Disappointed with the outcome of its disciplinary application, the Legal Practice Board of Western Australia turned to the Supreme Court seeking stronger findings against a solicitor who misled Legal Aid.
The Legal Practice Board of Western Australia (LPBWA) was unsuccessful in getting leave to appeal against an April 2025 decision of the State Administrative Tribunal on the conduct of Kevin Daniel Barry.
In that decision, Barry was found to have made 17 representations to Legal Aid WA (LAWA) that were either “deliberately false or misleading” or made in circumstances where he was “recklessly indifferent to the truth”.
The LPBWA also alleged Barry made false misrepresentations in a statutory declaration, but the tribunal said it was not deliberate and noted he was sleep-deprived due to having recently had a baby.
The proceedings progressed to penalty, in which Barry was suspended from practice for four years and ordered to pay $35,000 in costs.
Around this time, the board applied for leave to appeal.
The LPBWA alleged it was not open on the evidence for the tribunal to find the misrepresentations were careless rather than made knowingly or recklessly, and the tribunal’s decision was “illogical or irrational” because the carelessness finding was inconsistent with earlier findings.
“Essentially, the gravamen of the board’s argument on each ground is that it must be presumed that a person will always consciously appreciate and never forget their fraudulent conduct,” WA Court of Appeal president Joshua Thomson and Justices John Vaughan and Gail Archer said.
Further, the board claimed it was “impossible for the respondent to have made the statements in the first statutory declaration, once he directed his attention to the topic of his billing practices for LAWA”.
President Thomson and Justices Vaughan and Archer said that while the grounds in form raised questions of law, they were “without merit”.
“They do not involve any contestable questions of law given that there is some evidence that would support the decision of the tribunal.
“We do not consider that it was inevitable that the respondent must have known or must have been reckless as to the truth of the statements in the first statutory declaration,” the bench said.
LPBWA also alleged an alternative finding of carelessness amounting to unsatisfactory professional conduct should have been made, but the court said this was not a case that was run before the tribunal.
The bench also considered the conduct of the LPBWA in proceeding to have the penalty hearing without seeking an expedited appeal, “means that the matter has been disposed of finally by the tribunal”.
“It would be contrary to the public interest in the proper administration of justice, and not in the interests of justice, for the appeal to proceed.
“It would mean that the respondent continues to face the prospect of a further penalty, when the court board could and should have taken steps to ensure that all matters were dealt with together,” the bench said.
The case: Legal Practice Board v Barry [2026] WASCA 12.
