Hannebery v Legal Ombudsman [1998] VSCA 142

Hannebery v Legal Ombudsman [1998] VSCA 142 - VSCA 1998 case summary — Zoe

I should very much doubt that the majority of the Tribunal used the expression "false denials" in the sense in which it was explained in Edwards v. The Queen, supra. Be that as it may, the principle exemplified in R. v. Gray, supra, does not in my opinion find the same place in the context of the imposition of all penalties for misconduct under the Legal Practice Act 1996 as it does in the context of the imposition by a criminal court of penalties for criminal offences. There are two principal reasons. The first is that disciplinary proceedings under the Act are not criminal proceedings but are proceedings sui generis: cf. Weaver v. Law Society of New South Wales [1979] HCA 35; (1979) 142 C.L.R. 201, at 207, per Mason, J.; Wentworth v. New South Wales Bar Association [1992] HCA 24; (1992) 176 C.L.R. 239, at 250-1, and the authorities there cited. This proposition is reflected in the circumstance that unfitness to practise based on misconduct need be proved only according to the civil standard, subject of course to the necessity to bear in mind the seriousness of the conduct charged: McCarthy v. Law Society of New South Wales (1997) 43 N.S.W.L.R. 42, at 59, and the cases there cited. The second reason, associated with the first, is that the jurisdiction of the Tribunal to deal with - that is to discipline - a practitioner for misconduct, while it includes a power to punish, is to be regarded as very largely protective. Hence, although the Full Tribunal may impose a fine of up to $50,000, its concern should ordinarily be not so much to punish as to protect members of the public against professional misconduct: cf. Wentworth v. New South Wales Bar Association, supra, at 251; Mellifont v. The Queensland Law Society Inc. [1981] Qd.R. 17, at 28; Law Society of New South Wales v. Walsh, unreported, C.A. (N.S.W.), 15 December 1997. For that reason disciplinary proceedings cannot necessarily be determined on the same basis as adversarial proceedings: Walter v. Council of Queensland Law Society Inc. [1988] HCA 8; (1988) 62 A.L.J.R. 153, at 157. The nature and purpose of disciplinary proceedings before the Tribunal being as they are it follows that, in deciding on the appropriate penalty to award following a finding of misconduct, the Tribunal is not only entitled but obliged to take into account any failure by the practitioner "to understand the error of his ways": New South Wales Bar Association v. Evatt [1968] HCA 20; (1968) 117 C.L.R. 177, at 184. Reasoning of that kind was applied to a practitioner's failure to appreciate that his impugned conduct was wrong when he claimed to be ignorant of his duty when using a client's money: Law Society of New South Wales v. Moulton [1981] 2 N.S.W.L.R. 736. As Beazley, J.A. observed in Law Society of New South Wales v. Walsh, supra, "Whilst a practitioner's expressed intention not to re-offend is relevant to mitigation, it will have little weight unless accompanied by an understanding of the wrongfulness of the conduct which was the subject of the disciplinary charge".

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