BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE

Legal practitioners - Professional misconduct - Unsatisfactory professional conduct - Entitlement to engage in legal practice - Letters written on professional letterhead to intimidate, harass or annoy - Misleading a Court - Attempting to intimidate or harass a person who had provided a witness statement

Legal Profession Act 2008 (WA), s 402, s 403(1), s 438(1). s 438(2), s 442, s 622(1), Pt 13, s 622, s 622(2)

Finding of professional misconduct and of unsatisfactory professional conduct

Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115

Legal Practitioners Complaints Committee and Segler [2009] WASAT 205

Legal Practitioners Complaints Committee and Segler [2009] WASAT 91

Legal Profession Complaints Committee and Vanderfeen [2011] WASAT 118

Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202

Ziems v Prothonotary of the Supreme Court of NSW [1957] HCA 46

1 The Legal Profession Complaints Committee made a number of allegations against a legal practitioner, Ms Lynette Patricia Quinlivan, of professional misconduct by:

1. improperly using her entitlement to engage in legal practice to intimidate, harass or annoy her neighbours in connection with personal disputes over a shared bore and a dividing fence;
2. misleading the Perth Magistrates Court during the hearing of an ex parte application for an interim violence restraining order against those neighbours; and
3. attempting to intimidate or harass a person who had provided a witness statement to the police.

2 The Tribunal concluded that Ms Quinlivan's use of her entitlement to engage in legal practice by using professional letterhead when writing to her neighbours and to others amounted to unsatisfactory professional conduct. It also concluded that the Committee had established that Ms Quinlivan has misled the Court and made a finding of professional misconduct against her.

3 However, the Tribunal found that the Committee had not made out its allegation of professional misconduct in connection with Ms Quinlivan's dealing with the person who had provided a witness statement to the police.

4 The Legal Profession Complaints Committee (Committee) alleges that, Lynette Patricia Quinlivan (Practitioner) between 21 September 2004 and 25 November 2008, engaged in professional misconduct by:

(1) between 21 September 2004 and 1 May 2006, improperly using her entitlement to engage in legal practice in Western Australia to intimidate, harass or annoy, or to improperly cause a detriment to Mark Norris or Carmel Norris, or with the intention of improperly gaining an advantage for herself (Allegation 1);

(2) in order to advance her own interests, intentionally or alternatively recklessly deceiving and misleading Magistrate Lane in the Perth Magistrates Court on 25 November 2008, during the hearing of an ex parte application filed by and on behalf of the Practitioner for an interim violence restraining order against Mark Norris and Carmel Norris, by:

(i) giving evidence to the effect that Mark Norris and Carmel Norris or either of them had deliberately endangered the safety of her child in April 2005 by attempting to lure her son onto Alderbury Street, Floreat when she knew that was not so; and

(ii) by giving evidence of the content of a statement provided to the Practitioner by Ms Angela Heffer which did not reflect the contents of that statement (Allegation 2); and

(3) on 14 February 2006 and 28 April 2006, attempting to intimidate or harass a person who had provided a witness statement to the police (Allegation 3).

6 At all relevant times the Practitioner lived at 4 Ferndale Road, Floreat and engaged in legal practice in Western Australia under the name of 'Lynette Patricia Quinlivan, Barrister and Solicitor'. Mark Norris and Carmel Norris lived next door to the Practitioner at 6 Ferndale Road, Floreat.

7 The Practitioner and Mr and Mrs Norris were in constant dispute about a number of issues, including the use and maintenance of a shared bore that was located primarily on the Practitioner's property at 4 Ferndale Road, Floreat and a dividing fence between the properties of the Practitioner and of Mr and Mrs Norris.

8 The Committee's grounds for making Allegation 1 are set out below.

9 Between 21 September 2004 and 1 May 2006 the Practitioner wrote and sent a number of letters (Letters) variously to Mr and Mrs Norris, Mr Collins of Collins Drilling, the Town of Cambridge and to the Officer in Charge at Wembley Police Stations under the letterhead that was used by the Practitioner when engaged in legal practice (Respondent's Bundle of Documents (BOD) pages 34 ­ 35, 37 ­ 38, 42 ­ 45, 49 ­ 50, 60 ­ 61, 73 ­ 74, 94 ­ 95, 100 ­ 102, 109 ­ 111 and 132 ­ 136).

10 All of the Letters arose from or concerned various personal disputes and other ongoing issues between the Practitioner and Mr and Mrs Norris.

11 The content of the Letters is unrelated to the Practitioner's engagement in legal practice.

12 Some or all of the Letters were sent with the intention of:

(a) intimidating, harassing or annoying Mr and Mrs Norris or either of them; or

(b) improperly causing a detriment to Mr and Mrs Norris or either of them; or

(c) improperly gaining an advantage for herself.

13 The Committee's grounds for making Allegation 2 are set out below.

14 On a date prior to 25 November 2008 the Practitioner applied to the Perth Magistrates Court for a violence restraining order against Mr and Mrs Norris, pursuant to s 25 of the Restraining Orders Act 1997 (VRO application).

15 The VRO application was listed for a hearing to be held on 25 November 2008. The Practitioner chose to have that hearing held in the absence of Mr and Mrs Norris, pursuant to s 26 of the Restraining Orders Act 1997 (WA).

16 The Practitioner appeared in the Perth Magistrates Court on that date before her Honour Magistrate Lane (the November 2008 hearing).

17 The Practitioner gave oral evidence on oath in support of the VRO application. In the course of giving evidence, the Practitioner said that the safety of her child had been threatened in previous encounters involving Mr and Mrs Norris and then referred to an incident that she alleged occurred in April 2005, involving her young son. She gave evidence to the effect that, in April 2005, Mr and Mrs Norris or either of them individually had endangered the safety of her child by attempting to lure her son on to Alderbury Street, which she described as a 'really really heavy traffic street' (T: [9], [25.11.08]).

18 At a previous Court hearing before Magistrate Packington on 15 August 2007, the Practitioner also gave evidence about this incident and in response to the question from Magistrate Packington 'Are you suggesting she was trying to get him out on the road in the traffic?', the Practitioner responded in the negative (T: [82], [15.8.07]).

19 The Practitioner also gave evidence at the November 2008 hearing (T: [9], [25.11.08]) that a neighbour, Ms Angela Heffer, had given a 'sworn statement' to the effect that:

1. she had observed everything that had happened during the unfolding of the incident in April 2005;
2. she had said to the Practitioner after the incident words, or words to the effect, that 'If they were genuinely trying to assist you with you child, they would have taken him by the hand and walked him back to your house'; and/or

1. what she had seen was something that she believed was untoward.

20 The Committee's grounds for making Allegation 3 are set out below.

21 On 22 December 2005, the Practitioner made a complaint to a police officer at the Stirling Detectives Office in which she alleged that Mr Norris had trespassed on her property in Floreat on 20 December 2005.

22 On 14 February 2006, in the course of investigating the Practitioner's complaint, a police officer spoke to a potential witness, Ms Keightley, who lived on the corner of Ferndale and Alderbury Streets, Floreat. A statement was taken by police from Ms Keightley on that same day.

23 Between the time Ms Keightley's statement was taken and 15 February 2006, the Practitioner became aware that the police had decided not to proceed any further with her complaint.

24 On 5 February 2006 the Practitioner spoke on the telephone to Sergeant Shaun Peters. During that telephone conversation the Practitioner told Sergeant Peters that she was unhappy with the result of the police investigation and she expressed an opinion that Ms Keightley was not an independent witness.

25 At or about 5 pm on 15 February 2006, the Practitioner attempted to intimidate or harass Ms Keightley by shouting at Ms Keightley words to the effect of 'keep your nose out of other people's business and I'll see you in court'.

26 Sometime between 15 February 2006 and 26 April 2006 the Practitioner obtained a copy of Ms Keightley's statement and on 26 April 2006 the Practitioner placed a copy of Ms Keightley's statement into Ms Keightley's letter box at her home on the corner of Ferndale and Alderbury Streets, Floreat.

27 Although the alleged conduct took place between 2004 and 2008, the provisions of the Legal Profession Act 2008 (WA) (LP Act) are applicable by virtue of s 622 of the LP Act.

For the purposes of this Act ­

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

For the purposes of this Act ­

professional misconduct includes ­

(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

30 As the Tribunal held in the case of Legal Practitioners Complaints Committee and Segler [2009] WASAT 205, these definitions are 'intended to be examples of conduct which will constitute "professional misconduct" and are not intended to be exhaustive of what constitutes "professional misconduct'". The Tribunal said at [97] that these definitions are:

... discrete examples of conduct which will constitute professional misconduct. In order to constitute 'professional misconduct', it is not necessary that the conduct both meets the description in (a) and justifies a finding that [the practitioner] is not a fit and proper person to engage in legal practice under (b). Para (b) of the definition in s 403 of the 2008 Act clearly covers a far wider range of conduct than that described in (a) of that definition, including conduct which occurs otherwise than in connection with the practice of law. The essential characteristic of the range of conduct which is encompassed by s 403(1)(b), however, is that that conduct justifies a finding that a practitioner is not a fit and proper person to engage in legal practice. That is not an essential characteristic of the conduct described in s 403(1)(a) of the 2008 Act. In other words, not all instances of 'professional misconduct' will involve the conclusion that a practitioner is not a fit and proper person to engage in legal practice. ...

31 In Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115 (Kyle), it was held that the common law notion of unprofessional conduct is concerned with conduct that would reasonably be regarded as disgraceful or dishonourable by practitioners of good repute and competence or that, to a substantial degree, falls short of the standard of professional conduct observed or approved by members of the profession of good repute and competence.

32 In the case of Legal Profession Complaints Committee and Vanderfeen [2011] WASAT 118 it was said at [50]:

We are mindful that, in considering the allegations against the practitioner, the Tribunal must, in accordance with what is often referred to as the Briginshaw standard, feel an actual persuasion of the occurrence or the existence of a relevant fact in determining whether or not the case has been made out: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361 ­ 362; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449.

33 In the case of Legal Practitioners Complaints Committee and Segler [2009] WASAT 91 (Segler), the Tribunal considered the issue of a legal practitioner sending letters to lay persons on professional letterhead which contained threatening and inappropriate demands. The Tribunal said the following at paras [57] ­ [61]:

Use of the respondent's letterhead

Mr Segler's dispute with Mr Dortch involved Mr Segler's personal interests. He acted in person in the Magistrates Court. Correspondence in relation to the matter, including his letter of 29 November 2007, was on his professional letterhead.

The Committee drew to the Tribunal's attention an article contained in the May 2006 edition of the Law Society of Western Australia's magazine 'Brief'. The article concerned the use of professional letterhead in personal matters. It was published by the Committee.

In the article, reference is made to the UK Bar Council's website which includes the following observations:

Members of the bar should not attempt to gain an advantage or put any pressure on other people by virtue of their position as barristers. It would not be appropriate for barristers to use their status as an implied threat to those with whom they are in dispute. Using Chambers' notepaper in correspondence about a personal dispute or when conducting personal business could well constitute an implied threat and leave the barrister open to a justified complaint of professional misconduct.

The article also makes reference to a view expressed by the Victorian Legal Ombudsman where it was said:

... However, if the lawyer uses the fact that they are a lawyer to intimidate others outside of legal practice, ... where the lawyer will say 'I'm a lawyer I'll see you in court', or 'I'll reserve my rights', that is intimidating, and we have a look at that from time to time because it's bullying.

In our view, those observations are well made. It is important that legal practitioners avoid circumstances which might be seen as overbearing members of the community by the use of the lawyer's status to gain personal advantage or to intimidate.

34 The Tribunal held that by sending letters containing threats and inappropriate and intimidating demands on professional letterhead, the practitioner was guilty of unprofessional conduct.

It is the essence of unprofessional conduct involving misleading the Court that the practitioner concerned is guilty of having done something dishonourable: see Re Cooke (1889) 5 TLR 407 at 408, per Lord Esher MR (with whom Fry and Lopes LJJ agreed). The dishonourable quality lies in knowingly misleading the Court: see Tobling v Universal Bulb Co Ltd [1951] 2 TLR 289 at 297, per Denning LJ; Vernon v Bosley (No 2) [1997] 3 WLR 683; (1997) 1 All ER 614. A practitioner who knowingly misleads a Court will do so dishonestly. Therein lies the unprofessional conduct. ...

36 Also in Kyle, at [66], Parker J, held as follows:

The duty of counsel not to mislead the court in any respect must be observed without regard to the interests of the counsel or of those whom the counsel represents. No instructions of a client, no degree of concern for the client's interests, can override the duty which counsel owes to the court in this respect. At heart, the justification for this duty, and the reason for its fundamental importance in the due administration of justice, is that an unswerving and unwavering observance of it by counsel is essential to maintain and justify the confidence which every court rightly and necessarily puts in all counsel who appear before it.

37 The Western Australian Court of Appeal in Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 at [61] and at [70] said:

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

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

...

As we have observed, it is a matter of the utmost seriousness for a practitioner intentionally to mislead a court. The effective administration of the justice system and public confidence in the system depends upon the absolute and conditional discharge by practitioners of their duty of honesty and candour to the court. It is a duty so fundamental that factors such as relative inexperience and lack of supervision do not weigh so heavily in mitigation as they might in other situations. A deliberate departure from the duty must attract a substantial penalty. We consider that in the circumstances of this case the penalty of three months' suspension imposed by the Tribunal was appropriate. We would dismiss the ground of appeal.

38 Both the common law definition of 'professional misconduct' and its statutory equivalents envisage that a disciplinary consequence can arise out of conduct by a lawyer unrelated to his or her practice as a lawyer. The statutory definition of misconduct is not limited in its scope to behaviour that occurs in the course of a lawyer's practice; it can encompass disgraceful or dishonourable conduct in a lawyer's private life. The word 'professional', so interpreted by the courts, has recognised that behaviour in a lawyer's personal life can impact on the confidence the public can have in the lawyer in his or her professional life. In the case of Ziems v Prothonotary of the Supreme Court of NSW [1957] HCA 46, per Fullagar J at [5], it was said that:

Personal misconduct, as distinct from professional misconduct, may no doubt be a ground for disbarring, because it may show that the person is guilty of it is not a fit and proper person to practise as a barrister; see, e.g. In re Davis [1947] HCA 53; (1947) 75 CLR 409. But the whole approach of a court to a case of personal misconduct must surely be very different from its approach to a case of professional misconduct. Generally speaking, the latter must have a much more direct bearing on the question of a man's fitness to practise than the former.

39 The Practitioner does not dispute the factual allegations set out above. However, the Practitioner disputes that sending the Letters amounted to professional misconduct.

40 This ground turns upon a question of whether the Practitioner improperly used her entitlement to engage in legal practice when she wrote and sent all or any of the Letters. As the Tribunal has mentioned earlier in these reasons, legal practitioners must avoid circumstances where they are seen to be using their status to gain personal advantage or to intimidate.

41 A common feature of the Letters is that they identified the Practitioner as a legal practitioner. The Practitioner's ability to identify herself as a legal practitioner is an incident of her entitlement to engage in legal practice.

42 The Committee submits that the Practitioner improperly used her entitlement to engage in legal practice because each of the Letters was written and sent by her in the context of personal disputes and with the intention of:

1. intimidating, harassing or annoying Mr or Mrs Norris or both of them; or
2. improperly causing a detriment to Mr and Mrs Norris; or

43 The Tribunal accepts the Practitioner's submission that a legal practitioner, like any other member of the community, is entitled to represent themselves in the context of legal or other disputes or in the context of business dealings that may involve legal issues. However, the Tribunal does not accept the Practitioner's submission that, at all relevant times, she wrote the Letters in her capacity as a legal practitioner who was acting for herself. In fact, at no time until a complaint was made to the Committee did the Practitioner ever suggest that she was writing the Letters in that capacity. The Practitioner says to the Committee, for example, (BOD, page 200), that she considered that she was entitled to use her letterhead to write personal correspondence.

44 None of the Letters expressly state that the Practitioner was writing in her capacity as a legal practitioner acting for herself and significantly, the Practitioner continued to write and send letters using her letterhead concerning matters arising out of her personal disputes, even after the Practitioner had engaged solicitors to deal with those personal disputes with Mr and Mrs Norris.

45 Further, Mr Norris complained about the use of her letterhead by the Practitioner. He wrote to the Practitioner on 23 October 2004 (BOD, page 40) and said:

It is a pity that you choose to communicate with me in writing using your Barrister letterhead which comes across that you are trying to intimidate me? If you must write why not write to me on plain paper?

46 The Committee points out that after Mr Norris wrote to the Practitioner querying why she continued to write to him using her legal practitioner's letterhead, she did not cease using her letterhead, even though she was told that Mr Norris perceived that she was attempting to intimidate him. Instead, the Practitioner said, in the final paragraph of her letter to Mr and Mrs Norris dated 31 October 2004, (BOD, page 45) ' ... I send all my correspondence on my legal letterhead. I am a solicitor and I do it to keep a high level of professionalism, nothing more'.

47 The Tribunal does not accept this explanation as to why the Practitioner felt that it was necessary to write the Letters using her professional letterhead as opposed to plain paper. The Practitioner conceded that Mr and Mrs Norris were already aware that she was a legal practitioner (T: [34], [30.3.11]). When pressed on the subject of why, not withstanding that knowledge, she continued to use her letterhead, she said 'I thought they would take it more seriously if they knew that there could potentially be some sort of legal action' (T: [33], [30.3.11]. The Tribunal can therefore only draw the conclusion that she used her letterhead, or at least continued to use her letterhead after Mr Norris had raised the issue with her, with the intention of intimidating Mr and Mrs Norris.

48 Turning to the letter which the Practitioner wrote to Collins Drilling (BOD, pages 60 ­ 61) there again has been no satisfactory explanation why this letter needed to indicate that the Practitioner was in fact a legal practitioner. The Tribunal can find no reason why the Practitioner should have used her letterhead to write this letter other than to impress on Mr Collins that she was in fact a legal practitioner and that her threats of legal action contained in that letter should be taken seriously.

49 Again, the letters written to the Town of Cambridge (BOD, pages 73, 94 ­ 95, 100 ­ 102 and 109 ­ 111) were all sent for no obvious reason on the Practitioner's letterhead. She does not say in those letters that she is representing herself or acting in her capacity as a legal practitioner (and in fact in one letter (BOD, pages 94 ­ 95) she refers to 'my solicitor, Verschuer Edward' and from some of the assertions which she makes in those letters which are totally unconnected with the Town of Cambridge, it can only be assumed that she was attempting to give weight to her credibility to improperly discredit Mr and Mrs Norris and thereby cause them a detriment.

50 The same can be said for the letter which the Practitioner wrote to the Officer in Charge of the Wembley Police Station (BOD, pages 132 ­ 136), which was copied to the Commissioner of Police and the acting Chief Executive Officer of the Fire and Emergency Services Authority, where Mr Norris was employed. The Tribunal can find no satisfactory reason why the Practitioner would have written this letter on her professional letterhead. The letter did not say that she was acting on her own behalf as a legal practitioner but it did make a variety of allegations against Mr and Mrs Norris. The Tribunal can only conclude that the reason why the Practitioner used her professional letterhead to write this letter was, again, to give weight to those allegations to cause a detriment to Mr and Mrs Norris.

51 For the above reasons, we find that the Practitioner's conduct with respect to her use of her professional letterhead in correspondence about a personal dispute falls short of the standard of professional conduct observed by members of the profession of good repute and competence. We accordingly find the practitioner guilty of unsatisfactory professional conduct. We make that finding rather than one of professional misconduct, pursuant to s 442 of the LP Act, because in the view of the Tribunal the Practitioner's conduct falls short rather than substantially short of the standards of the profession.

52 There is little controversy about the factual circumstances relating to Allegation 2. The Practitioner does not dispute that the evidence which she gave at the hearing before Magistrate Packington on 15 August 2007 and before Magistrate Lane at the November 2008 hearing was as set out in the transcripts of the proceedings on those days. A copy of the transcripts was tendered by the Committee.

53 The substantive issues which arise for determination in connection with Allegation 2 are:

1. whether the evidence which the Practitioner gave to Magistrate Lane was misleading and deceptive; and
2. if so, whether that was done intentionally or recklessly.

54 The Committee alleges that the Practitioner gave evidence that Mr and Mrs Norris had deliberately endangered the safety of her child by attempting to lure her child onto Alderbury Street, which was inconsistent with what she had previously told Magistrate Packington in 2007. However, the Tribunal disagrees. The Practitioner at the November 2008 hearing certainly referred to ' ... previous encounters where she has threatened the safety of my child' and when asked by her Honour when that was she said 'It was in April 2005' (T: [8], [25.11.08]). However, when her Honour specifically put to the Practitioner 'But they have never harmed your child or threatened your child' the Practitioner, as she did when asked a similar question by Magistrate Packington in 2007, answered in the negative (T: [9], [25.11.08]).

55 The Tribunal is therefore not persuaded that the Practitioner mislead the Court in this part of her evidence before Magistrate Lane.

56 The Practitioner then went on to tell her Honour that she had spoken to her neighbour, Ms Ms Angela Heffer who, the Practitioner said, 'had observed everything that had happened'. She then said '... and she's given a sworn statement to that effect, it was clearly something she believed was untoward' (T: [9], [25.11.08]).

57 The statement of Ms Heffer was signed on 30 March 2007 and witnessed by the Practitioner. Because it is central to this part of Allegation 2, it is appropriate to quote the terms of Ms Heffer's statement in full. It reads:

1. I used to rent a house at 2 Ferndale Street, Floreat with my family whilst our house at Daglish was being built.
2. I recall an event on Saturday 2nd April 2005 when I witnessed my neighbour LYNETTE QUINLIVAN, running in a distressed state across my verge at number 2 Ferndale Street.
3. I remember kneeling on my daughter's bed to look out of the front bedroom window to see what had happened. I saw LYNETTE QUINLIVAN's very young son JOSHUA and her neighbour from 6 Ferndale Street, Floreat, CARMEL NORRIS standing on the verge and MARK NORRIS and his dog standing on the very busy Alderbury Street.
4. I then saw LYNETTE QUINLIVAN and CARMEL NORRIS exchange words, however I was unable to hear what they had said as the windows and doors of my house were shut.
5. LYNETTE QUINLIVAN was visibly angry and very shaken. She promptly picked up JOSHUA and returned to her house with him.
6. A few moments later LYNETTE knocked on my front door. She was still upset. She asked me if I had seen anything. LYNETTE advised me that she was really upset as she had a conversation with CARMEL NORRIS and she had threatened the safety of JOSHUA.
7. In the time we rented the house at 2 Ferndale Street, Floreat I did not notice JOSHUA roaming at the front of LYNETTE's house unattended. If I saw JOSHUA at the front of LYNETTE's house she was out the front supervising or watching him. JOSHUA was not out the front of LYNETTE's house a lot. If JOSHUA came over to our house it was to visit my 2 young girls and LYNETTE was with him.

58 The Tribunal considers that the Practitioner made an assertion to Magistrate Lane that Ms Heffer had given a statement that something 'untoward had occurred' and that this is how her Honour would have understood that assertion. The statement of Ms Heffer, of course, does not say anything to that effect.

59 The Committee also complained about the assertion in the Practitioner's evidence at the November 2008 hearing that Ms Heffer had 'observed everything that had happened'. In fact, Ms Heffer had not seen any relevant conduct on the part of Mr and Mrs Norris. She described a static situation in which Mr and Mrs Norris, their dog and the Practitioner's son were seen standing on the verge. Her attention was drawn to the scene by the Practitioner's reaction, which she describes. Ms Heffer's statement does not say that she saw (or heard) Mr or Mrs Norris calling the Practitioner's son to them or that they lured the Practitioner's son to the verge.

60 The Tribunal therefore concludes that the Practitioner's evidence to Magistrate Lane was deceptive and misleading.

61 The complaint made by the Committee is that the Practitioner gave misleading evidence intentionally or recklessly.

62 The Tribunal is satisfied to the requisite standard that the misleading statements were not made by the Practitioner through honest carelessness, but were reckless and made without regard to whether they were true or not. The Practitioner presented Ms Heffer's statement as important corroborative evidence. Ms Heffer's statement was not long or complicated. The Tribunal finds that the Practitioner was well aware of the contents of Ms Heffer's statement and the evidence that she was able to give.

63 Counsel for the Practitioner submits that in any event, the evidence which the Practitioner gave before Magistrate Lane was not given in her capacity as a legal practitioner and therefore nothing that the Practitioner had said would constitute professional misconduct or unsatisfactory professional conduct. However, the Tribunal does not accept this. There is no doubt that Magistrate Lane was aware that the Practitioner was a legal practitioner ­ the Practitioner said so on at least one occasion during the November 2008 hearing ('the situation is I've had a legal practice for 15 years'. I've had a lot of people who value me as an honest and reasonably priced lawyer ... ) (T: [9], [25.11.08]). The Practitioner is an officer of the Court, irrespective of the capacity in which she appeared before Magistrate Lane, and Magistrate Lane would undoubtedly have been placing reliance on the fact that the Practitioner was a legal practitioner when she took her evidence.

64 We accordingly find that the Practitioner made representations to the Magistrates Court in respect of Ms Heffer's statement outlined which were recklessly misleading so as to gain an advantage for herself, namely the order which she was seeking from the Court. The obligations of a practitioner to the Court are paramount, and ex parte applications require particular candour on the part of applicants. We find that the Practitioner is accordingly guilty of professional misconduct.

65 It is probably unnecessary for the Tribunal to come to a conclusion as to whether or not the words alleged to have been shouted by the Practitioner to Ms Keightley did in fact occur. Ms Keightley said that the words had not troubled her particularly and that, in any event, she was not sure what the Practitioner meant by them (T: [19 ­ 21], [30.3.11]). The Practitioner on the other hand categorically denies saying those words to her or anything to that effect.

66 However, even if that alleged exchange did in fact take place, the Tribunal would have some difficulty in making a finding of professional misconduct or unsatisfactory professional conduct against the Practitioner in relation to that incident, which could be put down to an angry or emotional outburst.

67 The issue of the Practitioner placing the copy of Ms Keightley's statement into her letterbox is clearer, at least on the facts. The Practitioner concedes that she did in fact place the copy into the letterbox as alleged, and it is only her reasons for so doing that are unclear.

68 She was asked by counsel for the Committee this precise question at the hearing and the following exchange (which was typical of a number of exchanges which took place between her and counsel for the Committee under cross­examination) ensued:

Counsel: My question was why, why did you feel it necessary to let her know that police statements are not confidential?

Respondent: I did it because she probably didn't know that.

Counsel: Why did you feel it necessary to inform her about that fact?

Respondent: Well, probably she wouldn't know that.

Counsel: Why did it matter whether she knew it or not?

Respondent: Well, it didn't.

Counsel: Why did it matter that she knew that all documents can be obtained?

Respondent: Well, I had obtained it under freedom of information and I was providing a copy of it to her.

Counsel: Why did it matter that she appreciated that all documents can be obtained?

Respondent: Well, I thought it was important that she know.

Counsel: Why?

Respondent: Well, I just felt it was.

Counsel: Why?

Respondent: Well, because she had made a statement to the police, an incident involving my child and I felt that she ought to know that you can ­ documents that you ­ sworn statements you make to the police are not confidential.

Counsel: How was her life going to be more fulfilled by knowing this bit of information?

Respondent: Well, there was no particular purpose but I certainly wasn't doing it to intimidate or harass or bully her.

Counsel: So are you saying that you put this statement into the letterbox for no particular purpose?

Respondent: Well, not really any particular purpose other than to let her know that if you make a police statement it's not confidential you can get it under freedom of information,

Counsel: Why was that important for her to know that?

Respondent: Well, I don't know, I just did ­ you asked me why, and I'm telling you that was my intention: to let her know that police statements are not confidential and people can get them under freedom of information.

Counsel: I understand why you put it in the letterbox. My question to you is, why did you feel it necessary to let her know that police statements were not confidential and that documents could be obtained?

Respondent: No particular reason. I just felt I had a copy and I would give one to her.

Counsel: For no particular reason?

Respondent: Well, as I said, I just felt that she ought to know that if you go to the police and make a sworn statement those documents are not confidential and you can get your copy ­ other people can get a copy under freedom of information.

Counsel: Well, what you wanted to tell her was that you could get a copy. Right?

Respondent: Well, anyone could get a copy.

Counsel: In particular, the reason why you put it into the letterbox to let her know that documents could be obtained to let her know that you could get hold of those sort of documents?

Respondent: Well, anybody can get hold of documents under ­ ­ ­

Counsel: In particular you?

Respondent: No, I dispute that, it was anyone, anyone in the street could have got it: Mr Norris could have got it, I could get it, anyone can apply for it and get it.

Counsel: Wasn't that the reason why you did it in broad daylight so everybody could see so that there was a chance that people could actually see that it was you who put the statement into the letterbox?

Respondent: Well, I don't see how they would know what I was putting in the letterbox but the reason I did it in broad daylight is I had no concerns about it.

(T: [11 ­ 12], [30.3.11]).

69 The Tribunal can conclude from this that the explanation for the Practitioner's conduct is that she intended to let Ms Keightley know that the Practitioner, as a legal practitioner, knew how to go about obtaining a copy of that statement. There is insufficient evidence, however, to conclude that this was done in an attempt to intimidate or harass Ms Keightley and therefore, the Tribunal does not consider that this amounts to conduct which would be reasonably be regarded as disgraceful or dishonourable by practitioners of good repute and competence. The Practitioner's conduct could be described as ill­considered (and perhaps even childish) but the Tribunal considers that it is conduct driven again by emotion rather than by an attempt by the Practitioner to use her position as a legal practitioner to intimidate Ms Keightley or gain a personal advantage over her.

70 The Tribunal considers that the Committee has not made out Allegation 3.

71 For the reasons set out above, we find that the Practitioner engaged in:

1. unsatisfactory professional conduct between about 21 September 2004 and 1 May 2006 by improperly using her entitlement to engage in legal practice in the manner alleged by the Committee in para 1 of the Committee's allegations; and
2. professional misconduct by misleading the Perth Magistrates Court in the manner alleged by the Committee in para 2(ii) of the Committee's allegations.

1. There is a finding that the practitioner Lynette Patricia Quinlivan between about 21 September 2004 and 1 May 2006 engaged in unsatisfactory professional conduct by improperly using her entitlement to engage in legal practice in Western Australia to intimidate, harass or annoy Mark Norris or Carmel Norris.
2. There is a finding that the practitioner Lynette Patricia Quinlivan on 25 November 2008 engaged in professional misconduct when, in order to advance her own interests, she recklessly misled Magistrate Lane in the Perth Magistrates Court by giving evidence of the content of a statement provided to the practitioner by Ms Angela Heffer which did not reflect the contents of that statement.
3. The applicant is to file and serve any further submissions on penalty within 14 days of publication of these reasons.
4. The respondent is to file and serve any additional submissions on penalty within 28 days of the date of publication of these reasons.
5. 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 [71] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

ACT : LEGAL PROFESSION ACT 2008 (WA)

CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE and QUINLIVAN [2011] WASAT 138 (S)

BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE

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

Legal Profession Act 2008 (WA), s 438(2), s 439(a), s 439(d)

Practitioner reprimanded, suspended and ordered to pay costs

Barristers' Board v Darveniza [2000] QCA 253

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

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

Law Society of New South Wales v Foreman (1994) 34 NSWLR 408

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

Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119

Legal Practitioners Complaints Committee v Pepe [2009] WASC 39

Legal Profession Complaints Committee and Quinlivan [2011] WASAT 138

Legal Profession Complaints Committee and Segler [2010] WASAT 135(S)

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 24 August 2011 (Legal Profession Complaints Committee and Quinlivan [2011] WASAT 138 (Reasons)) the Tribunal made findings that the Practitioner engaged in:

1. unsatisfactory professional conduct by improperly using her entitlement to engage in legal practice in Western Australia to intimidate, harass or annoy Mark Norris or Carmel Norris (para [39] ­ [51] of the Reasons);
2. professional misconduct when, in order to advance her own interests, she recklessly misled Magistrate Lane in the Perth Magistrates Court by giving evidence of the content of a statement provided to the Practitioner by Ms Angela Heffer which did not reflect the contents of that statement (para [52] ­ [64] of the Reasons).

2 The Tribunal also considered an allegation of professional misconduct on a third ground, but found that the Committee had not made out that ground (para [65] ­ [70] of the Reasons).

3 It is unnecessary for the purpose of these reasons to repeat the details of those findings.

4 The Tribunal ordered 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 we refer to below.

5 The Committee submits that the Tribunal should deal with the two guilty findings together for the purpose of imposing a penalty, and make an order pursuant to s 438(2) and s 439(a) of the Legal Profession Act 2008 (WA) (LP Act) that the Practitioner's local practising certificate be suspended.

6 The Committee then submits that, if the Tribunal is inclined to deal with those two findings separately, the Tribunal should make an order that the Practitioner's local practising certificate be suspended in respect of the finding of professional misconduct and impose a fine of between $5,000 and $7,000 in respect of the finding of unsatisfactory professional conduct.

7 The Committee further submits that, in any event, the Practitioner ought to be publicly reprimanded.

8 The Tribunal intends to deal with the two findings separately for the purpose of penalty.

9 The Committee refers to a number of authorities outlining well­known principles to be followed upon a finding of professional misconduct or unsatisfactory professional conduct. None of these principles are disputed or contested by the Practitioner and they can be summarised as follows:

1. the object of disciplinary proceedings is the protection of the public and the maintenance of proper standards in the legal profession, rather than punishment;
2. punishment is not one of the objects of disciplinary proceedings;

1. the penalty must be such that it demonstrates, without doubt, the standards to be observed by practitioners.

10 In respect of the finding of unsatisfactory professional conduct, the Committee contends that it is important that the Tribunal imposes a penalty that ensures that the Practitioner and other practitioners will be deterred from using their professional letterhead in the context of personal matters to gain a personal advantage or to intimidate. The Committee says that the conduct could not be described as isolated, having regard to the number of occasions when the Practitioner used her letterhead to intimidate and/or to cause a detriment to Mr or Mrs Norris.

11 The Practitioner, on the other hand, reminds the Tribunal that it made no finding that the letters caused any detriment to Mr or Mrs Norris and that the Practitioner was not challenged on the contents of the letters, either as to their truth or the manner in which they were expressed.

12 The Practitioner submits that the appropriate penalty in respect of the finding of unsatisfactory professional conduct is a reprimand.

13 The Tribunal, of course, has no way of knowing whether or not the Practitioner continues to use her professional letterhead for personal matters, but we will assume that she has understood the finding of the Tribunal in this regard and no longer does so.

14 On that basis, the Tribunal considers that the appropriate penalty is a reprimand.

15 In respect of the Tribunal's finding of professional misconduct, we observed in the Reasons at [64] that 'the obligations of a practitioner to the Court are paramount, and ex parte applications require particular candour on the part of applicants'.

16 Honesty, fairness and integrity are essential prerequisites to the right to practise law. The 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]. 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]. 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 of New South Wales v Foreman (1994) 34 NSWLR 408 at [444F].

17 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].

18 The Committee says that, where there is a choice presented between suspension and striking off, the Full Court in Legal Practitioners Complaints Committee v Pepe [2009] WASC 39 at [12] described the following passage from Barristers' Board v Darveniza [2000] QCA 253 as providing 'useful guidance':

... striking off is of course reserved for the very serious cases where the character and conduct of the practitioner is seen to be inconsistent with the privileges of further practice. Suspension is a less serious result, firstly because a limited period is specified and secondly because the right to resume practice is then preserved without any further onus upon the practitioner to prove that he or she is now a fit and proper person to practice. 'The proper use of suspension is ... for those cases in which a legal practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he lacks the qualities of character and trustworthiness which are necessary attributes of a person entrusted with the responsibilities of a legal practitioner'. (citation omitted).

19 However, we agree with the Practitioner's contention that while a departure from the duty of honesty to the Court is a very serious matter, such misconduct does not compel a removal from the Roll; see Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 (Vogt).

20 In The Council of the Queensland Law Society Inc v Wright [2001] QCA 58, the Queensland Court of Appeal considered a case of a solicitor who had intentionally misled a Court and said:

... 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].

21 This passage was specifically adopted in Vogt at [61].

22 The Practitioner submits that her evidence was given in the context of concern for the safety of her very young son, which was without doubt an emotional issue for her. The Tribunal does not condone the Practitioner's conduct, but the Practitioner's behaviour in this particular instance can be explained to some extent by those circumstances. There is nothing to suggest that her conduct was premeditated.

23 In Legal Profession Complaints Committee and Segler [2010] WASAT 135(S) 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. A 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.

24 Taking into account the fact that the Practitioner has not previously been found guilty of any professional misconduct and also the mitigating factor in [22] above, the Tribunal is of the view that a period of suspension of two months is appropriate, the period to commence 21 days after the date of the order below.

25 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).

26 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].

27 The Practitioner concedes that a costs order against her is appropriate, but she contends that she ought not be obliged to meet the cost of Senior Counsel.

28 However, the Tribunal considers that the complaints made against the Practitioner were serious, particularly the complaint of misleading the Court. The Tribunal also notes that the Practitioner herself briefed Senior Counsel to appear on her behalf and to draft submissions on penalty. The Tribunal also notes that Senior Counsel for the Committee has significantly discounted his hourly rate and the Tribunal accordingly orders costs in the sum of $16,033.70 to be paid within 30 days of the date of this order.

1. In respect of the finding of unsatisfactory professional conduct against the Practitioner, the Practitioner is reprimanded.
2. In respect of the Tribunal's finding of professional misconduct, the Practitioner's local practising certificate is suspended for a period of two months to commence 21 days from the date of this order.
3. The Practitioner is to pay the Committee's costs fixed at $16,033.70, to be paid within 30 days of the date of these orders.

I certify that this and the preceding [28] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________