Did you discuss with your wife [JR's] termination? --- When it happened, yes.

And you both agreed that she should be terminated? --- Yes.

And that was because you couldn't afford to pay her more? --- That was one aspect of it. Well, we - yes. I mean, I had to a website and, ironically, sort of, [JR] said, ''You've got to get a website now. You're not getting any new business in.'' And that cost 10 grand roughly, and then there were search engine optimisation on top of that to get me on a Google search, and it was a slow period of the year. Being the wintertime, it's slow in criminal. And we were looking at all that, thinking, you know, this is getting very difficult now to maintain, because the money wasn't coming in.

1. We also note that in a letter to the Committee dated 13 November 2017, the practitioner referred to JR's 'obsession with a pay increase' and stated that '[s]he was eventually terminated because Lawson Legal couldn't meet her financial needs'.[163]
2. At 3.44 pm on Saturday 26 May 2012, the practitioner sent the following email from his work email address to JR's work email address (termination email):[164]

Lawson Legal is experiencing a significant financial downturn due to unforeseen financial events and advertising difficulties (which is dramatically affecting business).

Regrettably, I am unable to sustain your employment in the new fiscal year.

Your last working day will be 22 June 2012, whereby you will receive your final pay including your entitlements.

I will assist you to secure alternative legal employment.

1. The termination email is consistent with JR's evidence that she asked for a pay rise and was turned down by the practitioner, because it refers to Lawson Legal 'experiencing a significant financial downturn due to unforeseen financial events and advertising difficulties' and '[r]egrettably, I am unable to sustain your employment in the new fiscal year'. Furthermore, the termination email clearly indicates that JR's employment was terminated by the practitioner solely or primarily for financial reasons, not because of any unprofessional conduct or unsatisfactory conduct on the part of JR. Indeed, the concluding statement in the termination email ('I will assist you to secure alternative legal employment') is entirely inconsistent with JR's employment having been terminated by the practitioner for unprofessional conduct or unsatisfactory conduct.
2. In re-examination, the practitioner was asked 'why you didn't include or describe or point to [JR's] other aspects of unprofessional conduct' in the termination email and the practitioner replied as follows:[165]

Look, I don't want to throw salt in the wounds, you know. She was very upset, she was depressed, so I left it at financial and I said I would help her obtain other employment. Okay. But if you look in that email it says due to unforeseen financial events and advertising difficulties. That's the website, advertising my business. Nobody could see it.

1. Mr Eyers submits that the practitioner's explanation for not referring to any unprofessional conduct in the termination email 'is consistent with common sense and the high regard that the [practitioner] had for JR's legal ability and disinclination to blight her future career prospects'.[166] However, the 'high regard' that the practitioner had for JR's legal ability is in itself inconsistent with her employment having been terminated for reasons of unprofessional conduct or unsatisfactory conduct. Furthermore, in his answer to Mr Eyers' question in re-examination set out in the preceding paragraph, the practitioner himself stressed the financial reason for terminating JR's employment. The termination email is an important contemporaneous piece of evidence which is entirely inconsistent with the statements made in the 28 May 2017 letter and in the ML statement that JR's employment was primarily terminated for unprofessional conduct or unsatisfactory conduct.
2. As JR said in evidence, on either Monday 28 May 2012 or Tuesday 29 May 2012, the practitioner had a conversation with her in the office 'essentially withdrawing the termination and asking me to stay on, at which point I said to [the practitioner] that I just - I was actually resigning. I wasn't going to stay'.[167] The practitioner conceded in cross­examination that, after he sent JR the termination email, he had 'a conversation with [her] in which [he] suggested that she, in fact, continue working for [him]'.[168]
3. As JR said in evidence, the termination email 'came as a complete surprise' to her.[169] The practitioner and JR had never previously had any discussions about the possibility of her employment being terminated and, as she said, '[a]ll the feedback I got was positive'.[170] Consistently with JR's evidence, the practitioner described her in cross-examination as 'a good work colleague' and 'excellent at her job',[171] and described her work as 'brilliant'.[172] In re­examination, the practitioner also said about JR that 'She was great. She did excellent work'.[173]
4. Furthermore, consistently with the practitioner's statement in the termination email that 'I will assist you to secure alternative legal employment', both JR and the practitioner gave evidence that the practitioner sought to find her employment. The practitioner gave evidence that 'between ... 26 May [2012] and 22 June [2012], I was working on getting [JR] alternative employment'.[174] Indeed, over three months after JR left Lawson Legal, the practitioner sent her the following email on 6 October 2012:[175]

I've called you a couple of times regarding possible employment opportunities.

I could have had you placed in a family law firm and I also would have offered you a position here (we're now expanding to migration law), but I've had to get someone else.

Given that you haven't replied I assume your [sic] not interested in practicing [sic] law anymore.

1. The evidence referred to at [122] ­ [131] above, including the practitioner's evidence and the documentary evidence in terms of the termination email and the practitioner's email to JR dated 6 October 2012, is entirely inconsistent with JR's employment having been terminated for any unprofessional conduct or unsatisfactory conduct on her part.
2. The practitioner gave evidence­in­chief that the content of his 28 May 2017 letter to the Committee is '[t]ruthful'[176] and that, 'as far as [he is] concerned', the content of the ML statement is '[t]ruthful'.[177] However, as the Committee submits, '[n]o evidence was given by the practitioner of conduct by JR which amounts to unprofessional conduct [or unsatisfactory conduct], other than generalised assertions'.[178] The practitioner's evidence­in­chief on this topic simply consisted of the statement that the contents of the 28 May 2017 letter and the ML statement were '[t]ruthful'. In cross-examination, the practitioner was specifically asked what he means by 'unprofessional conduct' in the context of the 28 May 2017 letter, and he gave the following evidence in response:[179]

What happened was ­ if you would let me explain and if I can tell you ­ there was a big problem. She couldn't make ends meet. The unprofessional ­ and that caused her a lot of stress and she seemed somewhat depressed over that. And her unprofessional conduct is what happened between her and my wife on a great big argument in the office, and she had to go. I mean, up to that point she was ­ she seemed ­ very depressed. She was quite snappy. She was very distressed over what was going on towards the end of her tenure with me.

1. Mr Eyers submits that '[t]he explanation by the [practitioner] for his termination of JR as being for 'unprofessional conduct and financial concerns' is most comprehensively gleaned from his re-examination'.[180] In re-examination, the practitioner gave the following evidence:[181]

Why didn't you ­ just clarify this: why didn't you retain [JR] going forward from this period of time? --- For the two reasons: my wife had ­ it was ­ it was ­ my wife didn't want to be in the office, as simple as that. So it was very uneasy. [JR] was in an extreme unhealthy state. She was very depressed. She was very snappy. It ­ it ­ her conduct was just to me unprofessional. She couldn't get along in there anymore, right, and wasn't happy, just ­ it was awful. It was just an awful scene from what I saw before she became a practitioner on salary.

1. However none of the evidence given by the practitioner, including the whole passage of re-examination relied on by Mr Eyers in his submissions,[182] provides any cogent or satisfactory basis for considering that JR's conduct was unprofessional or unsatisfactory, much less that her employment was terminated for those reasons. It appears that a conflict developed between ML and JR. However, it appears that the underlying cause of the conflict was JR's request for a pay rise and Lawson Legal's financial circumstances, and could not in any way reasonably be characterised as reflecting unprofessional conduct or unsatisfactory conduct on the part of JR.
2. ML also did not give any cogent or satisfactory evidence supporting her allegation in her statement that JR's employment was terminated due to unsatisfactory conduct. When she was asked in examination­in­chief 'what do you mean by the two words "unsatisfactory conduct" in relation to [JR]?', ML said that JR 'was an intense person, a very angry person in her demeanour and always ­ she would complain about something all the time but mainly financial ­ financially, saying that she never had enough money to ­ to do things'.[183] When asked later by Mr Eyers to 'just describe [JR's] demeanour and presentation' on one occasion when she had had a heated telephone conversation with her child's day care centre, ML replied:[184]

She was yelling at me. Her voice was loud. She was very frustrated, very angry, very intense and just ­ just basically blaming everything that ­ what was going on in her life at that point of time there and then. So it was just a build-up of everything.

1. In cross-examination, when ML was asked 'when you said unsatisfactory conduct, unsatisfactory conduct professionally or personally?', ML replied '[i]t was personally, which flowed on professionally', and then when asked 'professionally how?', ML replied '... [JR's] demeanour was quite ... intense ... and she was very angry, and you could feel that when you walked into the office' and 'my biggest concern was the fact that if I could feel that if I - walking into the office, that potential clients could also feel that as well'.[185]
2. ML did not provide any cogent or satisfactory evidence supporting the allegation that JR engaged in unsatisfactory conduct, much less that her employment was primarily terminated for that reason. It appears, even from ML's evidence, that, consistently with JR's evidence, JR wanted a pay rise and this request caused conflict between her and ML. Furthermore, there is absolutely no evidence that anything about JR's 'demeanour' manifested in any unprofessional or unsatisfactory conduct affecting clients or potential clients of Lawson Legal. Indeed, the practitioner's glowing evidence as to JR's work, his suggestion after the termination email that she continue to work for him, and his efforts to find her alternative employment, are all inconsistent with such a proposition. Finally, as the Committee submits, the terms of ML's apology email, which is set out at [59] above, are 'at odds' with the allegation that JR's employment was terminated due to unsatisfactory conduct on her part.[186] As the Committee submits, in the apology email ML 'attempted to persuade JR to remain working with Lawson Legal and said she wished to remain friends'.[187]
3. As it is clear that JR's employment was solely or primarily terminated by the practitioner because she wanted a pay rise and Lawson Legal was experiencing a financial downturn at the time, and not because of any unprofessional or unsatisfactory conduct by JR, the practitioner made false and misleading representations to the Committee in terms of ground 7 by sending the 28 May 2017 letter to the Committee and enclosing the ML statement. Furthermore, the only reasonable inference is that the practitioner knew that the representations as to the reason for the termination of JR's employment were false and misleading and intended that the Committee be misled by them, because he obviously knew that the sole or primary reason he terminated JR's employment was financial and not any unprofessional or unsatisfactory conduct on JR's part, and he wanted to discredit JR in the eyes of the Committee when it was considering the conduct investigation in which JR's evidence and information was material.
4. As we explained at [103] above, intentionally seeking to mislead the Committee in a conduct investigation constitutes professional misconduct under the LP Act. The practitioner engaged in professional misconduct in terms of ground 7.

Ground 8 - Knowingly or recklessly making false and/or misleading representations to the Board in a letter and an email

1. In late May or early June 2017, the practitioner submitted an online application for the renewal of his local practising certificate for the year ending 30 June 2018 to the Board (renewal application). By letter dated 28 July 2017, the Board requested further information from the practitioner in relation to the Committee's conduct investigation concerning the matters now the subject of grounds 1 - 5 for the purposes of consideration of the renewal application by the Board. In response to the letter from the Board dated 28 July 2017, under cover of the letter to the Board dated 3 August 2017, in which the practitioner said that '[CL's] complaint is contested', the practitioner provided to the Board his 28 May 2017 letter to the Committee together with the ML statement. The practitioner gave evidence that the content of his letter dated 3 August 2017 to the Board is '[t]ruthful'.[188]
2. As we found in relation to ground 7, the 28 May 2017 letter and the ML statement contained the false and misleading representations on account of which we determined that the practitioner engaged in professional misconduct in terms of ground 7. As Mr Eyers observes in the practitioner's submissions, '[t]he Tribunal's determination of [g]round 7 will obviously also determine the issue predicated upon the [practitioner's] letter of 3 August 2017'.[189] For the reasons we have given in relation to ground 7, by providing a copy of the 28 May 2017 letter and the ML statement to the Board, the practitioner knowingly sought to mislead the Board in its consideration of the renewal application. Knowingly seeking to mislead a regulator of the legal profession in its consideration of an application for the renewal of a practitioner's local practising certificate is conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence (within the first limb of the restatement of the common law concept of unprofessional conduct in Kyle v Legal Practitioners' Complaints Committee at [61]), and is also conduct that, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence (within the second limb of the restatement of the common law concept of unprofessional conduct in Kyle v Legal Practitioners' Complaints Committee at [61]), and constitutes professional misconduct under the LP Act.
3. By an email dated 8 August 2017 to the Board, the practitioner substituted three paragraphs for paragraphs in his letter dated 3 August 2017 to the Board, which he referred to as 'my submissions'.[190] One of the paragraphs that the practitioner requested be substituted in his submissions to the Board for the purposes of his renewal application states as follows:[191]

Further, the [Committee] erroneously alleges that I did not perform the legal work that I billed for, namely, 2 written opinions that my College of Law student (on work experience) completed without any consultation or collaboration from me. She had not done legal opinions before. This is a total fabrication from a problematic employee, that I terminated shortly afterwards (when she was a restricted practitioner), with a history of psychological problems.

1. The practitioner gave evidence that the content of his email dated 8 August 2017 to the Board is '[t]ruthful'.[192] However, the final sentence of the substituted paragraph set out immediately above contains false and misleading representations. In particular, we are satisfied on a balance of probabilities and feel an actual persuasion on the evidence that the allegation that the practitioner did not perform the legal work that he billed for is not 'a total fabrication', JR was not 'a problematic employee', JR did not and does not have 'a history of psychological problems', and her employment was not terminated by the practitioner because of any such history.
2. In light of our reasons and determination that the practitioner engaged in professional misconduct in terms of grounds 1 and 3, the information given by JR to the Committee in relation to the conduct investigation (and her evidence to the Tribunal) was not 'a total fabrication', but was rather truthful and accurate.
3. There is no cogent evidence that JR was 'a problematic employee'. As indicated earlier, the practitioner regarded JR as 'excellent at her job'[193] and 'a good work colleague',[194] and said that '[h]er work was brilliant'.[195] While it appears that a conflict developed between ML and JR, it arose because JR wanted a pay rise of $100 a week to meet her expenses, whereas ML and the practitioner considered that Lawson Legal could not afford it (and, indeed, could no longer afford to pay JR's previously agreed salary).
4. Furthermore, there is absolutely no evidence that JR had 'a history of psychological problems' and there is no basis in the evidence on which the practitioner could reasonably have believed that. We accept JR's evidence that, although she had previously undergone counselling, she has never been diagnosed with any psychiatric illness or psychological condition.[196] Further, as the Committee submits, the 'plain effect of the [practitioner's] email [to the Board] was, relevantly, to represent that JR's employment had been terminated due to her 'psychological problems''.[197] However, as we found in relation to ground 7, the practitioner's employment was terminated solely or primarily because of JR's request for a pay rise and Lawson Legal's financial position.
5. The only reasonable inference is that the practitioner knew that the relevant representations were false and misleading and intended that the Board be misled by them. The practitioner obviously made the false and misleading representations referred to above intentionally, because he knew why he had terminated JR's employment and he was seeking to discredit her and the evidence and information she gave to the Committee in the conduct investigation in order to persuade the Board to renew his local practising certificate. As we said earlier, knowingly seeking to mislead the Board in its consideration of an application to renew a local practising certificate constitutes professional misconduct under the LP Act. The practitioner engaged in professional misconduct in terms of ground 8.

Ground 9 - Knowingly or recklessly making false and/or misleading representations to the Committee in response to a letter regarding the conduct investigation

1. By letter to the practitioner dated 20 October 2017, the Committee sought clarification of a number of statements made by him in the 28 May 2017 letter and invited him to revisit any other statements in that letter. By letter to the Committee dated 13 November 2017, the practitioner represented that the contents of the 28 May 2017 letter were true and correct. Furthermore, the practitioner expressly confirmed, in relation to the First Opinion, that '[t]he rough draft would have been in a word document file' and 'was a work in progress but the majority of my work was conducted during a weekend',[198] and 'I commenced working on a draft the following day on 20 July 2011 and it was presented to [CL] on 26 July 2011',[199] and, in relation to the Second Opinion, that 'I worked on the [S]econd [O]pinion on and off from 26 July to 28 July [2011]'.[200]
2. The practitioner gave evidence that the content of his letter to the Committee dated 13 November 2017 is '[t]ruthful'.[201] However, for the reasons we have given in relation to ground 7 (and grounds 1 and 3), the practitioner's representation in his letter to the Committee dated 13 November 2017 that the contents of the 28 May 2017 letter were true and correct, and the specific statements referred to in the preceding paragraph, were false and misleading. The only reasonable inference is that the practitioner knew that his representations to the Committee were false and misleading and intended that the Committee be misled by them. The practitioner obviously made the false and misleading statements to the Committee intentionally, because he knew what work that he did and did not do in relation to CL's matter and he was seeking, by his representations, to persuade the Committee to terminate the conduct investigation or to determine it favourably to the practitioner. The practitioner therefore engaged in professional misconduct in terms of ground 9.

1. For the reasons set out above, we make the following findings of professional misconduct:
   1. The practitioner on about 6 August 2011, engaged in professional misconduct within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA) (LP Act) in that his conduct fell short, to a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, and would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, by preparing and issuing to his client (CL), at CL's request, an itemised account dated 6 August 2011 (First Itemised Account) relating to tax invoice 0545 dated 31 July 2011 in the sum of $27,500 (including GST) for the practitioner's fees for legal services (Original Invoice), in circumstances where the practitioner knew the First Itemised Account was false and misleading in material respects and intended CL be misled by the First Itemised Account.
   2. The practitioner, on about 31 October 2011, engaged in professional misconduct within the meaning of s 403 and s 438 of the LP Act in that his conduct fell short, to a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, and would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, by preparing and sending to the Legal Profession Complaints Committee (Committee) a letter dated 31 October 2011 (31 October 2011 letter) in response to a letter from the Committee dated 7 October 2011 regarding a complaint made by CL against the practitioner, in circumstances where the practitioner knew the 31 October 2011 letter was false and misleading in a material respect and intended the Committee be misled by the 31 October 2011 letter.
   3. The practitioner, on about 13 May 2012, engaged in professional misconduct within the meaning of s 403 and s 438 of the LP Act in that his conduct fell short, to a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, and would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, by preparing and issuing to CL, at CL's request, an itemised account dated 13 May 2012 (Second Itemised Account) relating to tax invoice 0545C dated 13 May 2012 in the sum of $27,544 (including GST) for the practitioner's fees for legal services, in circumstances where the practitioner knew the Second Itemised Account was false and misleading in material respects and intended CL be misled by the Second Itemised Account.
   4. The practitioner, on about 16 and 17 August 2012, engaged in professional misconduct within the meaning of s 403 and s 438 of the LP Act in that his conduct fell short, to a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, and would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, by swearing and filing, or permitting to be filed, an affidavit dated 16 August 2012 (affidavit) in Supreme Court of Western Australia costs assessment proceeding LPA 16 of 2012 commenced by CL against the practitioner (costs assessment proceeding), in circumstances where the practitioner knew the affidavit was false and misleading in material respects and intended the Supreme Court be misled by the affidavit.
   5. The practitioner, on about 18 June 2013, engaged in professional misconduct within the meaning of s 403 and s 438 of the LP Act in that his conduct fell short, to a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, and would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, by filing, or permitting to be filed, a bill of costs dated 14 June 2013 in the sum of $22,253 (including GST, but excluding a claim for drafting the bill and preparing for and attending the taxation) (Bill of Costs) in the costs assessment proceeding, in circumstances where the practitioner knew the Bill of Costs was false and misleading in material respects and intended the Supreme Court and CL be misled by the Bill of Costs.
   6. The practitioner, between about 18 June 2013 and about 30 September 2014, engaged in professional misconduct within the meaning of s 403 and s 438 of the LP Act in that his conduct fell short, to a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, by not refunding to CL the sum of $5,247, being the difference between the Original Invoice ($27,500) and the Bill of Costs ($22,253) for the practitioner's professional fees for legal services.
   7. The practitioner, on about 28 May 2017, engaged in professional misconduct within the meaning of s 403 and s 438 of the LP Act in that his conduct fell short, to a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, and would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, by preparing and sending to the Committee a letter dated 28 May 2017 (28 May 2017 letter) in response to a letter from the Committee dated 19 April 2017 regarding a conduct investigation pursuant to s 421(1) of the LP Act (conduct investigation), and providing to the Committee with the 28 May 2017 letter a witness statement dated 23 May 2012 from the practitioner's wife (ML; ML statement), in circumstances where the practitioner knew the 28 May 2017 letter and the ML statement were false and misleading in material respects and intended the Committee be misled by the 28 May 2017 letter and the ML statement.
   8. The practitioner, on or about 3 August 2017 and 8 August 2017, engaged in professional misconduct within the meaning of s 403 and s 438 of the LP Act in that his conduct fell short, to a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, and would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, by:
      1. under cover of a letter to the Legal Practice Board of Western Australia (Board) dated 3 August 2017, and in response to a letter from the Board dated 28 July 2017 requesting further information in relation to the conduct investigation for the purposes of consideration by the Board of the practitioner's application for the renewal of his local practising certificate, providing a copy of the 28 May 2017 letter and a copy of the ML statement; and
      2. preparing and sending to the Board an email dated 8 August 2017 (8 August 2017 email),

in circumstances where the practitioner knew the 28 May 2017 letter, the ML statement and the 8 August 2017 email were false and misleading in material respects and intended the Board be misled by the 28 May 2017 letter, the ML statement and the 8 August 2017 email.

1. The practitioner, on about 13 November 2017, engaged in professional misconduct within the meaning of s 403 and s 438 of the LP Act in that his conduct fell short, to a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence, and would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, by preparing and sending to the Committee a letter dated 13 November 2017 (13 November 2017 letter) in response to a letter from the Committee dated 20 October 2017 regarding the conduct investigation in circumstances where the practitioner knew the 13 November 2017 was false and misleading in material respects and intended the Committee be misled by the 13 November 2017 letter.

Programming orders in relation to the issues of penalty and costs

1. Having determined that the practitioner engaged in professional misconduct in terms of each of the nine grounds alleged, the Tribunal must now determine the appropriate professional disciplinary consequence of that conduct and the Committee's application for a costs order.
2. We make the following programming orders:
   1. By 29 December 2021 the applicant is to file and serve its submissions in relation to penalty and costs together with a schedule of the amount of costs and disbursements it seeks and supporting accounts.
   2. By 27 January 2022 the respondent is to file and serve his submissions in relation to penalty and costs and any evidence, including character references, on which he relies.
   3. By 31 January 2022 the applicant is to file and serve a statement of the names of the authors of any witness statements or character references filed in accordance with the preceding order who are required for cross­examination.
   4. The matter is listed for a directions hearing in the President's list at 9.30 am on 1 February 2022 in order to list the issues of penalty and costs for determination on the documents or at a hearing.

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

CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE and LAWSON [2021] WASAT 152 (S)

BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE

Vocational regulation ­ Legal practitioners ­ Professional misconduct ­ False and misleading statements to client, Legal Profession Complaints Committee, Legal Practice Board and Supreme Court ­ False and misleading statements about junior practitioner ­ Penalty, costs and compensation order ­ Report to Supreme Court with recommendation that name of practitioner be removed from local roll of practitioners ­ Order that practitioner pay applicant's costs ­ Scope of jurisdiction to make compensation orders

Legal Profession (State Administrative Tribunal) Determination 2018

Legal Profession (State Administrative Tribunal) Determination 2020

Legal Profession Act 2008 (WA), s 438, s 438(2), s 438(2)(a), s 438(4)(a), s 438(4)(b), s 439, s 440, s 441, s 448, s 449(1)(a)

State Administrative Tribunal Act 2004 (WA), s 60(2), s 87, s 87(2)

The Tribunal to make and transmit a report to the Supreme Court (Full Bench) with a recommendation that the name of the practitioner be removed from the roll of persons admitted to the legal profession under the LP Act.

The practitioner to pay the applicant's costs fixed at $71,890.40.

Bristol Custodians Ltd v Chief Commissioner of State Revenue (No 3) [2013] NSWADT 171

Fasham Johnson Pty Ltd v Ware and Saunders [2004] VCAT 1708

Fletcher v The Salvation Army Australia [2006] VCAT 740

Khosa v Legal Profession Complaints Committee [2017] WASCA 192

Legal Profession Complaints Committee and Chang [2019] WASAT 67 (S)

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

Legal Profession Complaints Committee and Lawson [2021] WASAT 152

Legal Profession Complaints Committee and Metaxas [2021] WASAT 82 (S); (2022) 105 SR (WA) 81

Legal Profession Complaints Committee and Wroughton [2013] WASAT 1919

Medical Board of Australia and Alizadeh [2007] WASAT 69

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

Mihelcic v Toll Tasmania [2007] VCAT 1312

Quinlivan v Legal Profession Complaints Committee [2012] WASCA 263 (S)

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

Young v Legal Profession Complaints Committee [2022] WASCA 52

Introduction, Constitution of the Tribunal, Procedural History, Overview of Relevant issues and Result

1. On 30 November 2021 the Tribunal published its reasons for decision in Legal Profession Complaints Committee and Lawson [2021] WASAT 152 (Lawson; Primary Decision).
2. These reasons are supplemental to the Primary Reasons and should be read together with them. In these reasons we use terminology and acronyms designed to anonymise certain persons that are consistent with the Primary Reasons.
3. The Primary Reasons were published by the Tribunal as constituted by Judge Parry, Senior Member Aitken and Member Marillier, who heard the matter on 1 September and 12­16 and 21 October 2021.
4. The Primary Reasons record that the Tribunal found that the respondent, Richard James Lawson (practitioner) had engaged in nine counts of professional misconduct pursuant to s 438 of the Legal Profession Act 2008 (WA) (LP Act).
5. By the Primary Reasons, the Tribunal also made orders for the filing and serving of submissions in relation to penalty and costs and the listing of the matter for directions on 1 February 2022.
6. On 31 January 2022, the parties consented to the making of orders which vacated the directions hearing on 1 February 2022, provided for the applicant to file and serve submissions in reply, and for the issues of penalty and costs to be determined entirely on the documents, pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
7. Judge Parry retired with effect from 1 February 2022. Judge Jackson was appointed to the position of Deputy President of the Tribunal with effect from 31 January 2022.
8. These reasons have been prepared by a reconstituted Tribunal comprising of the original two members, Senior Member Aitken and Member Marillier, and Judge Jackson instead of Judge Parry.
9. Unless otherwise indicated, all subsequent references to 'the Tribunal' and statements to the effect that 'we' are of a particular view as well as references to 'our decision' are references to the reconstituted panel of Judge Jackson, Senior Member Aitken and Member Marillier.
10. These reasons are concerned with the issues of penalty, costs and an application for an order as to compensation.
11. The orders made on 31 January 2022 do not include in the list of relevant issues for determination an application for a compensation order notwithstanding that on 25 January 2022, solicitors for JR applied informally (by letter) for an order that the practitioner pay JR an unstated sum by way of compensation. JR is a former employee of the practitioner who was the subject of false and misleading representations made by the practitioner to the applicant and to the Legal Practice Board (Board) which were the subject of Grounds 7 and 8.
12. JR's application was copied to the parties. Both parties subsequently made submissions (albeit that the applicant's submissions of 4 February 2022 were in 'reply'), and neither of them addressed the application for compensation by JR.
13. The Tribunal has determined to accept the application and to determine the issue.
14. For the reasons set out below, and having had regard to the Primary Reasons as well as the written submissions and other materials provided by the parties and JR, we have determined that:

(a) the appropriate penalty to be imposed is an order that the Tribunal make and transmit a report to the Full Bench of the Supreme Court with a recommendation that the name of the practitioner be removed from the local roll;

(b) the practitioner is to pay the applicant's costs fixed in the sum of $71,890.40; and

(c) the application by JR that the practitioner pay her compensation is dismissed.

Restatement of the nature of the practitioner's conduct

1. It is convenient to briefly restate the nature of the practitioner's conduct which, by the Primary Reasons, the previously constituted Tribunal found constituted professional misconduct in relation to each of the nine grounds.
2. Of those nine grounds, all but Ground 6 concern the making of false and misleading statements in circumstances where the practitioner intended the recipient of the statement to be misled.
3. Grounds 1 and 3 concerned the preparation and issuing of an itemised account to the practitioner's client (CL) for sums of ~$27,500 (disputed fees) in circumstances where it was found that the itemised account was false in that the practitioner claimed to have done work (and a considerable amount of work) that he had not in fact done and knew he had not done.
4. Grounds 4 and 5 concerned the swearing and filing of an affidavit and the filing of a bill of costs in the Supreme Court, both of which were associated with the disputed fees, and both of which were found to have been false and misleading, effectively, for reasons that correspond with those for Grounds 1 and 3.
5. Grounds 2, 7, 8 and 9 concerned the sending of correspondence to the applicant (Grounds 2, 7 and 9) and the Board (Ground 8) which, in each case, were also associated with the disputed fees and in each case were found to have been false and misleading.
6. As noted above, Grounds 7 and 8 concerned false and misleading statements regarding JR, who had done the vast majority of the work for which the practitioner falsely claimed credit and sought payment for.
7. JR had been approached by the applicant as part of its investigation into complaints made against the practitioner by CL and she had done no more than answer the applicant's questions honestly and fairly. In order to discredit JR's answers to the applicant, which were contrary to the answers given by the practitioner, he alleged that her employment had been terminated[202] for unprofessional conduct and also that the answers given by JR to the applicant amounted to a fabrication by a problematic employee 'with a history of psychological problems'. The Tribunal held that there was no basis for those allegations, which were false and misleading and intended to mislead the applicant.
8. The exception to the general statement that all of the grounds concerned allegations of false and misleading statements is Ground 6, which concerns a failure to promptly refund to CL the sum of approximately $5,000 being the difference between the original invoice and the bill of costs. Ground 6 was admitted by the practitioner.

The position of the parties as to penalty, costs and compensation

1. In short, the applicant seeks an order that the Tribunal make and transmit a report to the Full Bench of the Supreme Court with a recommendation that the practitioner's name be removed from the local roll of practitioners. The applicant also seeks an order that the practitioner pay the applicant's costs of the proceeding fixed in the amount of $71,890.40.
2. Initially, the applicant also sought an order that the practitioner's local practising certificate be suspended pending the determination of recommendation as to strike off. However, the subsequent submissions of the practitioner advised that he had ceased legal practise upon the advice of his general practitioner and submitted that, therefore, the proposed suspension of his practising certificate 'is moot'. Accordingly, by way of submissions in reply, the applicant advised that it no longer sought an order of suspension.
3. The practitioner made no submissions in relation to the substantive penalty. In response to the submission by the applicant for an order as to its costs, the practitioner advised that he was, effectively, unemployed, had applied for a Centrelink pension, has no income with which to satisfy any costs orders made and that it would be unduly harsh or onerous to make such a costs order. In support of those submissions various financial documents were put to the Tribunal.
4. Finally, as noted above, an application was made on behalf of JR for a compensation order which was supported by submissions contained in the same letter that sought the order. No submissions were made as to a particular quantum sought.

1. Section 438(2) of the LP Act provides that the Tribunal may, after it has completed a hearing in relation to a referral under Part 13 of the LP Act in respect of an Australian legal practitioner, either make and transmit a report to the Full Bench of the Supreme Court on its finding that the practitioner is guilty of, amongst other things, professional misconduct[203] or make any one or more of the orders specified in sections 439, 440[204] and 441.
2. Amongst other things, s 439 of the LP Act permits the Tribunal to order that a local practising certificate be suspended for a specified period of time or cancelled, to make an order publicly reprimanding the practitioner, and to make an order that certain specified conditions be imposed on the practitioner's practising certificate.
3. The principles to be applied in determining the appropriate disciplinary sanctions are well established and were set out by the Court of Appeal in Khosa.[205] Those principles include the following:

(a) The Tribunal's jurisdiction in this regard is not to be exercised for the purpose of punishing the relevant practitioner but, rather, for the protection of the public and the maintenance of the reputation and standards of the legal profession;

(b) The protection of the public includes both general deterrence of other practitioners who might otherwise be tempted to engage in the relevant conduct as well as deterrence personal to the relevant practitioner;

(c) Where the Tribunal concludes that a practitioner is presently unfit to practise, a choice is presented between the alternatives of suspension and striking off. An order for suspension in those circumstances may only be made on the basis that, at the termination of the period of suspension, the practitioner will no longer be unfit to practise because, at that time, the practitioner's name will still be on the roll of practitioners and they may resume practise;

(d) Suspension is a serious form of discipline which is usually imposed to discipline the legal practitioner, who has committed an act of unprofessional conduct but who, in the opinion of the Tribunal, at the end of the period of suspension, will be a fit and proper person to practise law;

(e) In the context of suspension, present unfitness to practise may be understood to include a serious breach of professional obligations reflecting, to a significant degree, upon the practitioner's fitness to practise;

(f) However, where the Tribunal finds that the practitioner's present unfitness to practise reveals or discloses that the practitioner, in fact, lacks the character and trustworthiness necessary to discharge his or her obligations of legal practice or the practitioner is permanently or indefinitely unfit to practise, striking off will ordinarily be the appropriate response rather than suspension;

(g) In seeking to understand the difference, it will be relevant to consider whether the practitioner appreciates or otherwise the impropriety of his or her conduct because a lack of appreciation of impropriety and a lack of insight increases the risk of recurrence of the improper conduct;

(h) Fitness to practise for the purpose of penalty is to be determined at the time of the relevant hearing and not at the time of the misconduct.

1. As was said in the recent decision of the Tribunal in Metaxas:[206]

In summary, where an order for removal from the roll is contemplated, the ultimate question is whether the impugned conduct of the practitioner and all of the surrounding circumstances demonstrates that the practitioner is not a fit and proper person to remain a member of the legal profession. Where the conduct of the practitioner indicates that they lack the qualities of honesty and integrity, striking off is likely to be the penalty because those character deficiencies are unlikely to be remedied during a period of suspension. In contrast, suspension would generally be appropriate where:

(a) the Tribunal considers that although the practitioner has fallen below the high standards required of a practitioner, the circumstances are such that [the Tribunal is satisfied that] their current unfitness to practise will be overcome during a period of suspension; or

(b) although the practitioner is thought to be fit to practise, the seriousness of the practitioner's conduct [in this particular case] is such that the appropriate outcome is a period of suspension in order to protect the public, through general deterrence, and otherwise maintain the standards of the profession.

1. As indicated above, the Tribunal has determined that the appropriate penalty is to order that the Tribunal make and transmit a report to the Full Bench of the Supreme Court with a recommendation that the name of the practitioner be removed from the local roll of practitioners. We are of that view having regard to the following matters of relevance.
2. First, as indicated above, 8 of the 9 findings of professional misconduct were for knowingly seeking to mislead CL, the Supreme Court, the applicant and the Board.
3. With regard to Grounds 1 and 3, which concerned the preparation and issuing of an itemised account, the Tribunal found at [83] of the Primary Reasons that:

the practitioner's conduct was grossly unfair to CL and involved serious dishonesty and therefore serious impropriety affecting his character, which is indicative of a failure either to understand or to practise the precepts of honesty and fair dealing that are essential to the privilege and responsibilities of legal practice.

1. In relation to Grounds 4 and 5, the Tribunal noted that to intentionally seek to mislead a court is 'self­evidently serious professional misconduct'.[207]
2. At [103] of the Primary Reasons, in relation to Ground 2, the Tribunal found that the conduct involved:

serious dishonesty and therefore serious impropriety affecting his character, which is indicative of a failure either to understand or to practise the precepts of honesty and fair dealing which are essential to the privilege and responsibilities of legal practice. It also "undermine[d] the authority of a regulatory body" [being the applicant] to effectively investigate the complaint made by CL ... and thereby to seek to protect the public in their dealings with lawyers and to maintain the reputation and standards of the legal profession.[208]

1. The Tribunal agrees with the applicant's submissions that the findings at paragraph [103] of the Primary Reasons in relation to Ground 2 are equally applicable to Grounds 7 and 9.
2. The second point of relevance is that the dishonesty the subject of Grounds 1 to 5 and 7 to 9 cover a lengthy period of time. Ground 1 alleges the creation of a false and/or misleading itemised account dated 6 August 2011. Ground 9 alleges the preparation and sending of a letter to the applicant dated 13 November 2017. That is, the practitioner's dishonesty extended over a period of more than six years.
3. Indeed, and this is the third matter of relevance, the practitioner's dishonesty extended to the evidence given by him at the hearing before the previously constituted Tribunal. There are several instances at which the Primary Reasons record the finding that the practitioner had been dishonest in his evidence at the hearing. At [63] of the Primary Reasons, the Tribunal found:

[the practitioner] is not a truthful and credible witness in relation to any of the evidence he gave to the Tribunal in this matter, and we consequently do not accept any of his testimony unless it is consistent with other evidence we accept.

1. The fourth relevant matter is that the practitioner's dishonesty extends across several different fora. As noted above, the Primary Reasons record findings that the practitioner had been dishonest in his dealings with his client, CL, the applicant, the Board and, finally, the (previously constituted) Tribunal itself.
2. The fifth relevant matter is that the practitioner, when confronted with evidence inconsistent with his version of events as put forward by JR, sought to discredit JR in the manner described above. That is, the practitioner impugned JR's character by alleging that she had been dismissed from his employment for unprofessional conduct, that she had been a problematic employee with a history of psychological problems and that her version of events was a total fabrication.
3. Such an approach, in our view, goes well beyond dishonesty (by which we ought not be understood to diminish the significance of a finding of dishonesty).
4. The practitioner was an experienced legal practitioner whilst JR was, at the time of her employment, a new graduate from law school and at the time of the investigation remained a very junior practitioner. For a senior practitioner to falsely impugn the competence and honesty of a junior practitioner at the start of her legal career was utterly disgraceful and we condemn it in the strongest possible terms.
5. The sixth relevant matter is that the practitioner successfully engaged his wife in his falsity and deception. Grounds 7 and 8 concern the preparation and sending of a letter dated 28 May 2017 to the applicant (Ground 7) and the Board (Ground 8) together with a witness statement dated 30 April 2017[209] from the practitioner's wife (ML).
6. At [119] of the Primary Reasons, the previously constituted Tribunal found that ML's witness statement contained the statement that JR's employment 'was terminated due to unsatisfactory conduct and financial concerns. She departed Lawson Legal in a disgruntled manner and since, refuses to acknowledge me in public' which was false. The Tribunal found (at [120]) that JR's employment was terminated solely or primarily because she wanted a pay rise which Lawson Legal was unable to provide.
7. The seventh relevant matter is that the practitioner's dishonesty involved an attempt to obtain a personal benefit at the expense of his client, to whom he owed fiduciary duties to pursue his client's interests at the expense of his own.
8. The eighth relevant matter is that the practitioner has shown no remorse for his behaviour.
9. As was noted by the Court in Khosa, remorse is mitigating and the absence of remorse is not aggravating. However, the absence of remorse is relevant in determining the appropriate penalty.
10. We note also, as reiterated in Khosa, that the practitioner was entitled to contest the matter before the Tribunal and to require the applicant to prove that he was guilty of professional misconduct. However, in doing so, the practitioner is not entitled to any mitigation which would flow from a plea of guilty and the consequential indication of remorse which that would demonstrate.
11. The ninth relevant matter is that the practitioner appears to lack any insight into the error of his behaviour. None was indicated by the practitioner in his defence of the allegations. Again, we reiterate that he had a right to take that course of action but the corollary of it is that nothing indicating insight was put to the previously constituted Tribunal.
12. Equally, the practitioner's decision to refrain from making any submissions as to penalty means that there is nothing before us that indicates he has any such insight.
13. The tenth relevant matter is that, as noted by the applicant in its submissions, the practitioner cannot be said to have a clean record in relation to disciplinary action for dishonesty. In VR 104 of 2015, orders were made on 29 August 2016 which provided for the suspension of the practitioner's local practising certificate for a period of six months for misconduct, which included the sending of an email to the brother of a client which was false and misleading as well as intimidating and threatening.
14. Again, the Tribunal proceeds on the basis not that the prior disciplinary action amounts to an aggravating factor but, rather, that there can be no mitigation for the practitioner on the basis of a clean record.
15. The applicant's submissions also note that the conduct the subject of Ground 7 occurred on 28 May 2017, only a couple of months after that period of suspension had concluded. As noted above, in Khosa the Court held that suspension is a suitable penalty in circumstances where the Tribunal is satisfied that at its conclusion the practitioner will be fit to practise. Unfortunately, that did not eventuate in this case. In our view this fortifies our conclusion that striking off is the appropriate sanction.
16. Taking all of those matters into account, we are satisfied that the appropriate penalty is for an order that the Tribunal make and transmit a report on the finding to the Full Bench of the Supreme Court pursuant to s 438(2)(a) of the LP Act.
17. In our view that follows from the conclusion that the practitioner has demonstrated that he is unfit for practise by engaging in dishonest behaviour over a lengthy period of time and across several different fora where the dishonest behaviour was designed to achieve a personal benefit at the expense of his client. So much, in our view, would be sufficient to warrant a recommendation that he be struck off. But as noted above, he also involved his wife in his dishonesty which involved the deliberate smearing of a young practitioner's reputation in order to further pursue his dishonest ambition.
18. In our view, all of that, together with the failure of the practitioner to appreciate the impropriety of his conduct or express any form of remorse for it, requires a conclusion that he, 'lacks the character and trustworthiness necessary to discharge the responsibilities of legal practice [and] ... is permanently or indefinitely unfit to practise'.[210]
19. Accordingly, in our view striking off rather than suspension is the appropriate response.
20. Finally on the question of penalty, the Tribunal notes that there appears to be no need for specific or personal deterrence due to the voluntary cessation of practise by the practitioner. However, should it be necessary to do so, we make clear our view that the behaviour in question must be condemned in a manner which addresses the need for general deterrence, which in our view requires the penalty described above.

1. As noted above, the applicant seeks an order that the practitioner pay the applicant's costs of the proceeding fixed in the amount of $71,890.40.
2. The starting point in such an application is s 87 of the SAT Act, which states as follows:

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

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

1. As noted in Questdale,[211] the effect of s 87(1) of the SAT Act is that each party in proceedings before the Tribunal is to bear its own costs, unless the Tribunal otherwise orders.
2. In Roberman[212] the Tribunal said that although the award of costs is a matter of discretion to be exercised in the circumstances of each case, where a regulatory body is successful in bringing a complaint of misconduct which justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body.[213] That is because, as the Tribunal said, such regulatory bodies:

perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application.[214]

1. As was noted in Quinlivan, the observations of the Tribunal in Roberman have been cited with approval by the Court of Appeal several times. Most recently, in Young[215] Buss P, (with whom Quinlan CJ and Beech JA relevantly agreed)[216] repeated the relevant passages of the Tribunal in Roberman and the Court of Appeal in Quinlivan and said:

The proper exercise of the Tribunal's discretionary power under s 87(2) of the SAT Act to make an award of costs depends, of course, upon all the circumstances of the particular case. Ordinarily, as a matter of fact, the Tribunal will make an award of costs in favour of a regulatory body which is successful in bringing a complaint of misconduct in professional disciplinary proceedings. However, in each case, the discretionary power to make an award of costs must be exercised having regard to the circumstances of the particular case.

1. In this case, the applicant submits that it would be 'fair and reasonable for the practitioner to pay the applicant's costs in terms of the disbursements it has incurred in prosecuting the application' in light of 'the findings made by the Tribunal concerning the practitioner's conduct and the public interest in pursuing that conduct by way of disciplinary proceedings'.
2. The respondent's submissions as to costs go no further than noting that 'the starting point in any consideration of costs is that each party bears their own' and submitting that 'this ought to be the determination of the Tribunal in this case'.
3. With respect, given the authorities set out above, that submission is unhelpful. The Tribunal accepts and proceeds on the basis that the starting point for it is the statutory presumption in s 87(1) of the SAT Act. Nonetheless, it is well accepted that there is public interest in the bodies such as the applicant bringing an action such as this against practitioners. There is also a well accepted expectation by bodies such as the applicant that if the allegations are made out, the 'offending professional will meet or at least contribute to the costs incurred in bringing the application.' Such well accepted propositions take the matter further than the starting point and cannot be dismissed or ignored by simply referring back to the starting point.
4. In our view, there was plainly a public interest in the applicant investigating the complaints and prosecuting the case against the practitioner. We also endorse the principles first set down in Roberman and, on that basis, find that there is a 'strong case for the exercise of [the Tribunal's] discretion in favour of [the applicant]'.
5. In our view, it is appropriate that the practitioner contribute to the costs incurred in bringing the application.
6. In that regard, we note that the applicant:

(a) does not seek any costs in respect of its own legal officer's time in relation to the matter;

(b) does not seek recovery of senior counsel's fees for her work in relation to the substituted Annexure A filed on 3 August 2020;

(c) does not seek recovery of fees of junior counsel for her work in relation to the closing submissions; and

(d) seeks only its disbursements by way of payments made to senior counsel, as well as its costs in relation to the application filing fee and the costs of transcripts for the hearing.

1. We accept that the costs associated with obtaining the transcript (being $8,921.40) were necessary for the preparation of the applicant's written closing submissions.
2. We also accept that the costs claimed in relation to senior counsel's fees are reasonable and an order should be made that the practitioner pay them.
3. In in de Braekt[217] the Tribunal noted that its usual practice is:

to determine the amount of work which was reasonable and necessary to property prepare and present the case and then to apply, as a useful guide as to the maximum rates which might be allowed on a party/party basis, the relevant or daily rates specified in [the relevant Determination].

1. In this case the applicant has prepared a table setting out the relevant disbursements and attached senior counsel's invoices.
2. In our view, there is nothing in those invoices which suggests the need to do anything other than accept them.
3. Senior counsel's fees of $68,656.50 are based on an hourly rate of $490 (inclusive of GST), which is lower than the relevant maximum hourly rate for senior counsel in the relevant costs Determinations.[218]
4. Further, we are of the view that the time recorded for the preparation of and presentation of the applicant's case was reasonable. Indeed, we agree with the handwritten note of an officer of the applicant, marked on the largest of senior counsel's invoices in support of the recommendation that the invoice be paid, that the invoice records a 'very reasonable time involved'. In circumstances where the hearing ran for four days and there were, in addition, written closing submissions as well as the attendance at a final hearing for which preparation was required, we are of the view that the costs incurred are very reasonable indeed.
5. Accordingly, an order should be made for the payment by the practitioner of the disbursements claimed by the applicant in the sum of $71,890.40.
6. In so finding we note the submissions made on behalf of the practitioner that he is impecunious and that any order as to costs would be unduly harsh or onerous.
7. In our view the fact that an order as to costs would cause the practitioner to suffer financial hardship is not a reason to refrain from making such an order. That appears to be the position taken by other tribunals[219] and is consistent with the principle that costs are awarded to compensate rather than to punish.[220] Although previous decisions of this Tribunal do not appear to have always taken a consistent position in this regard,[221] in our view, the preceding matters support the approach taken by this Tribunal in Alizadeh, albeit that the follow passage, and particularly the reference to the 'general rule', must be read in light of the Court of Appeal's subsequent decision in Questdale:

It is inevitable that the burden of such an order [i.e. an order that the practitioner pay the costs of the vocational regulator] will result in some degree of hardship to a respondent, unless, as may sometimes be the case, the burden falls on an insurer. That is not a reason to depart from the general rule. The liability for costs forms a significant part of the disincentive to conduct of this nature, and of the demonstration of the seriousness of the conduct ...

1. As noted above, JR has applied for a compensation order pursuant to s 448 of the LP Act. That section provides, relevantly, as follows:

(1) A compensation order is an order made to compensate a person (the aggrieved person) for loss suffered because of conduct of an Australian legal practitioner that is the subject of a complaint by that person or is investigated by the Complaints Committee of its own initiative.

(2) A compensation order consists of one or more of the following -

(c) an order that the practitioner pay to the aggrieved person, by way of monetary compensation for the loss, a specified amount.

(5) A compensation order under subsection (2)(c) requiring payment of an amount exceeding -

(a) $25 000, except where paragraph (b) applies; or

(b) $10 000, where the order is made by the Complaints Committee,

is not to be made unless the aggrieved person and the practitioner both consent to the order.

1. From the above, it is plain that a compensation order can only be made by the Tribunal 'to compensate a person ... for loss suffered because of conduct of an Australian legal practitioner' where such conduct is the subject of investigation by the applicant.
2. So much appears to be reiterated in the terms of s 449(1)(a) of the LP Act. That subsection as a whole provides as follows:

Unless the aggrieved person and the Australian legal practitioner agree, a compensation order is not to be made unless the ... Tribunal is satisfied -

(a) that the aggrieved person has suffered loss because of the conduct concerned; and

(b) that it is in the interests of justice that the order be made.[222]

1. In our view, the 'conduct concerned' is conduct that is the subject of a complaint and/or investigation by the applicant.
2. In this case, the loss relied upon by JR is said to be 'her period of unemployment'.[223]
3. The letter in support of the application for a compensation order states that JR ceased employment with the practitioner on or about 15 June 2012 and did not recommence working as a solicitor until January 2013. It is said that she was 'uneasy at taking further employment' due, apparently, to her fear of the practitioner.
4. While we are sympathetic to the plight of JR for what she has suffered through the false claims about her made by the practitioner, following the termination of her employment, during the applicant's investigation of the practitioner and in her cross­examination before the Tribunal, we are of the view that the Tribunal lacks jurisdiction to make a compensation order in this case.
5. That is because, as previously found by the Tribunal in the Primary Reasons, the loss of her employment was due to the financial circumstances of Lawson Legal and not because of any conduct of the practitioner that was the subject of investigation by the applicant.
6. The conduct of the practitioner that was the subject of investigation by the applicant was his dishonesty. That dishonesty began in relation to the costs claimed by the practitioner against his client CL and included dishonest statements about the circumstances in which JR's employment was terminated.
7. But any loss suffered by JR as claimed in her solicitor's letter is due to the termination of her employment which occurred due to the financial circumstances in which Lawson Legal found itself at the time. The loss as claimed was not due to the practitioner's dishonesty, which came after the termination of her employment. Equally, the extent to which she felt uneasy about regaining employment due to any fear of the practitioner is not loss caused by the action of the practitioner that was the subject of investigation by the applicant.
8. The practitioner's behaviour towards JR might otherwise be said to warrant sanction by way of a payment from the practitioner to JR. However, on the basis of the material put to the Tribunal on behalf of JR, we are not satisfied that the relevant statutory criteria are engaged and must therefore dismiss the application.

1. Accordingly, the orders the Tribunal will make are as follows:
   1. Pursuant to s 438(2)(a) and s 438(4)(a) and (b) of the Legal Profession Act 2008 (WA), the Tribunal is to make and transmit a report on the findings of the Tribunal in these proceedings to the Supreme Court (Full Bench) with both a record of the evidence taken at the hearing and a recommendation that the name of the respondent be removed from the roll of persons admitted to the legal profession under the Legal Profession Act 2008 (WA);
   2. Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the practitioner is to pay the applicant's costs of the proceeding fixed in the amount of $71,890.40, such costs to be paid to the Legal Practice Board of Western Australia (Board) within 30 days or as otherwise agreed between the practitioner and the Board; and
   3. The application for compensation pursuant to s 448 of the Legal Profession Act 2008 (WA) is dismissed.

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

[1] Amended Substituted Annexure A dated 13 October 2020 (Exhibit 8) (original emphasis). In these reasons, we use the expressions defined in the grounds.

[2] See Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362 (Dixon J).

[3] Legal Practitioners Complaints Committee and Segler [2009] WASAT 205; (2009) 67 SR (WA) 280 [96].

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

[5] Judge Parry DP, Mr D Aitken SM and Ms S Gillett SessM.

[6] Macquarie Dictionary Online (original emphasis).

[7] Judge Parry DP, Dr S Willey SM and Ms M Connor M.

[8] See, for example, Legal Profession Complaints Committee v Brickhill [2013] WASC 369 and Legal Profession Complaints Committee and Tang.

[9] Giudice v Legal Profession Complaints Committee [2014] WASCA 115 [8] (Martin CJ).

[10] Khosa v Legal Profession Complaints Committee [2017] WASCA 192 [169] (Murphy and Beech JJA).

[11] Respondent's closing submissions dated 13 August 2021 (practitioner's submissions) para 2.

[12] Legal Profession Complaints Committee's closing submissions dated 19 March 2021 (Committee's submissions) paras 14­36 (original emphasis). In these reasons, we use the expressions defined in these background facts.

[13] The First Costs Agreement is Legal Profession Complaints Committee Book of Documents dated 30 March 2020 (Exhibit 3), pages 25-27.

[14] The First Opinion (as originally prepared by JR) is Exhibit 3, pages 137­150.

[15] The 25 July 2011 letter is Exhibit 3, pages 193-194; 343-344.

[16] The First Opinion (as provided by the practitioner to CL) is Exhibit 3, pages 3-16. The Second Costs Agreement is Exhibit 3, pages 40­42.

[17] Exhibit 8, para 16; [Practitioner's] Statement of Facts & Contentions (By reference to Substituted Annexure A 3 August) dated 1 September 2020 (Exhibit 2), para 5b; Exhibit 3, pages 202-205 and 467; ts 46, 12 October 2020.

[18] The Second Opinion (as originally prepared by JR) is Exhibit 3, pages 208-213.

[19] The Second Opinion (as provided by the practitioner to CL) is Exhibit 3, pages 17-21.

[23] ts 200, 14 October 2020 and ts 363-364, 15 October 2020.

[25] Exhibit 3, page 141 (original emphasis).

[26] Exhibit 3, page 145 (original emphasis).

[27] Exhibit 3, page 145 (original emphasis).

[28] Exhibit 3, page 11 (original emphasis).

[30] Exhibit 3, page 145 (bolded emphasis original; italicised emphasis added).

[31] Exhibit 3, page 19 (emphasis added).

[34] Exhibit 3 pages 223­224. We note that there is a discrepancy in the final bullet point of 'Detail' for the work the practitioner represented he performed on 20 July 2011 in relation to the First Opinion in different copies of the First Itemised Account on the practitioner's file. In one copy of the First Itemised Account on the practitioner's file (Exhibit 3, pages 50­51), the final bullet point of Detail for 20 July 2011 states 'Compile above research and construct opinion' (Exhibit 3 page 50), whereas in another copy of the First Itemised Account on the practitioner's file (Exhibit 3 pages 52­53) and in the copy of the First Itemised Account that the practitioner rendered to CL, which we reproduce in this paragraph (Exhibit 3 pages 223­224), the final bullet point of Detail for 20 July 2011 states 'Compile opinion' (Exhibit 3 page 52 and page 223) (which is the same expression used by JR in the Timesheet). In the Second Itemised Account rendered by the practitioner to CL (Exhibit 3, pages 226­227), the final bullet point of Detail for 20 July 2011 states 'Compile above research and construct opinion'. It appears that at some point after the practitioner rendered the First Itemised Account to CL and before the practitioner rendered the Second Itemised Account to CL, he changed his electronic office copy of the First Itemised Account to be the same as the Second Itemised Account in terms of the final bullet point of Detail for 20 July 2011 and then printed it out and placed it on the file.

[38] Committee's submissions, para 57 and practitioner's submissions, para 18.

[39] Practitioner's submissions, para 7.

[40] Practitioner's submissions, para 7.

[45] Para 23 of the Committee's submissions set out at [20] above.

[55] ts 44, 12 October 2020 (JR) and ts 235, 14 October 2020 (practitioner).

[56] ts 34, 12 October 2020. The practitioner gave consistent evidence in cross-examination with JR's evidence in this respect:

'Now, you asked [JR] to write down the time she has spent on the CL matter, didn't you? --- Yes.

And you asked her to write down everything that was done on the matter, whether by her or by you, on the days that she was involved in it? --- By her, yes.

Just by her? --- Just by her.' (ts 204, 14 October 2020)

JR could not recall the origin of the dollar amounts recorded on the Timesheet and said 'I could only assume that [the practitioner] provided me with that figure' (ts 34, 12 October 2020).

[58] ts 174, 14 October 2020 (First Itemised Account) and ts 175, 14 October 2020 (Second Itemised Account).

[65] The practitioner gave evidence that his electronic file in relation to CL's matter (and other matters) was lost as a result of a crypto virus in January 2015 (ts 281, 15 October 2020). The Committee disputes whether such a crypto virus occurred. It is unnecessary to resolve that question, because the practitioner gave evidence that he printed off and highlighted and annotated a hard copy of the arrest affidavit.

[74] Para 23 of the Committee's submissions set out at [20] above.

[84] Para 23 of the Committee's submissions set out at [20] above.

[85] The practitioner's evidence at the end of the passage of cross-examination, that he 'drafted' the First Opinion, is also inconsistent with para 5a of his Statement of Facts & Contentions set out at [31] above.

[103] Para 29 of the Committee's submissions set out at [20] above.

[105] Exhibit 3, page 207 and pages 208-213; ts 49, 12 October 2020.

[107] ts 34, 12 October 2020. The practitioner gave consistent evidence in cross-examination with JR's evidence in this respect:

'Now, you asked [JR] to write down the time she has spent on the CL matter, didn't you? --- Yes.

And you asked her to write down everything that was done on the matter, whether by her or by you, on the days that she was involved in it? --- By her, yes.

Just by her? --- Just by her.' (ts 204, 14 October 2020).

JR could not recall the origin of the dollar amounts recorded on the Timesheet and said 'I could only assume that [the practitioner] provided me with that figure' (ts 34, 12 October 2020).

[109] ts 258, 14 October 2020, ts 264, 14 October 2020 and ts 274, 15 October 2020.

[112] Committee's submissions, paras 85 and 86.

[113] Exhibit 3, page 370 (emphasis added).

[114] Macquarie Dictionary Online (original emphasis).

[128] ts 393-397, 15 October 2020 (emphasis added).

[129] Practitioner's submissions, para 36.

[130] Practitioner's submissions, para 37.

[131] Practitioner's submissions, para 39.

[132] Practitioner's submissions, para 42.

[133] Statutory declaration (Exhibit 3, page 539).

[135] Committee's submissions, para 96.

[136] Committee's submissions, para 97.

[138] Judge Sharp DP, Ms F Child M and Mr M Odes QC SSessM.

[139] Followed in Legal Profession Complaints Committee and Chang and Legal Profession Complaints Committee and Tang.

[140] Legal Profession Complaints Committee and Lee-Steere [24].

[146] Practitioner's submissions, para 45.

[147] See Legal Profession Complaints Committee and A Legal Practitioner [148] - [151] and the authorities reviewed there.

[148] Judge Eckert DP, Mr DR Parry SM and Mr G Potter SSessM.

[150] Exhibit 3, page 467 (original emphasis).

[152] Exhibit 3, page 469 (emphasis added).

[153] Exhibit 3, page 471 (emphasis added).

[156] ts 54, 12 October 2020. In March 2012, JR booked a holiday to Singapore between 28 June 2012 and 5 July 2012, using her credit card.

[164] Exhibit 3, page 430 (original emphasis).

[166] Practitioner's submissions, para 52a.

[178] Committee's submissions, para 126d.

[180] Practitioner's submissions, para 52.

[186] Committee's submissions, para 130.

[187] Committee's submissions, para 130.

[189] Practitioner's submissions, para 56.

[191] Exhibit 3, page 556 (italicised emphasis original and underlined emphasis added).

[196] ts 58, 70 and 71, 12 October 2020.

[197] Committee's submissions, para 149.

[199] Exhibit 3, page 483 (original emphasis).

[202] At the time of the work in question, JR had been performing work for the practitioner on an unpaid basis. She was later employed by the practitioner and it was the termination of this employment that was the subject of false statements by the practitioner.

[203] Section 438(4) provides that a report forwarded under s 438(2)(a) may include either or both of a record of the evidence taken at the hearing and a recommendation that the name of the practitioner be removed from the local roll of practitioners.

[204] Section 440 concerns orders requiring implementations in another jurisdiction and is therefore irrelevant to these proceedings.

[205] Khosa v Legal Profession Complaints Committee [2017] WASCA 192 at [188] ­ [195].

[206] Legal Profession Complaints Committee and Metaxas [2021] WASAT 82 (S) at [15].

[209] At [5] of the Primary Reasons, Ground 7 dates ML's statement as 23 May 2012, whereas at [115] it is dated as 30 April 2017. The latter date is correct; Exhibit 3, pages 470­472.

[211] Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 at [46] (per Murphy JA, Corboy J agreeing) and [51].

[212] Medical Board of Western Australian and Roberman [2005] WASAT 81 (S) (Roberman).

[213] Quinlivan v Legal Profession Complaints Committee [2012] WASCA 263 (S) (Quinlivan) at [10].

[215] Young v Legal Profession Complaints Committee [2022] WASCA 52 (Young) at [261].

[217] Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S) (in de Braekt) at [53].

[218] Legal Profession (State Administrative Tribunal) Determination 2018 and Legal Profession (State Administrative Tribunal) Determination 2020. The Tribunal has previously indicated that while those Determinations, strictly speaking, only apply to the regulation of fees between the lawyer and client in the absence of a written costs agreement, they provide a useful guide to rates which might be allowed in such matters. in de Braekt at [53]; Legal Profession Complaints Committee and Chang [2019] WASAT 67 (S) (Chang) at [126].

[219] Mihelcic v Toll Tasmania [2007] VCAT 1312 at [33]; Fasham Johnson Pty Ltd v Ware and Saunders [2004] VCAT 1708 at [14] ­ [15]; Fletcher v The Salvation Army Australia [2006] VCAT 740 at [15]; Bristol Custodians Ltd v Chief Commissioner of State Revenue (No 3) [2013] NSWADT 171 at [23].

[221] See, for example, the different approaches in Medical Board of Australia and Alizadeh [2007] WASAT 69 at [36] and Legal Profession Complaints Committee and Wroughton [2013] WASAT 191 [S] at [22].

[223] Letter dated 25 January 2022 to the Tribunal from Bennett + Co on behalf of JR.