D. v Solicitors, for defendants, Hedderwick, Fookes & Alston. Varawa,

D. v Solicitors, for defendants, Hedderwick, Fookes & Alston. Varawa, - [1910] HCA 31 - HCA 1910 case summary — Zoe

[23]

will, but interested in depriving the respondent of any benefit, the fact that he took any benefit under the will, and that, by the concealment of that and other material facts, he induced those clients to employ him as their solicitor and to become parties toa probate action, to support the will and to agree to a compromise by which an investigation of the facts upon which his right depended was prevented. The charge was a very grave one and, if proved, I think there can be no doubt that the order asked for by the Society should be made. The case of In re Weare; Inve The Solicitors Act 1888 (1) states very concisely the principles to be applied in such acase. Lopes LJ. (2) said: - *'To my mind the question which the Court in cases like this ought always to put to itself is this, is the Court, having regard to the circumstances brought before it, any longer justified in holding out the solicitor in question as a fit and proper person to be entrusted with the important duties and grave responsibilities which belong to a solicitor?" Mr. Hwing contended that the matter in the present case was merely one of punishment and the proper degree of punishment. But that is not so, as was clearly pointed out by Lord Hsher M.R. in the same case. The Supreme Court of Tasmania thought that the question was one merely of the degree of punishment to be awarded. The ground of appeal is that the question is not one of punishment or degree of punishment, but whether the Court is justified in holding out the respondent as a fit and proper person to be entrusted with the duties and responsibilities of a solicitor. Lord Hsher (3) referred to the case of Re Brownsall (4), a case in which, a solicitor having been convicted of larceny and sentenced to be branded in the hand and imprisoned for nine months, appli- cation was then made to strike him off the roll. Speaking of that case, he said (3): - "Then Lord Mansfield says: 'We have consulted all the Judges upon this case, and they are unanimously of opinion that the defendant's having been burnt in the hand is no objection to his being struck off the roll.' That would only go to the point whether because he had been punished he could not be struck off; but he goes on to say: 'And it is on

[28]

life, and after her death the corpus of that share was to go to William Batt, the gift of the corpus immediately following the gift of the income, As to another share she gave the income to be divided equally between her nephews William and Thomas Irwin for life, and after their deaths to their issue. Then followed a long direction to the trustees out of the income of her estate to keep all buildings, &., in repair, and to carry out all that was neces- sary to make the premises tenantable as they might think neces- , and to "complete and finish all new houses that may at the time of my decease have been commenced and for that purpose to pay out of the capital moneys in my estate such sums of money as may be necessary," and so on. Then followed at the end this clause : - ' And I appoint Roland Theodore Westbrook of Hobart in Tasmania solicitor and his heir residuary legatee hereunder to receive and take for his own absolute use and bene- fit all the corpus of my real and personal estate which may be or may become undevised or bequeathed hereunder for his kindness and attention to me in my matters." So that in effect the respondent became residuary legatee of six-tenths of the estate. Under these cireumstances it was clear that under the second rule laid down in Barry v. Butlin (1), there would have been some difficulty in establishing to the satisfaction of a Court that that gift of residue to the respondent could be maintained. The rule is that "if a party writes or prepares a will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satistied that the paper propounded does express the true will of the deceased." That may, of course, be in whole or in part. It is possible to grant probate omitting the part of the will which is not established. Some doubts appear to have occurred to the respondent whether the benefit conferred by this will was sufficiently secured to him, for on 8th October 1906 the testatrix executed a conveyance by way of settlement, which was declared to be irrevocable, of all her real

[90]

lastly, in concealing in the letter of 15th February Batt's interest = __ in the one-tenth of the corpus, and Westbrook's interest in the Sovrnery ae Law Socrmay "The Court does not place weight upon the other circumstances W2St#R00K.- to which I have alluded, and does not think the Court was misled. Isaacs J. But plainly the Court was misled by having concealed from it the mode by which the respondent had secured and held the instructions of his client to appear - a most material circumstance in inducing the Court to consent to the withdrawal of the pleas ; and the Court may have been misled by the consequent breaking off of the proceedings, to which counsel for the English bene- ficiaries agreed - of course, in utter ignorance of the way his clients had been induced to assume their attitude of support. It is, in short, impossible to say now how far justice has been foiled, with the result - intended or not - of placing rights worth thou- sands of pounds in full possession of Westbrook, Eckford and Batt. In face of all this can it be reasonably said that a reprimand is sufficient to meet the case ? It has been argued that it isa mere question of punishment, and the Supreme Court of Tasmania has exercised its diseretion as to that. We rejected that argument in Incorporated Law Institute of New South Wales v. Meagher (1), and reject it now. No doubt the severity of the Court, in repressing the misconduct of its officers, is felt as punishment. But that is not the aim of the discipline. I have in Meagher's Case (1) dealt so fully with what I believe to be the legal principles derivable from the authorities appropriate to this class of case that I refrain from entering upon them now. I content myself with repeating a few words I there said (2): - "There is therefore a serious responsibility on the Court - a duty to itself, to the rest of the profession, to its suitors, -and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfac- torily establish his right to that credential. It is not a question of what he has suffered in the past, it is a question of his worthiness and reliability for the future."

At a glance

Court

Decision date

Before

Source

Judgment (104 paragraphs)

Parties

Cited By (6)