Vogt v Legal Practitioners Complaints Committee

[2009] WASCA 202

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Legal Practitioners
2. › Professional misconduct
3. › Misleading the court
4. › Affidavit and oral submissions conveying misleading impression
5. › Whether practitioner intended to mislead
6. › Whether findings open on the evidence
7. › Legal Practice Act 2003 (WA), s 180(1)
1. Legal Practitioners
2. › Professional discipline
3. › Penalty
4. › Suspension of practising certificate
5. › Whether Tribunal misdirected itself that suspension mandatory for intentionally misleading court
6. › Whether penalty manifestly excessive
7. › Appropriate penalty where practitioner knowingly misleads court
1. Practice and Procedure
2. › Revision of ex tempore reasons
3. › Permissible amendments to oral reasons
4. › Whether change between oral and written reasons was one of substance

Quick Take

A penalty of suspension is not mandatory where a practitioner is found to have intentionally misled a court; the appropriate penalty must always depend on the facts of the particular case. However, intentionally misleading a court is a matter of the utmost seriousness going to the heart of a practitioner's duty as an officer of the court, and factors such as relative inexperience and lack of supervision do not weigh so heavily in mitigation as they might in other situations. A deliberate departure from the duty of honesty and candour to the court must attract a substantial penalty. Where a tribunal revises ex tempore reasons after the order has been authenticated, the revision must not alter the substance of the reasons; where the written reasons differ in substance from the oral reasons, it is the oral reasons that govern.