YOUNG -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2022] WASCA 52 (24 May 2022)

Legal Profession Conduct Rules 2010 (WA), r 6(1)(b), r 6(2)(c)

State Administrative Tribunal Act 2005 (WA), s 16, s 51A, s 52, s 54, s 55, s 87, s 105

The appellant has leave to amend her grounds of appeal

Leave to appeal in respect of grounds 1A, 1, 2, 3, 4, 5, 7 and 8 granted

Orders 2 and 3 of the Tribunal's orders made on 9 March 2020 set aside

Substitutive orders made in relation to penalty but not as to costs

Appellant publicly reprimanded for the professional misconduct which the Tribunal found was proved

1 We have had the advantage of having read Buss P's reasons. We adopt, without repeating, what his Honour has set out as to the background facts and circumstances, the statutory framework, the Tribunal's reasons, the grounds of appeal and the contentions of the parties.

2 We agree with Buss P, for the reasons that he gives, that the appeal should be upheld and orders 2 and 3 of the Tribunal's orders should be set aside. We write separately to explain our views as to what orders this court should make consequent upon the upholding of the appeal.

3 To put those views in context, we begin by outlining some background.

4 Regrettably this matter has a long and sorry history.

5 In December 2018, the respondent (Committee) brought disciplinary proceedings against the appellant under the Legal Profession Act 2008 (WA) in relation to events in April and May 2016. There were, ultimately, two matters in relation to which the appellant accepted that she was guilty of professional misconduct and unsatisfactory professional conduct, respectively (as those expressions are defined in the Legal Profession Act):

(a) that on 7 April 2016 the appellant sent an email to the District Court of Western Australia that was, to her knowledge, misleading and deceptive; and

(b) that on 5 May 2016 in a telephone call and text message to a Mrs A, the appellant conducted herself in a manner that was rude, offensive, insulting, intemperate, provocative and discourteous.

6 Ultimately, on 9 March 2020, the Tribunal made the following orders:

1. The Tribunal upon its finding that the [appellant] is guilty of unsatisfactory professional conduct orders that pursuant to s 439(d) of the Legal Profession Act 2008 (WA), the [appellant] is publicly reprimanded.

2. The Tribunal upon its finding that the [appellant] is guilty of professional misconduct orders that pursuant to s 439(b) of the Legal Profession Act 2008 (WA), the [appellant] is not to be granted a local practising certificate for a period of 6 months commencing on 7 August 2019.

3. Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the Tribunal orders that the [appellant] must pay the [Committee's] costs fixed at $20,000 within 30 days of the date of this order or as otherwise agreed between the [appellant] and the [Committee].

7 As will be apparent order 1 of the Tribunal's orders related to the finding of unsatisfactory professional conduct (the conduct referred to at [5(b)] above) and order 2 related to the finding of professional misconduct conduct (the conduct referred to at [5(a)] above).

8 As will also be apparent, Order 2 purported to preclude the appellant from being granted a practising certificate retrospectively (i.e. for a period that had already elapsed). The appellant had not been practising during that period. Whether the order was valid or not, it could have no practical effect; it was entirely symbolic.

9 The appellant appealed to this court on eight grounds. As Buss P explains, despite - or perhaps in part because of - their considerable length, the grounds of appeal did not comply with the Supreme Court (Court of Appeal) Rules 2005 (WA) in stating the questions of law necessary to enliven the court's jurisdiction. At the hearing of the appeal, the appellant applied for leave to amend her grounds by adding a ninth ground, ground 1A.

10 The appellant's 'Orders Wanted' sought orders that orders 1, 2 and 3 made by the Tribunal be set aside. Other than the costs of the appeal, the appellant sought no further orders in the appeal; neither a remitter to the Tribunal nor orders in substitution of the orders made by the Tribunal. The effect of the orders sought, if granted, would have been as if the proceedings before the Tribunal had never been brought. That would, at the very least, have been a surprising conclusion to a proceeding in which the appellant accepted that she had committed professional misconduct and unsatisfactory professional conduct.

11 At the hearing of the appeal, following exchanges with the court, the appellant ultimately accepted that a public reprimand was an appropriate sanction for her conduct. For this reason the challenge to order 1, relating to the unsatisfactory professional conduct, fell away. That left order 2, the retrospective preclusion, relating to the professional misconduct and order 3, the order for costs against the appellant.

12 For its part, the Committee's position on the appeal was that the Tribunal lacked the power to make order 2 and that it was, in effect, a nullity. This was despite the fact that the Committee had submitted that it was the appropriate penalty before the Tribunal.

The Tribunal fell into legal error - the appeal must be allowed

13 We agree with Buss P, for the reasons that he gives, that order 2 of the Tribunal's orders of 9 March 2020 was beyond the powers conferred by s 439(b) of the Legal Profession Act 2008 (WA). The Tribunal has no power to order that a practising certificate not be granted to an applicant before the end of a specified period with retrospective effect.

14 In summary, two features of the Legal Profession Act compel this conclusion.

15 First, the natural and ordinary reading of the text supports the conclusion. The tense in which s 439(b) speaks - that a practising certificate 'not be granted' - prima facie speaks prospectively.

16 Secondly, as Buss P explains, an order under s 439(b) is, in effect, directed to the Board. Given that, as his Honour has demonstrated, the Board has no power to issue a practising certificate retrospectively beyond the specific express powers conferred as identified by Buss P, it would make no sense and would serve no purpose if s 439(b) encompassed the making of an order that was retrospective in its effect.

17 Consequently, order 2 of the Tribunal's orders must be set aside.

18 To our mind, the natural starting point is that, the primary substantive penalty order having been set aside, the consequential costs order (i.e. order 3) must be set aside and the question of the costs of the proceedings in the Tribunal revisited. The substantive orders made following a hearing always bear significantly on the exercise of discretion as to the costs of the proceedings. Prima facie, where an appellant demonstrates that a substantive order made by a primary court or tribunal has been made in error and must be set aside, consequential orders as to costs will fall with that substantive order. Ordinarily at least, no further error in making the costs order need be identified, before the appeal court sets aside the costs order and substitutes its own order. That will be particularly so where, as here, the substantive order to be set aside was one that the Tribunal had no power to make and one which the Committee advanced to the Tribunal as the appropriate primary penalty.

19 For these reasons, we would also set aside order 3 on the basis of the success of ground 1A.

20 Further, we agree with Buss P that grounds 1 and 2, as they relate to the Tribunal's costs order, should be upheld to the extent identified by his Honour. Thus, order 3 must be set aside in any event.

21 That leaves in place order 1, the public reprimand in relation to the appellant's unsatisfactory professional conduct on 5 May 2016.

22 That brings us to the question of the further orders that should be made in consequence of orders 2 and 3 being set aside.

23 Orders 2 and 3 being set aside for the reasons we have given, the question arises as to what further orders this court should make: what orders, if any, should be made respecting the appellant's misconduct on 7 April 2016 and what order, if any, should be made in relation to the costs of the proceedings before the Tribunal?

24 The starting point in relation to those questions is the recognition of the function of this court in an appeal under 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).[1] The terms of s 105 are set out in Buss P's reasons. As is well established, the jurisdiction conferred by s 105(1) is confined to appeals on questions of law, with the result that proceedings are in the nature of judicial review.[2]

25 Section 105(9) does not enlarge the court's jurisdiction. It confers powers on the court in aid of the court's exercise of that jurisdiction.[3]

26 Buss P has comprehensively outlined the principles informing the exercise of power under s 105(9) and cases illustrating the exercise of those principles: see [295] to [313]. We agree with what his Honour has said.

27 We turn to the application of those principles to the present appeal.

28 In relation to the appropriate disciplinary response to the professional misconduct in the particular circumstances of this case, we are satisfied that this court should make the order proposed by Buss P, namely to issue a public reprimand. We consider that to be the only disposition available on a reasonable exercise of the penalty discretion.

29 We reach this conclusion, in essence, from a combination of two circumstances. The first is the long history of the matter, which resulted in the Committee's appropriate concession at the hearing of the appeal that nothing more than a public reprimand is appropriate. The second is the seriousness of the appellant's conduct,[4] which requires that a public reprimand be ordered to mark the court's disapproval of such conduct.

30 Thus, this court should correct the Tribunal's legal error in making order 2, by making what is now the only appropriate order: that the appellant be publicly reprimanded for the Tribunal's finding that the appellant is guilty of professional misconduct.

31 We are not, however, satisfied that, consistent with the restraint explained in Osland, this court should now make an order for costs in favour of the Committee. In particular, as matters now stand, we are not satisfied that there is a sufficient factual basis for this court to determine whether a costs order should be made in favour of the Committee on the basis of uncontested evidence and primary facts found by the Tribunal and, if so, for what amount.

32 For the reasons we have given, in our view, the costs order made by the Tribunal (order 3) was vitiated by the conclusions that the Tribunal had acted without power and that the Tribunal's substantive order in relation to the appellant's professional misconduct must be set aside. In those circumstances, the question of costs, in our view, arises afresh. The hearing before the Tribunal having miscarried in the way that it did, while this court can act upon unimpugned findings of fact made by the Tribunal, we do not consider that, in exercising the costs discretion, this court could leave in place broader evaluative elements of the Tribunal's reasoning that led to it making the order that the appellant must pay the Committee's costs.

33 In this case the appellant's position was that the Tribunal ought to have ordered that there be no order as to costs because of what she submitted were unexplained delays and other conduct of the Committee in conducting the proceedings of which she was critical. In that regard, before the Tribunal and again before this court, the appellant invited a number of factual conclusions as to the conduct of the proceedings by the Committee and its officers. Those matters are summarised by Buss P at [106] and [107]. A number of those allegations made by the appellant are themselves serious (including non-disclosure and intimidation by officers of the Committee).

34 In our respectful view, those matters cannot all be said to be immaterial to the exercise of the discretion as to costs, particularly in light of the new 'starting point', namely that the substantive order that was made beyond power was one advanced to the Tribunal by the Committee. Bearing in mind the nature of this appeal and this court's function, in our view it would not be appropriate for this court to embark upon a determination of whether any such findings should be made. Moreover, as the substantial debate on the topic before us demonstrated,[5] in light of the new starting point there is an unresolved factual issue as to the parties' respective responsibilities for the Tribunal's erroneous choice of penalty. That itself is a matter which may bear on the discretion as to the costs of the tribunal proceedings, in particular as to whether any costs order should be made in favour of the Committee. Notwithstanding the undoubted desirability of this court resolving all outstanding issues in a case such as this, in our respectful view, the matters to which we have referred render it inappropriate for this court to exercise the costs discretion.

35 In our view, the only way the findings referred to in [33] and [34] could be made, and the discretion as to costs then properly addressed, would be to remit the matter to the Tribunal for reconsideration. In the ordinary course, that is the order that we would make, namely to remit the remaining issue of costs to the Tribunal for further consideration.

36 Ultimately, however, this court in exercising its powers under s 105(9) must make such orders as it considers appropriate, to fulfil what is in essence the supervisory jurisdiction conferred by the SAT Act, to do justice between the parties and to do what is in the interests of the administration of justice generally. And, in the particular circumstances of the present case, having set aside order 3 as a consequence of the success of the appeal generally, in our view the appropriate course is to make no order in substitution of that order: that is, for this Court neither to make a further costs order itself nor to remit the issue to the Tribunal.

37 We appreciate that, at a practical level, this might be regarded as being equivalent to our having accepted the appellant's position that the conduct of the Committee is such that it should, in the exercise of the Tribunal's discretion, be deprived of its costs. It should not be so regarded. It is not an exercise by this court of the Tribunal's powers under s 87 of the SAT Act. Rather, it is, and should be regarded as, the exercise, by this court, of its powers under s 105 of the SAT Act to do what is in the interests of justice generally.

38 We will explain why, in the particular circumstances of this matter, we have taken the view outlined in [36] above.

39 First, by the public reprimands issued to the appellant for both her unsatisfactory professional conduct and her professional misconduct, the public purposes of the proceedings have been (belatedly) achieved. It is in the interests of the parties, and in the interests of justice generally, that this matter be brought to a final conclusion. A further hearing will achieve no aspects of the public interest that the Legal Profession Act is intended to promote.

40 Secondly, the only contentious issue outstanding is the issue of costs. As we said at the commencement of these reasons, this matter has a long and sorry history. The record reveals a series of allegations and counter-allegations by both parties as to the conduct of the proceedings. As Buss P's reasons thoroughly explain, while the conduct of a disciplinary body may in certain circumstances be relevant to the outcome of disciplinary proceedings, the Tribunal does not have statutory oversight of the Committee. Disciplinary proceedings before the Tribunal should not be regarded as convenient occasions for a

general inquiry into the conduct of regulatory bodies, particularly where those proceedings are confined to consequential matters such as costs. The history of these proceedings suggests that there will be considerable difficulty in preventing any remitter to the Tribunal in the present case becoming of that nature.

41 And, thirdly, it is difficult to see what end would be served by remitter in this case. To remit the matter to the Tribunal will only occasion further cost to the parties and to the public generally. The history of this matter does not suggest that any remitted hearing, even though confined to the question of the Tribunal's discretion to award costs under s 87 of the SAT Act, will be inexpensive and uncomplicated. There is good reason to think that this may be one of those matters in which there will be a gross disproportion between the amounts in issue and the costs of pursuing them.

42 Finally, while there is a long established practice in the Tribunal to exercise its discretion as to costs in favour of a regulatory body in relation to successful disciplinary proceedings,[6] the Tribunal is nevertheless generally a 'costs-neutral' jurisdiction (SAT Act, s 87(1)). For this court to set aside order 3 made by the Tribunal and make no order in substitution, would ultimately reflect, and be consistent with, that statutory starting point.

43 For these reasons, we would make orders in terms of pars (a) to (e) of the orders proposed by Buss P in [335] of his Honour's reasons. We would hear from counsel in relation to the costs of the appeal.

44 The appellant, who is a legal practitioner, has applied for leave to appeal against decisions of the State Administrative Tribunal (the Tribunal) in relation to disciplinary proceedings brought by the respondent (the Committee) against the appellant.

45 On 4 December 2018, the Committee lodged an application with the Tribunal in which the Committee sought from the Tribunal:

(a) an order embodying a finding that the appellant had engaged in unsatisfactory professional conduct, further or alternatively

professional misconduct, within s 438(1) of the Legal Profession Act 2008 (WA) (the LP Act);

(b) other orders under s 438(2) of the LP Act; and

(c) an order that the appellant pay the Committee's costs pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act).

46 The grounds upon which the Committee sought those orders under the LP Act were as follows:

(a) on 7 April 2016, the appellant sent an email to the email address CourtTranscriptDC@justice.wa.gov.au, with the salutation 'Dear Registrar', containing a representation which the appellant knew was misleading and deceptive; and

(b) the appellant, in a telephone call with Ms A, further or alternatively in a text message she sent to Ms A, conducted herself in a way that was 'intemperate, threatening, intimidating and/or discourteous, and had the potential to bring the profession into disrepute'.

(a) for the professional misconduct, the appellant was not to be granted a local practising certificate for a period of 6 months commencing on 7 August 2019;

(b) for the unsatisfactory professional conduct, the appellant was publicly reprimanded; and

(c) the appellant must pay the Committee's costs fixed at $20,000.

48 The appellant's application for leave to appeal is in respect of the Tribunal's decision on penalty for the professional misconduct and the Tribunal's decision on costs. The appellant has not applied for leave to appeal in respect of the Tribunal's decision on penalty for the unsatisfactory professional conduct.

49 I would grant leave to appeal in respect of both of the decisions challenged by the appellant in the appeal. The appeal should be allowed in respect of both decisions. The decisions must be set aside. This court should make substitutive orders in respect of the penalty for the professional misconduct and in respect of the costs of the proceedings before the Tribunal.

The proceedings before the Tribunal and the Tribunal's reasons for decision

50 On 19 December 2018, the Tribunal referred the Committee's application to mediation. A mediation was held on 6 February 2019, but did not resolve the matters in issue between the parties.

51 By letter dated 25 March 2019, the Committee informed the Tribunal that:

The parties have agreed a minute of consent orders and Schedule A agreed facts in respect to the conduct only. The matters of penalty and costs are not agreed and programming for a hearing in respect of those matters will be required.

52 The minute of consent orders referred to by the Committee in its letter dated 25 March 2019 contained two findings which the parties had agreed that the Tribunal should make. The proposed findings were as follows:

(a) On or about 7 April 2016, the appellant engaged in professional misconduct, within the meaning of s 403 and s 438 of the LP Act, by preparing and sending to a Registrar of the District Court of Western Australia, an email from her work email address seeking access to 'decisions' made by the District Court in relation to an offender, Mr B, who was sentenced on 4 April 2016, as well as a copy of the sentencing decision. The email represented that the appellant was making the request in the course of her practice of the law in respect of matters concerning the admissibility of DNA evidence. The appellant knew that the representation was misleading and deceptive, but the appellant nonetheless intended that the Registrar should rely on the representation.

(b) The appellant engaged in unsatisfactory professional conduct, within the meaning of s 402 and s 438 of the LP Act, in that her conduct in a telephone call with Ms A, further or alternatively in a text message she sent to Ms A, fell short of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and was intemperate, threatening, intimidating and/or discourteous, and had the potential to bring the profession into disrepute.

53 The Schedule A agreed facts referred to by the Committee in its letter dated 25 March 2019 reads:

1.1. was an Australian legal practitioner within the meaning of the [LP Act];

1.2. prior to 29 April 2016, practised in criminal and employment law at HHG Legal Group, Perth (firm);

1.3. as at 5 May 2016, was not practising, but intended to practise, and in fact on 9 May 2016, commenced practice, at the Aboriginal Legal Service of Western Australia (Inc), in Perth, Western Australia.

2. The practitioner's father and brother practised together as real estate agents in an area of Perth.

3. Ms A (Ms A), who was also a real estate agent in the same area of Perth as the practitioner's family, competed for listings with the practitioner's family and lived next door to the practitioner's father and in the same street as the practitioner's brother.

4. The practitioner had known Ms A and her husband (Mr B) since 2011, having herself previously lived next door to them (at her father's home) for a period of time at about that time.

5. Sometime in or about April 2016, the practitioner's family and Ms A were engaged in a corrosive personal dispute, in which, relevantly, each family was alleging the other to be making defamatory remarks against them in the local community.

6. Between 16 and 23 February 2016, Mr B stood trial before a jury in the District Court on an indictment alleging historic offences from 25 years prior, namely:

6.1. one count of breaking and entering of a dwelling with intent to commit an offence;

6.2. one count of deprivation of liberty;

6.3. one count of sexual penetration without consent; and

6.4. two counts of aggravated unlawful and indecent assault,

which charges arose from a cold case investigation in which the DNA available from evidence obtained at the time of the offences in 1992 was later matched to Mr B (together, the criminal matters).

7. During the course of the trial of the criminal matters, Ms A gave alibi evidence in defence of Mr B to the effect that she and Mr B were living in their home at a certain suburb at the time of the alleged offences and where the alleged offences were said to have been committed on a Thursday night, she and Mr B would have been shopping together as was their custom (Ms A's alibi evidence).

8. Following the trial, Mr B was:

8.1. acquitted of the offence of sexual penetration without consent; and

8.2. convicted of:

(a) one count of breaking and entering of a dwelling with intent to commit an offence;

(b) one count of deprivation of liberty; and

(c) two counts of unlawful and indecent assault (absent any circumstances of aggravation).

9. On 4 April 2016, following sentencing submissions made that day, Mr B was sentenced to imprisonment for a period of five years and six months with eligibility for parole after having served a period of three years and six months' imprisonment.

10. On around 5 April 2016 following being informed by her father that he had heard on the radio that a person of the same name as Mr B had been convicted of a 1992 "rape" and sentenced to imprisonment, the practitioner then had regard to an online news article about the sexual assault conviction, following which the practitioner, at all material times, suspected that the alleged offender was in fact Mr B.

11. On 7 April 2016 the practitioner prepared and sent from her work email address "Nicole.Young@hhg.com.au", using the signing clause of "Nicole Young Associate", and the HHG Legal Group corporate logo, an email to the email address "CourtTranscriptDC@justice.wa.gov.au" addressed to "Registrar" in which she stated:

"I am interested in obtaining access to the decisions made in relation to [name of offender] who was sentenced on 4 April 2016.

I am only aware of the decision due to this news article [https://au.news.yahoo.com/thewest/wa/ ... ]

I am interested to research any argument and subsequent ruling about the admissibility of the DNA evidence that seems to have been key to the conviction. I do not know which hearing would be most relevant to the inquiry.

I would be very grateful if you could indicate which hearing would be most relevant.

I would also like a copy of the sentencing decision delivered on 4 April 2016.

Can you please indicate what the costs of obtaining these transcripts will be?

Lastly, I do have access to the PLEAS database at the Supreme Court library however I do not think that this decision is likely to be put into that database. If I am incorrect about this please let me know as I can wait if the information will eventually be available."

(the transcript application email)

12. Non-parties may apply to the Court for leave to inspect or obtain a copy of the record or certified transcript of any proceedings in a case pursuant to Rule 51 of the Criminal Procedure Rules 2005, which relevantly at:

12.1. subrule (2A) provides that (in the practitioner's circumstances as a non media organisation) the application must be made in writing to the court and must set out the grounds of the application;

12.2. subrule (4A) provides that a judge or a registrar may deal with a written application; and

12.3. subrule (5) provides that a judge or registrar dealing with a written application, if satisfied the applicant has sufficient cause to be granted leave, may grant the application.

13. The transcript application email represented that the practitioner was making the request in the course of her practice of law in respect of matters concerning the admissibility of DNA evidence (Representation), which Representation was made in part by the practitioner's use of her work email address ("Nicole.Young@hhg.com.au"); her work signing clause "Nicole Young Associate"; the presence of the HHG Legal Group corporate logo; and her reference to having access to the PLEAS database when making the request.

14. The Representation was misleading and deceptive in that the practitioner was not motivated to seek the Decisions for the stated purpose but was motivated to seek them for the purpose of confirming that the identity of the offender was in fact Mr B, the husband of Ms A, which the practitioner failed to disclose in her email.

15. The practitioner knew that the Representation was misleading and deceptive.

16. By sending the transcript application email, the practitioner intended the Registrar to rely on the Representation.

17. The practitioner was recklessly indifferent as to whether the Registrar would be misled or deceived by the Representation.

18. Further, the practitioner did nothing to correct the Representation to the Registrar.

19. In making the Representation in the circumstances set out in paragraphs 14 to 18 above, the practitioner's conduct:

19.1. fell short, by a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence;

19.2. would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence;

such that her conduct is professional misconduct within the meaning of sections 403 and 438 of the LP Act.

20. Sometime after 21 April 2016 but on or before 5 May 2016, the practitioner read and considered the transcript, from which she was able to inform herself about the criminal matter, including:

20.1. the identity of the offender, being Mr B;

20.2. the charges for which Mr B was tried;

20.3. the charges of which Mr B was convicted;

20.4. the charge of which Mr B was acquitted;

20.5. the evidence that Ms A gave during the course of the trial; and

20.6. the factual basis upon which Mr B was sentenced.

21. A copy of the transcript, redacted to remove references that would disclose the identity of Mr B or Ms A, has been provided to the Tribunal.

22. The transcript recorded that, in the course of making his sentencing remarks on 4 April 2016, the sentencing judge:

22.1. re-stated the jury's verdicts following the trial of the criminal matter, including that "the jury acquitted you of count 5 on the indictment, being the offence of aggravated sexual penetration without consent".

22.2. summarised Mr B's evidence that he denied that he knew the victim and denied committing any of the offences charged by way of the Indictment;

22.3. summarised Ms A's alibi evidence as outlined in paragraph 7, above;

22.4. stated that the jury was instructed that if they accept Mr B's evidence or thought as a reasonable possibility that it might be true then they should acquit; but

22.5. did not make any findings as to the credibility of Ms A or her evidence; and

22.6. did not comment any further in relation to Ms A's evidence given during the course of the trial of the criminal matter.

23. On 5 May 2016, the practitioner received a telephone call from her father, who reported to the practitioner that an exchange had taken place between him and Ms A by telephone earlier that day along the lines that:

Ms A: "I know what you have been doing - telling everyone my husband is a rapist."

Practitioner's father: "Well he is [Ms A] - he is"

Ms A: "No he isn't and you will be getting a letter from my lawyer. You want war - you've got war!"

Practitioner's father: "Is that a threat [Ms A]?"

Ms A: "Yes it is."

Practitioner's father: "Well what does it even mean?"

Ms A: "You'll find out."

24. On 5 May 2016, the practitioner telephoned Ms A, but did not reach her, and left a message requesting that Ms A return her call.

25. Later on 5 May 2016, in circumstances where Ms A had not returned her call, the practitioner again telephoned Ms A and had a brief conversation with her (the telephone conversation), during which the practitioner made the serious allegation that: Mr B was "a rapist".

26. In the telephone conversation, the practitioner conducted herself in a manner that was rude, offensive, insulting, intemperate, provocative, and discourteous to Ms A by communication with her using words in effect as follows:.

Practitioner: "Hello is that [Ms A] ?"

Ms A: " Yes"

Practitioner "Hi [Ms A], my name is [Practitioner]. I am actually [practitioner's father]'s daughter"

Ms A: "Oh yes?"

Practitioner: "[Ms A], my father has called me this morning very distressed after receiving a call from you in which you apparently made some threats?"

Ms A: "Yes, that's right."

Practitioner: "O.K. Well what's this all about [Ms A]?"

Ms A: "He has been defaming me - going around saying despicable things about my husband that are just not true, trying to ruin my business and cost me money."

Practitioner: "Well, hang on as I understand it [Ms A], all my father has been saying is that your husband is a rapist and is in jail."

Ms A: "Yes - and he is not!"

Practitioner: "Wait are you saying he is not a rapist or not in jail?"

Ms A: "Both. You should get your facts straight. I know you [Practitioner]. I know you are a lawyer and you are just as foul and stinking as your father and brother. Your whole family is vile. You'll hear from my lawyer."

Practitioner: "OK - you have a lawyer do you? What is his name?"

Call truncated by Ms A.

27. Following the telephone conversation, on 5 May 2016 (at approximately 3.05pm) the practitioner sent a text message to Ms A as follows:

"Further to our conversation a moment ago I repeat that I am concerned that you are making verbal threats to my father and have made harassing and offensive remarks by calling my brother and myself "foul and stinking". Further you have threatened "war" - whatever that means and outright lied by stating that your husband is not a rapist and not in jail. You are a liar [Ms A] and your husband is a rapist. You are a very poor judge of character. We are aware you have attempted to discredit my father and brother publicly notwithstanding your criminal associations. A normal person would hang their head in shame not lie on the stand to protect a rapist. We look forward to your letter from an unknown lawyer and suggest you ensure you do NOT make any further threats lest we are forced to seek the protection of the Courts. Luckily your rapiat (sic) husband IS locked up [Ms A]. But you are not (yet). Seek some legal advice and in yhe (sic) mean time any further telephone contact with my father or brother should immediately cease. I represent them. Have your lawyers call me. Oh and think about a divorce. He raped a woman [Ms A]. While he was married to YOU. Horrific that you continue to deny that and slander MY family" (the text message).

28. In the text message, the practitioner stated that:

28.1. Mr B was "a rapist",

28.2. Ms A was "a liar" in asserting that Mr B was not "a rapist";

28.3. Ms A had lied on oath at the hearing of Mr B;

when the practitioner was recklessly indifferent as to whether or not there were reasonable grounds to make those allegations.

29. In the text message, the practitioner conducted herself in a manner that was rude, offensive, insulting, intemperate, provocative, and discourteous to Ms A.

30. In both the telephone call and the text message, on 5 May 2016, the practitioner purported to act, and held herself out as acting, for her father and brother.

31. The practitioner, in the telephone call and the text message, engaged in unsatisfactory professional conduct within the meaning of sections 402 and 438 of the LP Act in that her conduct fell short of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and was intemperate, threatening, intimidating and/or discourteous, and had the potential to bring the profession into disrepute.

32. Further, the content and tone of the telephone call and the text message to Ms A was offensive, intemperate, provocative, intimidating and discourteous and in breach of the practitioner's obligations under rule 6(1)(b) of the Legal Profession Conduct Rules 2010 (Conduct Rules).

33. Further, the practitioner's conduct in the telephone call and the text message was such that it may bring the profession into disrepute in breach of Conduct Rule 6(2)(c).

54 On 7 August 2019, the matter came before the Tribunal. The Tribunal had listed the matter for that date to inform the parties that the Tribunal would make orders in terms of the minute of consent orders. However, at the beginning of the hearing, the appellant sought an adjournment. The appellant's counsel told the Tribunal that the appellant anticipated withdrawing her consent to the making of orders in terms of the minute. The basis on which the appellant anticipated withdrawing her consent included the Committee's failure to disclose relevant documents to her before she consented to the making of those orders (ts 12 ‑ 13, 18 ‑ 19, 29 ‑ 31). The Tribunal adjourned the hearing to 20 August 2019.

55 On 16 August 2019, the appellant, through her counsel, informed the Tribunal by email that she no longer intended to withdraw her consent to the making of orders in terms of the minute of consent orders.

56 On 12 September 2019, the Tribunal made orders in terms of the minute of consent orders.

57 On 12 September 2019 and 11 December 2019, there was a hearing before the Tribunal on the issue of penalty and costs.

58 In par 2 of its substituted written submissions on penalty and costs dated 29 July 2019, the Committee submitted to the Tribunal, relevantly, that the appropriate orders in relation to penalty were that the appellant be reprimanded, pursuant to s 439(d) of the LP Act, for her unsatisfactory professional conduct and that a local practising certificate not be granted to the appellant for a period of 3 months, pursuant to s 439(b) of the LP Act, for her professional misconduct.

59 On the issue of penalty, the Tribunal made findings as follows:

(a) In December 2003, the appellant was admitted to practice [23].

(b) Since 1 July 2018, the appellant has not held a practising certificate in Western Australia [23].

(c) Since 5 January 2018, the appellant has not practised as a legal practitioner in Western Australia [23].

(d) No disciplinary findings have previously been made against the appellant [24].

(e) The appellant's professional misconduct and unsatisfactory professional conduct arose in respect of 'a matter which was of personal interest to [the appellant] and ... her conduct may be viewed as being limited to the specific circumstances of her dealings with Ms A' [26].

(f) A legal practitioner's duty is not limited to dealings with judicial officers, but extends to other court officers engaged in the administration of justice [26].

(g) The appellant's conduct was prejudicial to, and diminished public confidence in, the administration of justice and had the potential to bring the legal profession into disrepute [27].

(h) The Tribunal was not persuaded that, even if the appellant genuinely thought she was entitled to have the transcript, but chose to give the Registrar a different reason for obtaining the transcript, that lessened in any way the seriousness of the appellant's conduct [32].

(i) The appellant had acknowledged and accepted that the email she sent to the Registrar should have stated what was motivating the appellant to seek the transcript and ought to have included all of the reasons for her request. That acknowledgement and acceptance, and the appellant's agreement to the Tribunal making the findings of professional misconduct and unsatisfactory professional conduct, indicated to the Tribunal that the appellant had insight into her wrongdoing and, consequently, the risk of recurrence of the conduct was small [33].

(j) The Tribunal was not persuaded that the fact that the appellant was 'conducting herself personally' in making the telephone call and sending the text message made any difference to the seriousness of the appellant's conduct or to the determination of the appropriate penalty [35].

(k) There was 'some delay' caused by the Committee in the course of its investigation and its determination to commence proceedings in the Tribunal [38]. However, there was no evidence before the Tribunal in relation to the cause of that delay [38].

(l) The Tribunal noted the appellant's complaint that the Committee had failed to disclose relevant and significant documents that were capable of assisting the appellant's case until after it had secured the appellant's agreement to the minute of consent orders. The appellant submitted that the Tribunal should have regard to documents she had given to the Tribunal which revealed the course of negotiations between the parties. The appellant argued that the documents should be taken into account by the Tribunal in determining the relevance and weight to be given to the Committee's failure to make disclosure before it had secured the appellant's agreement to the minute of consent orders [39]. The Tribunal rejected the appellant's submissions for two reasons. First, pursuant to s 55 of the SAT Act, evidence of anything said or done in the course of mediation is not admissible at any later stage of the proceedings unless one of three specified exceptions apply. In the present case, none of those exceptions applied. The Tribunal was prohibited from having regard to the documents which the appellant had provided to the Tribunal [40]. Secondly, after the parties had completed negotiations and agreed to the minute of consent orders, and after the Committee had disclosed the documents to the appellant, the appellant was given an opportunity to withdraw her consent. She decided not to do so [41].

(m) The Tribunal noted the appellant's submission that one of the Committee's officers, while investigating the initial complaint against the appellant, was 'inappropriately pejorative and intemperate and this ... caused [the appellant] to suffer adverse consequences' [43]. The Tribunal responded to that submission by deciding that it did not have any 'statutory authority or oversight of the Committee' [45].

(n) The Tribunal accepted that, in some circumstances, delay by a regulating body may cause 'resultant proceedings to be oppressive and unfair so as to allow for a stay of any such proceedings to be granted' [45]. However, as the issue of whether 'an unexplained and inexplicable delay [by a regulating body] can impact on the appropriate penalty' was not fully ventilated in the proceedings, the Tribunal did not consider that it was appropriate in the appellant's case to determine 'whether the personal impact on a practitioner of an unexplained delay in bringing a complaint against the practitioner is a factor relevant to determining an appropriate penalty' [46].

60 The Tribunal decided that, for the appellant's unsatisfactory professional conduct in her dealings with Ms A, the appellant should be publicly reprimanded, pursuant to s 439(d) of the LP Act [49].

61 The Tribunal decided that, for the appellant's professional misconduct by making the misleading and deceptive representation to a Registrar of the District Court, a local practising certificate should not be granted to the appellant for a period of 6 months, pursuant to s 439(b) of the LP Act [50]. As to that penalty, the Tribunal said [51] ‑ [52]:

(a) Given the significant impact on the appellant's mental health (in relation to which the Tribunal had independent evidence) of the Committee's delay in commencing the proceedings in the Tribunal, the appellant's voluntary exclusion from practising in the legal profession since January 2018 and her early admissions in relation to her professional misconduct, the penalty should commence on 7 August 2019, being the date when the hearing on penalty and costs was first scheduled to take place.

(b) The Tribunal did not accept the Committee's submission that an order should also be made that the appellant have a condition imposed on her practising certificate, when granted, that she be mentored for one year. The Tribunal explained that the appellant had already shown insight into her professional misconduct and, consequently, the Tribunal did not consider that the imposition of this condition was necessary or appropriate.

62 On the issue of costs, the Tribunal noted [59] ‑ [60]:

(a) the Committee sought an award of costs in the amount of $20,000;

(b) the Tribunal accepted that this amount did not include any costs of the Committee itself and was limited to only some of the amount disbursed by the Committee in counsel fees;

(c) the Tribunal accepted that the amount of $20,000 represented a significant discount on the fees actually incurred by the Committee;

(d) the parties reached agreement in relation to the appellant's professional misconduct and unprofessional conduct at a relatively early stage in the proceedings, but they could not reach agreement about the appropriate penalty;

(e) the appellant was responsible for wanting an oral hearing and the appellant lodged and served a voluminous number of documents;

(f) after the first hearing on penalty was adjourned, the hearing was adjourned on a number of other occasions largely because of the appellant's late lodgement of documents; and

(g) the appellant's counsel used most of the time allocated for the penalty hearing.

63 The Tribunal decided that, in all the circumstances, it was fair and reasonable that the appellant pay the Committee's costs in the amount of $20,000 [60].

The submissions made by the parties to the Tribunal concerning the backdating of any 'preclusion order'

64 At a hearing on 5 March 2019, Judge Sharp noted that the appellant had not applied for a practising certificate for some time and commented, in effect, that it may be appropriate for the penalty sought by the Committee for the appellant's professional misconduct (namely, that a local practising certificate not be granted to the appellant for a period of 3 months (see [58] above)), if made by the Tribunal, to be 'backdated to a certain date' (ts 16).

65 In par 30.5 of its substituted submissions on penalty and costs dated 29 July 2019, the Committee accepted that if the Tribunal decided that the appellant should be 'precluded from applying for a grant of a local practising certificate for 3 months' then 'it would be open to the Tribunal to make the preclusion order effective from the date of the Consent Orders between the parties - namely 22 March 2019'. The Committee said 'it would not be inappropriate for any preclusionary period ordered to have effect from that date'.

66 In her outline of submissions dated 12 September 2019, the appellant said:

If the [Committee] persuades the Tribunal that it is necessary that a 'preclusion' order be part of any disposition of the matter, then [any] such order ought be framed so as to achieve the result that the commencement of any period of preclusion imposed by the order be 1 July 2018 [being] the date the [appellant] last held a [practising] certificate, or alternatively, and at the latest, be 22 March 2019.

67 At the hearing on 12 September 2019, the Tribunal sought confirmation from counsel for the Committee (who was not counsel for the Committee in the appeal) that, if the Tribunal decided to make a 'preclusion order' in relation to the appellant, the Committee did not oppose the backdating of the start date for the preclusion order (ts 35). The following exchange occurred between Judge Sharp and counsel for the Committee:

HOWARD, MR: ... The tribunal, I think, can take it that if the tribunal is minded to impose a preclusion order, the [Committee] accepts that it would be appropriate for it to run from the date of those orders - or the signing of them, which was 22 March of this year.

THE D. PRESIDENT: So she will be back to applying for a practising certificate pretty much straight away?

HOWARD, MR: Yes (ts 35).

68 On 9 March 2020, the Tribunal made orders as follows:

1. The Tribunal upon its finding that the [appellant] is guilty of unsatisfactory professional conduct orders that pursuant to s 439(d) of the Legal Profession Act 2008 (WA), the [appellant] is publicly reprimanded.

2. The Tribunal upon its finding that the [appellant] is guilty of professional misconduct orders that pursuant to s 439(b) of the Legal Profession Act 2008 (WA), the [appellant] is not to be granted a local practising certificate for a period of 6 months commencing on 7 August 2019.

3. Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the Tribunal orders that the [appellant] must pay the [Committee's] costs fixed at $20,000 within 30 days of the date of this order or as otherwise agreed between the [appellant] and the [Committee].

69 The LP Act is an Act to provide for the regulation of legal practice in Western Australia, to facilitate the regulation of legal practice on a national basis and for other related purposes.

70 In s 3 of the LP Act the term 'local practising certificate' is defined to mean a practising certificate granted under the LP Act.

71 Part 5 of the LP Act is headed 'Legal practice by Australian legal practitioners' and comprises s 34 to s 80.

72 Section 37(1) provides that practising certificates may be granted by the Legal Practice Board (the Board) under pt 5.

73 Section 39 is concerned with the duration of a local practising certificate. By s 39, relevantly:

(1) A local practising certificate granted under this Act is in force from the date specified in it until the end of the financial year in which it is granted, unless ‑

(a) the certificate is sooner suspended or cancelled; or

(b) an earlier date is specified in the local practising certificate as the date on which it ceases to be in force.

(2) A local practising certificate renewed under this Act is in force until the end of the financial year following its previous period of currency, unless ‑

(a) the certificate is sooner suspended or cancelled; or

(b) an earlier date is specified in the local practising certificate as the date on which it ceases to be in force.

(3) If an application accepted by the Board for the renewal of a local practising certificate that ceases to be in force at the end of a financial year has not been finally determined by the following 1 July, the certificate ‑

(a) continues in force on and from that 1 July until the application has been finally determined or the holder withdraws the application for renewal, unless the certificate is sooner cancelled or renewed; and

(b) if renewed, is to be taken to have been renewed on and from that 1 July.

74 Section 42 is concerned with the making of an application for the grant or renewal of a local practising certificate. By s 42(1), an Australian lawyer may apply to the Board for the grant or renewal of a local practising certificate if eligible to do so under s 42. By s 42(6):

(a) engages in legal practice solely or principally in this jurisdiction during a financial year; and

(b) reasonably expects to engage in legal practice solely or principally in this jurisdiction in the following financial year,

must apply for the grant or renewal of a local practising certificate in respect of the following financial year.

75 Section 44 is concerned with the timing of an application for the renewal of a local practising certificate. By s 44, relevantly:

(1) An application for the renewal of a local practising certificate must be made within ‑

(a) the period prescribed by the legal profession rules as the standard renewal period; or

(b) the later period prescribed by the legal profession rules as the late fee period.

(2) Those periods must be within the currency of the local practising certificate being sought to be renewed.

(3) The Board may reject an application for renewal made during the late fee period, and must reject an application for renewal made outside those periods unless the Board accepts the application under subsection (4).

(4) The Board may accept an application made within 6 months after the late fee period (even after the expiry of the local practising certificate being sought to be renewed) if satisfied the delay was caused by reasons beyond the control of the applicant or other special circumstances warranting acceptance of the application.

(5) For an application accepted under subsection (4) after the expiry of the local practising certificate on 30 June in the year concerned, the certificate ‑

(a) is taken to have continued in force on and from the 1 July immediately following its expiry until the Board renews or refuses to renew the certificate or the holder withdraws the application for renewal, unless the certificate is sooner suspended or cancelled; and

(b) if renewed, is taken to have been renewed on and from that 1 July.

76 Part 13 of the LP Act is headed 'Complaints and discipline' and comprises s 401 to s 469.

77 Section 401 states that the purposes of pt 13 are as follows:

(a) to provide for the discipline of the legal profession in this jurisdiction, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;

(b) to promote and enforce the professional standards, competence and honesty of the legal profession; and

(c) to provide a means of redress for complaints about lawyers.

78 Section 402 provides that, for the purposes of the LP 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.

79 Section 403(1) provides that, for the purposes of the LP Act:

(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.

80 By s 403(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 s 403(1), regard may be had to the 'suitability matters' (as defined in s 8 of the LP Act) that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.

81 By s 405(b), pt 13 applies to an Australian legal practitioner in respect of conduct to which pt 13 applies, and so applies whether or not the practitioner holds a local practising certificate.

82 The Legal Profession Complaints Committee (that is, the respondent in this appeal) was established under s 555 of the LP Act. The functions of the Committee include supervising the conduct of legal practitioners; inquiring into any conduct on the part of a legal practitioner or matters relating to legal practice for the purpose of determining whether it may constitute unsatisfactory professional conduct or professional misconduct; and, if the Committee considers it appropriate to do so, to institute professional disciplinary proceedings against a legal practitioner in the Tribunal. See s 557 of the LP Act. If the Committee determines that a matter concerning the conduct of an Australian legal practitioner should be heard by the Tribunal, the Committee is empowered by s 428(1) to refer the matter to the Tribunal.

83 By s 431, it is the duty of the Committee to deal with complaints as efficiently and expeditiously as is practicable.

84 By s 438(1), the Tribunal has jurisdiction to make a finding that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct.

85 By s 438(2), if, after it has completed a hearing in relation to a referral under pt 13 in respect of an Australian legal practitioner, the Tribunal is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may:

(a) make and transmit a report on the finding to the Supreme Court (full bench) (s 438(2)(a)); or

(b) make any one or more of the orders specified in s 439, s 440 and s 441 (s 438(2)(b)).

86 By s 439, the Tribunal may, under s 438(2)(b), make one or more of the following orders:

(a) an order that the practitioner's local practising certificate be suspended for a specified period or cancelled;

(b) an order that a local practising certificate not be granted to the practitioner before the end of a specified period;

(c) an order that ‑

(i) specified conditions be imposed on the practitioner's practising certificate granted or to be granted under this Act; and

(ii) the conditions be imposed for a specified time; and

(iii) specifies the time (if any) after which the practitioner may apply to the Tribunal for the conditions to be amended or removed;

(d) an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner.

88 By s 441, the Tribunal may, under s 438(2)(b), make any one or more of the following orders:

(a) an order that the practitioner pay a fine to the Board of a specified amount not exceeding $25 000;

(b) an order that the practitioner undertake and complete a specified course of further legal education;

(c) a compensation order;

(d) an order that the complainant pay the amount of legal costs in dispute or that the amount of legal costs be reduced by a specified amount (not exceeding the amount in dispute);

(e) an order that the practitioner provide specified legal services to the complainant either free of charge or at a specified cost;

(f) an order that the practitioner undertake a specified period of practice under specified supervision;

(g) an order that the practitioner do or refrain from doing something in connection with the practice of law;

(h) an order that the practitioner's practice, or the financial affairs of the practitioner or of the practitioner's practice, be conducted for a specified period in a specified way or subject to specified conditions;

(i) an order that the practitioner's practice be subject to periodic inspection for a specified period;

(j) an order that the practitioner undergo counselling or medical treatment or act in accordance with medical advice given to the practitioner;

(k) an order that the practitioner use the services of an accountant or other financial specialist in connection with the practitioner's practice;

(l) an order that the practitioner seek advice in relation to the management of the practitioner's practice from a specified person;

(m) an order that the practitioner not apply for a local practising certificate before the end of a specified period.

The relevant provisions of the Legal Profession Conduct Rules 2010 (WA)

89 Rule 6(1)(b) of the Legal Profession Conduct Rules 2010 (WA) provides that a legal practitioner must 'be honest and courteous in all dealings with clients, other practitioners and other persons involved in a matter where the practitioner acts for a client'. The term 'matter' is defined in r 3, but it is unnecessary to set out the definition.

90 Rule 6(2)(c) provides that a practitioner must not engage in conduct, in the course of providing legal services or otherwise, which 'may bring the profession into disrepute'.

91 The proceedings between the appellant and the Committee came within the Tribunal's original jurisdiction.

92 By s 16(1) of the SAT Act, in exercising its original jurisdiction the Tribunal is to deal with the matter in accordance with the SAT Act and the enabling Act (that is, in the present case, the LP Act). By s 16(2), the enabling Act may modify the operation of the SAT Act in relation to a matter that comes within the Tribunal's original jurisdiction.

93 Section 51A(1)(a) of the SAT Act provides that the Tribunal may direct that any aspect of any proceedings be heard and determined separately.

94 Section 52 of the SAT Act is concerned with compulsory conferences. Section 52(1) provides that at an initial directions hearing or at any other time before any other hearing in a proceeding, the Tribunal may require parties to the proceeding to attend a compulsory conference. By s 52(3), the purpose of a compulsory conference is 'to identify and clarify the issues in the proceeding and promote the resolution of the matters by a settlement between the parties'. Section 52(6) provides that if a settlement appears to be reached at a compulsory conference, the Tribunal member presiding may reduce the terms of settlement to writing and make any orders necessary to give effect to the settlement.

95 Section 54 of the SAT Act is concerned with mediation. Section 54(1) provides that at an initial directions hearing or at any other stage of a proceeding, the Tribunal may refer the matter, or any aspect of it, for mediation by a person specified as a mediator by the Tribunal. By s 54(4), the purpose of a mediation is 'to achieve the resolution of the matters by a settlement between the parties'. Section 54(8) provides that if the mediator is a Tribunal member and a settlement appears to be reached at the mediation, the mediator may reduce the terms of settlement to writing and make any orders necessary to give effect to the settlement.

96 Section 55 of the SAT Act is concerned with evidence of anything said or done in the course of a compulsory conference or mediation. Section 55 provides:

Evidence of anything said or done in the course of a compulsory conference or mediation is not admissible at any later stage of the proceeding unless ‑

(a) all parties agree to the admission of the evidence; or

(b) it is evidence of directions given or orders made at a compulsory conference or mediation or the reasons for those directions or orders; or

(c) it is relevant to ‑

(i) a proceeding for an offence in relation to the giving of false or misleading information; or

(ii) a proceeding under section 100; or

(iii) a proceeding in relation to an order made under section 53(b)(i).

97 Section 87 of the SAT Act is concerned with costs. Section 87 provides, relevantly:

(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.

(3) The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.

98 Section 105 of the SAT Act is concerned with appeals from the Tribunal's decisions. Section 105 provides, relevantly:

(1) A party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal.

(2) The appeal can only be brought on a question of law.

...

(9) The court dealing with the appeal may -

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

(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,

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

(10) If the court sends the matter back to the Tribunal under subsection (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.

...

(13) Despite subsection (2), if the Tribunal's decision -

(a) is made under a relevant Act or in a proceeding for the review of a decision made under a relevant Act; and

(b) has the effect of depriving a person of the person's capacity to lawfully pursue a vocation,

an appeal under this section may be brought on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact.

(a) an Act specified in Schedule 1, if it is an enabling Act; or

(b) an enabling Act prescribed by the regulations for the purposes of subsection (13).

99 In s 3(1) of the SAT Act the term 'decision' of the Tribunal is defined to include 'an order, direction, or determination of the Tribunal'.

100 The LP Act is specified in Sch 1 of the SAT Act. The LP Act is therefore a 'relevant Act' as defined in s 105(14) of the SAT Act.

The decisions of the Tribunal challenged in this appeal

(a) section 105(1) of the SAT Act confers a right of appeal, subject to leave being given, from a 'decision' of the Tribunal; and

(b) section 3(1) of the SAT Act defines the term 'decision' to include 'an order, direction, or determination of the Tribunal'.

102 In the present case, the 'decisions' of the Tribunal in respect of which the appellant applies for leave to appeal comprise the Tribunal's order that the appellant be publicly reprimanded; the Tribunal's order that the appellant not be granted a local practising certificate for a period of 6 months commencing on 7 August 2019; and the Tribunal's order that the appellant pay the Committee's costs fixed at $20,000.

103 Prior to the commencement of the hearing of the appeal, the appellant relied upon eight grounds of appeal.

104 Ground 1 alleges, in essence, that the Tribunal erred in law in finding that s 55 of the SAT Act prohibited the Tribunal from having regard to evidence that showed that, when the Committee lodged the application with the Tribunal, the Committee was in possession of material that was inconsistent with the case the Committee had filed and that the Committee did not disclose the material in question until after it had secured the appellant's agreement to the minute of consent orders which recorded the appellant's earlier admissions of liability.

105 Ground 2 alleges, in essence, that the Tribunal erred in law in failing to hold that:

(a) delay by the Committee in investigating, commencing and litigating a complaint and the impact of the delay on a legal practitioner; and

(b) acts or omissions by the Committee during the period of investigating, commencing and litigating a complaint and the impact of those acts or omissions on a legal practitioner,

can bear on the determination of the appropriate penalty and the issue of costs.

106 Ground 3 alleges, in essence, that, as to the Committee's delay in investigating, commencing and litigating the complaint against the appellant, the Tribunal ought to have found that:

(a) the appellant accepted liability for the matters the subject of the complaint within a short time of the matters being raised by the Committee;

(b) the time taken by the Committee to investigate, commence and litigate the complaint was about 3 years 6 months, being from about 12 May 2016 to 11 December 2019;

(c) the time taken by the Committee to investigate and commence the complaint was about 2 years 6 months, being from about 12 May 2016 to 4 December 2018;

(d) section 431 of the LP Act imposed on the Committee a statutory duty to deal with the complaint as efficiently and expeditiously as was practicable;

(e) on various occasions during 2016, 2017 and 2018 the appellant contacted the Committee and requested that the matter be progressed, but the Committee did not do so;

(f) the Committee conceded that its delay from 8 December 2016 to 15 March 2018 was unexplained;

(g) the Committee did not place before the Tribunal an explanation in respect of that part or any part of the time taken by the Committee to investigate, commence and litigate the complaint;

(h) in the circumstances, the Tribunal should have concluded that at least, alternatively about, 2 years of the 2 year 6 months taken to investigate and commence the complaint was delay by the Committee and was unjustifiable; and

(i) the adjournment of the penalty hearing on 7 August 2019, following the Committee's disclosure of material on 24 July 2019, 6 August 2019 and 7 August 2019 (the Disclosure Material) caused delay in the litigation of a period not capable of being fully ascertained, but including at least the period from 7 August 2019 to 12 September 2019.

107 Ground 4 alleges, in essence, that, as to the Committee's acts or omissions that could bear on the determination of the appropriate penalty and the issue of costs, the Tribunal ought to have found that:

(a) in putting the complaint to the appellant on 24 May 2016, the then Law Complaints Officer acted in ways that intimidated the appellant;

(b) on various occasions during 2016, 2017 and 2018 the appellant contacted the Committee and requested that the matter be progressed, but the Committee did not do so;

(c) at all material times the Committee declined to provide the appellant with a copy of Ms A's complaint or, if the complaint was expressed orally, the Committee's record of the complaint as made;

(d) at all material times the Committee declined to provide the appellant with copies of written communications between Ms A and the Committee, including written submissions received by the Committee from Ms A in response to the appellant's written account of the interaction between the appellant and Ms A;

(e) in or about June 2017, the then Law Complaints Officer stated to the appellant that the complaint was being held back so that it could be considered with another complaint and there was nothing the appellant could do about it;

(f) the Committee had not placed before the Tribunal any explanation for that decision, if that in fact occurred;

(g) there was no evidence that another complaint against the appellant was considered at the same time and date as the subject complaint, namely 21 August 2018;

(h) the other complaint was not connected to the complaint and, in any event, the Committee had not proceeded with the complaint;

(i) on 4 December 2018, the Committee filed an application in the Tribunal that was inconsistent with material then in the Committee's possession;

(j) the parties signed a minute of orders as to liability and agreed facts on 22 March 2019;

(k) the hearing on penalty and costs was listed on 7 August 2019;

(l) on 22 July 2019, the Committee filed a written outline of submissions that departed from an undertaking given by the Committee when the minute of orders dated 22 March 2019 was agreed;

(m) on 24 July 2019, the Committee, having previously advised the appellant that it did not intend to lead evidence, served on the appellant an affidavit of Cassandra Paterson (an employee of the Committee) annexing certain documents not previously disclosed to the appellant (those documents being part of the Disclosure Material);

(n) on 29 July 2019, the Committee filed substituted written submissions and sought, unsuccessfully, to uplift the written submissions dated 22 July 2019 from the Tribunal's file;

(o) on 6 August 2019, the Committee disclosed certain further documents not previously disclosed to the appellant (such documents being a further part of the Disclosure Material);

(p) on 7 August 2019, objection having been taken on the grounds that the affidavit was inadmissible in form and otherwise of no evidentiary weight, the Committee disavowed reliance on the affidavit of Ms Paterson and the affidavit was not read on the application;

(q) the Committee did not disclose the Disclosure Material prior to or at the time it secured the appellant's agreement to a minute of orders as to liability and agreed facts; and

(r) the timing and the form of the affidavit of Ms Paterson, the error made in relation to the Committee's written submissions and the timing of the provision of the Disclosure Material was the cause of the adjournment of the penalty hearing on 7 August 2019.

108 Ground 5 alleges, in essence, that the Tribunal ought to have found that:

(a) the delay the subject of ground 3 and the acts and omissions the subject of ground 4 were contributors in the cause of serious stress and anxiety suffered by the appellant, a period of cessation of practice by the appellant and a material diminution in the appellant's financial circumstances to the point that the appellant had no financial resources; and

(b) the delay the subject of ground 3 and the acts and omissions the subject of ground 4 and the effect of those matters on the appellant were circumstances that ought to be taken into account in determining the appropriate penalty and the disposition of the Committee's application for costs.

109 Ground 6 alleges, in essence, that the Tribunal:

(a) having made the errors the subject of grounds 1 and 2 and having failed to make the findings that it ought to have made as alleged in grounds 3, 4 and 5 or any of them, erred by proceeding to impose on the appellant a penalty of 6 months' preclusion from practice and by making a costs order against the appellant;

(b) erred by providing no, or alternatively no adequate, reasons for the imposition of a penalty of 6 months' preclusion from practice; and

(c) further or alternatively, imposed a penalty of 6 months' preclusion from practice which was manifestly excessive.

110 Ground 7 alleges, in essence, that the Tribunal, having made the errors the subject of grounds 1 and 2 and having failed to make the findings that it ought to have made as alleged in grounds 3, 4 and 5 or any of them, erred by proceeding to make a costs order against the appellant.

111 Ground 8 alleges, in essence, further and alternatively, that the Tribunal's exercise of discretion in relation to costs miscarried as a consequence of the Tribunal failing to take into account relevant matters and taking into account irrelevant matters, namely:

(a) failing to take into account that the delay the subject of ground 3 and the acts and omissions the subject of ground 4 were contributors in the cause of serious stress and anxiety suffered by the appellant, a voluntary period of cessation of practice by the appellant and a material diminution of the appellant's financial circumstances to the point that the appellant had no financial resources;

(b) failing to take into account at all the financial circumstances of the appellant;

(c) failing to take into account that due to her means the appellant would be unable to pay the costs order;

(d) failing to take into account that the effect of s 431 of the LP Act as it is construed by the Committee is to preclude an application for a practising certificate if a costs order is outstanding;

(e) taking into account that the appellant wanted an oral hearing, in the circumstances of this case;

(f) taking into account that the appellant filed what the Tribunal characterised as a 'voluminous' number of documents, in the circumstances of this case;

(g) erroneously finding that the hearing was adjourned a number of times after 7 August 2019 because of the appellant's late lodgement of documents and taking that finding into account;

(h) failing to take into account that the timing and the form of the affidavit of Ms Paterson, the error made in relation to the Committee's written submissions and the timing of the provision of the Disclosure Material was the cause of the adjournment of the penalty hearing on 7 August 2019;

(i) taking into account that the appellant's counsel had taken up most of the time allocated over the two days of hearing, in the circumstances of this case;

(j) failing to take into account the Committee's admission that counsel appearing and whose costs were being sought had been retained by the Committee due to the history of the matter (which was a reference to, at least, the Committee's delay in investigating, commencing and litigating the complaint and the impact on the appellant) and the criticisms the Committee apprehended (correctly) would be made of it in consequence at the hearing;

(k) taking into account as a matter favouring an award of costs and on the issue of quantum that the $20,000 sought by the Committee represented what the Tribunal characterised as a 'significant discount of the fees actually incurred by the [Committee]', in the circumstances of this case.

112 At the hearing of the appeal, the appellant applied for leave to amend her grounds of appeal by adding a new ground 1A.

113 The proposed new ground 1A alleges, in essence, that the Tribunal erred in finding that it had power, pursuant to s 439(b) of the LP Act, to make an order that a local practising certificate not be granted before the end of a specified period with retrospective effect, any part of which period predates the making of the order.

114 The proposed new ground 1A raises a point of general importance. The Committee has had an adequate opportunity to make submissions in respect of the new ground. In the circumstances, I would grant the appellant leave to amend her grounds of appeal by adding the new ground 1A.

115 Section 105(2) of the SAT Act provides that an appeal with leave under s 105(1) can only be brought on a question of law.

116 The apparent intention of Parliament, in enacting s 105(13), was to expand the scope of an appeal with leave under s 105(1) to include grounds of appeal involving questions of fact or questions of mixed law and fact where the Tribunal's decision has the legal effect of significantly interfering with a person's capacity to practise a profession or pursue a vocation for which he or she is otherwise qualified with, no doubt, serious consequences for his or her livelihood and reputation in the community. See Paridis v Settlement Agents Supervisory Board.[7]

117 By virtue of s 105(13), a person who has been deprived, as a result of the Tribunal's decision, of the capacity lawfully to pursue a vocation may appeal with leave on any ground (and not merely on a question of law) against the Tribunal's decision to find the person guilty of disciplinary offences, and also against the Tribunal's decision on penalty. See Paridis [50].

118 Section 105(13)(b) refers to the 'effect' of the Tribunal's decision. The provision is concerned with the legal, as distinct from the practical, effect of the decision. If the Tribunal decides to disqualify or suspend a person from practising his or her profession or other vocation, the legal effect of the decision will be to deprive that person of his or her 'capacity to lawfully pursue a vocation', within s 105(13)(b). It is not necessary, for s 105(13)(b) to apply, that the deprivation be permanent or indefinite. See Paridis [48].

119 In the present case, the Tribunal's decision on penalty comprised:

(a) for the appellant's unsatisfactory professional conduct in her dealings with Ms A, a public reprimand; and

(b) for the appellant's professional misconduct by making the misleading and deceptive representation to a Registrar of the District Court, a purported order that the appellant not be granted a local practising certificate for a period of 6 months, with that period commencing and ending before the date of the Tribunal's purported order.

120 Neither the public reprimand, nor the purported order prohibiting retrospectively (and for a period that wholly expired before the order was made) the grant of a local practising certificate, had the legal effect of depriving the appellant of her capacity lawfully to pursue the vocation of a legal practitioner.

121 Consequently, the appellant's appeal in relation to the Tribunal's decision to order that a local practising certificate not be granted to the appellant for a period that wholly expired before the decision was made can only be brought on a question or questions of law.

122 Rule 32(4)(e) of the Supreme Court (Court of Appeal) Rules 2005 (WA) provides, relevantly and in effect, that if, under the written law under which an appeal is made, an appeal lies only if it is on a question of law, the appellant's grounds of appeal must state the question or questions of law.

123 In the present case, the appellant did not comply with r 32(4)(e).

124 On 13 September 2021, the court ordered the appellant to file and serve a memorandum which particularised, by reference to each ground of appeal, the questions of law on which the appellant alleges that the appeal can be brought.

125 Pursuant to that order, on 23 September 2021 the appellant filed and served a memorandum which reads, relevantly and in effect:

(a) As to ground 1A, whether the Tribunal erred in law in finding that it had power pursuant to s 439(b) of the LP Act to make an order that a local practising certificate not be granted before the end of a specified period with retrospective effect, any part of which period predates the making of the order.

(b) As to ground 1, whether s 55 of the SAT Act prohibits the Tribunal from admitting evidence of a thing said or done in the course of a compulsory conference or mediation at a later stage of the proceeding where the evidence is led for the purpose of seeking to establish that a party failed, at some relevant time, to meet its disclosure obligations in relation to the proceeding.

(c) As to grounds 2, 3, 4, 5, 7 and 8, whether:

(i) delay in investigating, commencing and litigating a complaint and the impact of such delay on a practitioner can bear on the determination of the appropriate penalty;

(ii) delay in investigating, commencing and litigating a complaint and the impact of such delay on a practitioner can bear on the issue of costs;

(iii) acts or omissions by the Committee during the period of investigating, commencing and litigating a complaint and the impact of such acts or omissions on a practitioner can bear on the determination of the appropriate penalty;

(iv) acts or omissions by the Committee during the period of investigating, commencing and litigating a complaint and the impact of such acts or omissions on a practitioner can bear on the issue of costs.

(d) As to ground 6:

(i) whether the Tribunal is required to provide reasons for imposing a penalty greater than the penalty contended for by the Committee in its submissions at the hearing;

(ii) whether in circumstances where the Tribunal is considering imposing or intending to impose a penalty greater than the penalty contended for by the Committee at the hearing the Tribunal must give notice to the parties and/or an opportunity to be heard.

126 The appellant's orders wanted in the appeal, as stated in the appellant's case, were that the appeal be allowed; orders 1, 2 and 3 of the Tribunal's orders made on 9 March 2020 be set aside; and the Committee pay the appellant's costs of the appeal to be taxed.

127 As to ground 1A, counsel for the appellant submitted that the Tribunal did not have power to make an order that a local practising certificate not be granted before the end of a specified period with retrospective effect, any part of which period predates the making of the order. It was submitted that it is apparent from the text of s 438, s 439, s 440 and s 441 of the LP Act that the power to make an order with respect to a local practising certificate is prospective only.

128 As to ground 1, counsel for the appellant submitted that s 55 of the SAT Act, properly construed, renders inadmissible at any later stage of the proceeding anything said or done in the course of a compulsory conference or mediation unless one of the exceptions in par (a), (b) or (c) of s 55 applies.

129 It was submitted that s 55 did not preclude the Tribunal, in the present case, from receiving at the penalty and costs hearing and from having regard to evidence showing that:

(a) when the Committee lodged the application in the Tribunal, the Committee was in possession of material inconsistent with the case it had lodged; and

(b) the Committee had failed to disclose that material until after the Committee had secured the appellant's agreement to the minute of orders which recorded the appellant's early admissions of liability.

130 Counsel contended that the Committee's failure to disclose the material in question before the appellant consented to the minute of consent orders was relevant to the Tribunal's determination of the appropriate penalty and the appropriate costs order. In particular, counsel contended that the material in question revealed that the appellant's email of 7 April 2016 with the salutation 'Dear Registrar' had not been placed before or considered by a Judge or a Registrar of the District Court of Western Australia, but had merely been seen and dealt with by a clerk in the transcripts team at the District Court.

131 Counsel argued that the Tribunal's error in relation to the proper construction and application of s 55 of the SAT Act and the Tribunal's consequent failure to take into account the Committee's non‑disclosure of the material in question before the appellant consented to the minute of consent orders, raised a real possibility that those matters, in combination, might have affected the Tribunal's decisions.

132 As to ground 2, counsel for the appellant submitted that a material part of the appellant's case at the penalty and costs hearing was that:

(a) delay and events in the course of a complaint and the impact on a practitioner of those matters can be relevant to the determination of an appropriate penalty and to the issue of costs;

(b) in the present case, there were circumstances of that type, the specific matters being identified in the materials and the submissions before the Tribunal; and

(c) in the present case, those matters were relevant to the determination of an appropriate penalty and to the issue of costs.

133 It was submitted that, in the present case, it was necessary for the Tribunal:

(a) to consider whether the matters relied upon by the appellant had a bearing on the appropriate penalty and, if not, to explain why not; and

(b) to the extent that those matters had a bearing on the appropriate penalty, to take those matters into account in determining the appropriate penalty.

134 Counsel argued that it was not to the point that the Tribunal does not have statutory authority over or oversight of the Committee. The Tribunal was charged with examining all relevant circumstances of the case, including the personal circumstances of the appellant at the time of the penalty and costs hearing. The Committee was before the Tribunal as a party. The Tribunal therefore had at least the usual powers that the Tribunal has over a party. The Committee's conduct was susceptible to comment by the Tribunal, as appropriate.

135 Counsel contended that, in the circumstances, the Tribunal erred in law in failing to hold that the Committee's delay in investigating, commencing and litigating the complaint against the appellant, the acts or omissions of the Committee during the period of investigating, commencing and litigating the complaint, and the impact of the delay and the acts or omissions of the Committee upon the appellant were relevant to the determination of the appropriate penalty and the issue of costs.

136 As to ground 3, counsel for the appellant submitted that the Tribunal ought to have made findings in relation to the Committee's delay in investigating, commencing and litigating the complaint as set out at [106] above.

137 As to ground 4, counsel for the appellant submitted that the Tribunal ought to have made findings in relation to the acts or omissions by the Committee that could bear on the determination of the appropriate penalty and the issue of costs as set out at [107] above.

138 As to ground 5, counsel for the appellant submitted that it was clear, on the unchallenged evidence of the appellant and her medical practitioner, that the delay the subject of ground 3 and the acts and omissions of the Committee the subject of ground 4 contributed to:

(a) serious stress and anxiety suffered by the appellant;

(b) a period of cessation of practice by the appellant; and

(c) a material diminution of the appellant's financial circumstances to the point that the appellant had no financial resources.

139 It was submitted that those matters ought to have been taken into account by the Tribunal in determining the appropriate penalty and the issue of costs.

140 As to ground 6, counsel for the appellant submitted that, if the errors the subject of grounds 1, 2, 3, 4 and 5 or any of them are made out, then the Tribunal erred by proceeding to impose on the appellant a penalty of 6 months preclusion from practice and by making a costs order against the appellant. It was also submitted that the Tribunal provided no, or alternatively no adequate, reasons for the imposition of the penalty in question. It was also submitted, further or alternatively, that the penalty in question was manifestly excessive.

141 As to ground 7 and 8, counsel for the appellant reiterated the complaints embodied within the grounds themselves.

142 As to ground 1A, counsel for the Committee conceded that the Tribunal did not have power to make an order that a local practising certificate not be granted before the end of a specified period with retrospective effect, any part of which period predates the making of the order.

143 As to ground 1, counsel for the Committee noted that the Tribunal did not identify the specific documents which the appellant contended had not been disclosed to her by the Committee but should have been. Counsel submitted that it can be inferred that the relevant documents were those identified by the appellant in her written submissions lodged with the Tribunal on 12 September 2019. Those documents correspond with the documents now identified by the appellant in her written submissions on appeal.

144 Counsel accepted that there was no evidence before the Tribunal to support a conclusion that the documents in question comprised evidence of things said or done in the course of mediation, within s 55 of the SAT Act, and that the Tribunal's implicit finding to that effect was an error of law.

145 It was submitted that, before the Tribunal, the appellant relied upon the documents in question as relevant to an assessment of the nature of the appellant's conduct and also to criticise the Committee's conduct.

146 Counsel noted that the correspondence between the parties, in the course of formulating the minute of consent orders, involved communications between the parties. Consequently, no issue of non-disclosure arises. It was submitted that the only relevance of the correspondence was as evidence of the non-disclosure of the documents referred to at [143] above and therefore of the Committee's alleged misconduct.

147 Counsel also accepted that there was no evidence before the Tribunal to support a conclusion that the correspondence referred to at [146] above comprised evidence of things said or done in the course of mediation, within s 55 of the SAT Act, and that the Tribunal's implicit finding to that effect was an error of law.

148 However, counsel contended that, in order to justify setting aside the Tribunal's decision, the errors of law must be vitiating; in particular, it must be shown that there was a real possibility that the Tribunal's decision would or might have been different if the impugned errors had not been made.

149 It was submitted that the documents referred to at [143] above did not bear relevantly on the Tribunal's finding concerning the appellant's conduct or on related facts that were agreed upon by the parties before the Tribunal.

150 Counsel submitted that the Tribunal was correct to find, in substance, that a legal practitioner's duty to act honestly in his or her dealings with the court applies equally to the court's administrative officers as it does to a registrar or judicial officer.

151 Accordingly, it was argued that, if the documents referred to at [143] above did not bear relevantly on any findings by the Tribunal or any related facts, the correspondence referred to at [146] above evidencing the alleged non-disclosure of the documents referred to at [143] above, was also irrelevant.

152 Counsel submitted that, in any event, as the Tribunal found, the appellant was given an opportunity to withdraw her consent to the conduct findings and the agreed facts, but the appellant chose not to do so.

153 It was contended that there was no real possibility that the Tribunal's decision would or might have been different if the Tribunal's errors had not been made.

154 As to that part of ground 2 which relates to delay, counsel for the Committee conceded that the question of delay by the Committee and its relevance to the determination of penalty and costs was sufficiently ventilated in the proceedings before the Tribunal, in the sense that the issue was raised by the appellant in support of her position as to the penalty and costs orders that should be made and the Committee was given a sufficient opportunity to respond to the appellant's case on that point.

155 Counsel accepted that delay not attributable to the legal practitioner between the time of the impugned conduct and the time of the Tribunal's decision may be relevant to mitigate penalty where the delay diminishes the need for protection of the public by the penalty to be imposed, having regard to:

(a) evidence of the practitioner's good conduct during the period of the delay; further or alternatively

(b) any deterrent effect personal to the practitioner attributable to the additional period of suspense caused by the delay.

156 Counsel conceded that the Tribunal should have made a finding to that effect and conceded that the Tribunal made an error of law in failing to do so.

157 It was submitted, however, that notwithstanding the Tribunal's errors, it is apparent that the Tribunal accepted, at [51] of its reasons, that there had been a significant impact on the appellant's mental health arising from 'the Committee's delay in commencing these proceedings' and that this impact on the appellant's mental health was relevant, together with other matters, in mitigating the penalty to be imposed. The order that the Committee proceeded to make was of no effect because, as asserted in ground 1A, the Tribunal did not have power to make that order. Nevertheless, it was submitted that it is apparent from the Tribunal's reasons that the Tribunal had regard, in substance, to the impact of delay on the appellant as a matter relevant to and in mitigation of penalty.

158 It follows, so it was submitted, that there is no real possibility that the Tribunal's decision would or might have been different if the impugned error had not been made.

159 As to that part of ground 2 which relates to the acts and omissions of the Committee and their impact on the appellant, counsel for the Committee submitted that there is no recognised or apparent link between the behaviour of a regulator of professional conduct (and its effects, if any) and the public protection purpose of disciplinary proceedings, either in relation to the opportunity for the practitioner's rehabilitation or in relation to personal deterrence.

160 It was submitted that the Tribunal's role in disciplinary proceedings does not include overseeing and sanctioning the Committee's conduct. That is the role of the Ombudsman or the Public Sector Commissioner. Counsel argued that the sanctioning of the Committee's conduct by the mitigation of penalty would be inconsistent with the public protection purpose.

161 It follows, so it was submitted, that the Tribunal did not err in failing to find that acts or omissions of the Committee during the period of investigating, commencing and litigating the complaint against the appellant, and the impact of those acts or omissions on the appellant, could bear upon the determination of the appropriate penalty.

162 As to that part of ground 2 which is concerned with the issue of costs, counsel for the Committee noted that the source of the Tribunal's power to award costs is s 87(2) of the SAT Act. The discretion to award costs is to be exercised if it is fair and reasonable in all the circumstances of the case to do so. It was submitted that the Tribunal correctly applied the applicable principles in reasoning towards its decision on costs. Counsel argued that it was unnecessary (and, indeed, would have been incorrect) for the Tribunal to formulate a principle to the effect that particular circumstances and their consequences, such as delay or the acts or omissions of a party, could be relevant to the question of costs. It was submitted that all of the circumstances of the particular case must be considered when determining whether it is fair and reasonable that a party be reimbursed for their costs.

163 As to grounds 3 and 4, counsel for the Committee submitted that grounds 3 and 4 do not raise a question of law.

164 It was submitted that an alleged failure to make certain factual findings or an alleged failure to take into account a piece of evidence is not to be equated with a failure to take into account a relevant consideration that the Tribunal was obliged to take into account.

165 As to penalty, it was submitted that the Tribunal made findings in relation to delay. No further factual findings were necessary in order for the Tribunal to consider the issue of delay in the context of determining penalty.

166 As to the alleged acts or omissions of the Committee, it was submitted that none of the factual findings which the appellant says the Tribunal ought to have made were relevant to the Tribunal's penalty determination.

167 As to the issue of costs, counsel submitted that the appellant only challenges the costs order made by the Tribunal in favour of the Committee. The appellant does not contend that the Tribunal should have made an award of costs in her favour.

168 It was submitted that the effect of the Tribunal's reasoning, at [53] ‑ [60] of its reasons, was that it was fair and reasonable in all the circumstances that the appellant reimburse the Committee for part of the counsel fees it had incurred.

169 Counsel argued that the factual findings which the appellant contends ought to have been made by the Tribunal (see [106(a) ‑ (h)] and [107(a) ‑ (l) above) are unrelated to the costs likely to have been incurred in respect of the penalty hearing.

170 Counsel also argued that the balance of the factual findings at [106] and [107] above which the appellant contends ought to have been made by the Tribunal do not raise any question of law. In particular, the alleged failure by the Tribunal to make factual findings or to take evidence into account does not raise a question of law. The Tribunal was entitled to exercise its discretion in the manner it did and by reference to the considerations it regarded as relevant.

171 As to that part of ground 5 which alleges, in essence, that the Tribunal ought to have found that the delay the subject of ground 3 and the acts and omissions the subject of ground 4 were contributors in the cause of serious stress and anxiety suffered by the appellant, counsel for the Committee submitted that the allegation in the ground did not raise a question of law. It was submitted that the Tribunal held, at [51] of its reasons, that the Committee's delay in commencing proceedings caused a significant impact on the appellant's mental health. No further finding of fact relevant to the consideration of the impact of delay on the appellant was required.

172 As to that part of ground 5 which alleges, in essence, that the delay the subject of ground 3 and the acts and omissions the subject of ground 4 and the effect of those matters on the appellant were circumstances that ought to have been taken into account in determining the appropriate penalty and the disposition of the Committee's application for costs, counsel for the Committee contended that those matters were, in substance, a restatement of ground 2 with reference to the additional findings of fact for which the appellant contended in grounds 3 and 4. Counsel relied upon the Committee's submissions in response to those grounds.

173 As to ground 6, counsel for the Committee noted that the Committee did not seek to uphold order 2 of the Tribunal's orders. The Committee conceded that the Tribunal did not have power to order that the appellant not be granted a practising certificate before the end of a specified period that was wholly past. Consequently, order 2 was of no effect.

174 To the extent that ground 6 concerns the Tribunal's costs order, the Committee relied upon its response to grounds 1, 2, 3, 4 and 5.

175 As to grounds 7 and 8, counsel for the Committee submitted that the complaint in each of grounds 7 and 8 in relation to the costs order is nothing more than a complaint that the Tribunal should have exercised its discretion in the appellant's favour.

176 As to ground 7, counsel relied upon the Committee's response to ground 3 and 4.

177 As to ground 8, counsel submitted that the 'considerations' referred to in ground 8 are, in substance, a quarrel with the Tribunal's findings of fact and do not raise a question of law.

(a) as to the matters identified at [111(a) ‑ (d)] above, a party's ability to satisfy a costs order is not determinative and seldom persuasive in assessing whether to award costs to a successful party;

(b) as to the matters identified at [111(e), (f), (g), (i) and (k)] above, the Tribunal was entitled to take those matters into account;

(c) as to the matters identified at [111(g) and (h)] above, those matters are complaints as to findings of fact; and

(d) as to the matter identified at [111(j)] above, the proposition of fact contained in that matter was specifically rejected by counsel for the Committee before the Tribunal at ts 97 ‑ 98.

The jurisdiction of this court under s 105(1) read with s 105(2) of the SAT Act

179 A number of propositions may be stated about the jurisdiction and powers of this court under s 105 in relation to an 'appeal', with leave, 'on a question of law'. It is unnecessary to consider the position where s 105(13) applies and an appeal under s 105 may be brought on any ground, 'whether it involves a question of law, a question of fact or a question of mixed law and fact'. As I have mentioned, in the present case s 105(2), and not s 105(13), applies.

180 Section 105(1) read with s 105(2) confers jurisdiction on this court to examine for legal error what has been done in the Tribunal. Despite the description of the proceedings in this court as an 'appeal', s 105(1) read with s 105(2) confers original not appellate jurisdiction. The proceedings are in the nature of judicial review. They are not an 'appeal' by way of rehearing. Where a statute confers what is described as an 'appeal' from an administrative decision, and the 'appellate' court's jurisdiction is enlivened, it is necessary to identify the nature of the jurisdiction and the duties and powers of the 'appellate' court. See Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic);[8] Osland v Secretary, Department of Justice (No 2);[9] Kostas v HIA Insurance Services Pty Ltd;[10] Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (NSW).[11]

181 This court's jurisdiction under s 105(1) is, by s 105(2), confined to an 'appeal' 'on a question of law'. Section 105(9), which confers powers on this court in aid of the exercise of its jurisdiction, does not enlarge that jurisdiction. See Osland [19]. Section 105 does not qualify or circumscribe the nature or character of the questions of law on which an 'appeal' may lie.

182 A question of law, for the purposes of s 105(2), is not to be distilled from the ground or grounds of appeal. See Osland [21]. The existence of a question of law is both a qualifying condition to the invoking of this court's jurisdiction under s 105(1) read with s 105(2) and the subject matter of the 'appeal' itself. See TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation;[12] Osland [21]. It is essential that the question of law relied on for the purposes of s 105(2) be identified with precision. See Paradis [53].

Divergence between the appellant's stated questions of law and the appellant's stated grounds of appeal

183 The appellant's stated questions of law diverge in some respects from the appellant's stated grounds of appeal.

184 It is appropriate, having regard to the nature of this court's jurisdiction under s 105(1) read with s 105(2) of the SAT Act, to consider the appeal by reference to the stated questions of law and to disregard the stated grounds of appeal to the extent that they diverge from the stated questions of law.

The organisation of the balance of these reasons

185 Accordingly, I will consider the appellant's case in the appeal by reference to the alleged questions of law specified by the appellant in the memorandum she filed and served on 23 September 2021. See [125] above.

Ground 1A: did the Tribunal err in law in finding that it had power pursuant to s 439(b) of the LP Act to make an order that a local practising certificate not be granted to the appellant before the end of a specified period with retrospective effect, the whole of which period predated the making of the order?

186 Section 37(1) of the LP Act empowers the Board to grant practising certificates under pt 5.

187 By s 39(1), a local practising certificate granted under the LP Act is in force from the date specified in it until the end of the financial year in which it is granted, unless one of the exceptions specified in s 39(1) applies. By s 39(2), a local practising certificate renewed under the LP Act is in force until the end of the financial year following its previous period of currency, unless one of the exceptions specified in s 39(2) applies. The exceptions specified in each of s 39(1) and s 39(2) are identical. They relate to the date on which a local practising certificate ceases to be in force. The first exception is that the certificate is sooner suspended or cancelled. The second exception is that an earlier date is specified in the certificate as the date on which it ceases to be in force.

188 By s 39(3), if an application accepted by the Board for the renewal of a local practising certificate that ceases to be in force at the end of a financial year has not been finally determined by the following 1 July, the certificate:

(a) continues in force on and from that 1 July until the application has been finally determined or the holder withdraws the application for renewal, unless the certificate is sooner cancelled or renewed; and

(b) if renewed, is to be taken to have been renewed on and from that 1 July.

189 Section 42(1) provides for an Australian lawyer to apply to the Board for the grant or renewal of a local practising certificate if eligible to do so under s 42. By s 42(6), an Australian lawyer who engages in legal practice, relevantly, during a financial year and reasonably expects to engage in legal practice, relevantly, in the following financial year, must apply for the grant or renewal of a local practising certificate in respect of the following financial year.

190 Section 44(1) provides that an application for the renewal of a local practising certificate must be made within the period prescribed by the legal profession rules as the standard renewal period or the later period prescribed by the legal profession rules as the late fee period. By s 44(2), those periods must be within the currency of the local practising certificate being sought to be renewed.

191 By s 44(3), the Board may reject an application for renewal made during the late fee period, and must reject an application for renewal made outside the standard renewal period or the late fee period unless the Board accepts the application under s 44(4).

192 Section 44(4) empowers the Board to accept an application for the renewal of a local practising certificate that is made within 6 months after the late fee period (even after the expiry of the local practising certificate being sought to be renewed) if satisfied that one or other of the conditions specified in s 44(4) is met.

193 By s 44(5), for an application accepted by the Board under s 44(4) after the expiry of the local practising certificate on 30 June in the year concerned, the certificate:

(a) is taken to have continued in force on and from the 1 July immediately following its expiry until the Board renews or refuses to renew the certificate or the holder withdraws the application for renewal, unless the certificate is sooner suspended or cancelled; and

(b) if renewed, is taken to have been renewed on and from that 1 July.

194 It is apparent from the provisions of the LP Act to which I have referred at [186] ‑ [193] above, read together, that:

(a) The Board is not empowered retrospectively to renew a local practising certificate.

(b) If the Board accepts an application for the renewal of a local practising certificate that ceases to be in force at the end of a financial year, and the application has not been finally determined by the following 1 July, then, by force of s 39(3)(b), the certificate, if renewed, is in essence deemed to have been renewed on and from the 1 July immediately following its expiry.

(c) Section 39(3)(b) provides for a deemed and limited retrospectivity in relation to the renewal of a local practising certificate.

(d) The Board is empowered to accept an application for the renewal of a local practising certificate made within 6 months after the late fee period (even after the expiry of the local practising certificate being sought to be renewed) if satisfied that one or other of the conditions specified in s 44(4) is met.

(e) If the Board accepts an application under s 44(4) after the expiry of the local practising certificate on 30 June in the year concerned, then, by force of s 44(5)(b), the certificate, if renewed, is in essence deemed to have been renewed on and from the 1 July immediately following its expiry.

(f) Section 44(4) and s 44(5) provide for a deemed and limited retrospectivity in relation to the renewal of a local practising certificate.

(g) A local practising certificate granted or renewed under the LP Act is incapable of being granted or renewed in respect of a period which wholly predates the date on which the local practising certificate is granted or renewed.

(h) A local practising certificate granted or renewed under the LP Act can only be granted or renewed in respect of a period at least part of which occurs after the date on which the local practising certificate is granted or renewed.

195 Section 438(2)(b) of the LP Act provides, relevantly, that if the Tribunal is satisfied that an Australian legal practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may make any one or more of the orders specified in, relevantly, s 439 and s 441.

196 The orders specified in, relevantly, s 439 and s 441 are intended to reflect or give effect to one or more of the purposes of pt 13 of the LP Act as stated in s 401.

197 By s 439(b), the Tribunal may, under s 438(2)(b), make an order that a local practising certificate 'not be granted to the practitioner before the end of a specified period'. An order made by the Tribunal under s 439(b) is, in effect, directed to the Board.

198 By s 441(m), the Tribunal may, under s 438(2)(b), make an order that the practitioner 'not apply for a local practising certificate before the end of a specified period'. An order made by the Tribunal under s 441(m) is, in effect, directed to the practitioner.

199 In my opinion, the words 'not be granted' in s 439(b) mean, in the context of the regulatory framework as a whole, that the Tribunal may order in effect that the Board 'must not grant' a local practising certificate to the practitioner before the end of a period specified by the Tribunal in its order. Similarly, in my opinion, the words 'not apply for' in s 441(m) mean, in the context of the regulatory framework as a whole, that the Tribunal may order in effect that the practitioner 'must not apply for' a local practising certificate before the end of a period specified by the Tribunal in its order.

200 The words 'not be granted' in s 439(b) and the words 'not apply for' in s 441(m) connote that the subject matter of the prohibition (that is, the granting of a local practising certificate or the making of an application for a local practising certificate) must not occur during the specified period.

201 The tense expressed in the words 'not be granted' in s 439(b) and the words 'not apply for' in s 441(m), read with s 438(2)(b), indicates that an order of the kind specified in s 439(b) or s 441(m) must be prospective in its operation.

202 The fact that the Board is not empowered retrospectively to renew a local practising certificate under s 39 or s 44 and the limited scope for a deemed retrospective renewal under s 39(3), s 44(4) and s 44(5) is consistent with an order under s 439(b) and an order under s 441(m), read with s 438(2)(b), operating prospectively.

203 Further, an order that a local practising certificate 'not be granted' to the practitioner and an order that the practitioner 'not apply for' a local practising certificate would be devoid of any effect or utility if the order was made in respect of a period that has wholly past. The subject matter of the prohibition will have been wholly spent when the order is made. That outcome is not required by the text, context or apparent purpose of the statutory provisions. It is an outcome that would not have been within the contemplation of Parliament in enacting s 439(b) and s 441(m).

204 In my opinion, the statutory text of, relevantly, s 439 and s 441, in the context of s 438(2) and the purposes of pt 13 of the LP Act as stated in s 401, indicates that:

(a) an order under s 439(b) read with s 438(2) that a local practising certificate not be granted to the practitioner before the end of a specified period; and

(b) an order under s 441(m) read with s 438(2) that the practitioner not apply for a local practising certificate before the end of a specified period,

205 Nothing in the text, context or apparent purpose of s 439(b) or s 441(m), read with s 438(2)(b), supports a construction of those provisions which permits the Tribunal's order to specify a period for the prohibition which occurs wholly or partly before the date on which the order is made.

206 I am therefore satisfied that, in the present case, the Tribunal erred in law in finding that it had power, pursuant to s 439(b), to make an order that a local practising certificate not be granted to the appellant before the end of a specified period with retrospective effect, the whole of which period predated the making of the order.

Ground 1: does s 55 of the SAT Act prohibit the Tribunal from admitting evidence of a thing said or done in the course of a compulsory conference or mediation at a later stage of the proceeding where the evidence is led for the purpose of seeking to establish that a party failed, at some relevant time, to meet its disclosure obligations in relation to the proceeding?

207 A general principle of the common law is that communications between parties to litigation which are made in the course of genuine negotiations with intent to compromise the litigation by agreement cannot be tendered in evidence in the proceedings if the settlement negotiations fail. See Harrington v Lowe;[13] Ofulue v Bossert;[14] Yokogawa Aust Pty Ltd v Alstom Power Ltd.[15]

208 The purpose of the without prejudice privilege is 'to enable parties engaged in an attempt to compromise litigation to communicate with one another freely and without the embarrassment which the liability of their communications to be put in evidence subsequently might impose upon them': Field v Commissioner for Railways (NSW).[16] See also Harrington (323).

209 The essence of the common law principle of without prejudice privilege has been adopted, in substance, in the general principle applicable under s 55 of the SAT Act.

210 Section 55 of the SAT Act provides, relevantly, that '[e]vidence of anything said or done in the course of a compulsory conference or mediation is not admissible at any later stage of the proceeding', unless one of the exceptions stated in pars (a), (b) and (c) of s 55 applies.

211 In the present case, none of the exceptions in pars (a), (b) and (c) of s 55 applied.

212 Accordingly, no evidence was admissible at, relevantly, the penalty and costs hearing of anything said or done in the course of the mediation held on 6 February 2019.

213 The Tribunal found, at [38] of its reasons, that, based upon 'documents before it', there was 'some delay caused by the Committee in the course of its investigation and its determination to commence proceedings in the Tribunal'.

214 Next, the Tribunal noted, at [39] of its reasons, that the appellant's counsel had made these submissions:

(a) the Committee did not disclose relevant and significant documents that were capable of assisting the appellant's case until after the Committee had secured the appellant's agreement to the minute of consent orders; and

(b) the Tribunal should have regard to the documents provided by the appellant to the Tribunal which showed 'the course of the negotiations between the parties, in determining the relevance and weight of the failure to disclose the documents to her prior to this time'.

215 The Tribunal said, at [40] of its reasons, that there were two difficulties with those submissions. The first difficulty was this:

[P]ursuant to s 55 of the SAT Act, evidence of anything said or done in the course of mediation is not admissible at any later stage of the proceedings unless one of three specified exceptions apply. None of those exceptions apply in this matter. The Tribunal is prohibited from having regard to the documents [the appellant] wished to rely on.

216 The Tribunal did not identify the specific documents referred to at [38], [39] and [40] of its reasons. However, before this court, the parties were agreed that the relevant documents were those identified in the appellant's written submissions lodged with the Tribunal on 12 September 2019 and described in the appellant's written submissions in the appeal.

217 As counsel for the Committee accepted before this court, there was no evidence before the Tribunal to support a conclusion that the documents in question included evidence of anything said or done in the course of the mediation held on 6 February 2019. It follows that the Tribunal's implicit finding to that effect, at [39] and [40] of its reasons, was erroneous.

218 The correspondence between the parties, in the course of formulating the minute of consent orders, involved communications between the parties. Accordingly, no issue of non-disclosure arises in respect of that correspondence. The relevance of the correspondence is that the correspondence evidences the non-disclosure of the documents identified in the appellant's written submissions lodged with the Tribunal on 12 September 2019.

219 As counsel for the Committee accepted before this court, there was no evidence before the Tribunal to support a conclusion that the correspondence in question included evidence of anything said or done in the course of the mediation held on 6 February 2019. It follows that any implicit finding by the Tribunal to that effect was erroneous.

220 I am satisfied that, on the material before the Tribunal, s 55 of the SAT Act did not prohibit the Tribunal from having regard to the documents identified in the appellant's written submissions lodged with the Tribunal on 12 September 2019 and described in the appellant's written submissions in the appeal. It is therefore unnecessary, in the circumstances, to decide whether s 55 prohibits the Tribunal from admitting evidence of a thing said or done in the course of a compulsory conference or mediation at a later stage of the proceeding where the evidence is led for the purpose of seeking to establish that a party failed, at some relevant time, to meet its disclosure obligations in relation to the proceeding.

221 Section 105(9)(a) of the SAT Act provides, relevantly and in effect, that this court, in dealing with an appeal, may affirm, vary or set aside the Tribunal's decision and, in any case, may make any order this court considers appropriate.

222 In my opinion, ordinarily, this court, in dealing with an appeal under s 105(1) read with s 105(2) of the SAT Act, should not set aside the Tribunal's decision, pursuant to s 105(9)(a), unless the error vitiates the decision. An error of law will vitiate the Tribunal's decision where this court is satisfied, upon examining the Tribunal's reasons in the context of all relevant material before the Tribunal, that there is a real possibility that the error could have affected the decision. See Sydney Water Corporation v Caruso;[17] Development Consent Authority v Phelps;[18] Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd.[19]

223 The documents which the Committee failed to disclose to the appellant until after the Committee had secured the appellant's agreement to the minute of consent orders, read with other relevant and disclosed documents, revealed, relevantly:

(a) On 20 July 2018, the Committee alleged that the appellant had, by her email of 7 April 2016 with the salutation 'Dear Registrar', misled the District Court of Western Australia.

(b) When the complaint was made the Committee was in possession of, but did not disclose to the appellant, documents which showed, when read together, that on 19 April 2018 the Principal Registrar of the District Court had informed the Committee that:

(i) the Principal Registrar could not find any application by the appellant for a copy of the transcript relating to Mr B;

(ii) by 4 July 2018, any application by the appellant for the relevant transcript had not been received or considered by a Judge of the District Court;

(iii) there was no evidence that any application by the appellant for the relevant transcript had been received or considered by a Registrar of the District Court; and

(iv) it may be that any application by the appellant for the relevant transcript was made directly to the District Court's transcript team and a record of the application may be held by that team rather than on the District Court's file.

(c) On 10 August 2018, the appellant's submissions in which she accepted liability in relation to her email of 7 April 2016 included a statement that whether or not a Registrar of the District Court had been misled was unknown to the appellant, but she accepted that a Registrar had been misled on the assumption that her email had been read, understood and acted upon by a Registrar and consequently that the email was apt to mislead a Registrar.

(d) On 4 December 2018, the Committee lodged the application with the Tribunal and alleged that the appellant had misled the District Court.

(e) Between 6 February 2019 and 22 March 2019, the Committee and the appellant exchanged drafts of proposed minutes of consent orders to record the appellant's early admissions of liability.

(f) On 24 July 2019, after having previously informed the appellant that the Committee did not intend to adduce evidence at the penalty and costs hearing, and shortly before the date set for the penalty and costs hearing (7 August 2019), the Committee filed the affidavit of its employee, Ms Paterson, which attached some, but not all of, the relevant documents. The affidavit attached the correspondence between the Committee and the Principal Registrar of the District Court (apart from the final item in the series of correspondence, being an email of 10 July 2018). The email of 10 July 2018 showed that such evidence as was available on the issue indicated that the appellant's application for the transcript relating to Mr B had been received and considered only by a clerk in the transcripts team of the District Court. Ms Paterson's affidavit attached a chronology that she had prepared. The chronology referred to the existence of the email of 10 July 2018, but did not set out the material substance of the email or attach the email.

(g) After the appellant made a request at about 7.00 am on 6 August 2019, the Committee disclosed the 10 July 2018 email to the appellant at about 5.30 pm on 6 August 2019, being the afternoon before the date scheduled for the penalty and costs hearing.

224 I am satisfied, after examining the Tribunal's reasons in the context of all relevant material before the Tribunal, that there is no real possibility that the Tribunal's error in relation to the application of s 55 of the SAT Act to the documents and correspondence in question could have affected the Tribunals' decision on liability or penalty. In other words, there is no real possibility that the Tribunal's decision on liability or penalty might have been different if the Tribunal had not made the error. I am of that opinion for the following reasons.

225 First, as to liability and penalty, the documents and correspondence in question did not materially affect or detract from the facts which constituted the professional misconduct as agreed upon by the parties in the minute of consent orders. The facts which underpinned the Tribunal's conclusions as to the appellant's professional misconduct and unsatisfactory professional conduct were apparent from other evidence (including other documents).

226 It was not in dispute that the appellant's email was addressed to and intended to be received and acted upon by a Registrar of the District Court. Whether or not the email was actually received by a Registrar (as opposed to an administrative officer of the District Court), and whether or not a Registrar was actually misled by the email, were not relevant because the appellant admitted that:

(a) she knew the representation in the email was misleading and deceptive;

(b) she intended that a Registrar would rely upon the representation; and

(c) she was recklessly indifferent to whether a Registrar would be misled or deceived by the representation.

227 I consider that the Tribunal was correct to find, in substance, at [26] of its reasons, that a practitioner's duty to act honestly in his or her dealings with the court applies not merely to judicial officers, but also to the court's administrative officers.

228 The content of the telephone conversation on 5 May 2016 between the appellant and Ms A and the content of the subsequent text message of 5 May 2016 from the appellant to Ms A were not in doubt.

229 Secondly, as to liability and penalty, at the hearing on 7 August 2019 the appellant's counsel informed the Tribunal that the appellant anticipated she might withdraw her consent to the making of orders in terms of the minute of consent orders. The basis on which the appellant anticipated withdrawing her consent included the Committee's failure to disclose the documents in question before she consented to the minute of consent orders. The Tribunal gave the appellant an opportunity to withdraw her consent. However, on 16 August 2019 the appellant, through her counsel, informed the Tribunal by email that she no longer intended to withdraw her consent to the making of the orders. On 12 September 2019, the Tribunal made orders in terms of the minute of consent orders.

230 Thirdly, as to penalty, the appellant submitted to the Tribunal that the Committee's non‑disclosure of the documents in question demonstrated misconduct by the Committee. The appellant argued that it was necessary for the Tribunal to have regard to the documents 'in determining the relevance and weight of the failure to disclose the documents' before the appellant consented to the minute of agreed facts.

231 The Tribunal said at [45] of its reasons, in relation to the Committee's alleged misconduct, that the Tribunal did not have any statutory authority over or oversight of the Committee.

232 It is true that the Tribunal does not have any statutory authority over or oversight of the Committee beyond the Tribunal's general powers in relation to parties to proceedings before the Tribunal. However, misconduct by the Committee may, depending upon the circumstances, be relevant to the appropriate penalty to be imposed on a legal practitioner and may be relevant to the appropriate costs order. In particular, the Committee's misconduct will ordinarily be relevant to the appropriate penalty if the misconduct materially impacts upon any of the factors that are relevant in evaluating the appropriate penalty. Also, in particular, the Committee's misconduct will ordinarily be relevant to the appropriate costs order if the misconduct materially impacts upon any of the factors that are relevant in evaluating the appropriate costs order. However, the Committee's misconduct will not ordinarily, of itself, be a factor that is relevant to the appropriate penalty or the appropriate costs order.

233 I consider at [275] ‑ [280] below whether the Committee's late disclosure of the documents in question was a relevant consideration in arriving at the appropriate penalty to be imposed on the appellant.

234 I consider at [256] ‑ [274] and [281] ‑ [287] below whether the Committee's late disclosure of the documents in question was a relevant consideration in arriving at the appropriate costs order.

(i) delay in investigating, commencing and litigating a complaint and the impact of the delay on a practitioner bear on the determination of the appropriate penalty?

(ii) delay in investigating, commencing and litigating a complaint and the impact of the delay on a practitioner bear on the issue of costs?

(iii) acts or omissions by the Committee during the period of investigating, commencing and litigating a complaint and the impact of such acts or omissions on a practitioner bear on the determination of the appropriate penalty?

(iv) acts or omissions by the Committee during the period of investigating, commencing and litigating a complaint and the impact of such acts or omissions on a practitioner bear on the issue of costs?**

235 I begin by considering whether delay in investigating, commencing and litigating a complaint and the impact of the delay on a practitioner can bear on the determination of the appropriate penalty.

236 Section 401 of the LP Act provides that the purposes of pt 13 of the LP Act are, relevantly:

(a) to provide for the discipline of the legal profession in Western Australia, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally; and

(b) to promote and enforce the professional standards, competence and honesty of the legal profession.

237 It is well‑established that the purpose of disciplinary proceedings against a legal practitioner is to protect the public. The purpose is not to punish the practitioner, in the sense in which punishment is imposed under the criminal law, even though the orders may result in great deprivation to the practitioner. The public is protected by the making of orders which will prevent a person who is unfit to practice from practising or by the making of orders which will secure the maintenance of proper professional standards. Further, both the public and the legal profession will be protected by orders which will assure the public and members of the legal profession generally that appropriate standards are being maintained within the profession. See Ziems v Prothonotary of the Supreme Court of New South Wales;[20] The New South Wales Bar Association v Evatt;[21] Re Maraj (a legal practitioner);[22] Craig v Medical Board of South Australia.[23]

238 In Craig [44] ‑ [48], Doyle CJ examined the basis upon which orders are made by professional disciplinary tribunals and the distinction between orders made for the protection of the public, on the one hand, and the imposition of punishment under the criminal law, on the other:

A contrast is often drawn between orders made for the protection of the public, against professionals who have departed from proper professional standards, and orders or sentences by way of punishment as part of the administration of the criminal law.

While there is a fundamental difference between an order made by a professional disciplinary tribunal for the protection of the public, and a punishment imposed by a court administering the criminal law, disciplinary orders made by professional bodies may nevertheless have elements in common with criminal sanctions.

In the case of a professional disciplinary tribunal, an obvious type of order protective of the public is an order cancelling the registration or recognition of a person as a member of a profession. Such an order removes the right to practise in the profession, thereby protecting the public against a person found unfit to be a practitioner. And, as Evatt [The New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177] shows, such an order will be made even though, if punishment of the practitioner were the only consideration, considerations of mercy might lead to a less severe order.

In other cases the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner's departure from professional standards, and intended to deter the practitioner from any further departure. A fine might well be imposed with this object. An order imposing a fine might look like a punishment imposed by a court exercising criminal jurisdiction, but in professional disciplinary proceedings it is imposed on a different basis. An order might also be made in professional disciplinary proceedings to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. In the latter case the order is made in part to protect the profession, by demonstrating that the profession does not allow certain conduct. This, in the end, is also in the public interest.

I make these points merely to emphasise that the protection of the public has various aspects. The public may be protected by preventing a person from practising a profession, by limiting the right of practice, or by making it clear that certain conduct is not acceptable. These are merely illustrations of the sort of order that may be called for.

239 In the present case, the Tribunal's decision in relation to penalty involved the exercise of a discretion. It was necessary for the Tribunal, in arriving at that decision, to evaluate and weigh a broad range of factors, including the agreed facts, the numerous penalty options available under s 439, s 440 and s 441 of the LP Act, any aggravating and mitigating factors, and the appellant's personal circumstances. The determination of the appropriate penalty was not a mechanical process. The Tribunal had to balance competing considerations and choose between the various penalty options. This entailed assessments of fact and degree and the making of a value judgment. There was no unique 'right' answer which was able to be identified by the application of principle. See, generally, Guss v Law Institute of Victoria Ltd;[24] Quinn v Law Institute of Victoria Ltd;[25] Papps v Medical Board of South Australia;[26] Stirling v Legal Services Commissioner.[27]

240 In my opinion, the relevance and significance (if any), for the purposes of determining the appropriate penalty, of delay by the Committee in investigating, commencing and litigating a complaint and the impact of the delay on the practitioner, will depend upon all the circumstances of the particular case. Subject to that overriding principle and the necessity for flexibility of approach to accommodate the individual facts of each case, a number of general (non‑exhaustive) propositions may be stated.

241 First, delay will not, of itself, mitigate the appropriate penalty.

242 Secondly, delay will not ordinarily be mitigating if the delay has been caused by difficulty in detecting, investigating or proving the relevant professional misconduct or unsatisfactory professional conduct, and the period of the delay is reasonable in the circumstances.

243 Thirdly, delay will not ordinarily be mitigating if the delay has been caused by the practitioner's obstruction or absence of cooperation with the Committee. However, the practitioner's reasonable reliance upon his or her legal rights will not be obstruction or absence of cooperation for this purpose.

244 Fourthly, delay will not ordinarily be mitigating if it results from the ordinary operation of proceedings in the Tribunal, including delay as a result of the reasonable exercise by the Committee or the practitioner of their legal rights.

245 Fifthly, delay may be conducive to the emergence of mitigating factors; for example, if, during the period of delay, the practitioner has been rehabilitated or has made progress towards rehabilitation or if other circumstances favourable to the practitioner have emerged. In those circumstances, the need for the protection of the public and the importance of personal deterrence will ordinarily be reduced.

246 Sixthly, delay (not being delay of the kind referred to at [242], [243] and [244] above) will ordinarily be mitigating if:

(a) the delay has caused significant stress for the practitioner or has left the practitioner, to a significant degree, in 'uncertain suspense' and in consequence the need for the protection of the public and the importance for personal deterrence are reduced; or

(b) during the period of delay the practitioner had a reasonable expectation that the complaint would not be progressed or the subject of proceedings, and the practitioner ordered his or her affairs on the faith of that expectation.

247 In the present case, the Tribunal made these findings and observations:

(a) There was 'some delay caused by the Committee in the course of its investigation and its determination to commence proceedings in the Tribunal' [38].

(b) The Committee did not explain that delay [38].

(c) The present case was not an appropriate case in which to determine whether 'an unexplained and inexplicable delay' by the Committee can affect the appropriate penalty or to determine whether 'the personal impact on a practitioner of an unexplained delay in bringing a complaint against the practitioner is a factor relevant to determining an appropriate penalty' [46]. It was therefore unnecessary for the Tribunal to decide whether to apply Legal Services Commissioner v Rallis (Legal Practice),[28] where it was held that unexplained and inexplicable delay by a regulator can impact on the appropriate penalty for a legal practitioner in disciplinary proceedings.

(d) However, 'given the significant impact on [the appellant's] mental health (in relation to which the Tribunal has independent evidence) of the Committee's delay in commencing these proceedings, her voluntary exclusion from practising within the legal profession since January 2018 and her early admissions in relation to her conduct', it was appropriate that the penalty (namely, the appellant was not to be granted a local practising certificate for a period of 6 months) should commence on 7 August 2019 (so that the 6 month period wholly expired before the Tribunal made its order as to penalty) [51].

248 As counsel for the Committee acknowledged before this court, the question of the Committee's delay and its relevance to the determination of penalty and costs was raised by the appellant at the penalty and costs hearing before the Tribunal. Counsel for the Committee also acknowledged that the Committee was given a sufficient opportunity before the Tribunal to respond to the appellant's case on that issue.

249 Counsel for the Committee conceded before this court that the Tribunal should have found that delay not attributable to a legal practitioner between the time of the practitioner's alleged professional misconduct or unsatisfactory professional conduct, on the one hand, and the time of the Tribunal's decision, on the other, may be mitigating if the delay diminishes the need for protection of the public, having regard to evidence of the practitioner's good conduct during the period of the delay; further or alternatively, the impact on the practitioner of the delay or other circumstances during the period of the delay. Counsel also conceded before this court that the Tribunal should have made a finding to that effect and that the Tribunal's failure to make that finding constituted an error of law.

250 Notwithstanding those concessions by counsel for the Committee, it is apparent, in my opinion, that the Tribunal accepted that:

(a) there was some unexplained delay by the Committee in investigating the complaints and in determining to commence proceedings in the Tribunal [38]; and

(b) the Committee's unexplained delay, together with other factors, had a significant impact on the appellant's mental health and, in the circumstances, it was appropriate that the penalty which the Tribunal imposed on the appellant for her professional misconduct should be wholly backdated [51].

251 The Tribunal therefore took into account, as a mitigating factor, that the Committee's unexplained delay (together with other factors) had a significant impact on the appellant's mental health. The Tribunal decided that, having regard to the significant impact on the appellant's mental health (together with her voluntary exclusion from practice and her early admissions), it was appropriate wholly to backdate the penalty for her professional misconduct.

252 In those circumstances, and bearing in mind that delay is not of itself mitigatory (see [241] above), it was unnecessary for the Tribunal to make the further findings of fact which the appellant asserts the Tribunal ought to have made, as set out at [106] above, in deciding upon the appropriate penalty.

253 In any event, the appellant's complaints about the absence of those further findings of fact allege, in substance, an error in the Tribunal's fact finding which is not amenable to review by this court. As I have mentioned, by s 105(2) of the SAT Act, the appeal under s 105(1) can only be brought on a question of law. The appellant's complaints do not raise a question of law.

254 Further and in any event, as I have explained in dealing with the question of law the subject of ground 1A, the Tribunal did not have power wholly to backdate the penalty. This court must set aside the penalty imposed by the Tribunal for the appellant's unprofessional conduct and consider afresh the penalty that should be imposed.

255 It is therefore unnecessary, in the circumstances, for this court to decide whether, in the present case, the Tribunal made the errors alleged by the appellant and conceded by the Committee or whether there is a real possibility that the alleged errors could have affected the Tribunal's decision on penalty.

256 I turn to consider whether delay in investigating, commencing and litigating a complaint and the impact of the delay on a practitioner can bear on the issue of costs.

257 Section 87(1) of the SAT Act provides that unless otherwise specified in the SAT Act, the enabling Act (in the present case, the LP Act), or an order of the Tribunal under s 87, parties bear their own costs in a proceeding of the Tribunal. By s 87(2), relevantly, 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. Section 87(3) provides that the power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.

258 The LP Act does not contain any provision which is different from s 87(1), s 87(2) or s 87(3) of the SAT Act.

259 In Western Australian Planning Commission v Questdale Holdings Pty Ltd,[29] Murphy JA (Corboy J agreeing) made these observations about s 87 of the SAT Act:

The effect of s 87(1) of the SAT Act is, relevantly, that each party in proceedings before the Tribunal is to bear its own costs, unless the Tribunal otherwise orders.

The power to make an order for one party to pay another party's costs is contained in s 87(2). In exercising the discretion in its review jurisdiction [s 17 ‑ s 31 of the SAT Act] the Tribunal is bound, by virtue of s 87(4), to take into account the considerations therein specified. Also, the effect of s 87(5) of the SAT Act and r 42(2) of the SAT Rules is that in its original jurisdiction [s 15 ‑ s 16 of the SAT Act] the Tribunal is required to take into account that a party did not accept an offer of settlement (made in compliance with r 40 and r 41) more favourable than the Tribunal's order.

Otherwise the factors which the Tribunal will be bound to take into account (mandatory considerations) and precluded from taking into account (irrelevant considerations) will be determined by implication from the subject matter, scope and purpose of the SAT Act properly construed [Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 ‑ 40]. The observations of Gaudron and Gummow JJ in Oshlack v Richmond River Council [[1988] HCA 11; [1998] HCA 11; (1988) 193 CLR 72 [22]], albeit in a different statutory context, are apposite:

The power conferred by the section is to be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative intent. However, subject to such considerations, the discretion conferred is, to adapt the words of Dixon J, unconfined except in so far as 'the subject matter and the scope and purpose' of the legislation may enable an appellate court to pronounce the reasons given by the primary judge to be 'definitely extraneous to any objects the legislature could have had in view'.

Although s 87(2) does not in terms say that the discretion is to be exercised if it is fair and reasonable in all the circumstances of the case to do so [Cf Land and Environment Court Rules 1996 (NSW) pt 16 r 4, referred to in Port Stephens Council v Sansom [2007] NSWCA 299; (2007) 156 LGERA 125 [9]. That rule has since been replaced Land and Environment Court Rules 2007 (NSW) pt 3 r 7], the judicial nature of the exercise and the scheme of the SAT Act indicates that, broadly speaking, that is the legislative intention.

Unlike in curial litigation, the 'important principle commonly referred to as the "usual order as to costs"' [Oshlack [66] (McHugh J)], under which the successful party is prima facie entitled to his or her costs, has no application given the presumptive position or starting point under s 87(1) of the SAT Act that each party is to bear its own costs.

Section 87(2) is to be construed in the context that the legal rationale for an order for costs is not to punish the person against whom the order is made, but to compensate or reimburse the person in whose favour it is made [Ohn v Walton (1995) 36 NSWLR 77, 79; Port Stephens Council v Sansom [49]]. That rationale is evident in s 87(3) of the SAT Act. Accordingly, even in a statutory context where the presumptive position is that no costs will be ordered, generally speaking, the question is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. The onus is on the party seeking an order in its favour [Cf Miwa Pty Ltd v Siantan Properties Pte Ltd [No 2] [2011] NSWCA 344].

260 In Quinlivan v Legal Profession Complaints Committee,[30] Pullin, Newnes and Murphy JJA made these comments about s 87 of the SAT Act in the context of the Tribunal's power to make an award of costs in favour of a regulatory body in disciplinary proceedings:

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.

In Motor Vehicle Industry Board and Dawson [[2006] WASAT 8], 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.

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].

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

262 In the present case, the relevant question is whether the Tribunal was bound to take into account the Committee's delay and the impact of the delay on the appellant in determining whether and, if so, in what amount the Tribunal should make an order for the payment by the appellant of the Committee's costs. This question is concerned solely with the costs order made by the Tribunal in favour of the Committee. The appellant does not contend that the Tribunal should have made an award of costs in her favour.

263 In my opinion, any delay by the Committee in investigating, commencing and litigating a complaint against a legal practitioner and the impact of the delay on the practitioner does bear on the issue of costs if the delay or the impact of the delay on the practitioner has increased the costs incurred by the Committee or the practitioner or has resulted in any costs incurred by the Committee or the practitioner being duplicated or wasted.

264 If the Committee's delay has resulted in costs being increased, duplicated or wasted, those circumstances are relevant to the Tribunal's evaluation of what is fair and reasonable in all the circumstances of the case in relation to costs.

265 Accordingly, if the Committee's delay has resulted in costs being increased, duplicated or wasted, the Tribunal must take those circumstances into account in determining whether and, if so, in what amount the Tribunal should make an award of costs under s 87(2) in the Committee's favour.

266 However, the fundamental purpose of an award of costs under s 87(2) in the Committee's favour is to compensate the Committee for the expense to which the Committee has been put by reason of the proceedings. Costs are not to be reduced by way of punishment of the Committee for its delay or for the impact of the delay on the practitioner. The costs to be awarded should not be reduced on account of the Committee's delay unless the delay has caused the costs incurred by the Committee or the practitioner to be increased, duplicated or wasted.

267 In the present case, the Tribunal's reasoning, at [59] ‑ [60] of its reasons, in relation to costs was as follows:

(a) The Committee sought an award of costs in the amount of $20,000.

(b) The Tribunal accepted the Committee's assertion that the $20,000 did not include any costs of the Committee itself and was limited to only some of the amount disbursed by the Committee in counsel fees.

(c) The Tribunal found that the $20,000 represented a significant discount of the fees actually incurred by the Committee.

(d) Although the parties reached agreement 'at a relatively early stage in the proceedings' in relation to the appellant's conduct, they could not reach agreement about the appropriate penalty.

(e) The appellant wanted an oral hearing and she lodged and served a voluminous number of documents.

(f) The hearing on penalty was adjourned a number of times after the first hearing was adjourned 'largely because of [the appellant's] late lodgement of documents'.

(g) The appellant's counsel used most of the time at the two day hearing on penalty.

(h) In 'all of those circumstances', the Tribunal considered that it was fair and reasonable to award costs of $20,000 to the Committee.

268 The Committee did not refer to the Committee's delay or the impact of the delay on the appellant in deciding upon the amount of costs that should be awarded to the Committee. In particular, the Tribunal did not mention, in the context of costs, the Committee's late disclosure of the documents in question. That failure reflects the Tribunal's erroneous view that it was 'prohibited from having regard to the documents' because s 55 of the SAT Act applied to them [40].

269 As I have mentioned, the Committee's delay in the present case was unexplained.

270 The Committee was established under s 555 of the LP Act. By s 555(2), the Committee is a committee of the Board. Section 556(1) provides that the Committee consists of a chairperson, and not less than six other legal practitioners, appointed by the Board from amongst its members from time to time, and not less than two representatives of the community, none of whom is to be a person who is or has been an Australian lawyer. By s 557(2), the functions of the Committee include, relevantly, supervising the conduct of legal practitioners and inquiring into complaints received about the conduct of legal practitioners for the purpose of determining whether the practitioner's conduct or matters relating to legal practice may constitute unsatisfactory professional conduct or professional misconduct. Further, by s 557, the functions of the Committee include, if the Committee considers it appropriate to do so, to institute professional disciplinary proceedings against a legal practitioner in the Tribunal. Section 431 provides that it is the duty of the Committee to deal with complaints as efficiently and expeditiously as is practicable.

271 In my opinion, if delay by the Committee in investigating, commencing and litigating a complaint against a legal practitioner is raised by the Tribunal or the practitioner in proceedings commenced by the Committee before the Tribunal, the Committee should not remain silent on the reasons for any delay by the Committee that has occurred.

(a) the Committee's functions under the LP Act (in particular, its functions in relation to supervising the conduct of legal practitioners; enquiring into complaints about legal practitioners; determining whether the conduct on the part of legal practitioners or matters relating to legal practice may constitute unsatisfactory professional conduct or professional misconduct; and instituting professional disciplinary proceedings against legal practitioners in the Tribunal);

(b) the Committee's status as a committee of the Board; and

(c) the Committee's membership including a majority of persons who are legal practitioners and members of the Board,

to be open and frank with the Tribunal and the legal practitioner who is the subject of the proceedings about the reasons for the Committee's delay.

273 In the present case, the material before this court (which material was available to or able to be ascertained by the Tribunal) indicates that the costs incurred by the Committee included counsel fees in the total amount of $33,540.70. Counsel rendered numerous itemised invoices. The fees of counsel included fees for work done between 22 July 2019 and 12 August 2019 in the amount of $7,492.10. The fees of $7,492.10 included, amongst other things, work by counsel in settling Ms Paterson's affidavit, preparing for the hearing before the Tribunal on 7 August 2019, and appearing before the Tribunal on 7 August 2019. It is apparent that a significant proportion of the amount of $7,492.10 would not have been incurred or would not have been, in effect, wasted if the Committee had made timely disclosure of the documents in question (as it should have done). The Tribunal was bound to take that fact into account in exercising its discretion in relation to costs.

274 I am satisfied that, in the circumstances of the present case, the Tribunal made an error of law by failing to take into account the matters referred to at [273] above in determining whether and, if so, in what amount the Tribunal should make an order for the payment by the appellant of the Committee's costs.

275 I turn to consider whether acts or omissions by the Committee during the period of investigating, commencing and litigating a complaint and the impact of such acts or omissions on a practitioner can bear on the determination of the appropriate penalty.

276 In the present case, the findings of fact which the appellant asserts the Tribunal ought to have made are set out at [107] and [108] above.

277 In my opinion, if the Tribunal had made the findings of fact set out at [107] above, none of the findings would have been relevant to the Tribunal's determination of the appropriate penalty. Those findings, if made, may have shown that some of the conduct of the Committee or its representatives was unsatisfactory. However, having regard to the purposes of pt 13 of the LP Act, as set out in s 401, and having regard to the purpose of disciplinary proceedings against a legal practitioner, which I have summarised at [237] ‑ [238] above, the alleged unsatisfactory behaviour by the Committee or its representatives would not, at least in the present case, have been a matter which the Tribunal was bound to take into account in deciding upon the penalty to be imposed on the appellant. The alleged unsatisfactory behaviour did not materially impact upon any of the factors that were relevant in evaluating the appropriate penalty.

278 As to the findings of fact set out at [108] above which the appellant asserts the Tribunal ought to have made:

(a) The Tribunal did find that the Committee's unexplained delay (together with other factors) had a significant impact on the appellant's mental health and the Tribunal took that circumstance into account as a mitigating factor in relation to penalty.

(b) The Tribunal decided, in effect, that the mitigating force of the significant impact on the appellant's mental health, together with the appellant's voluntary exclusion from legal practice, should be recognised by wholly backdating the penalty for her professional misconduct.

279 The Tribunal's view that the appellant's voluntary exclusion from legal practice had mitigating force necessarily included, by implication, the consequent diminution in the appellant's financial circumstances. It was unnecessary, having regard to the purposes of pt 13 of the LP Act, as set out in s 401, and the purpose of disciplinary proceedings against a legal practitioner, which I have summarised at [237] ‑ [238] above, for the Tribunal to recognise the consequent diminution in the appellant's financial resources as a separate and distinct mitigating factor.

280 I am not satisfied that any of the other findings which the appellant asserts the Tribunal ought to have made, as set out at [107] and [108] above, would have been relevant to the Tribunal's determination of the appropriate penalty. I am not satisfied that any of those other findings would have had a material impact upon any of the factors that were relevant in evaluating the appropriate penalty. In particular, in the circumstances of the present case, the Committee's late disclosure of the documents identified in the appellant's written submissions lodged with the Tribunal on 12 September 2019 was not a relevant consideration in arriving at the appropriate penalty. As to the appellant having no financial resources, that would have been a relevant consideration if the Tribunal had been contemplating the imposition of a fine as the penalty. However, the appellant's lack of financial resources was not a relevant consideration in arriving at the penalty the Tribunal actually imposed for her professional misconduct.

281 I turn to consider whether acts or omissions by the Committee during the period of investigating, commencing and litigating a complaint and the impact of such acts or omissions on a practitioner can bear on the determination of the issue of costs.

282 In the present case, the findings of fact which the appellant asserts the Tribunal ought to have made are set out at [107] and [108] above.

283 In my opinion, if the Tribunal had made those findings of fact, the findings would have been relevant to the Tribunal's determination of the appropriate costs order to the extent that those findings established that the Committee's conduct had unreasonably increased the costs incurred by the Committee or the appellant or had resulted in any costs incurred by the Committee or the appellant being duplicated or wasted.

284 In the present case, the material before this court (which material was available to or able to be ascertained by the Tribunal) indicates that a significant proportion of the amount of $7,492.10 referred to at [273] above would not have been incurred or would not have been, in effect, wasted if the Committee had made timely disclosure of the documents in question (as it should have done).

285 However, I am not satisfied that any of the other findings which the appellant asserts the Tribunal ought to have made, as set out at [107] and [108] above, would have been relevant to the Tribunal's determination of the appropriate costs order. I am not satisfied that any of those other findings, if made, would have had a material impact upon any of the factors that were relevant in evaluating the appropriate costs order. In particular, in the circumstances of the present case, I am not persuaded that the Tribunal erred by failing to find that there was a causal connection between the alleged facts stated at [107] and [108] above, on the one hand, and the appellant's voluntary exclusion from practising within the legal profession between January 2018 and March 2020 and the appellant's diminished financial circumstances, on the other. In any event, any such error would have been an error in the Tribunal's fact finding which is not amenable to review by this court. See s 105(1) read with s 105(2) of the SAT Act. As to the appellant having no financial resources, that circumstance was not relevant to the Tribunal's determination of the appropriate costs order. No finding of fact was made that unreasonable or improper conduct by the Committee, in the course of investigating the complaints or conducting the proceedings, was a cause of the appellant's lack of financial resources.

286 Finally, in relation to the Tribunal's costs order, I note that counsel for the appellant did not submit that the costs order should be set aside because:

(a) order 2 of the Tribunal's order made on 9 March 2020 must be set aside in that the Tribunal did not have power to make an order that the appellant not be granted a local practising certificate for a period of 6 months, the whole of which period predated the making of the order; and

(b) the Tribunal's error in making order 2 materially affected the Tribunal's exercise of discretion with respect to costs.

287 It is unnecessary to pursue that issue because the Tribunal's costs order must be set aside in consequence of the express error alleged by the appellant with respect to the costs order having been made out.

(i) is the Tribunal required to provide reasons for imposing a penalty greater than the penalty contended for by the Committee in its submissions at the hearing?

(ii) where the Tribunal is considering imposing or intending to impose a penalty greater than the penalty contended for by the Committee at the hearing, must the Tribunal give notice to the parties and/or an opportunity to be heard?**

288 As I have explained in considering the question of law raised in the context of ground 1A, the Tribunal erred in law in finding that it had power to make an order that a local practising certificate not be granted to the appellant before the end of a specified period with retrospective effect, which period had wholly passed before the making of the order.

289 It is therefore unnecessary to decide the questions raised by the appellant in the context of ground 6.

The orders this court should make in the appeal

290 The power of this court under s 105(1) of the SAT Act to give leave to appeal is conferred in general terms. It is not restricted or qualified. Leave should be granted if, in all of the circumstances, it is in the interests of justice that there be a grant of leave. See Paridis [16].

291 In the present case, I would give leave to appeal in relation to the question of law raised in the context of ground 1A. The question concerns a matter of general importance in relation to the exercise of the Tribunal's power under s 439(b) read with s 438(2)(b) of the LP Act. Also, the Tribunal's order that a local practising certificate not be granted to the appellant before the end of a specified period with retrospective effect, the whole of which period predated the making of the order, was plainly wrong.

292 I would also give leave to appeal on the question of law raised in the context of ground 1 and the questions of law raised in the context of grounds 2, 3, 4, 5, 7 and 8. Those questions concern some issues of general importance in relation to the proper construction and application of s 55 of the SAT Act and the appropriate exercise of the Tribunal's powers, in the context of professional disciplinary proceedings, in relation to penalty and costs.

293 I would not give leave to appeal on the questions of law raised in the context of ground 6. It was unnecessary for this court to decide those questions.

294 Orders 2 and 3 of the Tribunal's orders made on 9 March 2020 should be set aside.

295 This court may make substitutive orders under s 105(9) of the SAT Act 'where only one conclusion is open on the correct application of the law to the facts found by the Tribunal': Osland [20]. As French CJ, Gummow and Bell JJ noted in Osland [20], such a case arises 'when no other conclusion could reasonably be entertained' and, in that event, this court can make the order that the Tribunal should have made.

296 Although the language of s 105(9) is of sufficient breadth to allow this court to make substitutive orders in other circumstances, that power must be exercised having regard to the limited nature of this court's 'appellate' jurisdiction, which, as I have mentioned, is confined to appeals 'on' questions of law.

297 In Osland [20], French CJ, Gummow and Bell JJ elaborated on the points I have made at [295] ‑ [296] above, as follows:

Absent such restraint, a question of law would open the door to an appeal by way of rehearing. Where there is a factual matter that has to be determined as a consequence of the appeal, it may be that it is able conveniently to be determined by the Court of Appeal upon uncontested evidence or primary facts already found by the Tribunal. When the outstanding issue involves the formation of an opinion which is, as in this case, based upon considerations of public interest, then it should in the ordinary case be remitted to the body established for the purpose of making that essentially factual, evaluative and ministerial judgment. (emphasis added)

See also Commissioner for Consumer Protection v Carey;[31] Medical Board of Australia v Woollard;[32] Scaffidi v Chief Executive Officer, Department of Local Government and Communities.[33]

298 In Osland, the Victorian Civil and Administrative Tribunal (VCAT) had granted access to various exempt documents (namely certain legal advices), in exercise of a power under freedom of information legislation, on the basis that it was in the public interest for access to those documents to be granted.

299 The High Court held in Osland that the Court of Appeal of Victoria, on appeal from VCAT's decision, had misconceived its function. The Court of Appeal's task had been to determine the legal question whether, in the circumstances, the actual differences in the legal advices were capable of supporting the formation of an opinion that the public interest required access to be granted. The Court of Appeal had wrongly addressed a question of law and had not performed the task required.

300 French CJ, Gummow and Bell JJ set out the manner in which the Court of Appeal could have discharged its task according to law [33]:

The task would have been discharged had the Court of Appeal, following an examination of the disputed documents, taken the following steps:

1. Determine the legal question whether, in the circumstances of the case, the actual differences that existed between the advices provided to the Attorney-General could support the formation of an opinion under s 50(4) of the FOI Act that the public interest required that access be granted.

2. If question 1 were answered in the negative, then allow the appeal and set aside the Tribunal's decision, there being no remaining basis for the exercise of the discretion under s 50(4).

3. If question 1 were answered in the affirmative, then:

3.1 set aside the decision of the Tribunal on the basis that it could have been affected by the errors of law identified in the first decision (Commonwealth v Human Rights and Equal Opportunity Commission [1998] FCA 3; (1998) 76 FCR 513 at 519 per Burchett J and authorities cited therein) and remit the matter to the Tribunal for reconsideration in the light of the actual differences between the advices, as to which the Tribunal had made no findings of fact; or

3.2 having regard to the protracted nature of the proceedings and the undisputed primary facts, take the course of considering for itself whether, by reason of the actual differences between the advices in the circumstances of this case, the public interest required that access be granted to the documents. In the event that access was required to be granted, it could have allowed the Tribunal's reinstated decision to stand (See Director-General of Social Services v Hales [1983] FCA 81; (1983) 78 FLR 373 at 401; [1983] FCA 81; 47 ALR 281 at 310 per Lockhart J for an example of such an approach to an AAT decision). An alternative to this course, to the same practical effect, would have been for the Court of Appeal to set aside the Tribunal's decision and substitute its own decision granting access.

301 I note, in particular, the option at step 3.2. French CJ, Gummow and Bell JJ expressly stated, in effect, that if the Court of Appeal of Victoria had determined the legal question at step 1 in the affirmative, then the Court of Appeal would have discharged its task if, having regard to the protracted nature of the proceedings and the undisputed primary facts, the Court of Appeal had considered for itself whether, by reason of the actual differences between the legal advices in the circumstances of the case, the public interest required that access be granted to the documents and, in the event that access was required to be granted, the Court of Appeal could have set aside VCAT's decision and substituted its own decision granting access.

302 It is important to bear in mind the procedural background to Osland, the nature of the power that VCAT had exercised in that case and the passages from Osland that I have set out at [297] and [300] above.

303 In Panegyres v Medical Board of Australia,[34] Vaughan JA referred to those issues and made these observations:

The procedural background to Osland v Secretary, Department of Justice was unusual. The VCAT had exercised a power under freedom of information legislation to grant access to various exempt documents - certain legal advices - on the basis that the public interest required that access to the documents should be granted. The matter came back to the Court of Appeal on remitter from the High Court. On a second appeal the High Court identified that the Court of Appeal's task on the remitter was first to determine the legal question of whether differences in the legal advices were capable of supporting an opinion that the public interest required access to be given. The Court of Appeal was found to have instead trespassed on the VCAT's function by determining the public interest question that arose on the application before the VCAT without first identifying relevant legal error in the VCAT's decision.

The facts in Osland v Secretary, Department of Justice, and in particular the nature of the power that had been exercised by the VCAT, explain the plurality's reference to the formation of an opinion which is based on considerations of public interest. Their Honours had previously made observations as to the nature of public interest determinations in the exercise of statutory powers and the 'evaluative and essentially factual' or 'discretionary value' judgment entailed by such determinations (Osland v Secretary, Department of Justice [12] ‑ [13]). It is that kind of opinion, based on considerations of public interest, which was being referred to in the passage reproduced in [347] above as being a matter which ought ordinarily be remitted where an appeal is allowed. Nevertheless, the plurality accepted that there may be cases - ones outside the ordinary - where an appellate court could itself (having first found legal error on the part of the administrative tribunal) make a substitutive order even in those circumstances. Indeed, their Honours expressly noted that this was an available course to the Court of Appeal in that case having regard to the protracted nature of the proceedings and the undisputed primary facts (Osland v Secretary, Department of Justice [33] (see the option at step 3.2)).

304 In Legal Profession Complaints Committee v Detata,[35] this court allowed an appeal by the Committee against the Tribunal's imposition on the respondent (who was a legal practitioner) of a reprimand and a condition on his practice certificate as the penalty for professional misconduct. Section 105(13) of the SAT Act did not apply to the appeal. The court (Martin CJ, Pullin and Murphy JJA) allowed the appeal on the basis that the penalty imposed by the Tribunal was manifestly inadequate [66]. Martin CJ (Pullin JA relevantly agreeing and Murphy JA agreeing) made these comments in relation to whether the court should remit the issue of penalty to the Tribunal or the court should make a substitutive order under s 105(9)(b) [69]:

It would be open to the court to remit the matter to the Tribunal for reconsideration in the light of these reasons. In cases of professional regulation where the Tribunal has greater experience in the regulation of the relevant profession than the court, that will often be the more appropriate course. However, the considerations pertinent to the regulation of the legal profession are well known to the court, which has a significant role to play in the regulation of that profession. Given that the proceedings against Mr Detata have already been somewhat protracted, there is no particular advantage in remitting the question of penalty to the Tribunal for further consideration. Instead, the court should exercise the power to substitute its decision as to penalty for that of the Tribunal (s 105(9)(b) of the Act).

305 The court in Detata imposed a fine of $10,000 as the new penalty for the respondent's professional misconduct.

306 It is apparent from the reasons for judgment in Detata that the facts and circumstances relating to the substituted penalty had either been fully found by the Tribunal or were not in dispute. In those circumstances, the court was of the opinion that there was no particular advantage in remitting the question of penalty to the Tribunal for further consideration and it was convenient for the court to exercise the power under s 105(9)(b) and substitute its own decision on penalty.

307 In Khosa v Legal Profession Complaints Committee,[36] a majority of this court (Murphy and Beech JJA) allowed an appeal by the appellant (who was a legal practitioner) against the Tribunal's imposition on the appellant of a 6 month suspension from legal practice as the penalty for professional misconduct. Section 105(13) of the SAT Act applied to the appeal. The majority held that the penalty imposed by the Tribunal was unreasonable or plainly unjust [223]. The majority set aside the penalty imposed by the Tribunal and substituted a penalty of 2 months suspension from legal practice. See Khosa v Legal Profession Complaints Committee.[37] The majority did not refer to Osland.

308 In Scaffidi, the respondent alleged in the Tribunal that the appellant (who was the Lord Mayor of the City of Perth) had committed 45 serious breaches of disclosure requirements under the Local Government Act 1995 (WA). After a contested hearing, the Tribunal made an order that it was satisfied that the appellant had committed all of the alleged 45 serious breaches of the Act and published written reasons. This court (Buss P, Mitchell and Beech JJA) held that the Tribunal's findings of breach in relation to 26 of the 45 serious breaches involved errors of law and must be set aside. Section 105(13) of the SAT Act applied to the appeal. The court referred to Osland. The Tribunal's findings in relation to 19 of the 45 serious breaches were not challenged on appeal. The Tribunal made an order, by way of penalty, for a single period of disqualification from holding office as a member of a local government council for 18 months in relation to the 45 serious breaches. The setting aside of the Tribunal's findings of breach in relation to 26 of the 45 serious breaches meant that the penalty order also had to be set aside. The court ordered, relevantly, that the determination of the appropriate penalty for the 19 serious breaches that were not disputed on appeal should be remitted to a differently constituted Tribunal, with liberty to hear further evidence if the Tribunal decided it appropriate to do so. The court was of the opinion that remittal was necessary because of the discretionary nature of the power to impose penalty; significant aspects of the evidence relevant to the appropriate penalty were contested; the Tribunal's errors of law infected its fact finding in relation to matters relevant to penalty; and further fact finding was necessary.

309 In Panegyres, this court (Buss P, Murphy and Vaughan JJA) allowed an appeal by the appellant (who was a medical practitioner) against the Tribunal's decision that the appellant was guilty of professional misconduct on the ground that the Tribunal had failed to disclose in its reasons the intellectual process by which it found that the appellant was guilty of professional misconduct. This court made a substitutive order that the appellant was guilty of unprofessional conduct as distinct from professional misconduct.

310 In Panegyres [85] ‑ [88], Murphy JA and I said:

Ordinarily, the court's power under s 105(9)(b) of the SAT Act would only be exercised where only one conclusion was open on the correct application of the law to the facts found by the Tribunal (Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [20] Commissioner for Consumer Protection v Carey [2014] WASCA 7 [68], [166]). Thus, where the decision committed to the original decision-maker is essentially a 'factual, evaluative and ministerial judgment', the ordinary course would be to remit the matter to the body established for the purpose of making that decision (Osland [20]).

However, the power under s 105(9)(b) of the SAT Act is also wide enough, in appropriate circumstances, to determine any factual issue remaining to be determined in consequence of dealing with the error of law established in the appeal, where that issue is conveniently capable of determination upon uncontested evidence or primary facts found by the Tribunal (Osland [20]; Carey [68]).

In this case, the question of whether Dr Panegyres was guilty of either professional misconduct or unprofessional conduct was to be determined by the Tribunal in the context of strenuously fought adversarial proceedings, including the calling of oral evidence, in relation to events going back to 2012. Although the Tribunal failed to disclose the intellectual process by which it concluded that Dr Panegyres was guilty of professional misconduct, it made material findings of fact, on the contested factual issues before it, which are unchallenged and not in dispute.

Given the history of this matter, given that the principal residual issue concerns the drawing of inferences from uncontested primary facts by reference to (relatively) familiar statutory criteria and given the absence of any 'ministerial' aspect to the evaluative task (cf Osland [20]), this is one of those cases where the court should exercise its power under s 105(9)(b) of the SAT Act. Neither party suggested otherwise.

311 Vaughan JA, after making the observations I have set out at [303] above, said [351] ‑ [354]:

While the Board's referral of Dr Panegyres' conduct to the Tribunal has an element of public interest - the object of all vocational regulation disciplinary proceedings being the protection of the public - it is not a case involving a public interest determination in the sense used in Osland v Secretary, Department of Justice. The essential task is instead one of applying the facts as found to standards determined by statutory criteria. While the latter task is evaluative it is one that can be performed by this court.

In the present case Dr Panegyres expressly accepts most of the Tribunal's factual findings. The finding of breach of cl 3.2.6 of the Conduct Code, although challenged, is one I would uphold. Otherwise the main issues are ones of characterisation (whether, as contended by Dr Panegyres, the adverse findings constitute a single instance of unprofessional conduct insofar as, on Dr Panegyres' case, the findings are ultimately all attributable to the single event of the issuing of the Invoice to the Public Trustee) and evaluation (whether the behaviour as found constitutes unprofessional conduct or professional misconduct). In those circumstances it may be appropriate for this court to determine the matter for itself. The parties made submissions on that basis (while the Board's submissions were largely made in the context of its cross-appeal the matters that motivated that stance applied equally to Dr Panegyres' appeal) (See eg Respondent's submissions on cross‑appeal, pars 114, 116, 118.1 WAB 81; Respondent's orders wanted on cross-appeal, par 3 WAB 84; ts 33 - 34, 82, 91 - 92).

The events leading to these proceedings occurred in 2012 and 2013. The object of speedy resolution within the Tribunal has not been achieved given that the proceedings commenced in 2015. It is desirable that this court bring finality to the parties if it is possible to do so consistent with the due administration of justice and this court's power on appeal under s 105 of the State Administrative Tribunal Act.

The starting point in determining whether this court may substitute its own decision, rather than send the matter back to the Tribunal for reconsideration, is to assemble the unchallenged factual findings and, to the extent necessary, then consider any further factual findings that can properly be made (eg on uncontested evidence or by inference from the primary facts already found by the Tribunal) (Commissioner for Consumer Protection v Carey [166], [169]; Giudice v Legal Profession Complaints Committee [74]). That must be done having regard to the Board's pleaded case as advanced before the Tribunal.

312 Vaughan JA concluded at [361] that the Tribunal's unchallenged factual findings and the various concessions made by or on behalf of the appellant in Panegyres were sufficient to enable the court to exercise its jurisdiction under s 105(9)(b).

313 In my opinion, ordinarily, this court may, consistently with the decision and reasoning in Osland, make findings of fact and exercise a discretion, pursuant to s 105(9) of the SAT Act, if:

(a) the making of the findings of fact and the exercise of the discretion are based upon primary facts already found by the Tribunal or upon undisputed evidence (so that a further hearing to find facts is unnecessary);

(b) this court is in as good a position as the Tribunal (including having regard to the Tribunal's status as a specialist tribunal) in relation to the making of the findings of fact and the exercise of the discretion; and

(c) the making of the findings of fact and the exercise of the discretion by this court would achieve a convenient disposition of the matter and avoid the expense and inconvenience of remitting the matter to the Tribunal.

See, in particular, Osland [20], [33]; Panegyres [85] ‑ [88], [349] ‑ [354], [361]. See also Victorian Legal Services Commissioner v McDonald[38] and Leeda Projects Pty Ltd v Zeng,[39] but I note that in those decisions the Court of Appeal of Victoria did not refer to the reasons of French CJ, Gummow and Bell JJ at [33] of Osland.

314 In the present case, neither the Committee nor the appellant submitted that the matter should be sent back to the Tribunal for reconsideration (appeal ts 29, 60). Indeed:

(a) counsel for the appellant told the court that '[t]his court is capable of dealing with it' and that '[the appellant] does not contend that it would not be a proper disposition ... if this court [were] to impose its own [substitutive] orders' (appeal ts 29, 31); and

(b) counsel for the Committee told the court that 'the consequence ... for this court in the event that ... ground 1A were upheld would be that there would need to be a penalty response imposed by this court' and that the Committee 'certainly' accepted that this court was in a position to and should re‑exercise the discretion in relation to the costs of the proceedings before the Tribunal (appeal ts 54, 60).

315 As to the Tribunal's finding that the appellant was guilty of professional misconduct, the facts and circumstances that are relevant, in the present case, to the appropriate penalty for the appellant's professional misconduct either have been fully found by the Tribunal or are not in dispute. The professional misconduct occurred more than 6 years ago. The Committee failed to deal with the complaint promptly. The proceedings before the Tribunal were protracted. The Tribunal does not have any advantage over this court in determining the appropriate penalty. There is no 'ministerial' aspect, of the kind that existed in Osland [20], to the evaluative task of deciding upon the appropriate penalty for the appellant's professional misconduct. Remitting the matter to the Tribunal would involve further delay and additional expense for the parties. Neither the appellant nor the Committee wanted the matter to be remitted. It is appropriate, in the circumstances, that this court exercise its power under s 105(9)(b) of the SAT Act to make a substitutive order in respect of penalty.

316 There is no doubt that the appellant's professional misconduct was a very serious breach of her professional duties as a legal practitioner. The appellant knew that the representation in her email of 7 April 2016 was misleading and deceptive. She intended that a Registrar of the District Court should rely on the representation. She was recklessly indifferent to whether a Registrar would be misled or deceived by the representation. A practitioner's duty to act honestly in his or her dealings with the court does not apply merely to the practitioner's dealings with judicial officers and registrars. It also applies to a practitioner's dealings with administrative officers of the court.

317 There were, however, numerous factors which mitigated the seriousness of the appellant's professional misconduct. Those factors included:

(a) the appellant's voluntary exclusion from practising within the legal profession between January 2018 and March 2020 (when the Tribunal made its orders);

(b) the appellant's early admissions in relation to her professional misconduct;

(c) the significant impact on the appellant's mental health (in relation to which the Tribunal had independent evidence) of the Committee's delay in commencing the proceedings;

(d) the appellant was admitted to practice in December 2003 and no other disciplinary findings have been made against her; and

(e) the appellant had insight into her professional misconduct and her unsatisfactory professional conduct and, consequently, there was a low risk of reoccurrence of conduct of that nature.

318 Initially, counsel for the appellant submitted that this court should not impose any penalty on the appellant for her professional misconduct. It was submitted that this court's reasons for judgment would include the Tribunal's findings in relation to the appellant's professional misconduct and that this court should merely publish its reasons without making any order or imposing any penalty (appeal ts 9 ‑ 13). However, later in his submissions, counsel for the appellant, appropriately, withdrew that submission (appeal ts 31). Although it is unnecessary, in those circumstances, to decide the point, I make this provisional observation: it is not apparent from the text, context or apparent purpose of s 438, s 439, s 440 and s 441 of the LP Act that the Tribunal has power to impose no penalty on a legal practitioner where the Tribunal has made a finding that the practitioner has engaged in professional misconduct.

319 In Gandini v Legal Profession Complaints Committee,[40] the Tribunal found the appellant, who was a legal practitioner, guilty of, relevantly, professional misconduct. On 24 November 2011, the Tribunal ordered that the appellant not be granted a local practising certificate for a period of 18 months commencing from the date of the order. That period expired by about 24 May 2013. The appellant's appeal against the finding of professional misconduct was allowed in part [34]. This court set aside the Tribunal's order imposing the 18 month period of non‑registration, but did not impose any 'fresh penalty' because the 18 month period had passed by the time this court came to deal with the matter (on 19 November 2013) [38].

320 The decision in Gandini is distinguishable from the present case in that the 18 month period of non-registration imposed by the Tribunal in Gandini was wholly prospective and had passed by the time this court set aside the Tribunal's order. By contrast, the period of non‑registration fixed by the Tribunal in the present case was wholly retrospective and the Tribunal in effect did not impose any penalty.

321 Counsel for the appellant did not in terms concede that a public reprimand was an appropriate penalty for the appellant's professional misconduct, the subject of order 2 of the Tribunal's order made on 9 March 2020, or for the appellant's unprofessional conduct, the subject of order 1 of those orders. Counsel did, however, inform the court that his instructions were that '[the appellant] does not [contend] that a public reprimand would not be an appropriate disposition in respect of [her professional misconduct]' the subject of order 2 (appeal ts 31). Counsel did not make that statement in relation to the appellant's unprofessional conduct the subject of order 1.

322 Counsel for the Committee informed the court that the Committee did not contend for anything more than a public reprimand as the penalty for the appellant's professional misconduct. The Committee adopted that position, not because the Committee did not regard the conduct as very serious, but because of '[all the] water that has passed under the bridge' (appeal ts 54).

323 In my opinion, having regard to all of the facts and circumstances, this court should order, pursuant to s 439(d) read with s 438(2)(b) of the LP Act, that the appellant be publicly reprimanded for the professional misconduct which the Tribunal found was proved.

324 As to the costs of the proceedings before the Tribunal, I have set out at [62] and [267] above the Tribunal's reasoning at [59] ‑ [60] of its reasons for concluding that it was fair and reasonable to award costs of $20,000 to the Committee. In particular, the Tribunal found that the $20,000 did not include any costs of the Committee itself; the $20,000 was limited to only some of the amount disbursed by the Committee in counsel fees; and the $20,000 represented a significant discount of the fees actually incurred by the Committee.

325 As I have mentioned at [273] above, the Committee incurred counsel fees in the total amount of $33,540.70. That total amount included fees of $7,492.10 incurred between 22 July 2019 and 12 August 2019. A significant proportion of the amount of $7,492.10 would not have been incurred or would not have been, in effect, wasted if the Committee had made timely disclosure of the documents in question (as it should have done). The Tribunal made an error of law by failing to take that matter into account in determining whether and, if so, in what amount the Tribunal should make an order for the payment by the appellant of the Committee's costs. It was therefore necessary to set aside the Tribunal's costs order. However, no other material error by the Tribunal in making the costs order is apparent.

326 The facts and circumstances that are relevant, in the present case, to the appropriate costs order in relation to the proceedings before the Tribunal either have been fully found by the Tribunal or are not in dispute. There was a dispute before this court as to whether various facts and circumstances asserted by the appellant were relevant in determining what costs order, if any, should have been made by the Tribunal. I have determined, in the course of these reasons, whether and, if so, to what extent the appellant's asserted facts and circumstances in relation to the Tribunal's costs order are relevant.

327 The proceedings before the Tribunal were protracted. There is no 'ministerial' aspect, of the kind that existed in Osland [20], to the discretionary task of deciding upon the appropriate costs order. The Tribunal does not have any advantage over this court in determining the appropriate costs order. Remitting the matter to the Tribunal would involve further delay and additional expense for the parties. Neither the appellant nor the Committee wanted the matter to be remitted.

328 I am satisfied that it would not be just, in the circumstances, for this court to remit the question of costs to the Tribunal.

329 Also, in my opinion, it would not be just, in the circumstances, for this court to make no substitutive order, pursuant to s 105(9)(b) of the SAT Act, in respect of costs. The effect of this court making no substitutive order would be to require the Committee to bear the whole of its costs of the proceedings before the Tribunal. That outcome would not be just having regard to:

(a) the facts and circumstances that are relevant, in the present case, to the question of costs;

(b) the Committee having made an application for costs before the Tribunal and the Committee not having withdrawn or abandoned its claim for costs;

(c) the position of the appellant and the Committee to the effect that this court can and should make substitutive orders (see [314] above); and

(d) the matters I enumerate at [331] below.

330 It is appropriate, in the circumstances, that this court exercise its power under s 105(9)(b) to make a substitutive order in respect of costs.

331 I have had particular regard to the following matters:

(a) The Tribunal's findings that the appellant was guilty of professional misconduct and unsatisfactory professional conduct (which have not been disturbed).

(b) The Committee's functions under the LP Act; in particular, those referred to at [272(a)] above.

(c) The total amount of counsel fees incurred by the Committee.

(d) The history of the proceedings in the Tribunal.

(e) The erroneous submissions of the appellant and the Committee to the Tribunal in the course of the Tribunal deciding, wrongly, that it had power wholly to backdate its order (embodied in order 2) that the appellant not be granted a local practising certificate for a period of 6 months.

(f) The Committee's delay and the extent to which that delay is likely to have increased the costs incurred by the Committee or the appellant or to have resulted in costs incurred by the Committee or the appellant being duplicated or wasted.

(g) Section 87(1) and s 87(2) of the SAT Act, the observations of this court in Questdale Holdings [46] ‑ [51] and in Quinlivan [10] ‑ [12] and my observations at [261] above.

332 I consider that, in all of the circumstances, it is fair and reasonable to order, pursuant to s 87(2) of the SAT Act, that the appellant pay the Committee's costs of the proceedings before the Tribunal fixed in the sum of $8,500. That sum comprises part of counsel fees incurred by the Committee and includes none of the costs of the Committee itself.

333 It is not reasonably arguable that the Tribunal's errors in relation to orders 2 and 3 materially affected the correctness or appropriateness of order 1 of the Tribunal's orders made on 9 March 2020.

334 Accordingly, order 1, which provided in effect that the appellant was publicly reprimanded for her unsatisfactory professional conduct, should not be disturbed.

(a) The appellant has leave to amend her grounds of appeal by adding the new ground 1A.

(b) Leave to appeal in relation to the questions of law raised in the context of grounds 1A, 1, 2, 3, 4, 5, 7 and 8 is granted.

(c) Leave to appeal on the questions of law raised in the context of ground 6 is refused.

(d) Orders 2 and 3 of the Tribunal's orders made on 9 March 2020 are set aside.

(e) The appellant is publicly reprimanded for the professional misconduct which the Tribunal found was proved.

(f) The appellant must pay the Committee's costs of the proceedings before the Tribunal fixed in the sum of $8,500.

336 Counsel should be heard as to the precise form of those orders and also in relation to the costs of this appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Appeals within the ambit of s 105(13) such as Khosa v Legal Profession Complaints Committee [2017] WASCA 192 are materially different, but may be put to one side for present purposes.

[2] Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [19]. This passage has been applied to s 105 of the SAT Act in many decisions of this court.

[3] Osland v Secretary to the of Department of Justice [19].

[4] As to which, we agree with what Buss P says at [316].

[6] As to which see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [35] - [36].

[7] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [49] (Buss JA; Wheeler & Pullin JJA agreeing).

[8] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72 [15] (Gaudron, Gummow, Hayne & Callinan JJ).

[9] Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [18] (French CJ, Gummow & Bell JJ).

[10] Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 [27] (French CJ).

[11] Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (NSW) [2011] HCA 41; (2011) 245 CLR 446 [5] (French CJ, Gummow, Crennan, Kiefel & Bell JJ).

[12] TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175, 178 (Gummow J).

[13] Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311, 323 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh & Gummow JJ).

[14] Ofulue v Bossert [2009] UKHL 16; [2009] 1 AC 990 [39], [43] (Lord Rodger of Earlsferry); [48], [58] ‑ [59] (Lord Walker of Gestingthorpe); [89] (Lord Neuberger of Abbotsbury).

[15] Yokogawa Aust Pty Ltd v Alstom Power Ltd [2009] SASC 377; (2009) 262 ALR 738 [97] ‑ [100] (Duggan J; Sulan J agreeing & Kourakis J relevantly agreeing).

[16] Field v Commissioner for Railways (NSW) [1957] HCA 92; (1957) 99 CLR 285, 291 (Dixon CJ, Webb, Kitto & Taylor JJ).

[17] Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 [8] ‑ [9] (Allsop P); [108] ‑ [109] (Tobias JA); [191] (Sackville AJA).

[18] Development Consent Authority v Phelps [2010] NTCA 3; (2010) 27 NTLR 174 [23] (Martin (BR) CJ, Mildren & Reeves JJ).

[19] Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015] WASC 60 [94] ‑ [100] (Mitchell J).

[20] Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279, 286 (Dixon CJ).

[21] The New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177, 183 (Barwick CJ, Kitto, Taylor, Menzies & Owen JJ).

[22] Re Maraj (a legal practitioner) (1995) 15 WAR 12, 24 ‑ 25 (Malcolm CJ; Kennedy & Franklyn JJ agreeing).

[23] Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 [41] (Doyle CJ; Williams & Martin JJ agreeing).

[24] Guss v Law Institute of Victoria Ltd [2006] VSCA 88 [28] (Maxwell P; Callaway & Chernov JJA agreeing).

[25] Quinn v Law Institute of Victoria Ltd [2007] VSCA 122; (2007) 27 VAR 1 [34] ‑ [35] (Maxwell P), [41] (Chernov JA), [47] (Nettle JA).

[26] Papps v Medical Board of South Australia [2006] SASC 234 [52] (Gray J; Nyland & Vanstone JJ agreeing).

[27] Stirling v Legal Services Commissioner [2013] VSCA 374 [63] ‑ [68] (Warren CJ, Neave JA & Dixon AJA).

[28] Legal Services Commissioner v Rallis (Legal Practice) [2009] VCAT 1445 [76] ‑ [80].

[29] Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 [46] ‑ [51].

[30] Quinlivan v Legal Profession Complaints Committee [2012] WASCA 263 (S) [10] ‑ [12].

[31] Commissioner for Consumer Protection v Carey [2014] WASCA 7 [166] (Buss JA).

[32] Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32 [214] (Newnes & Murphy JJA), [273] (Mitchell JA).

[33] Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368 [205] (Buss P, Mitchell & Beech JJA).

[34] Panegyres v Medical Board of Australia [2020] WASCA 58 [349] ‑ [350].

[35] Legal Profession Complaints Committee v Detata [2012] WASCA 214.

[36] Khosa v Legal Profession Complaints Committee [2017] WASCA 192.

[37] Khosa v Legal Profession Complaints Committee [2017] WASCA 192 (S) [16] (Murphy & Beech JJA).

[38] Victorian Legal Services Commissioner v McDonald [2019] VSCA 18; (2019) 57 VR 186 [158], [160] (Tate, Kaye & Emerton JJA).

[39] Leeda Projects Pty Ltd v Zeng [2020] VSCA 192; (2020) 61 VR 384 [3] (Tate JA), [4] (Kaye JA), [197], [199] ‑ [205] (McLeish JA).

[40] Gandini v Legal Profession Complaints Committee [2013] WASCA 168 (S).