Lawyer’s Lack of Candour with Regulator Warranted Striking Off

In Legal Services and Complaints Committee v Staffa [2025] WASC 6, the Supreme Court of Western Australia ordered that a longstanding lawyer practitioner be struck off on account of his professional misconduct in dealing with clients, underscored by his lack of candour with the legal Regulator in respect of those complaints. The lesson in this case is that lawyers – barristers or solicitors – while entitled to defend their position when a complaint is made, ought be careful to be full and candid in making responses to the Regulator, which has a statutory power to investigate and elicit factual information. The court (Hill, Strk and Solomon JJ) wrote:

Introduction

[1]  On 21 October 2024 the court heard an application by the Legal Services and Complaints Committee (LPCC) for an order that Kevin Colin Benedict Staffa be removed from the roll of practitioners maintained by this court.

[2]  Mr Staffa was represented at the hearing of the application. In summary, it was Mr Staffa’s position that in all of the circumstances, there would be no rational or public purpose or benefit in removing his name from the Supreme Court roll.

[3]  The court has concluded that Mr Staffa’s name should be removed, and what follows are our reasons for so concluding.

Procedural background

[4]  An application to the State Administrative Tribunal was made by the LPCC in March 2019. By its application, the LPCC sought an order that the Tribunal make a finding that Mr Staffa had engaged in professional misconduct pursuant to s 438(1) of the Legal Profession Act 2008 (WA), and consequential orders pursuant to s 438(2) of the Legal Profession Act. The LPCC also sought an order that Mr Staffa pay the LPCC’s costs pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA).

[5]  On 15 December 2020 the Tribunal, pursuant to s 438(2) and s 438(4) of the Legal Profession Act, ordered that a report be transmitted to the Supreme Court (full bench) on its findings as to the conduct of Mr Staffa, with a recommendation that Mr Staffa’s name be removed from the roll of persons admitted to the legal profession under the Legal Profession Act.

[6]  The findings of the Tribunal were that Mr Staffa had:

(a) engaged in professional misconduct as defined in s 403(1) of the Legal Profession Act by providing legal services to a client when Mr Staffa and Mr Staffa’s law practice was engaged by another client in the same or related matter and the interests of the client and the other client were adverse and there was a conflict of the duties to act in the best interests of each client contrary to r 14(2) of the Legal Profession Conduct Rules 2010 (WA);

(b) engaged in unsatisfactory professional conduct as defined in s 402 of the Legal Profession Act by rendering two invoices to a client in respect of work carried out for another client;

(c) engaged in professional misconduct as defined in s 403(1) of the Legal Profession Act by advising a client to transfer money belonging to another client to a bank account controlled by the first client without the consent or authority of the other client; and

(d) engaged in professional misconduct as defined in s 403(1) of the Legal Profession Act by failing to be open and candid in his dealing with the LPCC in breach of r 50 of the Legal Profession Conduct Rules.

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Mr Staffa’s dealings with the LPCC

[44]  By a letter dated 10 April 2017, the LPCC wrote to Mr Staffa and:

(a) advised Mr Staffa that the LPCC was investigating a complaint made in respect of his conduct, including that Mr Staffa advised W to transfer the funds from the Australian Company’s account to a holding account in circumstances in which Mr Staffa was aware, or ought to have been aware, that W was not presently entitled to the funds and had no authority to transfer the funds, and that the transfer may be regarded as an unlawful act by W;

(b) informed Mr Staffa that he had the right to make submissions to the LPCC in respect of the conduct complained of;

(c) requested that Mr Staffa provide to the LPCC his entire original file and all documents relating to the matter; and

(d) reminded Mr Staffa that he must be open and candid in his dealings with the LPCC and must provide a full and accurate account of his conduct, and referred to r 50(2) and (3) of the Legal Profession Conduct Rules.

[45]  In his letter to the LPCC of 2 May 2017, Mr Staffa:

(a) provided a file of documents which included (among other things) Mr Staffa’s letters of 14 July 2016 and 22 July 2016 (referred to at [26] and [33] respectively above), his draft letter to MH (referred to at [33(e)] and [34] above) and his email and his letter both dated 27 July 2016 (referred to at [39] and [40] above);

(b) noted that the LPCC was mistaken to state that he (Mr Staffa) had advised W to transfer an amount of $378,000 from the Australian Company’s account, and represented that ‘that decision was made by [W]’;

(c) provided a table of comments with respect to the documents provided in the file to the LPCC;

(d) in that table, with respect to Mr Staffa’s letter to W of 14 July 2016 (referred to at [26] above), made the comment that:

[N]ote: none of the advice given by me suggested that [W] remove funds from any accounts of [the Australian Company] — that suggestion came from him, and it was no doubt a decision made by him in his capacity as managing director.

(e) in that table, with respect to Mr Staffa’s letter to W of 22 July 2016 (referred to at [33] above), said ‘No comment’;

(f) in that table, with respect to Mr Staffa’s letter to W of 27 July 2016 (referred to at [40] above), made the comment that:

[I]n paragraph 5(a), I confirmed that it was [W] whose idea it was to put funds of [the Australian Company] into a holding account, and that this had been done without any input from me.

[46]  In a letter dated 5 February 2018 the LPCC again wrote to Mr Staffa, requesting that he provide further submissions as to, among other things, the reference in Mr Staffa’s notes of the meeting with W of 22 July 2016 (referred to at [32] above) that he ‘take and park the money’.

[47]  In his letter to the LPCC dated 5 March 2018, Mr Staffa noted that W could either confirm or deny that W initially transferred the funds of his own volition without his (Mr Staffa’s) advice or input; and that W had already made a decision to put funds into a holding account to cover his anticipated employee entitlements prior to Mr Staffa’s meeting with W on 22 July 2016 (referred to at [32] above).

[48]  On 4 April 2018 the LPCC again wrote to Mr Staffa, seeking further submissions.

[49]  In his letter to the LPCC of 27 April 2018, Mr Staffa repeated and supplemented the answer he provided to the LPCC in his letter of 5 March 2018, and reported that:

(a) W had made the decision to transfer the funds;

(b) W had actually effected the transfer before seeking advice from Mr Staffa; and

(c) he (Mr Staffa) did not advise W to transfer the funds from any account or to any account, and that that was a decision that W had made.

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The allegations made against Mr Staffa by the LPCC and Mr Staffa’s response

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Ground 4

[68]  The LPCC’s fourth allegation against Mr Staffa was that:

[Mr Staffa] between on or about 2 May 2017 and on or about 27 April 2018 engaged in professional misconduct within the meaning of s 403 and s 438 of the [Legal Profession Act], in that his conduct fell short consistently and by a substantial degree of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, in that by his correspondence to the Committee dated 2 May 2017, 5 March 2018 and 27 April 2018, [Mr Staffa] was not open and candid in his dealings with the Committee and failed to provide a full and accurate account of his conduct in relation to matters covered by requests by the Committee to provide comments or information in relation to [Mr Staffa’s] conduct or professional behaviour contrary to r 50 of the [Legal Profession Conduct Rules], in that [Mr Staffa] told the Committee that [Mr Staffa] did not advise W to transfer the Funds from the Australian Company’s bank account to a personal account controlled by W (Statement) in circumstances in which:

(a) the Statement was false or misleading, or both, as in fact [Mr Staffa] did advise W to so transfer the Funds;

(b )[Mr Staffa] well knew that the Statement was false or misleading, or both, in a material respect and/or that it had the potential to mislead the Committee and [Mr Staffa] intended that the Committee be misled;

(c) alternatively to (b), [Mr Staffa] acted with reckless disregard or indifference as to whether or not the statement was false or misleading, or both, and/or had the potential to mislead the Committee and as to whether the Committee would be misled by the Statement;

(d) further alternatively to (a) and (b), [Mr Staffa] was grossly careless in failing to ensure that the Statement was not false or misleading, or both, in a material respect, and/or had the potential to mislead the Committee.

[69]  The Tribunal recorded at [84] of the conduct reasons that it was Mr Staffa’s evidence that he was of the clear recollection that W had told him on 22 July 2016 that he had already transferred funds to another account to hold pending the determination of his entitlements; and further that he accepted that he was mistaken, and that the transfer of money had taken place after he had provided his advice of 22 July 2016.

[70]  It was pointed out by Mr Staffa that when the LPCC originally identified the nature of the complaint made against him in its letter to him of 10 April 2017, the LPCC identified the relevant complaint against him to be that he had advised W:21

[T]o transfer an amount of $378,000 (the funds) from [the Australian Company’s] account to a ‘holding account‘ in circumstances where [Mr Staffa] were aware, or ought to have been aware, that [W] was not presently entitled to the funds and had no authority to transfer the funds and that the transfer may be regarded as an unlawful act by [W]. (Original emphasis)

[71]  It was Mr Staffa’s position that the response contained in his letter to the LPCC of 2 May 2017, where the allegation that he had advised W to transfer $378,000 into his own account was answered, was true. He told the LPCC in that letter that he did not advise W to transfer an amount of $378,000 from the Australian Company’s account.

[72]  Mr Staffa said that he dealt with those aspects of the complaint by providing the LPCC with copies of his ‘email advices to [W] of 22, 27 and 28 July 2016’; and that he was entitled to expect that the LPCC would read all of that material and read his responsive letter in the context of that material.

[73]  Mr Staffa further said that his letter of 22 July 2016 to W, along with his proposed letter from W to the Germany Company, made it clear that he did not advise W to transfer $378,000.

[74]  Mr Staffa went on to submit that it was important to recognise that the LPCC did not then raise the matter with him again until 5 February 2018, some 18 months after Mr Staffa had met with W and over nine months after he had written to the LPCC and provided his file. He maintained that the Tribunal should not place the same reliance on the letter from him to the LPCC dated 17 October 2016 that the LPCC did. He said that the letter was written the same day as the LPCC had refused him an extension of time in which to respond and without reference to his file.

[75]  Mr Staffa said that his suggestion to the LPCC that the LPCC contact W to ascertain what had occurred with regard to the transfer was consistent only with Mr Staffa seeking to assist the LPCC rather than an intention to mislead it.

[76]  It was Mr Staffa’s position that it defied common sense that a person seeking to present a false state of affairs, as the LPCC alleged, would encourage investigation; and that his acknowledgment, prior to the hearing in the Tribunal, that he had been mistaken about the timing of the transfer of money by W was not consistent with any intention on his part to mislead the LPCC.

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Penalty and costs

[84]  On 4 November 2020 the Tribunal, differently constituted, heard the parties as to penalty and costs. Ultimately, the Tribunal determined that a report would be made and transmitted to this court in respect of the findings in relation to grounds 1 to 4 with a recommendation that Mr Staffa’s name be removed from the roll of practitioners; that his local practicing certificate should be suspended; and that he pay the LPCC’s costs fixed in the sum of $58,000.

[85]  In its penalty reasons, the Tribunal summarised the principles to be applied in determining the appropriate disciplinary sanction, which are well settled and not in issue as between the parties.

[86]  Among other things, the Tribunal uncontroversially noted that it is not necessarily the case that every incident of professional misconduct involving misleading a court will result in the striking off of the practitioner; and further that a finding that a practitioner had deliberately misled a court raises serious questions about that practitioner’s fitness to practice and must attract a significant penalty.

[87]  As to a finding which involved misleading the LPCC, at [14] of the penalty reasons, the Tribunal’s view was recorded as follows:

In the Tribunal’s view, misleading, or acting with the intention of misleading the Legal Profession Complaints Committee is to be viewed as seriously as is misleading, or acting with the intention of misleading a client, court or Tribunal. The Legal Profession Complaints Committee performs an important role in ensuring the regulation of legal practitioners, which is the purpose of the [Legal Profession Act], pursuant to which the Legal Profession Complaints Committee is established. Unless practitioners’ duties of honesty and candour to the Legal Profession Complaints Committee is regarded in that way, its ability to effectively regulate the profession is undermined. (Footnotes omitted)

[88]  As to the appropriate penalty orders, in summary, the Tribunal concluded that while it had real concerns as to Mr Staffa’s competence, it was of the view that the failings identified in grounds 1, 2 and 3 could have been dealt with by way of a disciplinary outcome less than a referral to the Supreme Court (full bench).29 The Tribunal recorded that had the failings identified in grounds 1, 2 and 3 been the only matters involved, the Tribunal would have been satisfied that a period of suspension from practice would have achieved the object of the protection of the public through the maintenance of the standards of the profession and appropriately mark the seriousness of that conduct.

[89]  However, when taken together with the professional misconduct found in relation to ground 4, the Tribunal concluded that the appropriate disciplinary outcome was that all of those matters should be dealt with by the making of a report and its referral to the Supreme Court (full bench) with a recommendation that Mr Staffa’s name be removed from the roll of practitioners. The Tribunal’s reasoning was set out at [37] to [46] of its penalty reasons, which are reproduced below:

[37] In respect of Ground 4, [Mr Staffa] was found to have engaged in professional misconduct by failing to be open and candid in his dealings with the Legal Profession Complaints Committee.

[38] The Tribunal found that during the course of its investigation into a complaint made in respect of [Mr Staffa’s] conduct, the Legal Profession Complaints Committee wrote to [Mr Staffa] and asked him whether he had given advice to W to transfer $378,000 from the Australian Company’s account to W’s account and that [Mr Staffa] had responded saying that the Legal Profession Complaints Committee was mistaken that he had given advice to W to transfer $378,000 from the Australian Company’s account to W’s account. In his evidence before the Tribunal [Mr Staffa] endeavoured to explain that response by claiming that he misunderstood the Legal Profession Complaints Committee’s question and that he was responding to it that he had not given advice to transfer the specific sum of money referred to in their correspondence rather than his response being a denial of having given advice to transfer any funds from the Australian Company’s account to W’s account. The Practitioner’s evidence was that his answer was not, therefore, intended to mislead the Committee.

[39] In its findings the Tribunal rejected [Mr Staffa’s] explanation for his response, finding that [Mr Staffa’s] evidence was disingenuous, that [Mr Staffa] knew the response was false and that, in giving it, he intended to and did mislead the Committee.

[40] From those findings the Tribunal now concludes that [Mr Staffa’s] disingenuous explanation for the answer given by him to the Committee which he gave in evidence before the Tribunal was demonstrative of:

(i) a further attempt to evade the consequence of his wrongful conduct; and

(ii) a lack of remorse for the misconduct.

[41] Further, the Tribunal has had regard to the fact that [Mr Staffa] has not returned to the Australian Company the fees which it paid to him when they should have been paid by W.

[42] In his written submissions dated 22 September 2020, which were drafted and filed by [Mr Staffa] himself, and so must be regarded as reflective of his own thinking, [Mr Staffa] contends that it is relevant to the penalty proceedings that no complaint was made by any client or the shareholders of the company about the inadvertent error in issuing the invoices and neither W nor the Australian company has sought reimbursement of any of the fees.

[43] While those matters are relevant to the Tribunal’s considerations, in the Tribunal’s view, once his billing error was known to him, [Mr Staffa] ought at least to have offered to refund the fees to the Australian company. From an ethical point of view [Mr Staffa’s] should not be entitled to adopt the position that he can simply retain the money unless the Australian company is proactive in asking for it back. The Tribunal considers that this attitude shows a lack of appreciation for his wrongdoing and is also demonstrative of a lack of remorse.

[44] In circumstances where:

(a) [Mr Staffa] was not candid in his response to the Legal Profession Complaints Committee of 2 May 2017;

(b) was disingenuous in his evidence before the Tribunal in an effort to explain away his original answer to the Legal Profession Complaints Committee;

(c) was a very experienced practitioner;

(d) because of his disciplinary history, he could be expected to be aware of his obligations to the Committee, which he did not meet when he failed to be candid in his answers to their questions, answered ‘no comment’ in part of his response to their inquiry and suggested that they could ask W directly for answers rather than asking him;

(e) his professional misconduct and unsatisfactory professional conduct, although all related to essentially one matter, persisted over a period of time and is therefore unable to be regarded as a one off event; and

(f) [Mr Staffa] has not demonstrated insight or remorse,

the Tribunal finds that [Mr Staffa’s] conduct encompassed in Ground 4 was incompatible with the characteristics of honesty and integrity that are required for the maintenance of proper standards of the profession.

[45] That is the case notwithstanding:

(a) [Mr Staffa’s] stated intention to retire from practice on 30 June 2021;

(b) that [Mr Staffa] is not taking any new instructions and is currently acting only on the four matters …;

(c) [Mr Staffa’s] prior good standing in the profession; and

(d) [Mr Staffa’s] favourable personal antecedents.

[46] The Tribunal finds that [Mr Staffa’s] conduct in relation to Ground 4, which goes to his character, means that those who would deal with him in the law cannot be assured that he will act with integrity at all times. The Tribunal finds that that is not the kind of concern that could be remedied during a period of suspension. In that circumstance the Tribunal concludes that the maintenance of proper standards of the profession and the protection of the public necessitates that it exercise the discretion reposed in it under s 438(2)(a) to make and transmit a report on the findings to the Supreme Court (full bench) with a recommendation that his name be struck from the roll of practitioners. (Footnotes omitted)

[90]  Although the LPCC originally sought an order that Mr Staffa pay its costs in a higher sum, an agreement was reached between the parties such that the parties in the end consented to the making of an order compelling Mr Staffa to pay the LPCC’s costs of the proceeding before the Tribunal fixed in the sum of $58,000. As the Tribunal was satisfied that the sum agreed was reasonable, an order fixing costs in the agreed amount was made.

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Applicable principles

The approach to be taken by this court

[97]  The principles to be applied in an application to remove a practitioner from the roll are well established. In the disposition of this application, the court did not understand there to be any controversy as to the approach to be taken.

[98]  As was observed in Legal Profession Complaints Committee v Oud [2019] WASC 287 at [17], the principles include the following:

(a) The court’s jurisdiction with respect to the regulation of the legal profession is not to be exercised for the purpose of punishing the practitioner concerned, but for the protection of the public and the maintenance of the reputation and standards of the legal profession;

(b) Where the motion is to remove a practitioner from the roll, the critical question for the court is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner;

(c) Fitness to practice law requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and judges;

(d) Removal from the roll is an order reserved for very serious cases, where the character and conduct of the practitioner is seen to be inconsistent with the privileges of further practice;

(e) Integrity and honesty are essential characteristics expected of a practitioner, and therefore, the court has generally taken a very serious approach when dealing with dishonesty by a practitioner.

[99]  As to findings of dishonesty, in Legal Profession Complaints Committee v Oud at [18] it was further noted that courts have repeatedly recognised the particular significance of a finding that a practitioner has intentionally misled a court, being a matter of utmost seriousness, and one which raises serious questions as to the practitioner’s fitness to practice.

[100]  In the disposition of this application, this court also proceeded cognisant of the following.

[101]  First, an important object of the disciplinary function is to maintain and protect the reputation of the legal profession. Account must be taken by the court of the effect which its order will have on the understanding of both the public and the profession of the standard of behaviour required of legal practitioners.

[102]  Secondly, a failure on the part of a practitioner to appreciate the impropriety of their conduct may support a finding of unfitness to practise. A reason for this is that the lack of appreciation of impropriety and the lack of insight increases the risk of recurrence of the improper conduct.

[103]  Thirdly, an important object of the disciplinary function is to maintain and protect the reputation of the legal profession. Account must also be taken by the court of the effect which its order will have on the understanding by the profession and the public of the standard of behaviour required of legal practitioners.

[104]  Fourthly, the quality most likely to result in striking off is conduct which undermines the trustworthiness of the practitioner, or which suggests that they lack integrity or that they cannot be trusted to deal fairly within the system in which they practise. A willingness to engage in dishonest behaviour is therefore of central relevance to an assessment of the practitioner’s fitness to practice.

Conclusiveness

[105]  In the course of the hearing, the conclusiveness of the report of the Tribunal was canvassed, given that the application had been made in the following context:

(a) as noted above, the order made by the Tribunal on 15 December 2020 (as was varied by order of the Court of Appeal in July 2022), that a report be transmitted and a recommendation be made to this court, was an order made under the Legal Profession Act;

(b) in December 2023 the Tribunal made a report to this court pursuant to s 438(2)(a) and s 438(4)(a) and (b) of the Legal Profession Act;

(c) by operation of s 444(1) of the Legal Profession Act, a report to this court pursuant to s 438(2)(a) is to be taken to be conclusive as to all facts and findings mentioned or contained in the report;

(d) the Legal Profession Uniform Law Application Act had repealed the Legal Profession Act before the report was made under cover of a letter dated 14 December 2023 and before application the subject of these reasons was made by originating motion filed on 17 April 2024; and

(e) in the written outline of submissions that were filed on behalf of the LPCC on 4 June 2024, it had been noted that s 444(1) of the Legal Profession Act had not been expressly preserved by the savings and transitional provisions in the Legal Profession Uniform Law Application Act.

[106]  In the LPCC’s outline of submissions filed in advance of the hearing, the apparent lacuna was noted and it was suggested that it might be answered by s 37(1) of the Interpretation Act 1984 (WA). In contrast, the outline filed on behalf of Mr Staffa did not address the implications of the Legal Profession Act having been repealed, and appeared to have been prepared on the assumption that the findings of the Tribunal were conclusive. At the hearing of the application, counsel for Mr Staffa confirmed that the findings of the Tribunal were not challenged.

[107]  In the further outline of submissions filed in advance of the hearing, and also in the course of the hearing, it was observed on behalf of the LPCC that potentially difficult questions arose as to the application of s 444(1) of the Legal Profession Act by virtue of s 37(1) of the Interpretation Act. In circumstances where Mr Staffa did not seek to put in issue any of the Tribunals’ findings of fact, it was submitted on behalf of the LPCC that any consideration of the application of s 444(1) of the Legal Profession Act by virtue of s 37(1) of the Interpretation Act should await a case (should it arise) in which the issue is live and requires determination, not where (as was here the case) consideration of the issue would be hypothetical. On behalf of Mr Staffa, it was accepted that this was not a case where it would be necessary or appropriate for this issue to be ruled upon.

[108]  While at first blush it would appear to be contrary to the statutory scheme for this court to do otherwise than to take to be conclusive all facts or findings mentioned or contained in the Tribunal’s report, it was not in the end necessary in this case for the court to rule upon the conclusiveness of the findings of the Tribunal given the unequivocal position adopted by the respondent that no challenge was made as to the findings of the Tribunal. On the basis that Mr Staffa did not seek to put in issue any of the Tribunals’ findings of fact (or the conclusion of the Court of Appeal), the court considered the LPCC’s application in light of the findings of fact made by the Tribunal (as corrected on appeal) and its characterisation of Mr Staffa’s conduct as professional misconduct (as to grounds 1, 3 and 4), and unsatisfactory professional conduct (as to ground 2).

[109]  As reflected in these reasons, the court did so cognisant that the critical question of whether Mr Staffa had been shown not to be a fit and proper person to be a legal practitioner was a question reserved exclusively to the court.

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Disposition

[127]  While not the subject of controversy in this application, we record that when regard was had to the evidence before the Tribunal, we held no reservation with respect to the findings made by the Tribunal, nor with respect to the Tribunal’s characterisation of Mr Staffa’s conduct as:

(a) professional misconduct (as to grounds 1, 3 and 4); and

(b) unsatisfactory professional conduct (as to ground 2).

[128]  Having regard to Mr Staffa’s conduct, we did not disagree with the Tribunal’s conclusion that the failings of Mr Staffa identified in grounds 1, 2 and 3 could have been dealt with by way of a disciplinary outcome less than a referral to the Supreme Court (full bench); and we too considered that if the failings identified in grounds 1, 2 and 3 been the only matters involved, a period of suspension from practice would have achieved the object of the protection of the public through the maintenance of the standards of the profession and appropriately mark the seriousness of that conduct.

[129]  The professional misconduct found in relation to ground 4 was the most egregious aspect of Mr Staffa’s conduct. The attempt by Mr Staffa to obscure his failings (being the conduct identified in grounds 1, 2 and 3) has had the consequence of exposing Mr Staffa to more serious consequences than the original misdeeds.

[130]  The Tribunal’s report made plain that Mr Staffa failed to be open and candid in his dealings with the LPCC. As an experienced practitioner, Mr Staffa ought to have known better. We accept that he could be expected to be aware of his obligations to the LPCC, which he did not meet when he failed to be candid in his answers to their questions.

[131]  Ultimately, in the disposition of the application, it was not necessary for this court to be drawn on whether a practitioner’s obligation to the LPCC is equivalent to that owed by a practitioner to the court, as an officer of the court. It is sufficient to here record that a practitioner who has acted in a manner intended to mislead the LPCC will have engaged in conduct which is incompatible with the characteristics of honesty and integrity that are required for the maintenance of proper standards of the profession.

[132]  The fact that Mr Staffa misled the LPCC but not the public (as was noted on his behalf) did not in our view ameliorate the misconduct identified in ground 4. As a statutory committee of the Legal Practice Board, the LPCC serves an important function. It is a very serious matter to mislead the delegate of the regulator of legal services in Western Australia. Further, an attempt to minimise conduct which was intended to mislead the body charged with the responsibility of advancing the administration of justice and protecting the public by regulating the behaviour of legal practitioners in Western Australia, revealed a serious lack of insight.

[133]  We accepted that Mr Staffa’s professional misconduct and unsatisfactory professional conduct related to essentially one matter. However, we were particularly troubled that by the time Mr Staffa gave evidence before the Tribunal, there had been sufficient opportunity for him to have reflected upon his conduct. Despite the effluxion of time, Mr Staffa did not accept his shortcomings in a manner which revealed insight or remorse, but instead proceeded to give evidence to the Tribunal in a manner which was disingenuous.

[134]  In this regard, in his evidence to the Tribunal Mr Staffa sought to explain his earlier accounts to the LPCC. Among other things, the transcript of hearing revealed that:

(a) Mr Staffa reluctantly accepted that his statement to the LPCC that he had not given advice to W to transfer money was wrong;

(b) despite that reluctant acceptance, Mr Staffa also asserted in the course of his evidence that his statement was not false, maintaining that he had told the truth;

(c) Mr Staffa sought to explain the inaccuracy in his correspondence to the LPCC as a product of a clumsily worded communication, which ‘could have been probably better written’;

(d) Mr Staffa also asserted that he was ‘labouring under a misapprehension’ which had come about because he had previously been ‘under medical treatment’ which had affected his mood and memory, without Mr Staffa having sought to adduce any evidence as to that treatment, and in circumstances where Mr Staffa had not raised the impact of medication before the hearing before the Tribunal;

(e) Mr Staffa further maintained that his representation to the LPCC that he had not advised W to transfer the amount of $378,000 from the Australian Company’s bank account into a bank account controlled by W was true, as he had not advised W to transfer ‘any amount at all, not $1, not $100, not $378,000’;

(f) Mr Staffa sought to explain the appropriateness of his focus on quantum when responding to the LPCC. He noted that his answers had been given to the LPCC in circumstances where the LPCC had in its possession various documents provided by Mr Staffa so as to provide context, and only reluctantly acknowledged that his answers to the LPCC when read in isolation did not convey to the reasonable reader that Mr Staffa had given advice to W to transfer funds;

(g) despite his reluctant acknowledgement that his answers to the LPCC when read in isolation did not convey to the reasonable reader that he had given advice to W to transfer funds, Mr Staffa maintained in the course of his evidence that he believed he had answered the question put to him, denied that his answer was misleading, did not accept that he had answered the question in a way that failed to be open and candid, and maintained that he had ‘provided a full and accurate account’; and

(h) Mr Staffa sought to justify his response of ‘no comment’ to the LPCC on the basis that ‘the letter should speak for itself’.

[135]  The inconsistencies in Mr Staffa’s account over time, and his explanation of the same, revealed a lack of candour deliberately deployed.

[136]  Mr Staffa approached the LPCC’s application to this court by seeking to compare his conduct with those of others, seeking to establish that his conduct was less serious or problematic. While he was entitled to defend the LPCC’s application, his approach to the application was not one which demonstrated insight into the findings that have been made.

[137]  The court weighed in the balance Mr Staffa’s personal circumstances being, most notably, his age; his previous good standing in the profession; his favourable personal antecedents; that he had already been suspended from practice for four years; and that while he had not proffered an undertaking not to practice, he had previously expressed an intention to retire from practice on 30 June 2021.

[138]  It was Mr Staffa’s position that in all of the circumstances, there would be no rational or public purpose or benefit in belatedly removing his name from the Supreme Court roll.

[139]  In considering the appropriate penalty, we also took into account the delay in the making of the application. However, given the critical question, we considered Mr Staffa’s personal circumstances in the end to be of limited significance.

[140]  We too found that Mr Staffa’s conduct in relation to ground 4, which goes to his character, means that those who would deal with him in the law cannot be assured that he will act with integrity at all times. This is not the kind of concern that can be remedied during a period of suspension. It is a very serious matter to mislead the delegate of the regulator of legal services in Western Australia. In this case, the circumstances were more egregious as no real remorse or insight was demonstrated. Mr Staffa’s conduct was, in our view, inconsistent with fitness to practice.

[141]  Unfortunately for Mr Staffa, his was another case of the cover-up being worse than the crime. Having regard to the factual background outlined in these reasons, we were satisfied that the order sought by the LPCC should be made. That is, we were satisfied that the LPCC had demonstrated that Mr Staffa is not a fit and proper person to remain a legal practitioner. The aim of protecting the public (which must have faith in the authority of the LPCC) and the objective of enhancing the reputation of the legal profession, would be seriously undermined by permitting the practitioner to continue to act as such.

…

[148]  For these reasons, orders will be made in the following terms:

1. The name of the respondent, Kevin Colin Benedict Staffa, be removed from the roll of practitioners of this Honourable Court pursuant to s 23(1) of the Legal Profession Uniform Law (WA).

2. The respondent pay the Legal Services and Complaints Committee’s costs of the proceeding to be taxed if not agreed.

(emphasis added)

A link to the case may be found here.