ACT Civil and Administrative Tribunal|2011-04-08

COUNCIL OF THE LAW SOCIETY OF THE A.C.T v THE LEGAL PRACTITIONER (Duncan Phillips) (Occupational Discipline) [2011] ACAT 29 (8 April 2011)

COUNCIL OF THE LAW SOCIETY IN THE A.C.T & THE LEGAL PRACTITIONER (Duncan Phillips) (Occupational Discipline) [2011] ACAT 29

Catchwords: OCCUPATIONAL DISCIPLINE - LEGAL PRACTITIONERS - professional misconduct - unsatisfactory professional conduct - proceeding when the legal practitioner respondent chooses not to appear - section 44, ACT Civil and Administrative Tribunal Act 2008 - is the legal practitioner a fit and proper person? - failure of the legal practitioner to participate in proceedings and to give explanation for his absence indicate his indifference to the tribunal - why suspension of practising certificate is not appropriate penalty? - recommendation to the Supreme Court for the removal of the legal practitioner from the roll of practitioners.

List of legislation: Legal Profession Act 2006 (ACT) ss 425, 427 and 433.

ACT Civil and Administrative Tribunal Act 2008 (ACT), s 4.

List of cases: In the matter of DP and the Legal Practitioners Act 1970 [2005] ACTSC 78 (SC No. 177 of 2005, Supreme Court of the ACT)

DP and The Law Society of the ACT [2004] ACTSC 130 (SCA No. 36 of 2004 , ACT Supreme Court)

Law Society of New South Wales v. Bannister (unreported, Court of Appeal, 27August, 1993)

Law Society of New South Wales and Walsh (unreported, Court of Appeal 15 December 1997)

Legal Practitioners Complaints Committee v. Eley

[2007] WASC 148 _(_Supreme Court of Western Australia - Full Bench BC 2007 05370)

Legal Services Commission V. Veneris [2002] NSW ADT 135

The Council of the Law Society in the ACT v The Legal Practitioner 'P' (no 1) (Occupational Discipline) [2009] ACAT 4

The Council of the Law Society in the ACT and the Legal Practitioner 'P' [2010] ACAT 47

List of texts: Butterworth, Riley's Solicitors Manual

that the Practitioner pay a fine to the Law Society of the A.C.T. in the amount of $7,500.00;

that the Practitioner pay the costs of the Society on a solicitor and own client basis.

The Tribunal recommends that the name of the Practitioner be removed from the roll of legal practitioners of the Supreme Court of the A.C.T.

On the 15 September 2010 I issued reasons for decision in this matter, and in the matter LP5 of 2009 involving the same legal practitioner ("Practitioner"). Both applications had been brought by the applicant Society (that is, the Council of the Law Society of the A.C.T). I found that the Practitioner's conduct in this matter constituted professional misconduct arising from certain of the allegations in the notice of complaint, and unsatisfactory professional conduct arising from others. It is not necessary to again recite the factual findings in these reasons for decision on penalty. The matter was adjourned after 15 September 2010 to be relisted for argument on the question of penalties and costs.[1]
The matter was relisted for hearing on 4 November 2010. At the same time, there was a hearing in relation to penalties and costs in the matter LP 5 of 2009, involving the same Practitioner, in which I had found that the Practitioner was guilty of unsatisfactory professional conduct.
The Tribunal's file indicates that a letter advising of the date and time of the hearing was sent by facsimile to the Practitioner on 15 October 2010. An e-mail was sent to the practitioner by the Tribunal registry on 1 November 2010 reminding him of the date and time of the hearing.
When the hearing commenced on 4 November 2010, there was no appearance by the Practitioner. I stood the matter down for a short period. A telephone call was made to the Practitioner's office. He answered the phone. When reminded of the hearing, he said that he had only been notified of the previous day and was not intending to be present. I told the Practitioner that I was satisfied that he had received appropriate notice and that I proposed that the hearing would continue. The Practitioner did not ask for the hearing to be adjourned so that he could attend. The Practitioner did not claim, and there was no evidence on the Tribunal's file to indicate, that the Practitioner had protested about short notice on receiving what he said was the advice on the hearing date.
Section 44 of the ACT Civil and Administrative Tribunal Act ("ACAT Act") sets out the powers of the Tribunal if at the time set for a hearing of an application, a party fails to appear either personally or by representative. As there was no application by the Practitioner to adjourn the hearing and he had received appropriate notice I proceeded in accordance with section 44 (2) (d). The obligation of the Tribunal to determine matters cannot be thwarted by the Practitioner choosing not to appear at a hearing.
Mr Buxton appeared for the Society. He said that the Practitioner had recently been the subject of other proceedings by the Society in the Tribunal, in matters LP 8 of 2007 and LP 2 of 2008 (heard jointly). A decision on penalty adverse to the Practitioner had been given on 9 August 2010 in those matters. That decision was subject to appeal within the Tribunal by the Practitioner. It was likely to be heard in early 2011. A decision on penalties in matters LP 4 and

LP 5 of 2009 should await the outcome of the appeal. If the appeal was successful, then the decision in LP8 of 2007 and LP2 of 2008 should not be held against the Practitioner. If the appeal was unsuccessful, then the matters the subject of the appeal were relevant in considering the appropriate penalty. 7. The appeal was heard in the Appeals Division of the Tribunal (case number AA33 of 2010). On 24 February 2011 the appeal was dismissed. The adverse findings against the Practitioner in those matters are part of his professional history which is relevant in determining the appropriate penalty in these matters. 8. Submissions were made by Mr Buxton on behalf of the Society. He submitted that the conduct was serious and warranted a substantial fine as well as a further reprimand. In addition to a penalty for this professional misconduct and unsatisfactory professional conduct, the conduct of the Practitioner in again ignoring the statutory obligations of the Society to make enquiries about complaints and his failure to appear or offer any explanation for his conduct meant that it was appropriate that the standing of the practitioner should be reviewed by the Supreme Court of the A.C.T. Mr Buxton submitted that the history of the Practitioner indicated that he was no longer a fit and the proper person to remain on the roll of legal practitioners. He submitted that I should exercise the power under section 425 of the Legal Profession Act ("LP Act") and recommend to the Court that the name of the Practitioner be removed from the roll. 9. There were no submissions by or on behalf of the Practitioner. 10. The principles that a legal supervisory body should have regard to in determining an appropriate penalty in cases of professional misconduct and unsatisfactory professional conduct are well known. They are appropriately set out in the decision of the New South Wales Court of Appeal in the case of Law Society of New South Wales v. Bannister [2] as follows:

"The supervisory jurisdiction of the Court and statutory bodies such as the Tribunal is directed in part to ensuring that the requirement enshrined in the charter of justice of persons admitted to practice as solicitors be fit and proper persons or, in the language of section 16 of the Legal Profession Act 1987, if fame and character is maintained. It follows that if a solicitor is shown not to be a fit and proper person, he or she should be removed from the Roll. The order for removal is not punitive but protective."

In Law Society of New South Wales and Walsh (unreported) Court of Appeal

15 December 1997, Powell JA with whom Beazley JA and Clarke AJA agreed formulated the approach that should be adopted by the Tribunal in this way

"The ultimate question for the Tribunal was and the ultimate question for this Court is to determine whether the conduct of the (respondent) renders him a person not of good fame and character, or a person who is unfit to remain upon the Roll of Legal Practitioners; and that, in determining that question, it was open to the Tribunal, as it is open to this Court, to have regard to the whole of the evidence as to the Respondent's conduct revealed by the evidence and not merely that part of the evidence which might be directly related to the complaints as formulated and as particularised."

The principal was expressed in similar terms in the case of Legal Practitioners Complaints Committee v. Eley.[3]

There is an obligation on all legal practitioners to be frank and assist in enquiry into their conduct by a body empowered to do so by the LP Act. This arises from the obligation of a practitioner as an officer of the court. The obligation is set out in Riley's Solicitors Manual as follows:

"[35,045.1] The importance of being frank with the professional body

The case law emphasises the importance of being entirely frank with communications with the Law Society or the Legal Services Commissioner, and that corresponding so as to mislead that body may be misconduct. This issue has arisen most commonly in the course of investigations into the lawyer's conduct after lodgement of a complaint. The Legal Profession Act 2004 (NSW) makes non-compliance with the request of an investigator subject to a penalty

(s 660(3)) and deems it professional misconduct: s 671.

[35,045.5] Duty arising out of duty as an officer of the court

The duty to respond to inquiries from the Law Society or the Legal Services Commissioner, and to do so promptly and candidly, has been justified in the case law by reference to the lawyer's duty as an officer of the court (as to which see [20,010]); the Society and the Commissioner are, in this sense, seen as persons statutorily appointed to perform an aspect of the court's disciplinary ("protective") function. As noted by the New South Wales Court of Appeal in New South Wales Bar Association v Thomas, in respect of an allegation that a had not been candid in replying to the Bar Association's enquiry regarding complaints made about him:

That duty of honesty and frankness extends to the investigative steps immediately anterior to the consideration of a case by the Court or by a tribunal appointed for that purpose."

Section 425 of the LP Act sets out the orders that the Tribunal may make if it is satisfied that an Australian legal practitioner is guilty of unsatisfactory professional conduct or professional misconduct. The relevant legislation is sub-sections (3) to (5) and provides:

(3) The ACAT may make the following orders in relation to the Australian legal practitioner:

(a) an order recommending that the name of the practitioner be removed from the local roll;

(b) an order that the practitioner's local practising certificate be suspended for a stated period or cancelled;

(c) an order that a local practising certificate not be granted to the practitioner before the end of a stated period;

_(d) an order that - _

(i) stated conditions be imposed on the practitioner's practising certificate granted or to be granted under this Act; and

(ii) the conditions be imposed for a stated period; and

(iii) states the time (if any) after which the practitioner may apply to the ACAT for the conditions to be amended or removed;

(e) an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner.

(4) The ACAT may make the following orders in relation to the Australian legal practitioner:

(a) an order recommending that the name of the practitioner be removed

(b) an order recommending that the practitioner's interstate practising

certificate be suspended for a stated period or cancelled;

(c) an order recommending that an interstate practising certificate not be

granted to the practitioner before the end of a stated period;

_(d) an order recommending - _

(i) that stated conditions be imposed on the practitioner's interstate practising certificate; and

(ii) that the conditions be imposed for a stated period; and

(iii) a stated time (if any) after which the practitioner may apply to the ACAT for the conditions to be amended or removed.

(5) The ACAT may make the following orders in relation to the Australian legal practitioner:

(a) an order that the practitioner pay a fine of a stated amount of not more

(b) an order that the practitioner undertake and complete a stated course

(c) an order that the practitioner undertake a stated period of practice

(d) an order that the practitioner do or not do something in relation to the

(e) an order that the practitioner cease to accept instructions as a public

(f) an order that the practitioner's practice be managed for a stated

period in a stated way or subject to stated conditions;

(g) an order that the practitioner's practice be subject to periodic

inspection by a stated person for a stated period;

(h) an order that the practitioner seek advice in relation to the

management of the practitioner's practice from a stated person;

(i) an order that the practitioner not apply for a local practising

As the Respondent is a person who has been admitted as a practitioner by the Supreme Court of the A.C.T. it is open to this Tribunal to recommend that he be removed from the roll of that Court.
Section 427 of the LPA specifies the maximum amount that the Tribunal can impose by way of a fine under s 425 (5)(a_)._ In so far as it is relevant, it provides:-
1. Fines - Australian legal practitioners

_(1) The maximum amount that can be imposed by way of fine under section 425 (5) (a) is - _

(a) for a finding of unsatisfactory professional conduct that

does not amount to professional misconduct - $10 000; and

(b) for a finding of professional misconduct - $75 000; and

unsatisfactory professional conduct not amounting to professional misconduct - $75 000.

(2) A fine is payable to the relevant council in the way and within

the reasonable period required by the relevant council.

It should be noted that under section 425 (1) (a) the Tribunal may make "one or more" of the orders mentioned in subsections (3) to (5).

The Practitioner has had a number of incidents and cases in which his professional conduct has been examined by this Tribunal and its predecessors in the area of legal discipline, and also by the Supreme Court.
In the case of DP and The Law Society of the ACT [4], the allegation made by the Society was that the Practitioner had failed to comply with the rule requiring him to provide information about his conduct. The Society had sent him a letter which gave him the "opportunity" to respond to certain allegations about his conduct, rather than requiring (my emphasis) him to do so. The Practitioner met with the Society's solicitor and discussed the allegations but failed to respond to the letter. The Full Court of the Supreme Court decided that this failure could not constitute a breach of the rule, because an "opportunity" to respond meant that he was free to either take advantage of the opportunity, or decline to do so.
The Full Court noted in paragraph 19 of the decision (in response to a claim by the respondent that the Society was biased against him, and that he was wanting the issue to be determined by an independent committee and would not respond to the complaint unless the Society agreed to this), as follows:

"Having regard to the nature of the appeal, it was unnecessary for us to consider whether the appellant had any basis for his apparent belief that the respondent (Society) had been biased against him. No feeling of grievance, however heartfelt, entitles a solicitor to refuse to comply with a requirement properly made by the respondent pursuant to rule 41.2 or impose conditions for such compliance or to otherwise deal with the respondent in a matter that is not frank and open."

In paragraph 23 of the decision, the Full Court noted:

"It may be hoped that the events we have described bring home to the appellant the need to deal with the respondent on a more temperate and cooperative basis. However, we have no doubt that the allegations in the complaint had not been substantiated and that the findings of the Board could not be sustained."

In the matter of DP and the Legal Practitioners Act 1970[5], in the Full Court of the Supreme Court of the A.C.T., Higgins CJ, with whom the other judges agreed, noted as follows in paragraphs 3 and 4:

" the second (acknowledged act of unsatisfactory professional conduct) is his refusal to comply with the Law Society direction (as it became) to respond to a complaint. The Law Society must, and indeed should, if it finds a complaint have apparent substance, seek an explanation from the solicitor concerned. And if the Law Society lacks the power to do that then the system will not work satisfactorily for the protection of clients generally. So it must be emphasised that the Society has that power, is entitled to exercise it, and the exercise of that power is further entitled to respect and compliance with it by members of the legal profession to whom it is directed. [emphasis in bold added]

I would also say that, in respect of these proceedings, there are certainly no objective indications that I can discern that the Law Society was motivated by any malice towards the applicant or any ill will or other bias towards him. I acknowledge that the applicant may have a different view, but in my opinion that view is not one which is objectively based or justified."

The Practitioner's conduct was the subject of consideration in this Tribunal in matters LP 8 of 2007 and LP 2 of 2008[6]. These matters were commenced prior to the establishment of this Tribunal, but subsequently came within its jurisdiction. The decision of the Tribunal on the complaints of a failure to respond to the Society about complaints that had been made by clients sets out the history of the matter and of the practitioner's unexplained failure to respond to the Society, other than unjustified allegations of bias of the Tribunal General President and unfitness in the Society and its legal representative.
The decision of the Tribunal to impose a fine of $5000, to publicly reprimand the Practitioner and award costs against him was upheld on appeal.
As noted in the reasons for decision in this matter, the Practitioner failed to participate in these proceedings or giving any explanation, much less apology, for the serious breaches of professional standards that are set out in the reasons for decision. These breaches of themselves warrant a substantial fine and a further public reprimand.
The Practitioner has persisted in his attitude of hostility to the Society in its statutory role and obligation of protecting the public by investigating complaints and enforcing proper standards of conduct. The previous comments of the judges of the Supreme Court about the practitioner's attitude to the Society and his obligations as a legal practitioner have been ignored.
It is not for that the Tribunal to get over-concerned about its own dignity, but the failure of the Practitioner to attend at the hearing into his conduct or to put any material by way of explanation indicates that he regards the Tribunal and its statutory obligations under the LP Act with the indifference if not contempt. The Practitioner appears to be equally indifferent to the public reprimand imposed on him previously.
The conduct of the Practitioner in dealing with this case, and his representations to the Family Court and to his client warrant a substantial fine being imposed. Having regard to the seriousness of the findings I order that the Practitioner be further publicly reprimanded and that he pay a fine to the Society for the benefit of the statutory interest account of $7,500.00.
It is not open to a Practitioner to unilaterally decide that the regulatory framework, imposed for the public benefit and preservation of proper professional standards, is not to apply to him. Whether his deep-seated hostility to the Society ever had any justification (and no credible reasons have been advanced) the Practitioner is still required to comply with his obligations under the law. If the Society has not acted properly in relation to the Practitioner then its conduct could be reviewed by this Tribunal and, on appeal, by the Supreme Court.
In this case, the Practitioner's past litany of breaches, persistent failure to give any explanation for his conduct that was complained of and his attitude to his statutory obligations must lead in my view to the conclusion that the Practitioner is not a fit and proper person to remain on the roll of practitioners. There is nothing to indicate that, even after these breaches and the Tribunal's findings, the Practitioner understands his failures and wishes to practice in accordance with the law. Suspension of his practising certificate is not appropriate where there is no indication that behaviour will change.
In relation to the other orders in this matter, I also make an order recommending that the name of the Practitioner be removed from the local roll of practitioners.
I also order that pursuant to section 433 of the LP Act that the Practitioner pay the costs of the Society. No exceptional circumstances for avoiding a costs order have been advanced, or appear to the Tribunal. The costs of these proceedings instituted by the Society are paid from the statutory interest account, a fund otherwise available for useful community purposes. I see no reason why those purposes should be diminished by a costs order that does not provide for full recovery of the Society's costs from the Practitioner. I order that costs be assessed on a solicitor and own client basis.

APPLICANT: THE COUNCIL FO THE LAW SOCIETY OF THE A.C.T.

DATE/S OF HEARING: 21.09.09; 23.11.09 PLACE: CANBERRA

DATE OF DECISION: 08 April 2011 PLACE: CANBERRA

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

[1] This decision was previously anonymised and cited as Council of the Law Society of the A.C.T v The Legal Practitioner [2011] ACAT 29 pursuant to section 423A of the Legal Profession Act 2006. As the appeal period has ended, the practitioner has now been identified in the citation of this decision. The reasons for decision otherwise remain unchanged from the date of publication.

[2] Law Society of New South Wales v. Bannister (unreported, Court of Appeal, 27 August,

Sheller JA with whom Gleeson CJ and Handley JA, quoted in paragraph [44] of

the decision in Legal Services Commission V. Veneris [2002] NSW ADT 135.

[3] [2007] WASC 148 (Supreme Court of Western Australia - Full Bench BC 2007 05370, per Steytler P, Wheeler JA and EM Heenan AJA)..

[4] [2004] ACTSC 130 (SCA No. 36 of 2004, ACT Supreme Court, per Crispin, Gray and

[5] [2005] ACTSC 78. SC No. 177 of 2005, Supreme Court of the ACT, per Higgins CJ, Gray and Ryan JJ

[6] The Council of the Law Society in the ACT v The Legal Practitioner 'P' (no 1)

(Occupational Discipline) [2009] ACAT 4 (S1) sets out the facts and findings on the

complaint and The Council of the Law Society in the ACT and the Legal Practitioner 'P'

[2010] ACAT 47 (S2) sets out the findings and orders on penalties - both matters per

Ms Crebbin, General President, Mr Watch and Mr A.Van Arkel, Members.

Civil and Administrative Tribunal Act 2008

Legal Practitioners Act 1970

COUNCIL OF THE LAW SOCIETY OF THE A.C.T v THE LEGAL PRACTITIONER

At a glance

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Decision date

Source

Judgment (88 paragraphs)

COUNCIL OF THE LAW SOCIETY OF THE A.C.T v THE LEGAL PRACTITIONER (Duncan Phillips) (Occupational Discipline) [2011] ACAT 29 (8 April 2011)

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Legislation Cited (5)