Profession Act 2008 (WA) (LP Act) relying on his conduct between about July 2004 and December 2004. It is common ground that although the alleged misconduct occurred in 2004, the provisions of the Act are applicable.

4 At the hearing before the Tribunal, which lasted three days commencing on 14 March 2011, the Committee was represented by Ms P Cahill SC and assisted by Ms P Le Miere while the practitioner conducted his own defence.

5 By an order of the President of the Tribunal on 7 September 2010, the Committee was ordered to file with the Tribunal and serve on the practitioner an indexed and paginated bundle of documents on or before 30 September 2010. The practitioner was ordered to file and serve on or before 11 November 2010 a bundle of documents upon which he intended to rely which were not in the Committee's bundle. The parties were also ordered to file and serve any witness statements on or before 11 November 2010.

6 The Committee filed and served its bundle of documents timeously and filed its only witness statement on 8 February 2011, over a month before the hearing. The practitioner failed to comply with the order. His bundle of documents running into 722 pages was filed with the Tribunal one or two working days before the hearing. On 11 March 2011, being the last working day before the hearing, he filed with the Tribunal a summary of the evidence of seven witnesses excluding himself. In no case did any of the summaries condescend to specific detail but merely indicated the topics which he proposed to canvass with those witnesses. The summaries were of no practical use to anyone charged with the task of cross­examination. The practitioner did not file a personal witness statement. No affidavit was filed by him explaining his failure to comply.

7 Ms Cahill pointed out the obvious disadvantages in which the practitioner's failure to comply with the Tribunal's order placed the Committee but agreed to continue with the hearing notwithstanding the practitioner's flagrant breach of the order. That his failure to adhere to the Tribunal's order has put the Tribunal at a considerable inconvenience and the Committee and its legal representatives at a disadvantage is self­evident. Such conduct is completely unacceptable but, as will appear below, is symptomatic of a somewhat cavalier attitude toward court proceedings.

8 The Committee handed in its bundle of documents (Exhibit 1) and called one witness (Exhibit 2). The practitioner called six witnesses and gave evidence himself and handed in his bundle of documents (Exhibit 3).

9 Before outlining the complaint, the grounds thereof, the response thereto, and the evidence led, it is necessary to set out briefly the background to the issues canvassed in order to put them into perspective. What is set out in the 'Background' part of these reasons is largely common ground.

10 It should also be noted at this stage that the evidence of each day's proceedings has been separately typed and numbered. Thus reference in these reasons to say, T: 105, 16.03.11 for example, is a reference to page 105 of the transcript typed on 16 March 2011, being the third day of the proceedings.

11 The practitioner is a principal of the law firm Chapmans Barristers and Solicitors (Chapmans). The firm is essentially engaged in workers compensation and personal injuries work. As such, the firm was on a panel of solicitors briefed in workers compensation and personal injuries matters by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers ­ Western Australian Branch, (commonly referred to as AMWU) and referred to herein as the Union).

12 In early 2001, the Union became involved in an industrial dispute with Bell­A­Bike Rottnest Pty Ltd (BAB) in which the Union claimed that BAB had underpaid certain of its workers and that they were in breach of certain legislation. The precise nature and details of the dispute are not relevant for present purposes. The dispute was conducted in the various industrial courts from November 2001 which will be adverted to below.

13 As a result of this litigation, BAB sued the Union and nine individuals civilly for defamation in the Supreme Court of Western Australia (CIV 2496 of 2001), alleging that it had been defamed because it was not in breach of any of the legislation relied upon by the Union. The latter, in its defence to this action, pleaded truth. The success or failure of the defamation action therefore depended on the outcome of the industrial dispute. If BAB had not breached the legislation alleged in the industrial courts, its defamation action enjoyed prospects of success. In that event the Union's defence of truth would fail and put the Union at a distinct risk of failing in the civil action.

14 The individual defendants in the defamation action were members of the Union. In late October 2001, Chapmans informed Jackson McDonald acting for BAB, that 'we are currently instructed by the first, second, fourth, eighth and ninth defendants, I envisage being instructed by the other defendant [sic] if your client intends to serve the proceedings upon them' (Exhibit 3 page 21 ­ 2).

15 The practitioner was approached by one Jock Ferguson, the State Secretary of the Union at the time who, because of the volume of work which the Union had given Chapmans, enquired whether the practitioner and his firm would act for the Union in the defamation matter without charging for its services. (The term used in evidence was 'a freebie'). The practitioner understood that to mean that he would, apart from counsel's fees and other disbursements, charge no fees or minimal fees. A letter from Chapmans to AMWU dated 23 October 2001 (Exhibit 3 page 19 ­ 20) confirms that arrangement.

16 The practitioner was instructed, in effect, to delay the progress of the defamation action while the industrial dispute was on foot. There was nothing improper in that instruction as all parties to the defamation action needed to know the outcome of the industrial actions in order to assess their prospects in the civil matter.

17 The practitioner played no part in the proceedings in the industrial disputes. The senior officials employed by the Union at the time, one Kucera and Edmonds, were both lawyers and they handled all aspects of the industrial dispute. Both gave evidence on behalf of the practitioner in relation to the Union's role in the defamation action.

18 In or about September 2002, the industrial dispute was finally resolved in the WA Industrial Appeal Court which concluded that BAB had not been in breach of the legislation as claimed by the Union. That outcome enlivened the defamation action. In the words of Kucera, that action thereupon 'hotted up'.

19 Despite the initial instruction to delay the defamation action, it was certainly not dormant. A statement of claim had been filed by Jackson McDonald, acting on behalf of BAB, and a defence had been filed by the Union. Pleadings were amended and re­amended at the same time the industrial issues were being litigated.

20 Until the end of December 2003, the defamation file at Chapmans was handled by Ms Jo Boots. It was at that stage that the practitioner informed the Union that he 'will now have the day to day conduct of this matter, assisted by appropriate counsel if required'. (Exhibit 1 page 1).

21 Because Chapmans professed no expertise in the area of defamation law, it was necessary to brief counsel. Mr Grant Donaldson SC was briefed. He attended to all pleadings and Court appearances in the defamation action.

22 We propose at this point to refer to the case presented by the Committee in its pleadings and the practitioner's response thereto, in light of the background outlined above. Other aspects of the earlier history will be referred to later in these reasons insofar as they are relevant to the issues raised herein.

23 The grounds upon which the Committee relies for alleging professional misconduct of the practitioner acting on behalf of the Union in relation to the defamation action are threefold:

(i) his conduct involved a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian Legal Practitioner with respect to an interlocutory hearing held on 9 August 2004;

(ii) by making representations to the Supreme Court at a hearing on 17 November 2004 that were intentionally, alternatively, recklessly misleading;

(iii) by making representations to another firm of legal practitioners in letters dated 17 November 2004 and 2 December 2004 that were intentionally misleading.

24 The relevant portions of the statement of facts and contentions are to be found in para [3] ­ [23] which allege as follows:

(a) Chapmans was the solicitor of record for the defendants in Supreme Court proceedings CIV 2496 of 2001 ("the proceedings");

(b) the practitioner had the day­to­day conduct of the proceedings on behalf of the defendants.

1. At all relevant times the law firm Jackson McDonald was the solicitor of record for the plaintiff's in the proceedings.
2. On or about 10 June 2004 the plaintiffs:

(a) filed an application in the proceedings to strike out part or parts of the defendants' re­amended defence ("the strike out application"); and

1. On about 21 June 2004 the Supreme Court notified Chapmans by letter that the strike out application had been listed for hearing on 9 August 2004.
2. The practitioner briefed senior counsel, Mr Grant Donaldson SC, to appear at the hearing of the strike out application on behalf of the plaintiffs.
3. Mr Donaldson SC was and remained unavailable to appear on 9 August 2004 on the hearing of the strike out application and, from 28 July 2004 at the latest, the practitioner was aware of that fact.
4. By a facsimile transmission received by Chapmans on 29 July 2004 the Supreme Court advised the practitioner, in substance, that if the defendants wished to apply to a Master to vacate the hearing date for the strike out application an application to vacate must be filed forthwith.
5. The substance of that advice was repeated to the practitioner in a facsimile transmission from the Supreme Court received by Chapmans on 3 August 2004.
6. The practitioner did not prior to 9 August 2004:

(a) apply or cause Chapmans to apply to vacate the hearing date for the strike out application;

(b) prepare and file, or cause to be prepared and filed, written submissions on behalf of the defendants in opposition to the strike out application;

(c) arrange for competent counsel to appear on behalf of the defendants at the hearing on 9 August 2004 to argue the strike out application;

(d) prepare such that he himself would be able to substantively argue the strike out application on behalf of the defendants at the hearing on 9 August 2004.

1. The practitioner himself appeared on behalf of the defendants at the hearing of the strike out application on 9 August 2004.
2. At the hearing of the strike out application:

(a) the practitioner applied for an adjournment of the hearing;

(c) the practitioner did not attempt to substantively argue the strike out application;

(d) The Supreme Court granted the strike out application ("the Court's orders on the strike out application").

1. On about 17 September 2004 the practitioner filed, or cause to be filed, on behalf of the defendants an application for an extension of time to apply for leave to appeal the Court's orders on the strike out application.
2. On 10 November 2004 the Supreme Court granted the defendant's an extension of time to apply for leave to appeal the Court's orders on the strike out application until 12 November 2004.
3. The practitioner did not until 15 November 2004 file, or cause to be filed, an application for leave to appeal the Court's orders on the strike out application.
4. On 17 November 2004 the practitioner appeared before Master Sanderson of the Supreme Court and applied ex parte for a further extension of time to apply for leave to appeal the Court's orders on the strike out application nunc pro tunc until 15 November 2004.
5. The practitioner did not give any notice to Jackson McDonald of:

(a) the hearing before Master Sanderson on 17 November 2004;

(b) the application for a further extension of time that the practitioner made at the hearing on 17 November 2004.

1. Further, the practitioner did not before attending the hearing on 17 November 200 ascertain or attempt to ascertain the attitude of the plaintiffs to an application by the defendants for a further extension of time, in circumstances where:

(a) the plaintiffs had opposed the defendant's application for an extension of time granted by the Supreme Court on 10 November 2004;

(b) the practitioner had received a facsimile transmission from Jackson McDonald on 16 November 2004 in which Jackson McDonald had, in effect, informed the practitioner of their assumption that the defendants had filed an application for leave to appeal from the Court's orders on the strike out application on or before 12 November 2004;

(c) Jackson McDonald had not otherwise informed the practitioner of the attitude of the plaintiffs to an application by the defendants for a further extension of time.

1. At the hearing on 17 November 2004 before Master Sanderson the practitioner misled the Master by representing to the Master that:

(a) Jackson McDonald had been given notice of the defendants' application for a further extension of time;

(b) having been given notice of the defendants' application for a further extension of time, the plaintiffs did not wish to appear or be heard on the application;

(c) the plaintiffs did not, or were unlikely, to oppose the application for a further extension of time,

in circumstances where, by reason of the circumstances referred to in paragraphs 18 and 19 above, the practitioner knew those representations were false, alternatively, the practitioner did not care whether they were true or false.

1. At the conclusion of the hearing on 17 November 2004, Master Sanderson granted the defendants a further extension of time to apply for leave to appeal the Court's orders on the strike out application nunc pro tunc until 15 November 2004.
2. By a letter dated 17 November 2004 the practitioner misled Jackson McDonald by representing to Jackson McDonald that:

(a) the defendants' application for leave to appeal the Court's orders on the strike out application had been filed on 12 November 2004;

(b) the Supreme Court had made orders with respect to the application so filed at the hearing on 17 November 2004;

(c) the defendants had not made any application for a further extension of time at the hearing on 17 November 2004;

(d) the Supreme Court at the hearing on 17 November 2004 had not made any order or orders further extending the time for the defendants to apply for leave to appeal from the Court's orders on the application to strike out,

in circumstances where, by reason of the matters pleaded in paragraphs 16, 17 and 21 above the practitioner knew those representations were false.

1. By a letter dated 2 December 2004 the practitioner misled Jackson McDonald by representing to Jackson McDonald that:

(a) the defendants had not made any application for a further extension of time at the hearing on 17 November 2004;

(b) the Supreme Court at the hearing on 17 November 2004 had not made any order or orders further extending the time for the defendants to apply for leave to appeal from the Court's orders on the application to strike out,

in circumstances where, by reason of the matters pleaded in paragraphs 18 and 21 above, the practitioner knew those representations were false.

25 The practitioner's response challenges the nature and extent of the retainer by the Union of Chapmans. He blanketly denies all the material allegations of the Committee and then elaborates in the following terms:

1. The respondent denies paragraph 3 of the Statement of Facts and Contentions and says further that the relevant terms of the retainer of the relevant time were that:

(i) other than incidental matters all conduct of the proceedings would be undertaken by the employed solicitor ("the Unions' Solicitor') of the main defendants in the proceedings, the AMWU (Federal) and the AMWU (WA) ("the Unions"), directly briefing Counsel as and when required;

(ii) any work undertaken by Chapmans must ensure the proceedings were not progressed by Bell­A­Bike too quickly, to enable the Unions to resolve the dispute "on the ground" directly with Bell­A­Bike;

(iii) all dealings with the defendants' solicitors, other than incidental dealings in the proceedings, were to be as directed by the Unions' Solicitor.

1. The respondent otherwise denies the summary of the facts set out in paragraphs 5 ­ 23, of the Statement of Facts and Contentions and says the correct version of the facts are as set out below.
2. The respondent says that at the relevant time it was the responsibility of the Unions' Solicitor, Mr Luke Edmonds ("Edmonds"), to attend the Supreme Court or arrange for representation by way of Counsel, who, at all material times, including the relevant time, was Mr Grant Donaldson SC ("Mr Donaldson").
3. At all times, representation of the Unions at the hearing of 9 August 2004 was the responsibility of Edmonds and he was required in accordance with that responsibility to liaise with Mr Donaldson for Mr Donaldson to appear at the hearing on 9 August 2004. The respondent further says that it was Edmonds' failure to discharge this responsibility that led to the respondent then having to do his best between July and August 2004 (being bound by the limited terms of the retainer) to ensure the Unions were represented on 9 August 2004.
4. When it became evident the respondent would have to attend the hearing of 9 August 2004 in lieu of Mr Donaldson, he was required by the Unions to seek an adjournment of that hearing to allow Mr Donaldson to argue it at a later date.
5. At all times it was the responsibility of Edmonds to respond to the orders made by the Court on 9 August 2004 and ensure any applications were lodged on time, and/or it was the responsibility of Edmonds' to arrange for Mr Donaldson to advise the Unions in relation to these matters and/or appear on behalf of the Unions.
6. On Wednesday, 10 November 2004 Mr Donaldson successfully argued a full hearing before Master Sanderson in relation to an extension of time for leave to appeal the Court's decision of 9 August 2004. The time to file further documents was then extended to Friday, 12 November 2004.
7. The appropriate papers as required by Master Sanderson on 10 November 2004 were prepared by Thursday, 11 November 2004. Numerous attempts were made to file those papers on 11 and 12 November 2004.
8. The Supreme Court Registry provided the Unions with numerous different amounts for the filing fees and the Union's wrote out a number of cheques to try and match the information being provided by the Registry.
9. The cheques for the correct filing fee were provided to the Court on the morning of Monday, 15 November 2004, at which time the Court stamped the previously filed documents.
10. It was the decision not to allow the Unions enough time subsequent to the hearing of 10 November 2004, and/or the Master's directions to the Unions, and/or the Unions' inability to sort out the correct cheques for the filing fees and/or the Unions' lack of diligence, that led to the filing of the documents not being finalised until the morning of Monday, 15 November 2004.
11. The LPCC knows full well that at no stage did the respondent appear before the Master ex parte and seek a further extension of time, and at no time were misleading letters sent.
12. The conduct of the proceedings at the relevant time was restricted by the terms of the retainer, and was the responsibility of Edmonds, and in that context at all times the respondent and his staff did everything within their power to ensure the interests of the Unions were protected.

26 The practitioner denies that he engaged in professional misconduct between July 2004 and 2 December 2004.

27 A major plank of the practitioner's response is that he had a limited mandate and that the Union had the carriage and conduct of the defamation action. Other than 'incidental matters' it was the responsibility of the Union's solicitor, Mr Edmonds, to attend Court, arrange for representation by counsel, to liaise with Mr Donaldson, and ensure that the Union was represented (para 2, and 3 ­ 5 of response). When counsel was unavailable on 9 August 2004, the practitioner was required by the Union to seek an adjournment of that hearing (para 6) but it was Mr Edmond's responsibility to respond to the orders made on 9 August 2004 and ensure that any applications were lodged in time (para 7).

28 The above is the crux of the practitioner's 'Post office' defence that he was merely a conduit between counsel and the Union. He stated that he would perform only 'routine matters', but that he would simply pass to the Union officers the important issues for them to deal with T: 94, 15.03.11. He would only have to appear at direction hearings and deal with 'simple matters' (ibid).

29 The Committee called one witness, Luke Edmonds whose statement (Exhibit 2) dealt with the respective roles of the Union and Chapmans in relation to the industrial dispute and the defamation action. The witness had been employed as an Industrial Officer of the Union from about October 2003 and was so employed at all times material to the issues before the Tribunal. As a qualified lawyer having the conduct of the industrial dispute, he had direct knowledge of the issues in the related defamation action. All correspondence from Chapmans relating to the civil action would be received by him (Exhibit 2, para 2). He was aware that the Union was conducting the defence of that action on behalf of most of the named defendants in that action and that it was indemnifying them in relation thereto (Exhibit 2, para 4).

30 When he was initially involved with the defamation action, Joanne Boots, of Chapmans had the conduct of the matter and regularly updated him on its progress. He referred to a letter dated 22 December 2003 addressed to the State Secretary, a copy of which he received which informed him that because of the departure of Ms Boots from Chapmans, 'Mr Gandini will now have the day to day conduct of this matter, assisted by appropriate counsel if required'. (Exhibit 1, page 1, Exhibit 2, para 7).

31 Mr Edmonds, in chief and in cross­examination, denied the practitioner's version that Chapmans were merely a post office having no 'hands on' responsibility for the conduct of the defamation action and he was not seriously challenged on his denial in cross­examination (Exhibit 2, para 14 ­ 17). In cross­examination, Mr Edmonds stated that over time the nature of the retainer changed T: 63 ­ 5, 14.03.11. It was not his responsibility ­ so he deposed ­ to organise barristers or file documents. He had no 'hands on' responsibility in the defamation action other than to see it was handled in a proper way. T: 43 ­ 5, 55, 14.03.11.

32 He deposed to the effect that after the Full Bench decision in the industrial matter was delivered, he had a discussion with Mr Donaldson on it's implications and at that stage, the defamation action became more serious. T: 47, 14.03.11. The Full Bench decision necessitated a repleading of the defence in the defamation action but Mr Edmonds stated he had no direct contact with Mr Donaldson.

33 The witness was taken by the practitioner to a number of letters written by Chapmans to the Union and to Mr Donaldson. We do not intend to refer to them all save to refer to a letter written by the firm to the Union and bearing the practitioner's initials dated 15 March 2004 (Exhibit 3 page 455). The letter was for the attention of the individual defendants employed by the Union. A letter of the same date and in identical terms was addressed to Tim Kucera, Mr Edmond's immediate predecessor at the Union, who was also a defendant. After referring to certain discussions in the firm's offices, the letter relevantly continues:

As a consequence of what appears to be the plaintiff's desire to press on with this matter, and to do so in a reasonably vigorous manner, it is now time to start considering more seriously the nature of the defence of this action, including the possibility of amending the defence to include other available defences, as well as the possibility of joining other parties.

...

It may well be that the time is now appropriate for us to meet with your existing barrister to discuss these issues, ...

...

We confirm you were to consider these issues over the few days following our meeting and we were to discuss the matter again with you in the week commencing the 15 March 2004.

34 This letter and a number of others in Exhibit 1 and Exhibit 3 are clearly inconsistent with the assertion by the practitioner that he was a mere post office. These letters contain advice to clients, matters and issues of concern to the practitioner and they initiate courses of action to be followed which are to be found in any normal solicitor­client relationship. (See Exhibit 1, page 4 ­ 7, 11 ­ 12, 79 ­ 81, Exhibit 3 page 190 ­ 1, 203, 206 ­ 12, 235, 238, 241 ­ 2. The list is not exhaustive.)

35 The practitioner himself conceded in cross­examination on this aspect of the hearing that the allegations made by him in his response (para 4 and para 5 above) attributing the responsibility for conducting the action to Mr Edmonds were incorrect T: 127, 15.3.11. He admitted that Chapmans retained counsel T: 127, 15.3.11 and that he was the person responsible for the file and had 'the day to day conduct' of the matter T: 125, 15.3.11 (although he later attempted to ascribe a different meaning to that term ('day to day conduct')in a most evasive manner). He also admitted that he offered advice throughout in the interests of his client (T: 128 ­ 9, 15.3.11).

36 His evidence that when he told the Union that he had the day to day conduct of the action, it was merely a phrase he used which did not reflect the factual position, was disingenuous T: 125 ­ 6, 15.3.11). Indeed all the documents before us referred to above point the other way. The fact that all contested appearances and pleadings were handled by Mr Donaldson does not, in our view, support his assertion that he acted merely as a post office. Indeed, such conduct is typical of a normal solicitor­client relationship when counsel are engaged by a solicitor on behalf of his/her client to deal with complex issues.

37 It is moreover significant to note that at no stage in the voluminous correspondence between Chapmans and Jackson McDonald did the practitioner inform the latter that its letters should be directed to the Union because Chapmans was acting only as a post office.

38 For the sake of completeness, we do not lose sight of the evidence of the witnesses called by the practitioner on the issue of the nature of the retainer. David Hicks, a senior official of the Union, had no direct involvement in the civil action and expressed his 'belief' that the defamation action was a 'freebie' and that Chapmans were a letterbox. In cross­examination, he stated that he had no direct contact with the practitioner (T: 20, 15.3.11), that as far as he was aware, no Union official would attend Court, or a direction hearing and that it was the practitioner who would arrange the appointment of a barrister (T: 20, 15.3.11). He conceded also that instructions to Chapmans changed when the Full Bench found in favour of BAB, and he agreed that no­one in the Union had the skill or competence to advise on defamation issues. (T: 22, 15.3.11).

39 Mr Tim Kucera is a qualified lawyer and was employed by the Union from January 2001 to August 2002. He had the carriage of the industrial litigation on behalf of his employer, the Union, and regarded the defamation action as 'a sideshow', until the Full Bench decision was delivered. He was one of the defendants in the defamation action, which the Union and the other defendants initially saw as a diversion calculated to grant leverage to BAB in its industrial dispute. (T: 45-7, 15.3.11).

40 Mr Kucera confirmed that in the early stage, Chapmans were instructed to do as little as possible. He was closely and directly involved in both the industrial dispute and the related defamation action both as the legal officer employed by the Union and as a defendant in the civil action. He personally conducted the industrial dispute and litigation while the defamation was on foot. (T: 47, 15.3.11). He said he met with Mr Donaldson when he was engaged and later when he was to prepare the defence (T: 51, 53, 15.3.11). He deposed that he left the employ of the Union before the Full Bench decision was delivered. (T: 51, 15.3.11). At that stage not a great deal was going on in the defamation action but he knew that 'if the matter hotted up' Chapmans would have to do more (T: 52 ­ 3, 15.3.11).

41 In cross­examination, Mr Kucera stated that Chapmans engaged Mr Donaldson on behalf of the Union and that the firm briefed counsel (T: 55, 15.3.11). It is important to note that when Mr Kucera left the Union, he was simply a defendant and it was Chapmans who arranged everything on his behalf. (T: 55, 15.3.11).

42 Far from these witnesses supporting the practitioner's case, their evidence lays bare the allegations in his response and his contention that he acted merely as a post office. Their evidence supports the conclusion reached by us above which is largely confirmed by the concessions made by the practitioner himself in cross­examination. As mentioned above, the fact that he passed on all correspondence to Mr Donaldson, that the latter appeared in all contested hearings and that counsel drafted all pleadings does not detract in any way from our conclusion that the practitioner's relationship with the Union was the normal solicitor/client one, imposing all the professional duties and obligations which are implicit in such a relationship.

Complaint 1: Conduct relating to the interlocutory hearing on 9 August 2004

43 As indicated above, the pleadings in the defamation action were amended from time to time. On 12 May 2004, the Union filed a re­amended defence. The amendment was drafted by Mr Donaldson, after consultations with the practitioner and Union legal officers (Exhibit 3, page 469 ­ 76).

44 The solicitors acting on behalf of the plaintiffs objected to certain paragraphs in the re­amended defence. On 10 June 2004, the plaintiffs brought an application to the Case Management Registrar seeking interlocutory orders disallowing certain paragraphs and striking out other paragraphs of the re­amended defence (Exhibit 3, page 501 ­ 503).

45 In an annexure to the application, a memorandum in terms of Order 59(9)(1) of the Supreme Court Rules of Court, at [503] the plaintiffs' solicitors refer to a letter sent to Chapmans setting out the grounds for their objections to the various paragraphs. It refers to a telephone message on 26 May 2004 from the plaintiffs' solicitors to the defendants' solicitors requesting the latter to return the call, which they failed to do. The memorandum refers to a letter dated 27 May 2004 to the defendants' solicitors informing them of a Registrar's Order made that day advising that failing agreement to delete the defective paragraphs, the plaintiffs' solicitors would bring that application. The memorandum further recites that as at the date of the application (10 June 2004) the plaintiffs' solicitors had received no substantive response from the defendant's solicitors to their objections. The letters of 20 May 2004, 27 May 2004 and the Registrar's Order referred to are found in Exhibit 3, page 488, 494, and 495 ­ 496 respectively.

46 On 21 June 2004 a letter from the Principal Registrar to the plaintiffs' solicitors and copied to the defendants' solicitors informed the parties that the strike out application was listed for a special appointment before the Master on Monday, 9 August 2004 at 2.15 pm (Exhibit 1, page 19). A letter bearing the practitioner's initials was sent to Mr Donaldson the next day informing him of the date of the special appointment (Exhibit 1, page 20).

47 As a result of a request for unavailable dates from Mr Donaldson, the practitioner in a letter to Jackson McDonald on 9 July 2004, indicated that his counsel was unavailable on a number of days including 9 August 2004, the day on which the special appointment had been listed. (Exhibit 3, page 509). A similar request to Mr Donaldson about 10 days later evoked a similar response on 19 July 2004, of his unavailability on 9 August 2004. (Exhibit 3, page 518).

48 It is around this time that the practitioner states in his evidence that he thought that he might have gone on leave. (T: 103 ­ 5, 15.3.11). This had only occurred to him in the month or so prior to the hearing before us. He was not at all certain about the length of the leave and gave much speculative evidence in that regard. No diary entries were produced. The only proof of being absent from his office at that period was a Commonwealth credit card statement which revealed purchases by him at Rottnest Island between 20 and 23 July 2004. The remaining purchases reflected on the statement reveal local purchases made between 24 July 2004 and 5 August 2004, when the statement ends. (Exhibit 3, page 529 ­ 531) (T: 103 ­ 105, 15.3.11).

49 We accordingly find that the practitioner was indeed absent from his office between 20 and 23 July 2004. There is no evidence before us to support his suggested possible absence from his office beyond that period and we reject his evidence to being on annual leave beyond that period.

50 Indeed, in his affidavit affirmed on 9 August 2004 and handed in by him at the hearing on that date, there is no mention of him being away from office on annual leave, during the period from 21 June 2004 to the hearing date. (Exhibit 1, page 50 ­ 55). We accordingly find, on the probabilities that he was back in his office on 24 July 2004.

51 On 28 July 2004, the firm's letter, again bearing the practitioner's initials, is sent to the Supreme Court pointing out Mr Donaldson's unavailability on 9 August 2004. (Exhibit 3, page 524). On the following day, a facsimile transmission from the Master's Administrator responds to the letter the day before and informs Chapmans that the special appointment cannot be rescheduled. It points out that 'an application must be filed forthwith' if a vacation of the hearing is desired. (Exhibit 3, page 525). This, the practitioner failed to do.

52 It is the Committee's contention that it was on the 28 July 2004 at the latest point of time at which the practitioner became aware of the unavailability of Mr Donaldson to appear on 9 August 2004 and that the special appointment would take place on that date. The practitioner states that he became aware that the matter would go ahead on 3 August 2004 when he received a further facsimile from the Supreme Court dated 3 August 2004 informing him that 'your request to reschedule the special appointment listed for 9 August 2004 is refused'. It again informed him that an application had to be filed 'forthwith' if he wished to apply to the Master to vacate the hearing. This, the practitioner again failed to do.

53 It is clear that the practitioner and indeed members of his firm were confused as to the processes to be followed at the Supreme Court. This is apparent when, as indicated above, the firm was informed of the listed date of the special appointment, the practitioner thereafter furnished the Supreme Court with unavailable dates. Intra office memoranda confirm this confusion. Mr Shane Melville, then an employed solicitor with Chapmans, gave evidence that he was approached in the office by someone other than Mr Gandini to enquire about unavailability of dates for counsel, although his evidence on this aspect was vague. (T: 25 ­ 7, 15.3.11) Another solicitor in the firm, Mr Michael Lourey was approached about counsel's availability. He made a note because the practitioner was absent from the office. He identified his note (Exhibit 3, page 520) in which he advised that there was a need to change the date of the special appointment but that he did not know the procedure for doing so. He suggested that it be checked out with Mr Shane Melville and Mr Dennis Ellis, another solicitor in the office.

54 The practitioner himself, in a letter to the Supreme Court dated 3 August 2004, found the facsimile from the Master's Administrator of 24 July 2004 that the hearing could not be rescheduled, 'puzzling' for a number of reasons among which was that the Court did not enquire as to the availability of counsel in relation to parties other than the plaintiffs (Exhibit 1, page 39). This was an inaccurate statement in that the hearing was listed by the Court without consulting any of the parties.

55 What clearly emerges is that the practitioner and his firm were confused as to the procedures to be followed and failed to file an application to vacate the hearing 'forthwith' as advised by the Court or at all.

56 However, we find notwithstanding the confusion as to procedure, that the practitioner knew, by 28 July 2004 at the latest, that there was a very real prospect that the hearing would go ahead on 9 August 2004, that his preferred counsel was not available, and that Jackson McDonald would, as they had indicated previously, (Exhibit 1, page 28, 67 ­ 75) vigorously oppose any adjournment. The need to prepare for an argument on the merits of the application became apparent from that date.

57 The practitioner appeared before the Master in Chambers on 9 August 2004 at 2.20 pm without counsel. He handed in the affidavit affirmed by himself that day and referred to above (Exhibit 1, page 50 ­ 55), which basically recited the history of the correspondence with the Supreme Court, in relation to the unavailability of counsel, and stating that he was again informed on the morning of 9 August 2004 that counsel was unavailable to argue the strike out application. He stated further (at para 31 thereof) that if an adjournment was not granted, he would not be in a position to argue the matter to the prejudice of his clients.

58 The practitioner raised the same argument at the hearing, stating that 'from receiving that letter dated 21 or 22 June 2004, we have done everything possible ... to try and shift the date to a date suitable, (Exhibit 1, page 78). He stated that there was no evidence in this affidavit in support of that statement but the view was that the preferred counsel should be the person to argue the application to strike out rather than anyone else be instructed, (page 78 ­ 79).

59 The Master refused to grant the adjournment. In his oral reasons, the Master stressed that the date of the hearing was notified to the parties on 22 June 2004 and that if that date was unavailable, attempts should have been made to have that date moved. (Exhibit 1, page 80). We interpolate at this stage to point out that as at 9 July 2004, the practitioner was aware that counsel would not be available on the listed date. (Exhibit 1, page 25). It must also be noted that in a letter from Jackson McDonald dated 12 July 2004, Chapmans were informed that if their clients sought to vacate the hearing, such an application would be opposed and indemnity costs would be sought. (Exhibit 1, page 28).

60 After the Master gave his ex tempore reasons, the transcript of the proceedings reads as follows:

... Sir, in those circumstances I don't intend to stay today unless requested by the Court. I'm just not in a position to argue it (the application to strike out). I don't want my presence to be interpreted. I have a busy practice to run. I don't know anything about ­ I mean, I have the day to day conduct. I'm just not in a position to argue it and I don't want to prejudice any rights of appeal that may be by staying and appearing to acquiesce, so subject to your views as to the ...

The Master: It's not a question of my views.

Gandini, Mr: Yes.

The Master: If you wish to leave, Mr Gandini, then ...

Gandini, Mr: I have no option. I just simply can't stay and argue the matter, Sir. I'm not in a position to argue it, so I would with the leave of the Court, if required ...

The Master: All right.

61 It must be noted that despite the practitioner's expressed intention to leave the Court because he was unable to argue the merits of the strike out application, it is common ground that he did not do so.

62 The application by the plaintiff's counsel for indemnity costs was refused and the application to disallow and strike out paragraphs defendant's defence was granted without argument, on an unopposed basis.

63 We find the conduct of the practitioner at the hearing unacceptable and falling below the standard of competence to be expected of a reasonably competent legal practitioner. His remarks that he did not intend to remain for the remainder of the hearing and that he had a busy practice to run were, at best, highly inappropriate, and at worst, verging on contempt. That he came to the hearing prepared only to apply for an adjournment and being totally unprepared to argue the merits of the strike out application, knowing full well that his application for an adjournment was going to be opposed, compromised the interests of his clients and serves to underline his lack of professionalism.

64 We accept that neither he nor his firm had any skill in the area of defamation law but he knew from 9 July 2004 that his counsel was unavailable although at that stage, the possibility of rescheduling the hearing was still open, despite the clear risk of opposition from his opponents. However, apart from informing his opposing solicitors and later the Court of that unavailability, he did nothing which a reasonably competent solicitor in his position would have done. We accept his evidence that the decision to apply for an adjournment was a 'judgment call', but it is his failure to provide for the very real prospect that the adjournment would not be granted that generates and justifies the cogent criticism levelled at him by counsel for the Committee. He was told, on no less than two occasions, that the date of the hearing would not be altered and that if he wanted to reschedule, he would have to make an application forthwith. His evidence that because this was not a Court order but emanated only from the Master's Associate and therefore need not be complied with, beggars belief. (T: 166 ­ 8, 15.3.11)

65 A reasonably diligent solicitor in the practitioner's position, having learnt of the unavailability of his counsel and the real prospect of an adjournment of the hearing being refused would, in our view, have followed a number of possible avenues, none of which the practitioner even investigated, let alone pursued. Even if confronted by this situation as late as 3 August 2004, (on the practitioner's version), he could have instructed his chosen counsel to prepare written submissions on the merits of the application and used them to argue the matter himself or he could have briefed another counsel to argue the merits of the strike out application. The latter application was limited in its ambit, being confined to a construction of the pleadings. Any counsel reasonably versed in the field and armed with the plaintiffs' submissions previously filed, could have argued it at short notice. If, as we find on the probabilities he became aware of the situation on 28 July 2004, his failure to even explore the above options becomes more unacceptable. He simply was content to appear in Court without any preparation on the merits 'probably hoping' that the Master would grant the adjournment (T: 175, 15.3.11). The lack of competence and professionalism is manifest.

66 For the above reasons, we find that the practitioner's conduct with respect to the hearing of 9 August 2004 involved a consistent failure to reach a reasonable standard of competence and diligence that a member of the public is entitled to expect. We accordingly find the practitioner guilty of unsatisfactory professional conduct. We make that finding rather than one of professional misconduct because we find that his conduct or lack thereof was prompted by utter confusion as to the correct courses to follow and by inappropriate behaviour rather than a deliberate failure to follow those courses.

Complaint 2: Intentional or reckless misleading of Court on 17 November 2004

67 After the Master refused the adjournment and granted the strike out application on 9 August 2004, an application was made, on 17 September 2004, for leave to extend the time to apply for leave to appeal the orders made by that Court.

68 The application to extend the time was heard on 10 November 2004 and leave was granted to extend the time to apply for leave to appeal until 12 November 2004. At the hearing, the Union and other defendants were represented by Mr Donaldson. The practitioner was not present.

69 On returning to his Chambers, counsel sent a letter to the practitioner (Exhibit 1, page 113) informing him what transpired at the hearing among others in the following terms:

What is required is that you file with the Court a further motion seeking leave, with a minute of order ... that is that the question of leave be reserved to the Full Court and that costs be reserved. The motion for leave to appeal is to be in the same terms as that already filed.

This must be done before close of business Friday, 12 November.

...

70 The latter sentence was typed in bold with the word 'Must' in capitals.

71 Because of confusion and mixed messages as to the fees to be paid, (details of which are not relevant for present purposes) the documents ordered by the Court to be filed by 12 November 2004 were not accepted with the result that the Court order was not complied with by the date stipulated. The practitioner attempted to rectify the situation by filing the documents on 15 November 2004.

72 The Notice of Motion seeking leave to appeal the order refusing the adjournment on 9 August 2004 was also filed on 15 November 2004 (Exhibit 1 page 118). That notice indicated that the Full Court would be moved on 17 November 2004 for the relief claimed therein and was expressed to have been copied to Jackson McDonald. The date of the hearing was filled in by someone at the Court (T: 30, 16.3.11).

73 On 15 November 2004, the Master's Administrator sent an urgent facsimile to Chapmans advising that the Master had refused to sign the minute dated 11 November 2004 and forwarded to her on 15 November 2004(Exhibit 1, page 115).

74 The practitioner stated in evidence that he did not know what a minute of order was and was confused as to why he was required by the Court to appear on 17 November 2004. (T: 24, 16.3.11). His evidence on how he got to the Master's Chambers that day and why is evasive and confusing (T: 28, 16.3.11) and conflicts with what he stated in later correspondence with Jackson McDonald, dealt with below.

75 Before dealing with the hearing on 17 November 2004, it is necessary to deal with the practitioner's understanding relating to applications for extensions of time. He stated that he knew that if an application is not made in time, there was need to file an application for leave to extend that time supported by an affidavit (T: 4 ­ 7, 16.3.11). Indeed he had requested the witness, Gary Cooper, to make an affidavit in support of such an application to extend time to file the application for leave to appeal in the same matter in September 2004. (T: 6 ­ 8, 19 ­ 20, 16.3.11). Remarkably he stated that it was his understanding that such an application could be made ex parte, (T: 9, 16.3.11), although a copy of the application was served on the other side.

76 He was aware that if the extension of time was not granted, the question of obtaining leave to appeal would fall away (T: 12 - 13, 20 ­ 1, 16.3.11). He also was aware that if he had not complied with the Master's order requiring filing of the documents by 12 November 2004 it would be necessary to apply for a further extension and to serve Jackson McDonald in order to give them an opportunity to be heard. (T: 20-1, 16.3.11).

77 On 17 November 2004, the practitioner appeared in Chambers before the Master. He stated in evidence in chief that he was confused as to why he was back in Court. (T: 115, 15.3.11). We find however, that even if he did not know the precise reason for going back to Court on 17 November, he knew, by reason of the evidence he gave as outlined in the immediately preceding paragraphs, that he would have to rectify the failure to file the necessary documents by 12 November by obtaining an extension of time to 15 November at the first opportunity. We find that he was aware that the necessity to appear in Court on 17 November, for whatever reason, would provide him with that opportunity which he fully intended to utilise.

78 What transpired at the hearing after the matter was called, may relevantly be set out as follows:

The Master: Mr Gandini

Gandini, Mr: For the applicant defendant, Master. There will be no appearance from the other side.

The Master: No.

Gandini, Mr: Sir, you dealt with this matter in part last Wednesday ...

The Master: I did.

Gandini, Mr: And we understand there were some administrative orders to be made, but we were then advised ...

The Master: Look, this appears to have got completely out of control.

Gandini, Mr: Yes.

The Master: The orders that I made were that the time for appealing should be extended to the date specified ­ I forgot what date that was.

Gandini, Mr: The time for an application for leave to appeal was extended, yes.

The Master: Yes, right. The application for leave to appeal should have been lodged. These seems to have been some doubt as to just what form the application should have taken, but I assume that has now been done and been complied with, has it?

Gandini, Mr: Yes.

The Master: Have the time limits been complied with?

Gandini, Mr: The application for leave to appeal the applicant says, was lodged on the 12th however the registry effectively refused to take it until the morning of the 15th and didn't formalise it until then. So ...

The Master: Are you going to run into a problem with the respondents over that?

Gandini, Mr: I understood no, from Wednesday ­ I mean, I wasn't here Wednesday. I understand that a short time was allowed to extend the time.

The Master: Right.

...

The Master: But it was lodged on the 15th?

Gandini, Mr: Indeed, indeed ­ yes, indeed.

The Master: Okay. Then perhaps what I should do ...

Gandini, Mr: Is perhaps amend the time, yes.

The Master: ... is amend the order allowing the extension of time to refer to the 15th.

Gandini, Mr: Yes, the 15th or the 16th. Yes.

The Master: Thus today is a directions hearing under 63A(4) ...

...

The Master:... but the orders that I need to make under 63A(4) are that the application for leave to appeal be heard with the appeal; (2) the application not be heard ex parte. I won't make any order granting or refusing leave ...

...

Gandini, Mr: Yes. So, Master, the first order made was that the time was extended to the 15th.

The Master: That will have to be made in the other matter, the originating summons, but I will get hold of that file and make that order, so that if a problem ­ if the issue arises (Emphasis supplied).

79 The Master then ordered the details of the order made to be served within 24 hours. (Exhibit 1, 123 ­ 4).

80 The evidence of the practitioner is that when he told the Master 'there will be no appearance from the other side':

the message was simple ... they don't know its on. That's it, they don't know it's on. I am about to try to explain to you, Master, why they don't know it's on but they don't know it's on ... That's exactly what I was trying to communicate, don't ­ there's no need to wait, in other words you just keep moving and I'll try to explain exactly why I am here and what the heck is going on with this thing.

82 In his affidavit dated 23 May 2005 filed in the application for leave to appeal before the Full Court (Exhibit 1, page 164 ­ 77), the practitioner (at para 57) stated that the above comment, that is:

...there will be no appearances on the other side was not intended to express a view other than I was appearing for the defendants simply on an administrative basis and that being the case, we understood that no­one from the plaintiff would need to be there, and it was simply to advise the Master we weren't waiting on an appearance from the plaintiff. It was not meant to convey a suggestion that there had or had not been some dialogue with the plaintiff and/or they had expressed a view, or consented to not appearing, or in any way misled the Court as to the plaintiff's state of mind.

83 (Exhibit 1, page 176 ­ 7). His evidence on this aspect in cross­examination is most confusing and evasive. (T: 39 ­ 43, 16.3.11).

84 We have considerable difficulty accepting his evidence referred to in the two passages above, because the interpretation which the practitioner places upon that passage not only does violence to the English language but also flies in the face of normal every day procedure followed in any Court or Tribunal. When the matter was called, the practitioner not only announced his appearance but volunteered the statement that there would be no appearance from the other side. He knew that the non­appearance of his opponent was due to the fact that Jackson McDonald had not been given notice. His statement to the Master in our view conveyed the clear impression that his opponent was aware of the proceedings but either chose not to attend or had consented or was agreeable to the orders which would be made. If, as deposed by the practitioner that his statement was intended to convey the simple message that 'they don't know it's on', why not say so to the Master? By no stretch of the imagination can it be said that a statement that 'there will be no appearance from the other side' can convey the meaning that 'they don't know it's on'.

85 When the Master then tells the practitioner that he assumes that the application for leave to appeal has been lodged and that the orders made were complied with, the practitioner answers in the affirmative. He is then specifically asked whether the time limits have been complied with. Instead of saying the limits have not been completed by the 12 November 2004 he states that the documents were lodged in time but were effectively refused until 15 November 2004 when the lodging was formalised. When specifically asked whether he would run into a problem with the respondents over the late lodging he states that he understood not.

86 Even his evidence in chief as to why he told the Master that there would be no problems with the respondents was evasive and unconvincing. (T: 118, 15.3.11) His evidence in chief on this aspect reads as follows:

He asked me if I have got any problems with the other side with that. I don't even ­ there's not even a thought to actually think, 'Well, you know' it's just sort of think, well, no, given what has happened last Wednesday they should be fine and I believe I tried to start that way and now it sort of moved on.

87 In cross­examination on this aspect of the case, his evidence became more rambling and evasive (T: 52-5, 16.3.11); at times, it is incomprehensible and we have no hesitation in rejecting it.

88 This entire passage in the exchange is in our view, calculated to reassure the Master that the other side was aware of what was going on, and that it was not going to raise any problems with the late lodging. The practitioner's responses to questions from the bench were disingenuous and misleading. The only thing he knew about the respondent's attitude was that his relationship with their solicitors was aggressive, (T.S.3.28) [T: 28, 16.3.11) as evidenced in their correspondence in which they had vigorously opposed previous applications. (Exhibit 1, page 67, 75). He had no basis for informing the Master that he understood there would be no problems from the respondents. Indeed the risk of opposition from Jackson McDonald was real and explains, as we find, why they were not notified later of what transpired at the hearing. We deal with this aspect in complaint 3 below.

89 When the Master is informed of the reason the documents were not filed by the 12 November 2004, he suggests that the order extending the time to the 12 November 2004, be amended to refer to the 15 November 2004, the passage quoted above reveals that the practitioner was aware of the problem and that an amendment to the time fixed by the Court needed to be extended. The passage quoted above indicates that the practitioner simultaneously with the Master suggested that the time for compliance needed to be amended. (Exhibit 1, page 124). Once again, his evidence that he did not suggest that the time be extended is evasive (T: 55-59, 16.3.11), while his evidence that he did not even think that he needed an extension (T: 57, 16.3.11) contradicts his previous evidence of the importance of obtaining it to the ability of his client to proceed with the leave to appeal the application referred to above.

90 After the Master made orders under r 63A(4), of the Supreme Court Rules of Court the practitioner was at pains to confirm the granting of the extension of time when he said '... So, Master, the first order made was that the time was extended to the 15th ' (T: 60 ­ 1, 16.3.11) Exhibit 1, page 124). This, in our view, confirms our finding that the practitioner knew that he had not complied timeously by 12 November, that he needed to apply for an extension of time to the 15th and that that was 'the first order' that had to be made failing which the application for leave to appeal would be aborted.

91 The practitioner repeatedly stated in his evidence and in his affidavit of 23 May 2005 that the purpose of the hearing on 17 November was simply an administrative tidying up process (para 46 ­ 51) (Exhibit 1.175; T: 117, 15.311) and that at no stage was there an application to extend the time for lodging the leave to appeal application (ibid). The latter statement was made because no papers were filed seeking an extension of time (T: 56 ­ 7; 63 ­ 65, 16.3.11) although he conceded in his affidavit that he could see (in May 2005) that although no express application was made on 17 November, an extension had been granted.

92 The evidence of the practitioner in the immediately preceding paragraph does not bear scrutiny. We have already found that he was aware that an extension of time had to be applied for and had to be granted. He knew too that without that extension, the entire leave to appeal application would fail. We cannot accept, as a principal of a firm, that he believed that an application could not be brought orally but could only be obtained upon a written application. That he knew that the need to apply for an extension of time was vital and central to the leave to appeal application, can be seen from a letter written by him to his clients immediately after the hearing on 17 November, when he reported only that 'on the 10 and 17 November 2004, the Court granted an extension of time for leave to appeal' (Exhibit 3.673). Nothing else was reported to his client, not even the orders made by the Court in terms of r 63A(4). This letter is to be contrasted with the terms of the letter sent to Jackson McDonald that same day, informing them on what transpired. The significance of the contrasting contents of these letters is discussed more fully under complaint 3.

93 We also do not accept his evidence that he believed the hearing on 17 November was intended merely as an administrative tidying up of the orders and was not a judicial process. A note of a telephone message dated 16 November 2004 indicates that a further attempt was made by his secretary to brief counsel for the hearing the next day and records that he was unavailable (Exhibit 3.661). Why, if he believed that only an 'administrative tidying up' was to take place on 17 November 2004 did he seek to brief senior counsel? We find that whatever uncertainty and confusion there might have been as to what would transpire at the hearing on 17 November 2004, he knew he had not complied with the Court order requiring him to file the relevant papers by 12 November 2004 and that he had to apply for and obtain an extension time to 15 November 2004, failing which the leave to appeal application was going nowhere.

94 We find further, that he misled the Master into believing that the respondents had been notified of the hearing and that they chose, for whatever reason, not to attend. He lied to the Master that there would be no problems with the respondents in relation to the application for an extension of time to 15 November 2004 when he knew that there was a considerable risk of opposition to such an order from the opposing solicitors, with whom he had a hostile and antagonistic relationship.

95 As officers of the Court, practitioners must realise that their obligations to the Court are paramount and even supersede the interests of their client. There are few areas of professional misconduct more serious than misleading a Court.

96 We accordingly find that the practitioner made representations to the Supreme Court in the respects outlined above which were intentionally misleading and that the practitioner is accordingly guilty of professional misconduct.

Complaint 3: Intentionally misleading Jackson McDonald in letters dated 17 November 2004 and 2 December 2004

97 As stated above, on 10 November 2004, the Master ordered the Notice of Motion for leave to appeal and a minute of the orders to be filed by 12 November 2004.

98 Unknown to Jackson McDonald, the documents were not filed by that date. In a letter of 15 November 2004, Jackson McDonald wrote to Chapmans requesting copies of the documents 'which we assume was filed at the Supreme Court Registry on Friday, 12 November 2004'.

99 On 17 November 2004, the practitioner replied to Jackson McDonald's letter dated 15 November 2004, and without informing them that their assumption that the documents had been filed timeously was incorrect, wrote in the following terms:

Our clients['] application for leave to appeal was filed by the Court however, rather than deal with that matter administratively as we understand was foreshadowed on the 10 November 2004, the Court listed the matter before Master Sanderson on the morning of 17 November 2004.

Master Sanderson, inter­alia, made order along the lines of:

1. the defendants' application for leave to appeal be referred to the Full Court;
2. the application for leave to appeal not be heard ex parte; and
3. costs be in the application.

If you have any difficulties with the orders made (noting that we understand they were consistent with the orders discussed on the 10 November 2004 and are consistent with what was reported back to us ...) then we are happy to provide you with further details.

101 Apart from failing to dispel the assumption made by Jackson McDonald to the letter under reply, the practitioner's letter omitted to inform his opponent that he had appeared in Court on 17 November and that he had obtained an order extending the time for compliance with the filing of documents from 12 to 15 November 2004. The use of the phrase 'inter­alia' in the letter is disingenuous and suggest to the recipient that other matters of no significance were dealt with about which the reader need not be concerned. The omitted extension of time order was the one thing he was at pains to remind the Master making at the hearing on 17 November 2004.

102 As referred to above, the practitioner, on the same day wrote a letter to his client and informed the Union that 'on the 10 and 17 November 2004 the Court granted an extension of time for leave to appeal. The application for leave to appeal has been referred to in Full Court'. (Exhibit 3 page 673). A comparison between the contents of this letter with those of the letter written to his opposing solicitors that same day is striking. What was most important for his client to know was that an extension of time for leave to appeal had been granted on 17 November 2004. The omission of that important piece of information in his letter to Jackson McDonald and the failure to dispel the latter's assumption that the documents had been filed timeously, on 12 November 2004 are capable of only one reasonable explanation and that is that he deliberately intended to mislead Jackson McDonald.

103 His evidence was that the main purpose in sending the letter to Jackson McDonald on 17 November 2004 was to set out the orders made under Order 63A as he was ordered to do. However, those were not the only orders that were made on 17 November 2004. As the practitioner reminded the Master at the hearing before any order was issued under 63A, 'the first order made was that the time was extended to the 15th'. (Exhibit 1, page 124).

104 We find his evidence that he was only required by the Court to serve on the other side the orders made under Order 63A(4) (T: 70, 16.3.11) unconvincing. First, it is not clear that the direction of the Master was confined to orders made under Order 63A (Exhibit 1, page 125). The Master merely referred him to the order which required him to serve details of the orders made. That could well include making all orders made at the hearing. Secondly, and in any event, any practitioner knowing that his opponent was not notified of the hearing and knowing the importance of an extension of time for the future conduct of the proceedings (knowledge which we find the practitioner to have had), would have fully disclosed to his opponent what had transpired on 17 November 2004.

105 The practitioner, in answer to the allegation that he deliberately misrepresented the position to Jackson McDonald, stated that if that were so, he would not have sent the 'whole bundle of documents' to them from which it would have been apparent that an extension of time had been granted at a hearing on 17 November 2004 (T: 69, 16.3.11). The fact details of an order given on 17 November 2004 extending the time, could be found by searching in a 'whole bundle of documents' sent to his opponents does not detract from the fact that his letter to Jackson McDonald made no mention that he had not complied with the order requiring the relevant documents to be filed by 12 November 2004 and that at that hearing an oral application to extend the time for compliance was made and was granted.

106 In light of the above, the statement of the practitioner in Exhibit 1, page 128 that 'our client's application for leave to appeal was filed by the Court ...' bristles with misrepresentation, not for what it says but for what it deliberately ­ as we find ­ fails to communicate, as set forth in the immediately preceding paragraph.

107 Jackson McDonald discovered from the documents received from Chapmans that the application for leave to appeal was not filed by 12 November 2004, but was filed on 15 November 2004. On 24 November 2004 they wrote a letter to Chapmans (Exhibit 1, page 130) asking for an explanation as to why they were not notified of the hearing on 17 November 2004 or why they were not served with the papers filed at the Court on 15 November 2004. They complain that they had not been informed about the hearing nor been given an opportunity to be heard in relation to the application for a further extension. The reasons Jackson McDonald give for being entitled to such notice or opportunity to be heard are listed in the letter, briefly as, fairness between the parties, a requirement of the Supreme Court Rules and professional courtesy.

108 They conclude the letter by reserving their right to apply to relist the matter seeking an order to revoke the Master's order of 17 November 2004. The letter is copied to the Supreme Court for the attention of the Master's Associate.

109 In his reply to the above letter, the practitioner on 2 December 2004 (Exhibit 1, page 134) labels the threefold reasons given for being entitled to an opportunity to be heard in the letter under reply, as 'with the greater respect, a nonsense'. He then sets out what he described as a summary of what occurred on 10 November 2004 (T: 77-8, 16.3.11) stating that the orders in relation to the whole matter were effectively made on that date.

110 The letter continues (Exhibit 1, page 135) as follows:

Master Sanderson then indicated through his Associate that he was not prepared to confirm the orders set out above administratively and accordingly the matter was referred again to Chambers on 17 November 2004. We attended on that date purely to finalise the administrative aspects of the orders made on 10 November 2004.

111 In cross­examination, it emerged clearly that this evidence contradicted his evidence before us that he did not know why he was required to return to Chambers. (T: 78 ­ 9, 16.3.11). The passage was ­ in our view ­ furthermore misleading because he knew that what transpired on 17 November 2004 was not only finalising 'the administrative aspects of the orders' of 10 November 2004'. This is clear from the letter he wrote to his client after returning from Chambers on 17 November reporting only on the grant of an extension of time, a substantive order, and not even mentioning the 'administrative' aspects dealt with (Exhibit 3, page 673).

112 His assertion in the letter on 2 December 2004 that there was 'simply no basis' to drag the matter back to the Master when what occurred on 17 November 2004 'was an administrative tidying up only' was, for the reasons set out above, a deliberate attempt to obfuscate the importance of having sought and obtained an extension of time without notice to the other side. We make this finding notwithstanding the fact that by this time Jackson McDonald had become aware than an extension of time had been granted, although the exact circumstances were at that stage, still unknown. The practitioner's repeated attempt to pass off the extension of time order as 'an administrative tidying up', even at that late stage, was calculated to misrepresent the position to his opponents.

113 Finally, in relation to the letter of 2 December 2004, the righteous indignation reflected in the penultimate paragraph thereof, that the copying of the correspondence to the Supreme Court was an attempt by Jackson McDonald to mislead the Court was, in the light of his knowledge of having applied for an extension of time without notice, dishonest.

114 It should be noted that the practitioner called as one of his witnesses, Ms Karene Primrose, who was the solicitor at Jackson McDonald having the conduct of the BAB file. Her evidence that she only discovered and understood fully what occurred on 27 November 2004 when she received a transcript of the proceedings of that day, (T: 88 ­ 90, 15.3.11) demonstrates the extent to which her firm had been misled by the letters from the practitioner on 17 November 2004 and 2 December 2004. The full effect of the practitioner's misleading conduct upon her is reflected in her letter to Chapmans dated 20 December 2004 after receipt of 17 November 2004 transcript. (Exhibit 1, page 138 ­ 140). Her evidence as to the uncertainty of the nature of the hearing which took place, what took place there, the doubts about what administrative tasks were being referred to and why they did not receive notice or an opportunity to appear, (T: 89, 15.3.11) is accepted by us.

115 It follows from what has been stated above that we reject the practitioner's evidence that he did not intend to mislead Jackson McDonald in his letters written on 17 November 2004 and 2 December 2004. Deliberately misleading fellow practitioners is fundamentally inimical to a practitioner's duties as an officer of the Court and undermines the trust which practitioners must invariably rely upon in their relationship with one another. The proper practice of the law is seriously compromised when practitioners cannot implicitly rely on the integrity of colleagues. We accordingly find that the Committee has proved, to the necessary degree of satisfaction, that the practitioner is guilty of professional misconduct in relation to Ground 3.

116 For the reasons set out in para [43] ­ [66] above, we find the practitioner guilty of unsatisfactory professional conduct in relation to Ground 1 of the complaint. In relation to Ground 2, we find the practitioner guilty of professional misconduct as set out in para [67] ­ [96]. We made a similar finding of professional misconduct in relation to Ground 3 for the reasons stated in para [97] ­ [115].

1. There is a finding that Mr Gandini is guilty of unsatisfactory professional conduct contrary to the Legal Profession Act 2008 (WA) with respect to a hearing in the Supreme Court of 9 August 2004 which involved a consistent failure to reach a reasonable standard of competence and diligence that a member of the public is entitled to expect.
2. There is a finding that Mr Gandini is guilty of professional misconduct contrary to the Legal Profession Act 2008 (WA) in that he made representations to the Supreme Court on 17 November 2004 which were intentionally misleading.
3. There is a finding that Mr Gandini is guilty of professional misconduct contrary to the Legal Profession Act 2008 (WA) in that letters which he wrote on 17 November 2004 and 2 December 2004 to law firm Jackson McDonald were deliberately misleading.
4. The Legal Profession Complaints Committee is to file and serve any submissions on penalty within 21 days of publication of these reasons.
5. Mr Gandini is to file and serve any submissions on penalty within 21 days of the service of the Legal Profession Complaints Committee's submissions.
6. Subject to any further order of the Tribunal, the question of penalty is to be dealt with on the papers.

I certify that this and the preceding [116] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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ACT : LEGAL PROFESSION ACT 2008 (WA)

CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE and GANDINI [2011] WASAT 86 (S)

BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE

Legal practice - Legal practitioner - Disciplinary proceedings - Practitioner guilty of unsatisfactory professional conduct and professional misconduct - Penalty

Legal Practice Act 2003 (WA), s 230(1)

Legal Profession Act 2008 (WA), s 621, s 621(1), s 622(1), s 622(2), Pt 13, s 402, s 403, s 403(1), s 438(2), s 439(b)

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

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

Council of New South Wales Bar Association v Sahade [2007] NSWCA 145

In Re Davis [1947] HCA 53; (1947) 75 CLR 409

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

Law Society (NSW) v Foreman (1994) 34 NSWLR 408

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

Legal Practitioners Complaints Committee and Segler [2010] WASAT 135

Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119

Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9

Legal Profession Complaints Committee and Gandini [2011] WASAT 86

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

The Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211

Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202

1 Under the Legal Profession Act 2008 (WA) the applicant (Committee) alleged that the respondent (Practitioner) had engaged in professional misconduct, based on three grounds. In a decision delivered on 8 June 2011 (Legal Profession Complaints Committee and Gandini [2011] WASAT 86) the Tribunal made findings that the Practitioner was guilty of:

(i) unsatisfactory professional misconduct in relation to an interlocutory application on 9 August 2004 (para [43] ­ [66] of the reasons for decision of the Tribunal (Reasons));

(ii) professional misconduct in deliberately misleading the Supreme Court on 17 November 2004 (para [67] ­ [96] of the Reasons); and

(iii) professional misconduct by deliberately misleading Jackson McDonald in letters dated 17 November 2004 and 2 December 2004 (para [97] ­ [115] of the Reasons).

2 We do not intend to burden these reasons unduly by repeating our detailed findings referred to above.

3 Pursuant to the order of the Tribunal that the parties file submissions on penalty and that the question of penalty be dealt with on the papers, Senior Counsel representing both parties filed detailed submissions which have proved most useful.

4 The Committee seeks an order that a report be submitted to the Supreme Court recommending that the Practitioner be struck off the Roll of Practitioners, contending that he is not a fit and proper person to remain a legal practitioner. It has referred to a number of authorities outlining well­known principles to be followed in recommending a striking off. None of those principles were disputed or contested by the Practitioner, and we summarise those principles below.

5 The jurisdiction of the Court to remove a practitioner from the Roll is exercised, not for the purpose of punishing the practitioner concerned, but for the protection of the public and the reputation and standards of the legal profession; see Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 at [43].

6 Where an order for removal from the Roll is contemplated, the ultimate question is whether the material demonstrates that the Practitioner is not a fit and proper person to remain a legal practitioner; see A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 at [15] (A Solicitor).

7 Fitness to practise is to be decided as at the time of the hearing, not as at the time that the relevant conduct was engaged in; see (A Solicitor) at [21].

8 Honesty, fairness and integrity are essential prerequisites to the right to practice law. A willingness to engage in dishonest behaviour is of central relevance to an assessment of a practitioner's fitness to practise; see Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119 at [8] and Council of New South Wales Bar Association v Sahade [2007] NSWCA 145 at [58].

9 Further, fitness to practise requires that a practitioner must command the personal confidence of his or her clients, fellow practitioners and judges; see In Re Davis [1947] HCA 53; (1947) 75 CLR 409 at [420].

10 Accordingly, account must also be taken by the Court of the effect which its order will have on the understanding, in the profession and the public, of the standard of behaviour required of solicitors; see Law Society (NSW) v Foreman (1994) 34 NSWLR 408 at [444F].

11 A practitioner's failure to understand the impropriety of his or her conduct may be a factor of great importance in determining whether they should be permitted to stay on the Roll; see The Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211 at [35].

12 We have also been referred to a number of authorities dealing with practitioners who have deliberately misled a court. The Committee has cited the well known work Lawyers' Professional Responsibility, by G E Dal Pont (4th ed, 2010) at 554, [25.10] where the learned author expresses the view that in such a situation, a practitioner is 'usually struck off'. However, we agree with the Practitioner's contention that, while a departure from the duty of honesty to the Court must attract a substantial penalty, such misconduct does not compel a removal from the Roll; see Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 (Vogt).

13 When re­examining the duty of a practitioner to the Court and to his/her legal colleagues, we can do no better than quote from The Council of the Queensland Law Society Inc v Wright [2001] QCA 58 (Wright) in which the Queensland Court of Appeal, confronted with a case of a solicitor who had intentionally misled a Court in an affidavit resisting a summary judgment application, expressed itself as follows:

A practitioner's duty to the court arises out of the practitioner's special relationship with the court; it overrides the duties owned by a practitioner to clients or others (citation omitted). The lawyer's duty to the court includes candour, honesty and fairness. The appellant abused her role as an officer of the court in relying on material she knew to be false and in deliberately and recklessly misleading the court in an attempt to further the interests of her clients and family. Her conduct was made more serious by its repetition. 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; at [67].

14 This dictum was specifically adopted by the Court of Appeal in Vogt at [61].

15 It should be mentioned that Wright was found guilty of six complaints of professional misconduct which included a repetition of a deception of the Court and an attempt to suborn a witness to make an affidavit to deceive the Law Society. She was struck off the Roll on a set of facts substantially different to those presently before us.

16 In resisting the Committee's contention for removal from the Roll, the Practitioner relied on three cases decided in Western Australia. In Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 the deception of the Court consisted of a statement by the practitioner in his opening at a trial to the effect that his client had signed a deed when he knew that he had not done so. The Disciplinary Tribunal in that case found that that statement was made by the practitioner in the expectation that the true position would emerge in the course of the trial. The effect of that finding therefore was that he did not ultimately intend to deceive the Court.

17 The Practitioner also relied upon Vogt in order to demonstrate that the making of a misleading affidavit and misleading submissions to the Court did not result in an order for removal. The Court of Appeal upheld a suspension of three months.

18 Finally, reliance was also placed upon the decision in Legal Practitioners Complaints Committee and Segler [2010] WASAT 135 (Segler) in which the practitioner was suspended for two months for misleading a Magistrate in an application for a restraining order by asserting that the respondent had a criminal record when that was not so.

19 A cogent factor taken into account by the Tribunal in that case in imposing that penalty was that the practitioner harboured a genuine fear for his own physical safety and had been subjected to abusive and threatening messages from the respondent.

20 The facts and findings of the Tribunal in Kyle and Segler are very different to those in the present case and little assistance can be derived from them.

21 The mitigatory factors in Vogt included the fact that the misconduct was a once­off, that there were numerous characters references in his support and that he did a great deal of voluntary pro bono work which would be adversely affected if he were suspended. By contrast, none of these factors are present in this case. Not only did the Practitioner fail to rectify his deception before the Master when he had an ample opportunity to do so, (and we reject the Practitioner's submission to the contrary) but he repeated his deception over a period of two weeks in two letters by deliberately misleading his opposing colleague when she requested details as to what had occurred at the hearing.

22 Counsel for the Committee in turn referred us to a number of cases decided in other jurisdictions in Australia in which the intentional misleading of the Court by practitioners was visited with striking off. However, as stated above, the circumstances of each case differ and reference to this case law may be unhelpful. What one does derive from these cases is an uncompromising and justifiably severe approach to any conduct involving intentionally misleading a Court, to be mitigated only by extenuating circumstances of varying degrees.

23 The Practitioner resists an order for striking off, contending that his unsatisfactory professional conduct referred to in para [(i)] of the introduction to these reasons warrants a reprimand or a fine of $1,500 ­ $2,000. It is urged on his behalf that the finding of unprofessional conduct in deliberately misleading the Supreme Court referred to in para [(ii)] warrants a fine of $10,000 or, if considered inadequate, a suspension from practise of three months from 1 June 2011. In relation to the finding of professional misconduct in misleading Jackson McDonald, referred to in para [(iii)], the Practitioner contends that a fine of $7,500 to $10,000 is appropriate and, if that is considered by the Tribunal as inadequate, a suspension from practice of an additional month should be imposed.

24 The circumstances relied upon by the Practitioner include the fact that there has been no previous transgression by him. Certainly, there have been no previous adverse findings against him which, in our opinion, must be taken into account. Further, it is argued that at the time of his misconduct in 2004, which was six and a half years prior to the hearing, he had only been in practice for six years, at a time when he was less experienced.

25 The Practitioner also submits, in mitigation, that in misleading the Court, he 'was not seeking to obtain a personal advantage'. The Committee on the other hand submits that there was such an advantage in that he was attempting 'to ameliorate the difficulties he could expect would arise between him and his client' in failing to lodge the application for leave to appeal timeously.

26 Whether or not there was a personal advantage carries little weight and, in our view, is not to the point. The gravity of the misconduct lies in deliberately misleading the Court for whatever reason. Every practitioner has an unconditional duty, as an officer of the Court, enshrined in the oath or affidavit taken by every practitioner on admission to the Roll, to uphold the law of the State which necessarily involves the demonstration of the utmost good faith to the Court and to fellow practitioners. The administration of justice would be seriously compromised without that axiomatic principle of our legal system.

27 The Practitioner further states that he ceased to practise from 1 July 2011 and that in considering a period of suspension, that period to the date of this order should be taken into account. However, the decision to cease practise was the Practitioner's own and was not made pursuant to any obligation to or requirement of the regulatory body or the Tribunal and will therefore carry little weight.

28 We propose to deal with the three complaints together for the purpose of imposing a penalty.

29 Although we have concentrated our remarks on the two complaints relating to professional misconduct as they are clearly far more serious, we have not lost sight of the practitioner's conduct in relation to the first complaint in which we have found him guilty of unsatisfactory professional conduct. Our failure to deal specifically with that complaint should not be seen as in any way minimising the seriousness of his conduct dealt with fully in the Reasons. We have however ascribed his conduct in relation to that complaint to incompetence on his part which, though serious and which has duly been taken into account, does not in our view merit the attention given by us to the far more serious complaints involving the deliberate misleading of the Supreme Court and his opposing colleague. In assessing an appropriate penalty, we have based our decision on the cumulative effect of our findings in relation to all the complaints.

30 Taking all the arguments into consideration, we are of the view that the imposition of a fine, even a heavy one, would be inadequate. On the other hand, we believe that a report to the Supreme Court is not justified in this case, bearing in mind particularly the Practitioner's record and his relative inexperience at the relevant time. It is our view that a period of suspension of 18 months is appropriate, the period to commence from the date of the orders below.

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

32 The contribution the affected person should be required to make lies in the discretion of the Tribunal, having regard to all of the circumstances of the case. Special matters can be taken into account to determine what is a fair and reasonable costs order; see Benari at [26] ­ [27].

33 The Practitioner accepts that a costs order against him is appropriate, but he contends that the Committee should not have briefed Senior Counsel.

34 However, the Tribunal is of the view that the briefing of Senior Counsel was fully justified and there appears to be no reason for refusing to waive the amounts claimed. The complaints were serious and at the higher end of the range. It is significant that the Practitioner himself specified Senior Counsel to draft the submissions on penalty.

35 The Practitioner has not raised any argument to the quantum of costs which has been fully documented and substantiated. The only objection related to the briefing of Senior Counsel. We see no reason why the full costs claimed should not be awarded.

36 We accordingly order costs in the sum of $23,832.50 to be paid within 30 days of the date of this order.

1. The Practitioner is not to be granted a local practising certificate for a period of 18 months to commence from the date of this order.
2. The Practitioner is to pay the Committee's costs fixed at $23,832.50 to be paid within 30 days of the date of these orders.

I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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