Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Citation : LEGAL PROFESSION COMPLAINTS COMMITTEE and QUINLIVAN [2011] WASAT 138

Legal practitioner - Unsatisfactory professional conduct - Professional misconduct - Use of professional letterhead - Whether improper use of professional position - Whether statements made to court were misleading

Legal Practitioners Complaints Committee and Segler [2009] WASAT 91

Legal Profession Complaints Committee and Quinlivan [2011] WASAT 138

Legal Profession Complaints Committee and Quinlivan [2011] WASAT 138 (S)

Legal Services Commission v Sing [2007] LPT 004; [2007] 2 Qd R 158

Lourey v Legal Profession Complaints Committee [2012] WASCA 112

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

1 PULLIN JA: The facts and issues and the grounds of appeal are set out in the reasons of Murphy JA. Ground 1 should be upheld for the reasons given by Murphy JA. The mere use of the practitioner's letterhead in the circumstances referred to involved no unsatisfactory professional conduct.

2 Grounds 3 and 4 require an examination of the relevant allegations made by the respondent, the conduct of the hearing and the reasons of the Tribunal. The committee alleged in writing that:

[T]he practitioner ... engaged in professional misconduct ... in order to advance her own interests by intentionally or alternatively recklessly deceiving and misleading Magistrate Lane at a hearing 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:

(a) 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

(b) giving evidence of the content of a statement provided to the practitioner by Angela Heffer which did not reflect the contents of that statement.

3 The allegation in par (a) was dismissed by the Tribunal (see [54] - [55]). The respondent filed a 'statement of facts and contentions' which provided further particulars of allegation (b). Paragraph 14 read:

The practitioner ... gave evidence that a neighbour, Angela Heffer, had given a 'sworn statement' to the effect that:

14.1 she had observed everything that had happened during the unfolding of the incident in April 2005;

14.2 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 your child, they would have taken him by the hand and walked him back to your house'; and/or

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

4 The allegation in 14.3 was abandoned by the respondent at the commencement of the proceedings. No finding was made by the Tribunal in support of what was alleged in 14.2. That left only the allegation in 14.1, which was the practitioner's statement that the other neighbour (that is, not the neighbours with whom the appellant had a dispute) had given a sworn statement to the effect that she had 'observed everything' that had happened during the unfolding of the incident in April 2005.

5 The Tribunal found that the practitioner made recklessly misleading statements. The reasons for this finding were that:

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.

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.

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

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

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.

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.

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 [58] - [64].

6 As can be seen, the Tribunal concluded that the practitioner was guilty of professional misconduct because her evidence before the magistrate was deceptive and misleading for two reasons. Unfortunately, the first reason given related to what was alleged in par 14.3 of the statement of facts and contentions. The Tribunal overlooked the fact that the allegation in par 14.3 had been expressly abandoned by the respondent as a basis for a finding of professional misconduct. A finding of professional misconduct based upon two reasons, one of which had been abandoned, cannot be left to stand. Ground 3 has been made out.

7 The question then is whether the allegation in par 14.1 could be sustained. If the conclusion is that it could be sustained, then the decision of the Tribunal could be affirmed (pursuant to s 105(9)(a) of the State Administrative Tribunal Act 2004 (WA)) notwithstanding the error by the Tribunal.

8 The allegation in par 14.1 could not be sustained for the following reasons. What the practitioner actually said to the magistrate was:

So after that I went in and I spoke to my neighbour, Angela Heffer, and she had observed everything that had happened. She said, 'If they were genuinely trying to assist you with your child, they would have taken him by the hand and walked him back to your house'. So it was clearly something she believed, and she's given a sworn statement to that effect, it was clearly something she believed was untoward.

9 The appellant did not say to the magistrate that the other neighbour gave a written statement in which she said she 'observed everything' that had happened. The sentence following what the appellant quoted her other neighbour as saying to her is ambiguous, but it did not relate to the earlier sentence about the neighbour 'observing everything'. If the allegation had been that the other neighbour did not say that she had observed everything, the inquiry would have been different. However, the allegation was that the appellant said she had a 'sworn statement' that the

neighbour 'observed everything'. The appellant did not say to the magistrate that she had such a statement. As a result, the allegation in 14.1 had not been made out.

10 As a consequence, there was no basis for making a finding of professional misconduct.

(c) The orders made by the State Administrative Tribunal on 24 August 2011 and 5 December 2011 be set aside and in lieu there be substituted an order dismissing the respondent's application dated 19 May 2010.

12 NEWNES JA: I agree with Murphy JA in respect of ground 1 of the grounds of appeal. It is therefore unnecessary to consider ground 1A. I agree with Pullin JA in respect of grounds 3 and 4.

13 On 24 August 2011, the State Administrative Tribunal (the Tribunal) delivered reasons for judgment in which it found that the appellant (the practitioner) was guilty of unsatisfactory professional conduct and professional misconduct: Legal Profession Complaints Committee and Quinlivan [2011] WASAT 138 (SAT reasons).

14 The finding of unsatisfactory professional conduct related to a number of letters that the practitioner had sent on her professional letterhead in certain personal disputes with her neighbours. The Tribunal found, in effect, that the practitioner was guilty of unsatisfactory professional conduct in that she had improperly used her entitlement to engage in legal practice in Western Australia in order to intimidate, harass or annoy her neighbours in relation to those disputes (SAT reasons [1], [2] and Order 1).

15 The Tribunal also found that the practitioner had engaged in professional misconduct by recklessly misleading a magistrate in certain

proceedings against her neighbours, in order to advance her own interests (SAT reasons [64]).

16 On 5 December 2011, the Tribunal delivered supplementary reasons relating to the issue of penalty: Legal Profession Complaints Committee and Quinlivan [2011] WASAT 138 (S). In relation to the finding of unsatisfactory professional conduct, the Tribunal ordered the practitioner to be reprimanded. In respect of the finding of professional misconduct, the Tribunal ordered that the practitioner's local practising certificate be suspended for a period of two months. The practitioner was ordered to pay the Committee's costs.

17 On 20 December 2011, Pullin JA ordered that the order relating to the suspension of the appellant's practice certificate, and the order relating to costs, be stayed pending the determination of the appeal. His Honour also ordered that the application for leave to appeal be heard together with the appeal.

18 For the reasons which follow, the appeal should be allowed.

The Committee's application to the Tribunal

19 By application dated 19 May 2010, pursuant to s 428(1) of the Legal Profession Act 2008 (WA), the Legal Profession Complaints Committee (the Committee) alleged that the practitioner engaged in professional misconduct in (relevantly for present purposes) two respects.

20 In its first complaint (which I will call the correspondence complaint), the Committee alleged that the practitioner had written to her neighbours and other persons, in relation to a personal dispute with the neighbours, on the letterhead that she used when engaging in legal practice; that the content of the letters was unrelated to the practitioner's engagement in legal practice; and that the practitioner had thereby improperly used her entitlement to engage in legal practice by writing and sending the letters for the purpose of intimidating, harassing, annoying or improperly causing a detriment to the neighbours or with the intention of improperly gaining an advantage for herself.

21 The letters were particularised but it was not alleged in the application that they were, in terms of subject matter or language, threatening, oppressive or abusive. Insofar as the content of the letters was relied upon, it was only to show that they related to a personal dispute and were unrelated to the practitioner's engagement in legal practice.

22 In the second complaint, the Committee alleged that the practitioner had intentionally or recklessly deceived and misled a magistrate in an ex parte hearing relating to an application that she had made for a violence restraining order against her neighbours. I will call this 'the complaint of misleading the court'.

23 In relation to this complaint, it was alleged by the Committee that in the course of giving sworn evidence in support of her application, the practitioner had referred to an incident in April 2005 in which, she alleged, the neighbours had threatened the safety of her young son by attempting to lure him onto a street with heavy traffic. The Committee alleged that this evidence was deceptive and misleading as it was inconsistent with evidence that the practitioner had given in relation to the same incident at a previous hearing in which the practitioner had denied that the neighbours were trying to get her son out onto the road.

24 In relation to this incident the Committee further and separately alleged, in effect, that the practitioner gave evidence that she had a sworn statement from another neighbour to the effect that:

(a) the other neighbour had observed everything that had happened during the unfolding of the incident in April 2005;

(b) the other neighbour had said to the practitioner after the incident words to the effect that 'if they were genuinely trying to assist you with your child, they would have taken him by the hand and walked him back to your house'; and/or

(c) what the other neighbour had seen was something that she believed was untoward.

25 The Committee alleged that those statements were untrue and that the practitioner had intentionally or recklessly misled or deceived the magistrate about the contents of the witness statement from the other neighbour. At the commencement of the hearing before the Tribunal, however, the Committee abandoned the third alleged element (sub-par (c) of [24] above) and said that it did not form part of the Committee's case in relation to the complaint of misleading the court.

The correspondence complaint The Tribunal's findings

26 It was common ground that the practitioner was a sole legal practitioner. The Tribunal made, in effect, the following findings. The practitioner was Lynette Patricia Quinlivan. She was a legal practitioner of Western Australia and engaged in practice under the name 'Lynette Patricia Quinlivan, Barrister and Solicitor'. She lived in Floreat. There were disputes with her neighbour over a shared bore and a dividing fence.

27 Between 21 September 2004 and 1 May 2006, the practitioner wrote a number of letters to her neighbours, a reticulation contractor who had been engaged by her neighbours in relation to the bore, the Town of Cambridge and Wembley Police Station. All of the letters related to the practitioner's personal disputes with her neighbours.

28 The letters were sent under the letterhead that the practitioner used when she engaged in legal practice. The content of the letters was unrelated to the practitioner's engagement in legal practice.

29 On 23 October 2004, in a letter to the practitioner, the neighbours complained about the use of her letterhead by the practitioner and suggested that she was trying to intimidate them.

30 The practitioner replied to the effect that she was a solicitor and she did it 'to keep a high level of professionalism, nothing more'.

31 The practitioner's use of her professional letterhead, in the letters that she sent, was an incident of her entitlement to engage in legal practice. The letters were not sent in her capacity as a legal practitioner or written by her by way of acting in the course of legal practice for herself (SAT reasons [41] - [50]).

32 The practitioner used her letterhead in her letters to the neighbours, particularly after the neighbour had raised the issue of the use of her letterhead, 'with the intention of intimidating' her neighbours (reasons [47]).

33 The practitioner wrote to the reticulation contractor using her letterhead 'to impress upon [him] that she was in fact a legal practitioner and that her threats of legal action contained in that letter should be taken seriously' (SAT reasons [48]).

34 Some aspects of the letters sent to the Town of Cambridge were totally unconnected with the Town of Cambridge. The letter written to the Wembley Police Station, which was copied to the Commissioner of Police and the Chief Executive of the Fire and Emergency Services Authority where the neighbour worked, was written on her letterhead and made a variety of allegations against her neighbours.

35 It could only be 'assumed' that the letters sent to the Town of Cambridge were sent in an attempt 'to give weight to her credibility to improperly discredit [her neighbours] and thereby cause them a detriment' (reasons [49]).

36 The letters to the police and the Fire and Emergency Services Authority were sent 'to give weight to those allegations to cause a detriment to [her neighbours]' (reasons [50]).

The complaint of misleading the court The evidence before the magistrate

37 At the hearing of the practitioner's ex parte application for a violence restraining order against the neighbours, the following exchange occurred between the magistrate and the practitioner (GB 193 - 194):

How do you feel that a restraining order would protect you then?---Basically I don't want any of these verbally abusive scenes to occur again. ...

What will you feel if you see either [the male or female neighbour] during that period of time?--- Well, I feel that after yesterday and, may I say, previous encounters where she has threatened the safety of my child.

Well what was that about?---... on one occasion - it was in April 2005 - my little son ..., who would've been about one and a half at the time, I went out the front ... I then came in ... and realised that [my son] wasn't there. So I went out the front and I saw him. He was on the neighbour's lawn. They had a dog. Actually, I forgot to say, as she walked past she abused me and I said nothing.

What did she say to you?---Just something like, you know - I can't even remember now - but it was something offensive, you know, and I said nothing. I just quietly walked inside and ignored them. They were out walking the dog. He was leading with the dog. She stopped to abuse me and they kept on going. So they were up at the corner. I think they called [my son] and he walked on to the neighbour's lawn. Now he was standing right on Alderbury Street, which is a really, really heavily traffic street. He was there with the dog and she was there calling [my son] over to Alderbury Street. So I ran over and picked him up and I said to her, 'Get away from my child'. She said, 'Glad to hear you're moving. If I was you I'd be moving too' and it was the way she said it and the way she was looking at my child. I knew she was indicating that if there was ever an opportunity he wouldn't be safe out the front. So after that I went in and I spoke to my [other] neighbour ... and she had observed everything that had happened. She said, 'If they were genuinely trying to assist you with your child, they would have taken him back to your house'. So it was clearly something she believed, and she's given a sworn statement to that effect, it was clearly something she believed was untoward.

But they have never harmed your child or threatened your child?---No. Well, I took that to be not a healthy situation and a verbal threat. And since that time I have never, ever let [my son] be out the front unless I was right there with him. I did actually report that to the police and they said I let my child roam out the front unsupervised all the time and they were just helping. As [the other neighbour] said, 'No, its not consistent. If they were helping they would have been leading him back'. She also said she has been living there for two years and she had never, ever seen [my son] out the front unsupervised.

38 The witness statement of the other neighbour, to which the practitioner had referred in this exchange, appears in the SAT reasons at [57]. The other neighbour's statement, dated 30 March 2007, was to the effect that on 2 April 2005:

(a) she saw the practitioner running across her [the neighbour's] verge in a distressed state;

(b) she was in her daughter's bedroom at the time, and she saw the practitioner's son and the female neighbour standing on the verge, and the male neighbour and his dog standing in the very busy Alderbury Street;

(c) she then saw, but did not hear, the practitioner and the female neighbour exchange words;

(d) she saw that the practitioner was visibly angry and very shaken and saw the practitioner pick up her son and return him to her house;

(e) the practitioner then came to the other neighbour's house and:

(i) asked the other neighbour if she had seen anything;

(ii) told the other neighbour that she was really upset and that she had a conversation with the female neighbour and the female neighbour had threatened the safety of her son;

(f) the practitioner's son would, to her observation, not ordinarily be outside the front of the house unless the practitioner was supervising him.

39 The statement of the other neighbour does not record any response to the practitioner's question referred to in subpar (e)(i) above.

40 At the hearing before the Tribunal, counsel for the practitioner submitted that the practitioner's evidence to the magistrate was, relevantly (GB 40):

Nothing more than the practitioner telling the magistrate that she had a sworn statement to the effect that [the other neighbour] saw something that [the other neighbour] believed was untoward.

41 The practitioner's evidence-in-chief before the Tribunal was that:

(a) she told the magistrate that she had spoken to the other neighbour and the other neighbour had said that she had observed everything that had happened;

(i) the other neighbour had observed everything that had happened, meaning she observed the incident that occurred that day;

(ii) she did have a conversation with the other neighbour and the other neighbour did say 'if they [the neighbours] were genuinely trying to assist you with your child, they would have taken him by the hand and walked him back to your house'; and

(iii) the other neighbour did believe the incident was untoward and she had made a sworn statement to that effect.

42 The practitioner was cross-examined in some detail as to the meaning which she intended to convey to the magistrate in her evidence regarding the statement from the neighbour. The question of whether her explanations in this regard were plausible or not was a matter for the Tribunal. On one view of her evidence, she said that she was intending to convey that insofar as her other neighbour had observed the incident, it was all recorded in her witness statement, and she added the observation that the other neighbour believed that what she had seen was untoward. The practitioner denied in effect, that she was conveying to the magistrate that she had a witness statement to the effect that the other neighbour had seen 'everything' including, relevantly, the neighbours luring her small child onto a busy road.

43 In relation to the allegation that the practitioner had given misleading evidence to the magistrate to the effect that the neighbours had deliberately endangered the safety of her son by attempting to lure him onto a heavily trafficked street (see [23] above), the Tribunal was not persuaded that the practitioner had misled the court in this part of her evidence. The Tribunal noted that although the practitioner had referred to a previous encounter where the female neighbour had threatened the safety of her child, when specifically asked by the magistrate whether the neighbours had harmed or threatened the practitioner's son, she responded in the negative. This was consistent with the evidence that the practitioner had given to a similar question at a previous hearing (see SAT reasons [54]).

44 In relation to the matter referred to in subpar (c) of [24] above, the Tribunal found (SAT reasons [58]), in effect, that the practitioner made an assertion to the magistrate that the other neighbour had given a statement that something 'untoward had occurred' and that this is how the magistrate would have understood that assertion, and that the statement was false. That finding was not called for, as the Committee had abandoned that allegation.

45 The Tribunal failed to make any finding on the allegation referred to in subpar (b) of [24] above, and the Committee has not filed a notice of contention in this appeal with respect to that omission.

46 In relation to the allegation referred to in subpar (a) of [24] above, the Tribunal said (SAT reasons [59] - [60]):

The Committee also complained about the assertion in the Practitioner's evidence at the November 2008 hearing that [the other neighbour] had 'observed everything that had happened'. In fact, [the other neighbour] had not seen any relevant conduct on the part of [the neighbours]. She described a static situation in which [the neighbours], 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. [The other neighbour's] statement does not say that she saw (or heard) [the neighbours] calling the Practitioner's son to them or that they lured the Practitioner's son to the verge.

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

47 The Tribunal also found that the evidence given to the magistrate was misleading and made without regard to whether it was true or not. In this regard, the Tribunal found that the practitioner presented the other neighbour's statement as important corroborative evidence, the statement was not long or complicated, and that the practitioner was 'well aware of the contents of [the other neighbour's] statement and the evidence that she was able to give' (SAT reasons [62]).

The Legal Profession Act 2008 (WA)

48 Sections 402 and 403 of the Legal Profession Act provide:

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.

(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.

(2) For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.

49 The grounds of appeal (as amended) were to the following effect:

(a) the Tribunal erred in law in that the findings of fact did not establish the ultimate finding of the Tribunal that the appellant had engaged in unsatisfactory professional conduct by improperly using her entitlement to engage in legal practice in Western Australia to intimidate, harass or annoy her neighbours (ground 1);

(b) the Tribunal erred in law in finding that the appellant engaged in unsatisfactory professional conduct by improperly using her entitlement to engage in legal practice in Western Australia to intimidate, harass or annoy her neighbours in that it misconstrued and misapplied s 402 of the Legal Profession Act 2008 (WA) (ground 1A);

(c) the Tribunal erred in fact and law in finding that the appellant engaged in professional misconduct by recklessly misleading the magistrate by giving false evidence of the contents of a witness statement when the finding was not open (ground 3);

(d) further, and in the alternative to ground 3, if the evidence given by the appellant was misleading, the Tribunal erred in fact and law in finding that the practitioner mislead the magistrate recklessly rather than through honest carelessness or mistake (ground 4).

50 Leave to appeal is required under s 105(1) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act).

51 Grounds 1 and 1A relate to the Tribunal's finding that the practitioner was guilty of unsatisfactory professional conduct in respect of which she was reprimanded. The appeal against this finding may only be brought on a question of law: s 105(2) of the SAT Act. The relevant principles concerning leave to appeal and an appeal on a question of law have been summarised in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 and Lourey v Legal Profession Complaints Committee [2012] WASCA 112.

52 In relation to grounds 3 and 4, the Tribunal ordered a period of suspension of the practitioner's practising certificate. The effect of s 105(13) of the SAT Act, in relation to those matters, is that the practitioner may pursue an appeal on a question of law, a question of fact or a question of mixed fact and law.

53 As a general proposition, it may be said that a practitioner may be guilty of unsatisfactory professional conduct (or perhaps professional misconduct depending on all the circumstances) if a practitioner unfairly uses his or her professional position in order to gain a personal advantage over, or to intimidate, members of the community. Whether improper conduct of that kind has occurred will depend upon a consideration of all the facts and circumstances of the particular case. The observations of de Jersey CJ in Legal Services Commission v Sing [2007] LPT 004; [2007] 2 Qd R 158 at [29] - [30] are pertinent:

Pressure is daily brought to bear to encourage people to discharge their legal obligations. There is nothing legally or morally wrong with that, assuming reasonable restraint. As previously observed, [the solicitor], while applying pressure, acted in a measured way. The issue is whether the [solicitor] nevertheless unfairly used his professional position to reinforce that application of pressure, so as to overreach or intimidate ...

There is a continuum applicable to practitioners, with legitimate pressure at the one end, and improper intimidation at the other. It may, in any particular case, be difficult to delineate the precise point at which any application of pressure becomes improper. That is why practitioners must be extremely careful before resorting to any even arguably threatening conduct. They are well advised to err on the side of caution, as in all aspects of their professional approach. With the increasingly intense demands of clients, and the high level of competition which these days characterises the practice of the law, practitioners will inevitably be asked to stretch the limits of their consciences: they must be steadfast not to yield to that temptation.

54 Also, it may be accepted that the use, by a practitioner, of his or her letterhead, in correspondence with a member of the public, may be a relevant consideration in the determination of whether the practitioner has unfairly used their professional position in order to gain a benefit over, or to intimidate, a member of the public.

55 For example, in Legal Practitioners Complaints Committee and Segler [2009] WASAT 91 the practitioner sent a real estate agent a letter on his professional letterhead concerning the outcome of Magistrates Court proceedings in which the practitioner had represented himself. The letter demanded payment of the judgment sum and threatened that unless such payment was made on the following day the practitioner would issue an enforcement writ. The letter was sent on the day following the judgment notwithstanding that the magistrate's order did not require payment until seven days after judgment. The letter also threatened that the practitioner, subject to further enquiries, proposed to refer the matter to the Director of Public Prosecutions with a recommendation that the landlord be indicted for perjury.

56 The Tribunal in Segler found that the demand for payment of the judgment sum was inappropriate and intimidatory. On the question of whether the demand was intimidatory, the Tribunal said [22] - [23]:

In our view, the unjustified threat to take enforcement action, to seek payment of interests and costs on the enforcement proceedings, and to raise the spectre of the 'seizure and sale of the property', are all properly described as intimidatory demands. That that is so is reinforced by the fact that, notwithstanding that [the practitioner] was acting in the proceedings in his personal capacity, the letter of demand was written on his professional letterhead. The language used reinforces the proposition that [the practitioner] is endeavouring to utilise the weight of his professional qualifications to give force to the threat.

57 The Tribunal also found that the threat to institute enforcement proceedings was conduct falling short of the standard of professional conduct to be expected because [62]:

(a) the threat was without foundation since the monies were not payable, and even if [the practitioner] had forgotten the time allowed for payment, he should have directed his attention to that question before making the threat;

(b) in any event, the time allowed for payment was unreasonably short having regard to the reasonable steps that might have been required to make the payment;

(c) the threat was made on the practitioner's professional letterhead;

(d) the discussion at the conclusion of the hearing suggested that the payment was likely to be made promptly without any need for enforcement proceedings; and

(e) coupled with the balance of the letter, the whole communication can be seen to be an attempt to overbear and intimidate.

58 In relation to the threat that the landlord be indicted for perjury, the Tribunal in Segler said [54]:

Legal practitioners enjoy particular privileges in our society. Those privileges carry with them responsibilities. Communications by a lawyer concerning matters of law bear special force by reason of the qualifications and authority of the author. The proper role of a lawyer commonly involves the assertion of legal rights and obligations, and the explanation of the legal consequences of particular courses of action. That role frequently involves pressing claims for civil redress, and on occasion threatening criminal proceedings (see In re Gent One and In re A Barrister (1920) 21 SR (NSW) 12). However, threatening criminal proceedings where there is no adequate foundation is unacceptable. In our view, the threat of criminal action without an adequate foundation, in circumstances where it is designed simply to cause apprehension and distress, is conduct which falls so far short of the standards expected of practitioners of good repute and competence that it amounts to unprofessional conduct.

59 The Tribunal in Segler found there was no reasonable basis for the threat made by the practitioner other than to cause anxiety or distress. The Tribunal found that the practitioner was guilty of unsatisfactory conduct by unprofessional conduct in writing the letter to the real estate agent. It is apparent from the Tribunal's reasons that the use of the professional letterhead was relevant to the finding of unprofessional conduct, but not of itself determinative of the outcome.

60 In the matter under appeal, the Tribunal made reference to Segler, but without, with respect, elucidating how the observations of the Tribunal in Segler assisted it in determining that the correspondence in question was written in order to intimidate, harass or annoy the practitioner's neighbours.

61 Whether the undisputed facts found by the Tribunal are capable of supporting a finding of unsatisfactory professional conduct is a question of law.

62 With respect to the letters to the neighbours, the facts found by the Tribunal are, in essence to the effect that:

(b) she had certain personal disputes with her neighbours concerning the shared use of the bore and the dividing fence (thus, the disputes were apparently of a legal nature);

(c) the neighbours knew, before receiving any correspondence from her, that she was a legal practitioner;

(d) she wrote the letters using her professional letterhead which comprised the use of her own name, followed by the words 'Barrister and Solicitor'.

63 With respect to the letter to the neighbours' reticulation contractor, in addition, there was a finding to the effect that she had made threats of legal action which were designed to be taken seriously.

64 The Committee did not allege, and the Tribunal did not purport to find, that the letters were abusive, threatening or intimidatory in their language or subject matter, or that in terms of content, they went beyond the bounds of what any legal practitioner, who had been consulted by the practitioner to act for her, could reasonably have written in the circumstances.

65 Although the Tribunal found that the letters were not written in her 'capacity as a legal practitioner', in the above circumstances, no proper basis is disclosed for inferring that the correspondence to the neighbours or the reticulation contractor was written in order to intimidate, harass or annoy the practitioner's neighbours.

66 I turn now to the Tribunal's findings concerning the letters to the Town of Cambridge and Wembley Police (copied to the Commissioner of Police and the Chief Executive Officer of the Fire and Emergency Services Authority). On one view of the findings referred to in [34] - [36] above, the Tribunal arguably impliedly found that the practitioner had communicated certain allegations concerning the bore and the dividing fence which, to the practitioner's knowledge, the recipients of those letters had no proper interest in receiving. However, no detail or context is given and these relatively cryptic references do not justify the ultimate finding made.

67 The case, on the facts found, is far removed from Segler, in which detailed and explicit findings were made about the nature, content and circumstances of the correspondence, including the use of the letterhead, from which the Tribunal could properly draw a conclusion about whether the practitioner had engaged in unsatisfactory professional conduct.

68 For these reasons, I would uphold ground 1 of the notice of appeal. Ground 1A of the notice of appeal was a last-minute amendment upon which the court would have been assisted by more focused debate. It unnecessary to deal with ground 1A in light of the conclusion I have reached in relation to ground 1.

The complaint of misleading the court Disposition

69 As noted earlier, the Tribunal made a finding against the practitioner on the matter referred to in subpar (c) of [24] above, when that allegation was not pursued by the Committee. The Tribunal thereby erred.

70 No finding was made on the Committee's allegation referred to in subpar (b) of [24] above.

71 The other matter which the Tribunal was required to consider (referred to in subpar (a) of [24] above) was whether the practitioner had knowingly or recklessly misled the magistrate by stating, in effect, that the other neighbour had given a sworn statement to the effect that she had 'observed everything that had happened during the unfolding of the incident in April 2005'. This would have required the Tribunal first to determine whether the practitioner's evidence to the magistrate was to the effect alleged. If it was not, that was the end of the inquiry. This first question involves a determination of how, objectively, the magistrate would have understood the effect of the statements made by the practitioner. Secondly, if the Tribunal were so satisfied, it would have been required to consider whether evidence to such effect was misleading. Thirdly, if satisfied that it was misleading, the Tribunal would have been required to consider questions of knowing falsity or recklessness as alleged by the Committee.

72 There are a number of difficulties with the Tribunal's disposition of this particular allegation. One is that the Tribunal made no express finding that the practitioner had told the magistrate that the other neighbour had given a sworn statement to the effect that she had 'observed everything that had happened during the unfolding of the incident in April 2005'. The Tribunal's reasons seem to me to assume this, rather than to make a finding in that regard and provide reasons for the finding. Further, the other neighbour did not say, in her statement, that she saw the practitioner and her son and the female neighbour and the dog standing on the verge. She said that the male neighbour and the dog were standing on the 'very busy' Alderbury Street. In this aspect of its reasons, the Tribunal made an express error of fact. Finally, insofar as the Tribunal has arguably impliedly found that the practitioner made a statement to the effect that she had a sworn statement from the other neighbour to the effect that the other neighbour had observed 'everything', including relevantly (as I understand the Committee to contend) the neighbours luring the practitioner's child into danger, such a finding cannot be sustained.

73 First, it is difficult to reconcile such a finding with the Tribunal's anterior finding that the practitioner had not given misleading evidence to the effect that the neighbours had deliberately endangered the safety of her son by attempting to lure him onto a busy street. If the practitioner had not given evidence to that effect, it is difficult to interpret her reference to a sworn statement as meaning that the other neighbour had stated that she had observed the neighbours deliberately endangering the safety of her son by luring him onto a busy street. Secondly, the practitioner's evidence was that she thought that the neighbours had 'called' her son over to Alderbury Street. The practitioner's evidence to the magistrate does not, however, indicate that the other neighbour had actually heard the neighbours calling her son over to the street, or that the other neighbour had given a statement that she had heard them calling him over. Thirdly, the words 'a sworn statement to that effect' appear, in context, to be a parenthetical remark within a passage of evidence the tenor of which is that the neighbour had seen something which she clearly believed was untoward. In other words, the practitioner's evidence was more to the effect referred to in subpar (c) of [24] above - which was not pressed by the Committee - than to the effect alleged in subpar (a) of [24] above. Accordingly, it was not open to the Tribunal to conclude that the first of the three steps referred to in [71] above had been satisfied. To this extent, ground 3 is made out. It is unnecessary to deal with ground 4.

(a) affirm, vary, or set aside the decision of the Tribunal;

(b) make any decision that the Tribunal could have made in the proceeding; or

(c) send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate,

75 and, in any case, may make any order the court considers appropriate.

76 Subsection (10) of the SAT Act provides that if the court sends the matter back to the Tribunal under subs (9)(c), it is to give directions as to whether or not the Tribunal reconsidering the matter is to be constituted by the member or members who made the original decision.

77 In light of my earlier conclusions in relation to grounds 1 and 3, there is no basis upon which to remit the matter to the Tribunal for further consideration. I would join in the orders proposed by Pullin JA at [11] of his reasons.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : QUINLIVAN -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2012] WASCA 263 (S)

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Citation : LEGAL PROFESSION COMPLAINTS COMMITTEE and QUINLIVAN [2011] WASAT 138

Costs - 'Settlement offer' by legal practitioner - Disciplinary proceedings - Discretion to order costs in the State Administrative Tribunal - Application by legal practitioner for costs after date of 'settlement letter'

Legal Profession Act 2008 (WA), s 410, s 421, s 424, s 425

State Administrative Tribunal Act 2004 (WA), s 87

Appellant's application for costs dismissed; no order for costs in proceedings in State Administrative Tribunal

Legal Profession Complaints Committee and Quinlivan [2011] WASAT 138

Legal Profession Complaints Committee and Quinlivan [2011] WASAT 138 (S)

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

Motor Vehicle Industry Board and Dawson [2006] WASAT 8; (2006) 41 SR (WA) 343

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

Quinlivan v Legal Profession Complaints Committee [2012] WASCA 263

1 REASONS OF THE COURT: On 24 August 2011, the State Administrative Tribunal (the Tribunal) found the appellant (the Practitioner) guilty of unsatisfactory professional conduct and professional misconduct: Legal Profession Complaints Committee and Quinlivan [2011] WASAT 138. On 5 December 2011, the Tribunal delivered findings in relation to penalty in which the Tribunal ordered that, in relation to the finding of unsatisfactory professional conduct, the Practitioner be reprimanded and, in relation to the finding of professional misconduct, the Practitioner's local practising certificate be suspended for a period of two months: Legal Profession Complaints Committee and Quinlivan [2011] WASAT 138 (S).

2 The Practitioner appealed the findings of the Tribunal to the Court of Appeal. On 14 December 2012, this court delivered reasons in the matter: Quinlivan v Legal Profession Complaints Committee [2012] WASCA 263. The court granted leave to appeal, allowed the appeal, and made an order setting aside the orders made by the Tribunal on 24 August 2011 and 5 December 2011. In lieu thereof, the court substituted an order dismissing the respondent's application dated 19 May 2010. The respondent (the Committee) was ordered to pay the appellant's costs of the appeal. The Committee had commenced proceedings in the Tribunal following the investigation of a complaint against the Practitioner by a complainant.

3 The Practitioner has applied for an order for her costs in the Tribunal after 6 October 2010. That was the date on which the Practitioner made a written offer to the Committee for the application against her to be withdrawn. The Committee opposed the Practitioner's application for costs in the Tribunal after 6 October 2010.

4 The letter was addressed to the Committee and contained the heading 'without prejudice save as to costs'. The letter referred to the proceedings against the Practitioner and was said to serve as 'formal written notification of [her] offer to settle' the matter on, in effect, the following basis:

(a) that the Committee withdraw its application in the Tribunal without any concessions from the Practitioner;

(b) that the Committee agree not to reissue proceedings or prosecute the same matters again; and

(c) that if the Committee agrees to the above, then the Practitioner would pay $5,000 as a contribution to the Committee's legal costs in the matter.

5 The letter concluded that the offer was to remain open for 14 days and was signed by the Practitioner. It was not accepted.

The obligations of the Committee to investigate a complaint

6 By s 410 of the Legal Profession Act 2008 (WA), a complaint may be made to the Committee about an Australian legal practitioner by any person who has a direct personal interest in the matters alleged in the complaint. Section 421(2) requires the Committee, subject to s 421(3), to investigate each complaint. By s 424 and s 425, after the investigation of the complaint is completed, the Committee must either:

(a) dismiss the complaint if it is satisfied that there is no reasonable likelihood that the practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct;

(b) dismiss the complaint if satisfied that it is in the public interest to do so;

(c) take action pursuant to its summary conclusion powers in s 426; or

(d) refer the matter to the Tribunal under s 428.

7 On 19 May 2010, the Committee made an application to refer the matter to the Tribunal pursuant to s 428 of the Legal Profession Act.

8 Section 87 of the SAT Act gives the Tribunal the power to order costs. Sections 87(1) and (2) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) provide:

87. Costs of parties and others

(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.

9 Section 87 does not in its terms specify any considerations which the Tribunal is bound to take into account under s 87(2) in respect of ordering costs in proceedings in the Tribunal's original jurisdiction. Although s 87(2) gives the Tribunal the discretion to order the payment by a party of all or any of the costs of another party, s 87(1) provides the 'starting out rule' that parties to proceedings should bear their own costs in the absence of an order of the Tribunal to the contrary: Motor Vehicle Industry Board and Dawson [2006] WASAT 8; (2006) 41 SR (WA) 343 [43]; Lourey v Legal Profession Complaints Committee [2012] WASCA 112 at [81].

10 In Medical Board of Western Australia and Roberman [2005] WASAT 81 (S), 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. In this regard, the Tribunal said [30]:

That is because such 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.

11 In Motor Vehicle Industry Board and Dawson, the Tribunal outlined the general considerations relevant to an award of costs in disciplinary proceedings in the Tribunal and said [47]:

The decision in the Roberman case does not support the view, however, that an affected person in such proceedings is entitled to an award of costs for the portion of the proceedings in which they were successful. If this approach were to be adopted, vocational regulatory bodies may well feel inhibited in commencing proceedings that should be commenced and maintained in the public interest even though 'success' cannot be guaranteed. Consequently, the Tribunal considers that, ordinarily, unless it can be demonstrated that an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith, costs should not be awarded against a vocational regulatory body simply because the application was not successful.

12 These observations have been cited with approval by this court in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [36]; Lourey v Legal Profession Complaints Committee [2012] WASCA 112 at [81]- [82].

13 Section 87(5) of the SAT Act provides that the rules may deal with the effect of certain offers to settle, and any responses to the offer, on the making of an order for the payment by a party of the costs of another party. Rule 42 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) obliges the Tribunal to take into account that the party did not accept an offer that complied with r 40 and r 41 and that was more favourable than the Tribunal's order. Rule 42 provides:

42. Order for costs if settlement offer is rejected

(1) This rule applies if -

(a) a party to a proceeding (other than a proceeding in the Tribunal's review jurisdiction) gives another party to the proceeding an offer in writing to settle the proceeding;

(b) the other party does not accept the offer within the time the offer is open;

(c) the offer complies with rules 40 and 41; and

(d) in the opinion of the Tribunal, the orders made by the Tribunal in the proceeding are not more favourable to the other party than the offer.

(2) If this rule applies, the Tribunal is to, in determining the costs that may be awarded, take into account that the party did not accept an offer more favourable than the Tribunal's order.

(3) In determining whether its orders are or are not more favourable to a party than an offer, the Tribunal -

(a) must take into account any costs it would have ordered on the date the offer was made; and

(b) must disregard any costs it ordered in respect of any period after the date the offer was received.

14 Rule 41 provides, inter alia, that the offer must be open for acceptance until the commencement of the hearing or until the expiry of a specified period which must be at least 14 days.

15 The Practitioner had initially argued that the approach in Roberman was not consistent with the SAT Act. However, the Practitioner later withdrew that submission. Rather, the Practitioner submits that the court, in the exercise of its discretion, should award the Practitioner the costs of the Tribunal proceedings after the date of the 'settlement' letter.

16 The Committee submits that s 87(5) of the SAT Act and the SAT rules relating to costs following settlement offers, have no application to disciplinary proceedings. It contends that having formed the view that the matter should be referred to the Tribunal and having commenced proceedings against the Practitioner, it would have been improper and contrary to the Committee's statutory duties to have taken into account the Practitioner's offer in deciding whether to continue with the proceedings. The Committee submits (perhaps in the alternative to the submission that s 87(5) of the SAT Act and SAT rule 42 have no application to disciplinary proceedings ­ it is not clear) that only in 'very limited circumstances' would it be proper for the Committee to accept payment of a contribution to its costs. The Committee says that an example might be where a practitioner had failed to provide exculpatory evidence which the practitioner had in his or her possession.

17 It is unnecessary to determine whether, on their proper construction, s 87(5) of the SAT Act and r 42 of the SAT Rules, apply to disciplinary proceedings. Even assuming that the Tribunal (and hence this court) is to 'take into account' the Practitioner's letter of 6 October 2010, having taken it into account, there remains no sufficient basis for an award of costs in favour of the Practitioner after 6 October 2010.

18 It is to be inferred that the Committee acted in good faith in referring the matter to the Tribunal, and the Practitioner does not contend otherwise. Given that the Tribunal found the Practitioner guilty of unsatisfactory professional conduct and professional misconduct, the Committee's conduct could not be described as lacking a reasonable basis, and again, the Practitioner has not contended otherwise.

19 The Practitioner's letter was merely an offer to pay a sum of money, in an amount the calculation of which was unexplained and is not apparent, for the Committee to drop the proceedings against the Practitioner and promise not to renew them or prosecute the same matters again. It did not alter anything. There was nothing in the letter which would demonstrate that there was no reasonable likelihood of the Practitioner being found guilty of unsatisfactory professional conduct or professional misconduct (see s 421(2)(a) of the Legal Profession Act) or that it was in the public interest not to proceed (see s 421(2)(b) of the Legal Profession Act). No new exculpatory material was advanced. The 'offer' was made without any concessions as to the Practitioner's alleged culpability, which still then remained to be determined by the Tribunal. If the 'offer' were accepted, it purported to constrain the Committee from later referring the matter to the Tribunal, even if new evidence or circumstances emerged which would justify or require that course in the proper discharge of the Committee's duties under Pt 13 of the Legal Profession Act.

20 In all the circumstances of this case, the appropriate order is that there should be no order for costs in the proceedings before the Tribunal. The court will so order.