Giudice v Legal Profession Complaints Committee

[2016] WASCA 159

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Legal Practitioners
2. › Professional misconduct
3. › Recklessness
4. › Whether practitioner subjectively aware of risk that statement in affidavit was untrue
5. › Distinction between objective and subjective test for recklessness
6. › Legal Profession Act 2008 (WA), ss 402, 438
1. Legal Practitioners
2. › Disciplinary proceedings
3. › Appeal from State Administrative Tribunal
4. › Consent orders
5. › Whether appropriate to resolve appeal on terms agreed between parties
6. › State Administrative Tribunal Act 2004 (WA), ss 105(1), 105(9)

Quick Take

A finding that a legal practitioner was reckless as to whether a statement in an affidavit was true requires proof that the practitioner was subjectively aware of the risk of falsity and consciously disregarded it. The fact that a practitioner objectively knew information inconsistent with the statement does not of itself establish subjective awareness of the risk. The Tribunal must examine all relevant circumstances, including the practitioner's evidence about their actual state of mind.