Frugtniet v Board of Examiners [2002] VSC 140

Supreme Court of Victoria|2002-05-01|Before: PAGONE, J

This is an appeal, conducted as a hearing de novo, under Section 342 of the Legal Practice Act 1996 from a decision of the Board of Examiners declining to find the applicant to be a fit and proper person for admission to legal practice. The only issue before me in the appeal is whether I should find the applicant to be a fit and proper person for admission on the materials before me.

Admission to practice in Victoria is governed by the Legal Practice Act 1996 and the Legal Practice (Admission) Rules 1999 made pursuant to section 337 of the Act. It is a requirement of admission to practice that the applicant is a fit and proper person for admission to legal practice. It is for applicant to satisfy the Board of Examiners , or subsequently the court upon an appeal, that he or she is a fit and proper person. For an applicant to establish fitness for admission to practice, it is necessary for disclosure of all matters which bear upon the applicant's fitness for admission to practice. The Rules provide in schedule 8 a pro-forma affidavit for an applicant to adopt and complete which includes a paragraph in which the applicant asserts having "made full disclosure" of "every matter which is relevant to consideration of my fitness" for admission to practice including "but not being confined to any formal charges of criminal offences". The words chosen in the schedule emphasising both the depth of the information needed to be produced and the breadth of subject matter to be covered. The duty to disclose is not limited to criminal charges or convictions. The duty extends to a disclosure of all else which may bear upon the Board's, or the Court's, assessment of an applicant's satisfaction of the requirement to be a fit and proper person.

The course of disclosure by the applicant to the Board of Examiners is important in this proceeding. In this case the applicant disclosed to the Board of Examiners in a letter dated 20th August 2001 that he had been fined $1000 without conviction by the Broadmeadows Magistrates' Court on 24th November 1997 of having obtained property by deception. The charge related to the selling of "blacklisted" airline tickets through a travel agency conducted by his wife. He subsequently swore an affidavit on 28th August 2001 in support of his application which was considered by the Board of Examiners. In that affidavit he deposed to the matter of the fine and gave some details about it. On 17th September 2001 the Board deferred consideration of his application because it was not satisfied that the applicant had given sufficient information about the charges he had disclosed. At that stage, it seems, the Board did not know of any other matters that might need to be disclosed by the applicant. At that stage, however (if not before), the applicant was on notice that the Board required full information about whatever bore upon the question of his fitness for admission to legal practice.

The applicant then filed with the Board a supplementary affidavit sworn 9 October 2001 in which he provided further details of the charges. The Board's hearing took place on 22 October 2001 and it determined that the applicant had failed to establish that he was a fit and proper person for admission to practice. It seems to have been of the view that he had not made full and frank disclosure of all the circumstances relevant to the then known offence for which he had been fined without conviction.

The Board of Examiners seems never to have been told by the applicant of three charges which had been laid against the applicant in the early 1990s for perjury ("the perjury charges"), that in 1978 he had been convicted in the United Kingdom when a young man ("the UK Convictions"), or that he had been charged in 1998 with six counts of theft and three counts of attempted theft as an employee of the ANZ Bank ("the ANZ charges"). The perjury charges arose from evidence that he had given in 1992 to the Travel Agent's Licensing Authority ("the Authority") when he emphatically denied ever having been convicted of a criminal offence; that is, under oath he denied the fact that on 4 January 1978 he had been convicted in the Leeds Crown Court in the United Kingdom on several counts of handling stolen goods, forgery, obtaining property by deception and theft; convictions for which he was sentenced to imprisonment. The perjury charges were heard in the County Court where he was acquitted. His successful defence to the perjury charges was that he held an honest and reasonable belief at the time that he had given the evidence to the Authority that he did not have to disclose the UK convictions because of his understanding of the operation of the laws of the United Kingdom relating to "spent" convictions. The ANZ charges were unrelated to the perjury charges and involved events at a time when he was an employee of the Bank. He was successfully acquitted of those charges as well.

The Admission Rules made pursuant to the Legal Practice Act 1996 contain, in schedule 8, a pro-forma affidavit for adoption and completion by an applicant. That form specifically mentions need for disclosure of "formal charges of criminal offences" against an applicant for admission, and not only convictions. The distinction between charges and convictions was known to the applicant at the time that he completed his affidavits in support of his admission. The applicant gave evidence before me that he had not mentioned the perjury charges or the ANZ charges because he believed that he was required only to disclose those charges which were still pending at the time of making the application for admission. He gave evidence that he had not seen a copy of schedule 8 at the time of completing his application documents, but he did produce in evidence a set of the pro-forma documents which he had available to him, and which he had used and relied upon, when completing his forms in support of his application. They also expressly contemplated disclosure of charges and not only convictions. In my view both the terms of schedule 8 and the terms of the pro-forma documents which he did use and rely upon, make it clear that what was sought by way of disclosure from him was, at least, details of all charges including those resulting in acquittal. In fact it is clear from those documents that what is sought is a much wider disclosure, namely a disclosure "of every matter" that was relevant to a consideration of the applicant's fitness for admission to legal practice: this extends well beyond charges or convictions. The applicant ultimately appeared to concede as much in the witness box. Junior counsel for the Board of Examiners, who cross examined the applicant, did not put to him that the explanation given by him for not including the charges was untruthful and I should not disbelieve the evidence he gave. However, the facts surrounding the perjury charges and those surrounding the ANZ charges were not sufficiently explained by the applicant for me to be satisfied that he has discharged the burden upon him to show that he is a fit and proper person to be admitted to practice.

The same may be said with greater force about the UK convictions. They were convictions and not just charges and, therefore, on any view fell within the applicant's stated understanding of what he was to disclose. They were not disclosed, however, because of the applicant's views that they were "spent" convictions which United Kingdom law regarded as never having occurred. That belief had been the successful basis of his defence in the proceedings before Judge Jones in 1998. The applicant tendered part of the learned Judge's ruling which dealt with this point. That ruling, significantly, contains a sentence to the clear effect that there was no comparable legislation in Victoria at the time. The successful defence to the perjury charges had been that at the time he had given the evidence to the Authority he had held a particular "honest and reasonable belief"; the defence was not that under Victorian law the UK convictions were not considered ever to have been. In other words, the defence was not that his evidence had been truthful, but rather that his state of mind at the time of giving the evidence afforded him with a defence.

The applicant made no attempts to determine whether the UK convictions were required to be disclosed for the purposes of the provisions under the Legal Practice Act 1996. What troubles me is not whether he was required to disclose the UK convictions but, in light of the background circumstances, that he did not do so without first having satisfied himself that there was no doubt that he need not do so; the relevant background circumstances being the perjury charges from an earlier denial of the UK convictions by the applicant which was followed by assertions to him that in this State the convictions were not regarded as a non existent fact.

Whether the applicant is a fit and proper person for admission to practice is a matter to be determined as at the time of admission[1]. The existence of old convictions, even for offences involving dishonesty, are not a necessary bar to the admission to practice[2]. The question for me is whether the applicant has discharged the burden upon him[3] to show that he is now a fit and proper person for admission to practice.

The requirement for admission to practice law that the applicant be a fit and proper person, means that the applicant must have the personal qualities of character which are necessary to discharge the important and grave responsibilities of being a barrister and solicitor. A legal practitioner, upon being admitted to practice, assumes duties to the courts, to fellow practitioners as well as to clients. At the heart of all of those duties is a commitment to honesty and, in those circumstances when it is required, to open candour and frankness, irrespective of self interest or embarrassment. The entire administration of justice in any community which is governed by law depends upon the honest working of legal practitioners who can be relied upon to meet high standards of honesty and ethical behaviour. It is the legal practitioner who is effectively the daily minister and executor in the administration of justice when advising clients, acting for clients, certifying documents, and making presentations to courts, governments, other professionals, and so on. The level and extent of trust placed in what legal practitioners say or do is necessarily high and the need for honesty is self evident and essential.

The evidence before me does not establish to my satisfaction that the applicant is now a fit and proper person for admission. The way in which details of the perjury charges, the ANZ charges and, more particularly, the UK convictions have come to light in this proceeding have not left me with sufficient confidence in the applicant. His obligation was to disclose matters that could inform a judgment about whether he was a fit and proper person for admission to practice. It was not an obligation merely to list convictions or charges, but was an obligation to inform the decision maker of everything that could bear upon the judgment that needed to be made about him and his character. His task was not to select or edit from his life's experiences only some events that might be relevant to the question, but to disclose every matter that might fairly assist in deciding whether the applicant was a fit and proper person at the time of admission. Revealing more than might strictly be necessary counts in favour of an applicant; especially where the disclosure still carries embarrassment or discomfort. Revealing less than may be necessary distorts the proper assessment of the applicant and may itself show an inappropriate desire to distort by selection and screening of relevant facts.

The applicant accepted during his submissions to me that the perjury charges, the ANZ charges and the UK convictions were matters that ought to have been disclosed and considered in deciding whether he was a fit and proper person for admission to practice. The Board of Examiners might itself have found in his favour if he had candidly laid out these matters, and if he had done so, there would have been more prospect of the present appeal succeeding. However, these were matters that only came to light upon investigations undertaken by the Board itself after its adverse decision, after the applicant's institution of this appeal and after the applicant had filed his first affidavit in this court in support of the appeal. In those circumstances I have no present confidence that the applicant would have disclosed these matters if they had not come to the Board's knowledge and had the Board not tendered the evidence in the proceeding before me.

The failure by the applicant to inform the Board of Examiners of the UK convictions is to my mind significant. The applicant's explanation that they were "spent" convictions does not persuade me when that explanation is viewed in the light of the applicant's own experience during the perjury charges trial, the terms of the ruling by Judge Jones and a letter tendered by the applicant from the Secretary of the Department of Immigration and Ethnic Affairs to Commissioner Kevin O' Connor dated 6th December 1994. What I find significant is not that these convictions occurred, but that as a matter of the applicant's recent conduct, indeed contemporary conduct, he had failed to volunteer the fact of the convictions or the facts which had given rise to the convictions. I am not satisfied that these failures have been satisfactorily explained or justified by the applicant on the materials which he has put to me.

The failure to inform the Board of Examiners of the fact of the perjury charges and of the ANZ charges causes me to have similar doubts about the applicant's current fitness for admission. Charges may be laid incorrectly, and acquittals must be respected as such, but the facts which give rise to the charges may (not "necessarily", but "may") bear upon a person's fitness to practice. It is not for the applicant to usurp the role of the decision maker (whether the decision maker be the Board of Examiners or the Court) by deciding that the charges or the facts which gave rise to them will not assist in deciding that person's fitness to practice. The applicant should have been the source of the Board's and of the Court's knowledge of these matters, and his omission to mention them to the Board, and his omission to raise them in the proceedings before me, are both matters that prevent me from accepting that he has shown himself now to be a fit and proper person for admission. His explanations about the omissions do not persuade me otherwise.

It is not my task in this proceeding to make a positive finding that the applicant is not a fit and proper person for admission to practice. I say that not as a matter of mere legal form but as a matter of substance. The applicant is not precluded from making another application in the future and it may be that he may have additional material to put in any such subsequent application, which bears upon the matters I have considered but which puts them in a different light or which justifies a contrary conclusion. I am mindful of the fact that the applicant appeared in person and that his case did not have the benefit of an independent mind considering what material to put to the Court and how best to present the case. Subsequent events affecting the applicant might occur which could similarly justify a conclusion being formed in the future which I have not been able to form on the material before me. However, on the basis of the material before me, I am not satisfied that the applicant has satisfied me that he is a fit and proper person for admission to practice.

In this proceeding the Board of Examiners seeks its costs of the proceedings. Ordinarily costs should be ordered in favour of the successful party. However, I have decided not to award costs to the Board of Examiners because of the applicant's personal financial circumstances. The Prothonotary has previously waived the payment of fees upon a finding that they would cause him financial hardship. His application was made in person and his behaviour in Court was without blemish. The application was one to be permitted to practice in the profession in which he hopes to gain his livelihood, and his unchallenged evidence was that he has limited means available to him. An order that he pay the Board's costs may not be satisfied and is likely to inflict more harm to the applicant than the intended benefit to the successful party to be compensated for its expenses. Accordingly, I make no order as to costs.

[1] Re B [1981] 2 NSWLR 372 at 381.

[2] Ex Parte Lenehan [1948] HCA 45; (1948) 77 CLR 403 at 424.

[3] Re S (a Solicitor) [1986] VicRp 75; [1986] VR 743.

At a glance

Court

Decision date

Before

Source

Judgment (19 paragraphs)

Parties

Cases Cited (1)