LEGAL PROFESSION COMPLAINTS COMMITTEE and TANG [2021] WASAT 117 (3 September 2021)

Attorney­General for Hong Kong v Reid [1993] UKPC 2; [1994] 1 AC 324

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

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

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

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

Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S)

Legal Profession Complaints Committee v Bachmann [2011] WASC 309

Legal Profession Complaints Committee and Chang [2019] WASAT 67

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

Legal Profession Complaints Committee v Love [2014] WASC 389

Legal Profession Complaints Committee and Lee­Steere [2010] WASAT 189

1. The legal framework and principles in relation to findings of professional misconduct are not in dispute and were reviewed and stated by the Tribunal[5] in Legal Profession Complaints Committee and Chang [2019] WASAT 67 at [7] ­ [12] as follows:[6]
   1. The Committee has determined that this matter should be heard by the Tribunal and has referred the matter to the Tribunal under s 428(1) of the LP Act. Section 438(1) of the LP Act confers jurisdiction on the Tribunal in this proceeding in the following terms:

1. The Committee bears the onus of proof in relation to the allegations of professional misconduct it makes against the practitioner. The civil standard of proof ('on a balance of probabilities') applies together with the Briginshaw approach, which requires clear and cogent evidence to be adduced by the Committee and for the Tribunal to feel an actual persuasion of the occurrence or existence of relevant facts before it can find the practitioner guilty of professional misconduct (or unsatisfactory professional conduct) [See Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361­362 (Dixon J) (a case concerning a petition for the dissolution of a marriage on the grounds of adultery)]. The Briginshaw approach applies in disciplinary proceedings, because of the nature and seriousness, and potential consequences, of allegations of wrongdoing (or incompetence) made in such proceedings. As Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361 ­ 362:

1. Section 402 and s 403 of the LP Act contain non-exhaustive definitions of the terms 'unsatisfactory professional conduct' and 'professional misconduct', respectively [Legal Practitioners Complaints Committee and Segler [2009] WASAT 205; (2009) 67 SR (WA) 280 at [97]]. Section 402 of the LP Act states as follows:

1. As the statutory definitions of the terms 'professional misconduct' and 'unsatisfactory professional conduct' in s 403(1) and s 402 of the LP Act, respectively, are non-exhaustive definitions, conduct which constitutes 'unprofessional conduct' (sometimes expressed as 'professional misconduct', signifying more serious misconduct) at common law can constitute professional misconduct (or unsatisfactory professional conduct) under the LP Act [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].
2. The common law concept of unprofessional conduct was restated by Parker J in Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 at [61] (Ipp J at [1] and Steytler J at [22] agreeing) as follows:

... This Court has long accepted and applied, in this context, the understanding of the notion of unprofessional conduct which was expressed by the Full Court of the South Australian Supreme Court in Re a Practitioner of the Supreme Court [1927] SAStRp 9; [1927] SASR 58: see, eg, Re a Practitioner (unreported, Supreme Court, WA, Full Court, Library No 4989, 18 July 1983). It was usefully summarised (at 3) by the Full Court as conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, or 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. The first limb of this summary includes, but is not confined to, conduct which occurs in the course of legal practice. The other limb necessarily relates to conduct in the course of legal practice because of the reference to 'professional conduct'. While the words should not be taken as necessarily an exhaustive or codified statement, the essence of the notion of unprofessional conduct is usefully revealed in these decisions.

1. As is apparent from the expression of the grounds of alleged professional misconduct set out at [1] above, the Committee contends, in relation to each of the grounds, that the practitioner's alleged conduct constitutes 'professional misconduct' under the LP Act, because it falls within the first limb of the restatement of the common law concept of unprofessional conduct in Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 at [61][7] ('conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence') and, further or alternatively, because it falls within the statutory definition of 'professional misconduct' in s 403(1)(b) of LP Act ('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'). As Parker J held in Kyle v Legal Practitioners' Complaints Committee at [61], the first limb of the restatement of the common law concept of unprofessional conduct in that case 'includes, but is not confined to, conduct which occurs in the course of legal practice'. The statutory definition of 'professional misconduct' in s 403(1)(b) of the LP Act also expressly states that it applies to conduct 'whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law'. As is apparent from the expression of ground 2 set out at [1] above, the Committee also contends that the practitioner's alleged conduct the subject of that ground constitutes professional misconduct under the LP Act, further or alternatively, because it falls within the second limb of the restatement of the common law concept of unprofessional conduct in Kyle v Legal Practitioners' Complaints Committee at [61] ('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').
2. The alleged conduct the subject of ground 1 did not occur in the course of legal practice, but nevertheless can constitute 'professional misconduct' under the first limb of the restatement of the common law concept of unprofessional conduct in at [61] and, further or alternatively, under the statutory definition of 'professional misconduct' in s 403(1)(b) of the LP Act. It is well established that a lawyer's conduct outside the provision of legal services to a client is capable of constituting professional misconduct within the meaning of s 403 of the LP Act. The alleged conduct the subject of ground 2 occurred in the course of legal practice, because it involved responding to the Committee, as a vocational regulation body of the legal profession, when it was investigating a complaint made about the practitioner under the LP Act, and can constitute 'professional misconduct' under either or both limbs of the restatement of the common law concept of unprofessional conduct in at [61] and under the statutory definition of 'professional misconduct' in s 403(1)(b) of the LP Act.

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

1. Significantly, in terms of ground 2, as the Tribunal[10] said in Legal Profession Complaints Committee and Lee­Steere [2010] WASAT 189 at [22] ­ [24]:
   1. The reputation of the legal profession in the eyes of the public and among its members depends to a large extent upon the power and ability of the Board and the Committee to regulate effectively the activities of all legal practitioners. The purpose of the Act is expressly stated in its long title 'to provide for the regulation of legal practice in Western Australia'.
   2. It is incumbent upon all legal practitioners to ensure that the above purpose is realised in all respects. To that end, legal practitioners are obligated to cooperate with the reasonable requests of their regulatory body to the fullest extent. It is a duty owed to the Board and the Committee in a measure not less than the duty owed by a practitioner to his or her client and to a Court or Tribunal.
   3. In our view it is unacceptable, both to members of the public and to the profession, for a practitioner to undermine the authority of a regulatory body by ignoring its requests for information or failing to respond to those requests with alacrity and with complete honesty. To flaunt that authority is to fly in the face of the legislative intent and disables the body from executing its statutory functions. Such conduct is viewed by this Tribunal in a most serious light and will not be countenanced.

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

1. In general terms, where the conclusion is reached that a practitioner is presently unfit to practise, a choice may be made between suspension and striking off. If an order for suspension is made in that event, it must be made on the basis that, at the termination of the period of suspension, the practitioner will no longer be unfit to practise because, at the end of the relevant period, the practitioner's name will still be on the roll of practitioners and may resume practise. Suspension is a 'serious form of discipline which is usually imposed to discipline the legal practitioner, who has committed an act of unprofessional conduct but who, in the opinion of the court, at the end of the period of suspension, will be a fit and proper person to practise the law'. In the context of suspension, present unfitness to practise may be understood to include a serious breach of professional obligations 'reflecting, to a significant degree, upon the practitioner's fitness to practise'.
2. Where, however, the present unfitness to practise reveals that the practitioner lacks the character and trustworthiness necessary to discharge the responsibilities of legal practice, or that the practitioner is permanently or indefinitely unfit to practise, striking off rather than suspension will (at least ordinarily) be the appropriate response.
3. A failure on the part of the practitioner to appreciate the impropriety of his or her conduct may support a finding of unfitness to practise. A reason for this is that the lack of appreciation of impropriety and the lack of insight increases the risk of recurrence of the improper conduct.
4. A suspension order may also be a valuable measure by way of general or personal deterrence, for the protection of the public and the maintenance of the reputation and standards of the legal profession, even without concluding that the conduct demonstrated or should be characterised as indicating that the practitioner was not a fit and proper person. A suspension order entails greater denunciatory and deterrent effect than a reprimand and fine.
5. Fitness to practise for the purpose of penalty orders is to be determined at the time of the relevant hearing, and not at the time of the misconduct. The same is true of the question of the appropriate penalty generally.
6. In Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S), a case in which a practitioner was found to have engaged in professional misconduct by, among other things, intentionally causing a court to be misled that there was no third party who ought to be heard before orders were made in terms of a minute of agreed orders, the Tribunal referred to authorities and principles in relation to penalty, which are also relevant in this case, as follows at [21] ­ [27]:

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

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

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

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

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

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

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

(1938) 60 CLR 336

(1999) 21 WAR 56

(1939) 13 ALJR 563

(1960) 104 CLR 186

(2001) 52 NSWLR 279

(1995) 15 WAR 12

(1957) 97 CLR 279

(2004) 216 CLR 253

(1947) 75 CLR 409

(1992) 176 CLR 256

(2004) 204 ALR 8

(1984) 36 SASR 590