Tribunal imposed non-practice period based on misrepresentations during audits
The Western Australian Supreme Court’s Court of Appeal dismissed an appeal brought by the Legal Practice Board, which challenged the State Administrative Tribunal’s dismissal of certain claims against a respondent who was subject to a non-practice period following professional misconduct proceedings.
The Legal Practice Board – the appellant in Legal Practice Board -v- Barry [2026] WASCA 12 – initiated professional misconduct proceedings against the respondent. Legal Aid WA (LAWA) audited 16 files assigned to him.
The board alleged that the respondent knowingly or recklessly made 19 false or misleading representations to LAWA during the audits and gained a financial advantage from LAWA through the misrepresentations, totalling less than $5,000.
The board also argued that the respondent engaged in professional misconduct in responding to the board’s investigation into the misrepresentations. The board’s claim referred to his:
On 15 May 2025, the tribunal determined that the respondent engaged in professional misconduct through his representations to LAWA during the audits, but not through the divergences between the first and second statutory declarations.
On 20 May 2025, the board sought to appeal the tribunal’s dismissal of its claims concerning inconsistencies between the first and second statutory declarations. The board requested leave to appeal under s 105(1) of the State Administrative Tribunal Act 2004 (WA).
In its first appeal ground, the board challenged the tribunal’s finding that the respondent carelessly made the representations in the first statutory declaration, rather than knowingly or recklessly with respect to their false or misleading nature.
The board contended that the tribunal could not make this finding because it had no supporting evidence and was so unreasonable that no reasonable decision‑maker could have reached it.
In its second appeal ground, the board assailed the tribunal’s same finding of carelessness. The board alleged that the finding was illogical, irrational, and inconsistent with findings that the respondent had intentionally overclaimed costs from LAWA some 18 or 24 months earlier.
Third, the board alleged that the tribunal should have made an alternative finding of carelessness amounting to unsatisfactory professional conduct.
Despite its appeal, the board continued its tribunal proceedings for the penalty and costs, based on the tribunal’s findings. On 23 December 2025, the tribunal precluded the respondent from legal practice for at least the period ending on 9 February 2027. It ordered him to pay $35,000 in costs.
The Court of Appeal of the Supreme Court of Western Australia denied leave to appeal, dismissed the appeal, and ordered the Legal Practice Board to pay the respondent’s appeal costs.
Finding no merit, the appeal court rejected the board’s first and second appeal grounds, which raised no contestable legal questions and instead sought to overturn factual findings.
The appeal court explained that both appeal grounds essentially presumed that a person would always consciously appreciate and remember their fraudulent conduct and that the respondent could not have carelessly made his statements in the first statutory declaration once he directed his attention to his billing practices for LAWA.
The appeal court added that the respondent did not necessarily know or act recklessly with respect to the falseness of the first statutory declaration’s statements. The appeal court saw some evidence supporting the tribunal’s decision.
Regarding the board’s third argument, the appeal court ruled that the tribunal did not need to consider making an alternative finding of carelessness amounting to unsatisfactory professional conduct because the board did not raise this argument before the tribunal or notify the respondent that carelessness could be a basis for a finding of unsatisfactory conduct or professional misconduct.
Lastly, the appeal court addressed the board’s conduct in continuing to ask the tribunal to determine the penalty and costs, without pursuing an expedited appeal of the findings challenged in the appeal or attempting to defer the penalty hearing until the appeal’s resolution. The appeal court concluded that the tribunal had finally disposed of the matter.
The appeal court held that proceeding with the appeal would contradict the interests of justice and the public interest in the proper administration of justice.
The appeal court added that continuing the appeal would fragment the proceedings and subject the respondent to a possible additional penalty when the board could and should have combined all matters in a single proceeding.
(Note: This story has been corrected to reflect the 23 December 2025 order's contents.)
