In Legal Practice Board v Barry [2026] WASCA 12, the Supreme Court of Western Australia (Court of Appeal) emphasised that it will not lightly disturb specialised tribunal findings on credibility and mental state, and cautioned against bifurcated, piecemeal appeals that disrupt the finality of disciplinary proceedings.
The collision of fatigue and regulation
The proceedings arose from the disciplinary action initiated by the Legal Practice Board of Western Australia (the Board) against a practitioner, alleging he knowingly or recklessly made 19 false or misleading representations to Legal Aid WA (LAWA) and, as a result, obtained a financial advantage from LAWA, totalling less than $5,000.
The Board also claimed that the practitioner engaged in professional misconduct in responding to its investigation, with reference to his first statutory declaration, in which he adopted a letter written on his behalf by counsel, and his second statutory declaration, made within a matter of weeks, in which he “self-corrected” certain matters in the first statutory declaration.
At first instance, the State Administrative Tribunal (SAT) found the practitioner guilty of unsatisfactory professional conduct, but stopped short of a professional misconduct finding.
The SAT found that the practitioner was under some pressure to comply by the Board’s deadlines (having received prior extensions) and, at the time of the first statutory declaration, he was sleep deprived with a two-week-old baby and was being required to consider lengthy material provided by the Board. The SAT deemed that the second statutory declaration demonstrated the practitioner did not have any intention to mislead the Board.
Dissatisfied, the Board appealed the SAT’s decision to dismiss its claims in respect of the divergences between the statutory declarations while simultaneously continuing the proceedings for penalty and costs in respect of the findings which saw the practitioner being suspended from practice for four years and having costs ($35,000) ordered against him.
The Board’s disciplinary crusade
On appeal, central issues included whether the SAT had erred in its characterisation of the conduct, whether the findings were reasonably open on the evidence, and whether the orders made were proportionate.
The Court of Appeal summarised at [16] that “essentially, the Board’s argument depends upon a factual presumption that fraudulent conduct will always be remembered and always consciously appreciated”.
Refusing leave to appeal, the Court of Appeal ordered the Board to pay the practitioner’s costs.
The Court of Appeal’s judgment was a categorical rejection of the Board’s aggressive stance. Perhaps the sharpest part of the judgment was the Court’s criticism of the Board’s litigation strategy. The Board had attempted to appeal the misconduct finding while simultaneously pursuing a penalty hearing in the SAT. The Court of Appeal identified this as an affront to procedural finality, noting that practitioners should not be subjected to the “double jeopardy” of a regulator seeking to increase a conviction after a penalty has already been considered.
Implications for practitioners and the Board
While billing integrity remains a non-negotiable pillar of the profession, the Court has made it clear that it will not allow the Board to transform fatigue-driven mistakes into career-ending misconduct charges.
For practitioners, the message is clear: candour is your greatest shield. If you discover an error, disclose it immediately.
