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WA lawyer hit with professional misconduct finding for mishandling appeal
A West Australian lawyer who strung a client along for two years and lied to a court to cover up his failures has been found guilty on nine grounds of professional misconduct.
Naomi Neilson
The Western Australia State Administrative Tribunal (WASAT) found Phillip Kelly guilty of one count of unsatisfactory professional conduct and nine counts of professional misconduct for behaviour that affected a client’s appeal between April 2017 and April 2019.
Deputy president Judge Henry Jackson, senior member Dr Michelle Evans-Bonner, and member Ross Povey noted the first offence occurred because of Kelly’s failure to commence an appeal on behalf of his client within the time frame. It then snowballed from there.
The client’s evidence was that he met with Kelly on 12 April 2017, four days before the deadline for the first of two appeal notices, and had been informed of the “urgency of the matter”. However, the appeal notices were not filed until 28 February 2018.
Kelly said the delay “was not as egregious as might first be thought” because he was not instructed until September. However, the tribunal found the evidence to the contrary was “considerable”.
The client claimed he called Kelly’s firm every two weeks or so but was told Kelly was either unavailable or in court. The client also said he left messages for a return phone call but never received any.
To the extent Kelly may have been unclear as to when he was briefed, Judge Jackson, Evans-Bonner, and Povey said the client’s phone calls “put him on notice that he may have been wrong in that regard”.
“Put another way, Kelly cannot take advantage of his own delay in providing the relevant paperwork to the client in September 2017 so as to suggest that there was no relevant relationship until that time,” the members determined in their written reasons.
In an attempt to extend the deadline, Kelly then filed affidavits that contained false representations, including that the client had decided to appeal “months” after his convictions, the client did not realise the adverse impact on his employment until September 2017, and there was an undue delay in obtaining transcripts from the court.
Considering the length of time that had passed between the April 2017 meeting and the filing of the affidavits, Judge Jackson, Evans-Bonner, and Povey accepted Kelly may not have known the first two statements were false when he included them.
However, they were satisfied Kelly knew the third to be false.
“There is no doubt that the making of deliberately false representations to a court, including by preparing a deliberately false affidavit to be sworn by another person, is a matter of considerable gravity,” Judge Jackson, Evans-Bonner, and Povey said.
The hearing was scheduled for 19 March 2019, but Kelly failed to show up and did not respond to the numerous phone calls and emails – made by both the court and his firm – until 22 March, the morning of the adjourned hearing, to say he would not be able to attend.
In a September 2021 letter to the LSCC, Kelly attempted to pin this misconduct on the administration staff at his firm.
“In our view, Kelly’s attempt to shift the blame fails to understand, or engage with, the substance of the complaint, which was that the court was trying to communicate with Kelly in his personal capacity because he had failed to attend the hearing,” WASAT said.
“It was for him and him alone to acknowledge the failure, explain and apologise for it. In any event, to the extent [the firm] was involved, they passed on messages from the court directly to Kelly.”
On 21 March 2019, the client emailed Kelly with a complaint that he had paid $6,000 for his legal services but had not heard from Kelly for two years. He demanded his money back and the appeal to be dismissed.
The next day, the client emailed Kelly again and alluded to an early morning phone message in which Kelly claimed the appeal had been listed for that day. It was around this time that Kelly contacted the court to inform the judge he would not be attending.
Despite the client’s demands for updates, Kelly did not inform him the appeal had been relisted until two days later.
The appeal went ahead on 2 April 2019 and was dismissed. Kelly resigned from the firm three days later.
It was not until 8 April 2019, almost two years to the day that he met with Kelly, that the client was told of the outcome.
A further hearing will be set down for penalty and costs.
The case is Legal Services and Complaints Committee and Kelly [2024] WASAT 125 (22 November 2024).
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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