The appellant did not dispute the fact that he had failed to honour the undertaking given by him to the respondent. In his affidavit, however, he advanced reasons which, if accepted, reduced the culpability of his actions. He was cross-examined with a view to establishing that the reasons he advanced (or at least some of them) were not true and that he knew they were not true. At the conclusion of the evidence, counsel for the respondent addressed the Court, urging specific findings, as ultimately made, of deliberate dishonesty in respect of several matters to which the appellant had pledged his oath and furthermore submitting that striking off was the appropriate penalty. The last words of his address were:

"... I submit that the breaches of undertaking themselves display a contentious attitude to his responsibilities as a practitioner who has given undertakings which would of itself entitle a striking off order but all the more so when now coupled by the demonstrated lack of candour of the practitioner which in turn displays a failure to appreciate his responsibilities to the court."

When counsel for the appellant came to address, he therefore had before him a clear exposition of the Society`s stance and the opportunity to challenge the findings of fact sought by it and to urge a lesser penalty, even if the trial judge made those adverse findings. He accordingly traversed the contentions of dishonesty. He conceded that what his client had done amounted to professional misconduct and addressed the question of whether that misconduct was of such a degree as to justify the penalty of striking off. Once when he appears to have strayed from the point, his Honour reminded counsel for the appellant, "The Law Society is here asking me to strike him off". There can have been no misapprehension on the part of the appellant and his counsel that the trial judge was being asked to make the specific findings he made and to impose the penalty of striking the appellant off the list of practitioners in consequence. In these circumstances I am of the view that it was not incumbent upon the learned trial judge to announce his findings and to invite further submissions as to the appropriate order. There was no denial of natural justice in my opinion. I would accordingly dismiss the appeal.

I see no reason to recount or analyse the evidence in this case in detail because, in my opinion, the evidence before Crawford J was properly and fairly summarised by his Honour in his judgment and the findings which he made in reliance thereon are unassailable. In my opinion, Crawford J was quite justified in concluding that the evidence given by the appellant indicated that he was both incompetent and dishonest. In my opinion, the only issues which may require the intervention of this Court are those which have been adverted to in the latter part of ground 10, ground 14 and ground 15 of the notice of appeal.

I should say at the outset that I consider that the appellant has shown no basis for complaint in his Honour making findings that he was an unreliable and untruthful witness. Such an issue was clearly open from the very nature of the proceedings.

His Honour found, and it was not challenged that he was entitled to find, that the appellant had been guilty of professional misconduct in failing to honour the undertakings which he had given the Law Society following his bankruptcy.

As Crawford (senior) J said in Sharma v Law Society of Tasmania 111980 at 46 of his judgment:

"The appellant was before the court as to the Upchurch matter by virtue of an order of the court dated 20th November 1978, whereby it was ordered that he be compelled to answer the allegations previously set out. The appellant therefore had sufficient notice that he might be dealt with as a person who was not a fit and proper person to be entrusted with the duties and responsibilities which belong to a Barrister and Solicitor in respect of the matters set out in the order and he must have known that the court had jurisdiction to strike him off the roll: Brendon v Spiro (1938) 1 KB 176 and Myers v Elman (1940) AC 282."

The same line of reasoning is appropriate in the present case. The Law Society applied for an order under the Legal Profession Act 1993, s81. Section 81(b) permits the Court to make an order under s76(1) which, in turn, (s76(1)(f)) permits the making of an order to remove the name of a practitioner from the roll.

In the present case, Crawford J indicated that, had it not been for his dishonesty and lack of candour, it was arguable that the appellant's "mere failure to honour his undertaking to the Society and his inability to attend to the Seaton estate file" would not have justified an order directing the removal of his name from the roll. His Honour continued:

"But as I have pointed out, these proceedings have disclosed far more serious misconduct. Honesty and candour are essential attributes for a legal practitioner, and certainly so when dealing with the Court and his or her professional body. The deliberate making of untrue statements on oath in particular reveals a person lacking in qualities essential for a practitioner. Applying the test of Lopes LJ in re Weare; In re the Solicitors Act, 1888 [1893] 2 QB 439 at 448, I conclude that the Court, having regard to all the matters and circumstances to which I have referred, can no longer justify holding out the respondent as a fit and proper person to be entrusted with the important duties and grave responsibilities which belong to a legal practitioner. His misconduct, capacities and attitude have been revealed to be such

that his continuance in practice constitutes a threat to the public and to the profession. Dickens v Law Society A421981 at 16."

This approach is in accordance also with what Moffitt P said in New South Wales Bar Association v Livesey (1982) 2 NSWLR 231 at 233:

"It is not necessary in this judgment to detail the reasons which underlie the requirement that to be fit to be a member of the legal profession a person, be he a barrister or solicitor, should be honest and frank in his relations with the court and otherwise in his professional conduct and in evidence given by him before the court, so that the court and other members of the profession can deal with him with confidence relying on his integrity: Re B [1981] 2 NSWLR 372, at pp 381-383, 395.

... If a member of the legal profession acts in a way which is a departure from proper professional standards, so he is exposed to being found guilty of some professional misconduct, liable perhaps to be dealt with in a minor way, what was minor may become serious if the barrister or solicitor is unfrank about the matter or gives a false explanation concerning it. Indeed, where a member of the profession is faced with the dilemma posed by inquiry concerning some shortcoming on his part, whether it be due to human frailty, inexperience or some other reason, a response which is honest and frank in this adversity may well demonstrate that he is a person truly to be relied on. Regrettably, it has been a common experience in cases before this Court that professional unfitness would not have been established by the initial misdemeanour, but is revealed by the wrongful conduct which follows in an endeavour to rectify or conceal the initial wrong or error."

It is plain enough from a perusal of the transcript of proceedings before Crawford J that the appellant`s veracity was in issue and, although it is true, as Mr Hodgman submitted, that no warning was given to the appellant that if he was untruthful an order striking him off may be made, in my opinion, there was no need for such a warning to be given.

The one matter which has troubled me is the contention encapsulated in ground 15 which is in the following terms:

"THAT having reached the tentative conclusion that he may make findings against the Appellant that he had acted dishonestly and that his evidence in the Supreme Court hearing on 19 June 1997 had been deliberately untruthful and that the Appellant was guilty of perjury, such matters having not been matters of complaint by the Law Society of Tasmania against the Appellant; the Learned Trial Judge in accordance with the principles of natural justice ought to have reconvened the hearing and given the Appellant the opportunity to respond and to be heard on his own behalf with respect to the allegations of dishonesty and perjury, before the proceedings were brought to a final conclusion."

It may be observed that Crawford J made no mention of "perjury", but the gravamen of ground 15 is that the appellant was not given an opportunity to present a plea in mitigation once an adverse finding as to his lack of credibility had been made.

In Dickens v The Law Society 421981, Cosgrove J observed (at 15-16):

"There is high authority for the proposition that the powers given to the Disciplinary Committee to discipline a practitioner are entirely protective in character and no element of punishment is involved. (See Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 at 286 per Dixon CJ; Clyne v The New South Wales Bar Association [1960] HCA 40; (1960-61) 104 CLR 186 at 201-2; The New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183-4; and Ex Parte Attorney-General for the Commonwealth; Re a Barrister and Solicitor (1972) 20 FLR 234 at 244). But to say that is merely to say that the powers are to be exercised for the purpose of, and in a manner seen to be likely to achieve, the maintenance of that high standard of conduct within the profession which will continue its good

reputation, and so protect, not only the future of the profession, but also protect its clients from harm. With this object in mind, the Committee is required to look to the future. Even if the practitioner's misconduct be relatively slight, he may yet be struck off, if his capacities and attitude have been revealed to be such that his continuance in practice constitutes a threat to the profession. On the other hand, conduct which is itself more grave in nature, may not warrant striking off, if it is seen as a temporary and explicable departure from the practitioner`s own high standards. The Committee's task is to uphold the dignity and standards of the profession. To enable them to do so, they have been given powers to fine, to order payment of costs, to suspend, and to strike off. The exercise of any of these powers inevitably involves a deprivation of one kind or another to the practitioner. But the deprivation is merely part of the exercise of the discipline of the profession. There is in it no retributive element, no intention to express outrage, as there sometimes is in sentences for crime. The order which the Committee is called upon to make is that order which, in its opinion, is necessary, and no more than is necessary, to maintain professional discipline and high standards of conduct. It is not entirely incorrect to describe such an order as punishment, and that term is often used (see in Re Daley [1907] HCA 32; (1908) 5 CLR, 193; Southern Law Society v Westbrook [1910] HCA 31; (1910) 10 CLR, 609; Mellifont v Queensland Law Society Inc (1981) QSR 17 at 28 per Andrews J., and In re Moseley (1925) 25 SR(NSW) 174 at 178). But it is punishment of a special kind, for a special purpose."

It is an acknowledged part of any judicial process by which a person is required to face the prospect of punishment of any kind that the fact or facts in respect of which such a process will be exercised must be first ascertained.

In my opinion, Cosgrove J was correct in what he said in Dickens and, although striking off the roll is not "punishment" in the criminal sense, it has very serious consequences for a practising legal practitioner.

Nonetheless, there is no authority directly on point to which we were referred by counsel, and I find it rather surprising that such an issue has not arisen previously in view of the substantial authority which exists in support of the proposition that untruthful evidence and lack of candour may result in a striking off order being made.

On the basis of first principles, it seems to me that it would have been both reasonable and desirable to allow the appellant an opportunity to be heard once his Honour made the findings which he did. Indeed, in the circumstances of the present case, I regard such a course as being obligatory as a matter of fairness to the appellant. This does not mean that the outcome for the appellant would necessarily have been any different from that which occurred and, indeed, it is difficult to see on the basis of the findings made, that his Honour could or should have made an order other than that which he did.

Nonetheless, it seems to me that the appellant should have been afforded an opportunity to make appropriate submissions once the relevant findings had been made--not, of course, for the purpose of challenging those findings, but for the purpose of persuading his Honour, if he could, that a draconian order should not be made. For this reason alone, I would uphold the appeal. In my view it would be inappropriate to refer the matter back to Crawford J to receive submissions as to the disposition of the case. In my view that is a task which this Court should accept once we have heard from Mr Hodgman in relation to any mitigatory material which he seeks to place before the Court.

I would set aside Crawford J`s order and invite the appellant and respondent to make submissions to this Court as to the order which should be made in lieu thereof.

GARRY RAYMOND HOWES v THE LAW SOCIETY OF TASMANIA

The appellant is a person whose name was removed from the Roll of Legal Practitioners following adverse findings concerning his conduct and veracity made by a judge of this Court.

In 1993, the appellant sold his legal practice entitled G R Howes & Co to other practitioners, and thereafter continued employment with the firm as a consultant. On 22 February 1995 he became bankrupt, following which he gave undertakings required by the Law Society that he would not:

"1 ... personally use or operate or be a signatory on the Trust Account of G R Howes & Co or any other trust account of any legal practice.

2 ... consent to being placed in any fiduciary relationship arising in the course of carrying on business as a legal practitioner other than in a solicitorclient sense and that [he would] relinquish any position giving rise to such fiduciary relationship which [he] presently [held] or which may [have arisen] in the future."

The appellant was advised that the matter of the bankruptcy would be further considered by the Society following a report from the Official Trustee in Bankruptcy. The appellant failed to honour his undertaking in that he remained a trustee of three estates for some considerable time following the undertaking, despite endeavours by the Society to have the matter regularised. On 16 September 1996, the Society applied for the Supreme Court to hear and determine a complaint that the appellant had:

"... breached and continues to breach the implied term of that undertaking namely that he relinquish any position giving rise to a fiduciary relationship which he then held without delay or alternatively as soon as practicable or alternatively within a reasonable time in that he:

(i) failed to relinquish his Trusteeship of the estate of the late Gwendoline Pearl Haros until the 15th of February, 1996;

(ii) failed and continues to fail to relinquish his Trusteeship of the estate of the late Heather Margaret Seaton."

The affidavit material tendered on the hearing disclosed that the appellant had continued as trustee of a third estate (Alderton) until 10 October 1995, but the Society made no complaint concerning that failure to promptly relinquish. The application sought orders pursuant to the Legal Profession Act 1993, s81, which permits a wide range of power including the possible sanction of "striking off". Given that there was little issue as to whether there had been breach of undertaking, the essence of the hearing was the accuracy or veracity of the explanation provided by the practitioner as to why he had failed to honour that undertaking in relation to the question of fitness to practice. His evidence set out in an affidavit tendered on the hearing and his oral evidence given at that hearing were significant matters in the final determination. The non-observance of the undertaking might not of

itself have resulted in a "striking off" order, but the findings of the learned primary judge concerning the manner and content of the evidence led him to conclude that the professional misconduct and mendacity rendered the practitioner unfit to be permitted to continue practice. As his Honour observed in A1231997, at 13:

"Arguably his mere failure to honour his undertaking to the Society and his inability to attend to the Seaton estate file would not justify an order directing the removal of his name from the roll, although an order suspending him from practising for a period of time would probably be appropriate. But as I have pointed out, these proceedings have disclosed far more serious misconduct. Honesty and candour are essential attributes for a legal practitioner, and certainly so when dealing with the Court and his or her professional body. The deliberate making of untrue statements on oath in particular reveals a person lacking in qualities essential for a practitioner."

"... the Court, having regard to all the matters and circumstances to which I have referred, can no longer justify holding out the respondent as a fit and proper person to be entrusted with the important duties and grave responsibilities which belong to a legal practitioner. His misconduct, capacities and attitude have been revealed to be such that his continuance in practice constitutes a threat to the public and to the profession."

The grounds of appeal seek to challenge particular findings of the learned primary judge, such as matters concerning the handling of the estates, and are not confined to the primary basis giving rise to the making of the order. For convenience they will be considered in accordance with the designated categories.

The appellant contends that the learned primary judge erred in his finding that the appellant failed to effect his resignation and appoint a replacement as trustee of the Haros estate. The ground claims:

"1 the learned trial Judge was wrong in finding that the Appellant had the power to retire and appoint a replacement trustee in the Estate of Haros by virtue of sub-sections (1) and (4) of the Trustee Act 1898, s13."

His Honour's approach to the responsibility of the appellant was not dependent upon a particular interpretation of statute. His approach was stated in the following terms, at 8:

"But in Haros` estate responsibility to arrange for his replacement as a trustee solely rested with him and he did not know what he needed to do. He did not seek advice from any person. He did not look at the Trustee Act 1898 to see if it offered any guidance, nor did it occur to him that a trustee company might be a suitable replacement. I note that by virtue of subss(1) and (4) of the Trustee Act 1898, s13, he had the power to retire and at the same time appoint his replacement and by s32 the Court had power to appoint a trustee in his place."

It was the combination of the absence of knowledge and competence with the failure to either seek advice or make enquiry which resulted in the adverse finding, and the reference to the Trustee Act 1898, s13, was by way of example. Even if his Honour's view of the effect of s13 was incorrect, it would not have vitiated the finding. In any event, the suggested approach was valid. The Trustee Act 1898, s13, states:

"13--(1) Where a trustee ... desires to be discharged from all or any of the trusts or powers reposed in or conferred on him, or refuses or is unfit to act therein, or is incapable of acting therein--

(a) the persons nominated for the purpose of appointing new trustees in such event by the instrument, if any, creating the trust; or

(b) if there is no such person or no such person able and willing to act, the surviving or continuing trustees or trustee, or the personal representatives of the last surviving or continuing trustee,

may, by writing, appoint another person or other persons to be a trustee or trustees in the place of the trustee dead, remaining out of Tasmania, desiring to be discharged, refusing, or being unfit, or being incapable, as aforesaid."

The appellant contended that the section makes no provision for a circumstance where a sole trustee who wishes to resign is not a person to whom categories (a) or (b) apply and since he was neither a nominated person nor a surviving trustee or personal representative, it was claimed that he could never appoint. The argument is misconceived. The section permits appointment by a range of persons defined by status or relationship and includes a trustee who is desirous of retiring. The appellant in fact resigned as trustee and appointed a fellow legal practitioner as the new trustee in February 1996 so it cannot be said that he lacked any legal capacity to give effect to his undertaking. The ground is not sustained.

The grounds of appeal relevant to the conduct of the appellant as trustee relate to both the Seaton and Haros estates. Ground 2 states:

"2 the learned trial Judge was wrong in concluding the Appellants delay in retiring as trustee of the estate of Haros was unreasonable;".

The conduct of the appellant did not cause financial loss to the beneficiaries, and in the case of the estate of Haros, there was to be no distribution for a considerable period. But "reasonableness" in terms of the requirement to resign as trustee was not the sole issue. The appellant had been declared bankrupt and the requirement by the Law Society that he undertake to relinquish his role as trustee was designed to prevent complications for the estates and to maintain public confidence in the role of legal practitioners in acting as trustees. The Society has a statutory duty to supervise the conduct of persons involved in the profession of the law. Perception that a bankrupt practitioner could remain in a special fiduciary relationship would be of concern to that profession and the community at large. The appellant had been appointed trustee of the Haros estate following the death of the testatrix in 1990. At the time of the undertaking in February 1995, the only undistributed property was in the form of insurance bonds which were to mature in 1999, 2000 and 2003 respectively. The appellant`s attention was drawn by the Society to his obligation to retire in August 1995, but despite this reminder, he did not enquire of any person who might consent to become the new trustee until February 1996, twelve months since he had provided the undertaking. On any approach, the delay was unreasonable. If he was unaware of his obligations with respect to the Haros trust, he lacked diligence; if uncertain as to how he could effect resignation, he lacked competence; whilst if he saw no need to act promptly, he was indifferent to an obligation to which he had pledged his word. The learned primary judge was entitled to find the delay to be unreasonable.

"4 the learned trial Judge was wrong in concluding that inordinate delay in finalising the estate of Seaton was a matter complained of by the Respondent andor relevant to the proceedings before him;".

The delay in relation to the estate of Seaton was relevant to the proceedings before the Court. On 27 February 1996, the Disciplinary Tribunal of the Law Society imposed a penalty of a fine of $1000 and ordered the appellant to pay costs of $546.40 upon a finding that the appellant had failed to respond to requests for information in relation to a complaint made by a beneficiary and co-trustee of the Seaton estate. Between May 1992 and February 1995, the appellant had done little to realise and distribute certain assets of the estate despite requests from the beneficiary. Despite the fact that the beneficiary had written requesting completion in November 1994, and the undertaking given in February 1995, he deposed that the matter had escaped his memory until contact by the Law Society in June 1995. The finding of the learned primary judge was:

"I do not believe that he overlooked the carrying out of Mrs Watkins' request, nor that the matter went out of his mind. In the course of cross-examination, which was not confined to that period of time, he conceded that he had a `mental block' with regard to the estate. I have no doubt that he was well aware that the file required his attention, but he could not face it."

The relevance of the Seaton matter was the general conduct of the appellant as trustee, his failure to promptly divest himself of responsibility for its management, and his less than convincing explanation for such failure. Those matters were interconnected. Given the delay in finalising the estate, his failure to promptly divest himself of responsibility upon bankruptcy makes his non-compliance with the undertaking more reprehensible. The finding that there was delay in the finalisation of the affairs of the estate related more to the explanation proffered by the appellant as to why he had failed to honour the undertaking, than to his general conduct as a legal practitioner. The delay was not a matter upon which the decision to "strike off" was founded. The issue was not irrelevant. Ground 4 is rejected.

"6 the learned trial Judge was wrong in concluding that on or about 25th August 1995 the Appellant had not done all he was reasonably required to finalise the estate of Seaton and thereby comply with his undertaking;".

This ground relates to the claim by the appellant that he believed he had effectively divested himself of the status of trustee in August 1995. The factual complexities relevant to this ground are comprehensively stated in the reasons for judgment, at 6-7, and are not the subject of challenge. The appellant claimed that his action in forwarding a set of transfer documents relating to a unit property trust brought the trusteeship to an end. On 27 June 1995, the appellant had written to the Law Society in the following terms:

"I did not breach any of my undertakings in relation to the Law Society. The matter that remains to be done in relation to the estate is where I write to various places advising them of my bankruptcy and relinquishing same to my joint trustee. My trustee is the remaining beneficiary in the estate.

I formulate such letters that is necessary to further holding direct to her. I apologise to Mrs Watkins in relation to the delay, but as you are aware I have been under considerable pressure."

Mrs Watkins was the co-trustee and beneficiary and the complainant as to the lack of progress. It would doubtless have surprised her to learn that the trustee was fulfilling his task of resignation by

writing to financial institutions advising them to deal with her. In an affidavit sworn for the purpose of the application that:

"It was not until 22nd August, 1995 that I wrote off to the three share registry`s (sic). I was distracted at the time by continuing suggestions by the Applicant that I was in breach of my undertaking, the pressure of work and an increasing personal commitment to a court action involving myself and the Trust Bank. The letters I wrote on 22nd August, 1995 I regarded as the relinquishing of my trusteeship and concluding my involvement in Mrs Seaton's Estate".

No competent legal practitioner who had accepted the responsibility of trusteeship could believe that the writing of letters in the form and nature as those written was capable of concluding a trusteeship, especially since the person requesting completion was the beneficial owner of the shares or their proceeds. At least such practitioner would expect to be required to account to the beneficiary and ensure the legal transference of the script or documentation. The actions of the appellant, on any standard, could not be said to have been all that which was "reasonably required to finalise the estate ... and thereby complying with (his) undertaking." There was no error in the finding.

The conduct of the appellant in failing to give effect to his undertaking might not have warranted a "striking off" order. But, nevertheless, it was a serious breach of the standard of conduct required by a professional who was entrusted with the personal and financial affairs of members of society. Breach of undertaking, especially if wilful, constitutes misconduct (Re a Solicitor (1992) 110 FLR 9, Rooks Rider (A Firm) v Steel and Others [1994] 1 WLR 818) and the findings of the learned primary judge as to the circumstances surrounding the undertaking and its implications were both relevant to the determination and were both open on the evidence and relevant to the determination.

"9 the learned trial Judge was wrong in concluding that the Appellants (sic) failure to respond to letters from the Respondent was a `bad record' in the absence of any evidence to support that finding."

The appellant readily provided the Law Society with his undertaking. It was necessary for the Society to pursue the issue of compliance in accordance with its duty of supervision. This was not a case of bureaucratic interference with conduct, or failure to respond to an ordinary request for information. The Society had both a duty of supervision and of dealing with the complaint by a beneficiary. On 7 July 1995, the Executive Director of the Law Society wrote to the Law Society requesting a response by 17 July to the following questions:

"1 What steps have been taken by you to comply with the undertaking given in February 1995 to relinquish any positions giving rise to fiduciary relationships?

2 Do you still hold any positions giving rise to fiduciary relationships?

3 If so, please provide details and advise what steps need to be taken to relinquish such positions and when these steps will be taken."

No response was afforded, and, on 21 July, the Executive Director again wrote advising:

"I refer to my letter of 7 July 1995 which requested a response prior to the next meeting of the Investigating Committee on 17 July 1995.

The Investigating Committee noted at its meeting on 17 July 1995 that no response had been received from you.

The Investigating Committee has instructed me to advise that, unless a comprehensive and satisfactory response to the matters raised in our letter of 7 July 1995 is received by the Society within seven days from the date of this letter, the Society intends reviewing its attitude to your continuing in practice."

Again, there was no response and a further letter was sent on 1 August advising:

"I refer to the Society`s letters to you of 7 July and 21 July 1995, and note that no reply has been received.

On 31 July 1995, the Society's Investigating Committee resolved to demand from you the information requested in our letters within seven days from the date of receipt of this letter.

This demand is made in accordance with Section 58(6) of the Legal Profession Act and pursuant to a delegation of authority from the Council of the Society.

Letter of complaint from Mrs J M Watkins (Nee Males) undated and received at the Society`s offices on 26 May 1995.

Letters from the Law Society to you dated 7 July and 21 July 1995."

On 16 August, the appellant sent by facsimile a handwritten message stating "matters are being dealt with urgently", and made a detailed response by letter dated 22 August. However, that letter was less than satisfactory. In relation to the Seaton estate and the complaint by Mrs Watkins, the appellant advised:

"In relation to Males, I am pleased to advise that the various companies have now been informed of my retirement as trustee and have been requested to forward all correspondence and certificates to Ms Males direct."

The accuracy of that response has been considered in relation to ground 6. The failure of the appellant to make prompt answer to the request by the Society and the nature of such response afforded reason for the finding that:

"His failures to respond promptly to several letters received by him from the Law Society. His recent record in that regard is a bad one.'"

The record referred to by the learned primary judge comprised the following proceedings of the Disciplinary Committee:

Disciplinary Committee; Failure to respond to the Law Society`s request for information; Admonished and discharged and ordered to pay the Society's costs of $775.

Disciplinary Committee; Failure to respond to the Law Society`s request for information; Admonished and discharged and ordered to pay the Society's costs of $750.

Disciplinary Tribunal; Failure to respond to the Law Society`s request for information; Reprimanded and ordered to pay the Society's costs of $545.

Disciplinary Tribunal; Failure to respond to the Law Society's request for information; Fined $1000 and ordered to pay the Society`s costs of $546.40.

Disciplinary Tribunal; Failure to respond to the Law Society's request for information; Fined $1250, formally admonished and ordered to pay the Society`s costs to be taxed."

The finding reached by the learned primary judge was open to him. The ground is not sustained.

The relevant grounds stated in the notice of appeal are:

"3 the learned trial Judge was wrong in concluding the Appellants evidence concerning his involvement in the estate of Haros lacked honesty and candour andor raised unreasonable expectations of what was required of the Appellant by way of explaining his delay in complying with the undertaking;

5 the learned trial Judge was wrong in concluding that the Appellants evidence in cross examination was inconsistent with the last sentence in paragraph 7 of the Appellants Affidavit dated 5th February 1997;

7 the learned trial Judge was wrong in concluding that the Appellant was dishonest;".

Had the appellant made open answer to the matters raised by the Law Society, it is likely that he would have received a lesser penalty. But his evidence given in affidavit and in the course of the hearing betrayed evasion and reconstruction. On 13 and 23 June 1995, the Law Society, by letter, requested answers concerning the conduct of the Seaton estate. In his letter of 27 June, to which reference has previously been made, the appellant denied any breach of his undertaking.

In his affidavit sworn on 5 February 1997, the appellant dealt with the matters concerning the Seaton estate in the following manner:

"7 In the matter of Seaton, the late Mrs Seaton had died in 1990, with her daughter Jane Males I was appointed a trustee. The entirety of the Estate had been distributed except for three investments held with General Property Trust Armstrong Jones and Growth Equities Mutual. These were to be transferred to Jane. In about November, 1994 Jane had asked that I finalise the transfers. I overlooked carrying out her request and the matter went out of my mind until June 1995 when I received from the Applicant a copy of a complaint that had been made by Jane. I explained to the Applicant in a letter dated 27th June, 1995 that all that remained for me to do was to advise the various share registry's of my bankruptcy and relinquish my trusteeship.

It was not until 22nd August, 1995 that I wrote off to the three share registry`s (sic). I was distracted at the time by continuing suggestions by the Applicant that I was in breach of my undertaking, the pressure of work and an increasing personal commitment to a court action involving myself and the Trust Bank. The letters I wrote on 22nd August, 1995 I regarded as the relinquishing of my trusteeship and concluding my involvement in Mrs Seaton's Estate.

8 I regret now that I did not realise that Mrs Seaton`s Estate was one that I should have regarded as my having a fudiciary (sic) capacity in. When that was brought to my attention by the complaint process, I did remove myself, albeit not as quickly as I should have.

14 I submit to this Honourable Court that upon my appreciating that I was required to relinquish my fiduciary capacity:

(b) In the case of Seaton I did so on 22nd August, 1995, approximately two months after the remaining beneficiary and trustee lodged a complaint with the Applicant;".

The answer was not accurate and the appellant did not enhance his credibility in the course of cross-examination. He maintained a position that at the time of the undertaking he had sent transfer documents and believed that he had ceased to be a trustee by virtue of that act. Their return, unregistered, had simply led him to believe that a mere formality remained to effect transfer. His explanations as to why he held that belief, given that the beneficiary had made earlier specific complaints in November 1994 and May 1995 requesting action, and the fact that moneys from the investments continued to be paid to the firm account were unsatisfactory. When questioned about his letter of 27 June 1995, which contained the assertion that he had not breached his undertaking, he said that he believed his act of signing the shared transfers had relieved him of responsibility. In response to questions concerning the affidavit of his affidavit, par7, he maintained his claim that he believed his conduct in August 1995 relieved him of further responsibility. The claims were not credible, and were belied by the continued receipt of money from the investment, the presence of a cheque returned by the registering authority and the existence of a further transfer document involving the brother of the beneficiary. The following exchange with counsel is but an example of the quality of his previous responses:

"Now they (sic) Mr Howes you might see if you've checked file are up to about April 1996 when you produced the file to the Law Society at which time there was still an unpresented cheque from Armstrong-Jones in relation to the Estate on the file? You`re agreeing? ... If you say so, I can't recall.

Cheque dated 27 January 1996 for $48.16? ... Okay, thankyou.

HIS HONOUR: Can I have a look at it please. Armstrong-Jones distribution account. Right so you agree that that came back onto your file in about January 1996? ... Yes it appears so.

MR ELLIS: (Resuming) And indeed it was quite clear wasn`t it because you kept receiving money at your office from two of the funds you claimed to have written to that so far as those funds were concerned nothing had happened? ... I don't quite agree with that but it would appear so.

Right. That your purported transfers were ineffective? That must have been clear because the money kept coming in, the correspondence kept coming in, the advice about unit shareholding kept coming in? ... Yes.

That`s right, so that was clear. And it was clear to you wasn't it when Mrs Males as she now is, I am sorry Mrs Watkins as she now is, formerly Males, saw you on 13 November 1996 and you presented her with a cheque? Is that right? ... Yes.

Representing among other things some unpresented cheques on your file and some other monies in trust? ... Yes.

And having presented her with that cheque you then sought to get her to sign this letter that you dictated and had her wait while it was being typed? ... Yes."

It was open to the learned primary judge to conclude that the answers given in respect to the Seaton estate were not honestly made.

In relation to the Haros estate, the appellant deposed:

"11 With my attention being brought to the matter of the Haros, as a result of the correspondence involving the Seaton matter, I began to contemplate to whom should the trusteeship be transferred. I was aware that Aliki`s father was Gabriel George Haros a former practitioner of this Honourable Court, and of his mother's, the deceased`s, concern to ensure that he could not obtain access to his daughter Aliki's benefits in her estate. I was aware that the father of David and Alexander was in a separation and was concerned not to trouble him at the time, let alone possibly involve his children`s interests in their grandmother's estate in any possible property or maintenance dispute in the Family Court.

12 By deed dated 15th February, 1996 my trusteeship of Mrs Haros`s Estate was transferred to Miles Peter Temple Farrow.

13 I regret now that I did not realise that Mrs Haros's Estate was one that I should have regarded as my having a fiduciary capacity in. When that was brought to my attention, I did remove myself, albeit not as quickly as I should have.

14 I submit to this Honourable Court that upon my appreciating that I was required to relinquish my fiduciary capacity;

(c) In the case of Haros I did so on 15th February, 1996, approximately 6 months after realising that this too was a matter that was covered by my undertaking."

His explanations given in relation to his failure to attend to the Haros matter until February 1996, and his claim that he was unaware of the existence of duty were unconvincing and evasive. His final position that he "had an extreme mental block in relation to this particular file" was credible and accepted by the learned primary judge, but the explanation, of itself, had impact on the issue of competence. It was open to the learned primary judge to conclude that the appellant lacked candour in his varying and inconsistent explanations of his conduct. The grounds are not made out.

"8 the learned trial Judge was wrong in making adverse findings relating to delay when the issue of delay was not properly, or at all, before him;

15 THAT having reached the tentative conclusion that he may make findings against the Appellant that he had acted dishonestly and that his evidence in the Supreme Court hearing on 19 June 1997 had been deliberately untruthful and that the Appellant was guilty of perjury, such matters having not been matters of complaint by the Law Society of Tasmania against the Appellant; the Learned Trial Judge in accordance with the principles of natural justice ought to have reconvened the hearing and given the Appellant the opportunity to respond and to be heard on his own behalf with respect to the allegations of dishonesty and perjury, before the proceedings were brought to a final conclusion."

Ground 8 has no merit. The Law Society had made complaint about the conduct of a legal practitioner providing particulars of such complaint. The Court was required to consider such conduct. In doing so, the circumstances surrounding the failure of the legal practitioner to honour an undertaking were relevant. The question of any delay in the implementation of the undertaking was germane and was properly before the appropriate tribunal. There was no procedural unfairness as claimed by this ground.

Ground 15 is interlinked with the grounds concerning "conduct as a witness". Before the day of the commencement of the hearing, the appellant had reason to assume that the Law Society did not seek his removal from the Roll of Practitioners. At that stage, the appellant may have believed that the likely sanction was one of fine or suspension. However, before the commencement of the hearing, counsel for the respondent had informed his counsel that the respondent would be seeking a "striking off order". The appellant`s conduct as a witness in the proceedings brought character and fitness into the issue. The application brought by the respondent had sought orders pursuant to the Legal Profession Act 1993, s81, which states:

"81 The Supreme Court, in deciding an application made under section 80, may--

(b) make any one or more of the orders specified in section 76(1); or

(d) make any order, including an order in respect of costs, it thinks appropriate."

"76--(1) After holding a hearing in respect of a complaint against a practitioner, the Tribunal may make any one or more of the following orders:

(f) an order directing the Registrar to remove the name of the practitioner from the roll of barristers or legal practitioners;".

Although, before the date of hearing, the respondent did not seek a "striking off" order, it ought be apparent to any practitioner that lack of candour before a court could result in a finding that he or she is unfit to be a practitioner. The appellant took issue with matters put forward by the respondent, and, in so doing, could be said to have extended the parameters of the matter before the Court. That course necessarily involved the risk that any adverse finding as to credibility altered the perception of the conduct giving rise to the application. In such a circumstance, the appellant could hardly expect to receive notice of a matter which had only arisen for consideration by the Court at the conclusion of the evidence. Immediately at the conclusion of the evidence, counsel for the respondent made known to the Court its position, advising:

"Before the hearing I told my learned friends that we would be submitting that the circumstances are such as to entitle the Court to make an order of striking off. That is an order under section 76(1)(f).",

"And now having heard the evidence, I submit it is apparent with even more force."

In relation to the practitioner's perception of his conduct and duty of candour to the Court, counsel cited the following passage from New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 184:

"The respondent`s failure to understand the error of his ways of itself demonstrates his unfitness to belong to a profession where, in practice, the client must depend upon the standards as well as the skill of his professional adviser."

Counsel, referring to the claim made by the appellant in relation to the Seaton estate that he had relinquished his position as trustee by writing the three letters, submitted:

"That was not true and he must have known it was not true, he's come up even with the file that demonstrates it is not true, because he knew it was not effective and, moreover, tried to persuade Mrs Watkins to withdraw the complaint - and although this was done in re-examination without the opportunity for cross-examination, I ask now, rhetorically, for what other purpose but with a view to these proceedings would he have tried to do that? Her complaint mainly was the foundation - ".

In relation to the Haros estate, counsel contrasted the earlier claims by the appellant that there were insuperable difficulties associated with resignation and fresh appointment with the evidence given on the hearing that he had a mental block in relation to the matter. There can be no doubt but that the appellant was made aware that his manner of giving evidence was relevant to the application. The learned primary judge declined to consider other material contained in the relevant file, further stating that such would be unfair as the appropriate notice had not been given. As his Honour said:

"If you want him to answer other complaints or other matters, they should have been pointed out, it seems to me, to him. It may be when I`ve read that file, because I will have to do that - it may be when I have read it, that I'll be so concerned, I`ll call on him to answer something. I don't know because I haven`t seen it. It's just not fair. It`s not justice just to put in the whole file and then say you've got him."

It is apparent from the above that his Honour was conscious of the need to afford procedural fairness to the appellant and that candour in the course of the trial was a live issue. Counsel for the appellant made his closing submissions after counsel for the respondent. He did not seek an adjournment in order to consider the matter. Indeed, it is difficult to see how the recalling of the appellant could have enhanced his position on the issue of credibility. The learned primary judge raised with counsel the issue that some of the contents of the affidavit were incorrect and counsel made reply. Counsel specifically addressed the Court in relation to the making of a "striking off" order and the general issue of fitness. There can be no doubt that the issues of candour and "striking off" were fully discussed before the completion of the hearing. The Court was not required to reconvene if, upon reflection, it was satisfied that there was merit in the submission of the respondent`s counsel.

The fairness of the trial process accorded with the principles stated by the High Court in Kioa and Others v West and Another [1985] HCA 81; (1985) 159 CLR 550. Analysis of that case is required in order to consider the manner in which the circumstances of the procedure followed in this case should be considered. In that case, the court was required to deal with procedures applicable to deportation. The circumstances involved an applicant who had entered Australia in September 1981 on a temporary entry visa, upon expiry of which he applied for an extension until March 1982. This application was not determined prior to March 1982, and after that time the Department of Immigration and Ethnic Affairs took no further action on it, as it believed that the applicant had left Australia. In July 1983, it was discovered that he was still in the country as an illegal immigrant. He was arrested and the Legal Aid Commission of Victoria urged the Minister to exercise his discretion to allow the applicant to remain in Australia. In September 1983, the Department formally refused the application for an extension of the applicant's temporary entry permit. The applicant remained in Australia and in October 1983 a written submission by an officer of the Department was put before the Minister`s delegate containing a recital of the facts and including an allegation that the applicant was actively involved with "other persons who are seeking to circumvent Australia's immigration laws". Following the recommendation, the Minister`s delegate signed deportation orders. The High Court set aside those orders on the grounds that there had been a breach of the rules of natural justice. A majority of the High Court found that the delegate should have provided the applicant with the opportunity to respond to material included in the Departmental submission. Mason J (as he then was) stated, at 582:

"It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it ..."

He went on to state that procedural fairness did not require that in all cases notice should be given to an illegal immigrant of an intended deportation order, as this would frustrate the objects of the Migration Act. However, he went on to say that whilst in the ordinary course of granting or refusing entry permits, the principles of natural justice did not apply:

"... if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter ..."

Kioa v West was applied in both Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; (1991) 31 FCR 100 and Heshmati v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 387; (1991) 31 FCR 123. In these cases, two Iranian citizens were detained in custody as prohibited non-citizens. Whilst in custody they wrote to the Iranian Embassy in Canberra expressing opposition to the current Iranian government. Their applications for refugee

status were subsequently rejected inter alia because the decision maker concluded that, in writing to the Iranian Embassy, they had not acted in good faith. This conclusion was never put to the appellants. In both cases the Federal Court held the appellants had not been afforded procedural fairness. In Somaghi, Jenkinson J, stated at 108:

"... the preponderance of authority favours a rule or principle that an administrative decision-maker's evaluative conclusions on the material before him do not have to be communication to an applicant so that considerations influencing the decision-maker`s mind adversely to the applicant's interest may be reviewed before the decision is made in the light of any submission or evidentiary material the applicant may desire to tender in response to the communication. But there are observations, which may be thought to constitute a gloss on the general rule, that favour a requirement that the applicant have his mind directed to the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it ..."

These cases were, however, distinguished in Amerasinghe v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 595; (1991) 33 FCR 30. Here, the applicant was refused a student visa. The decision maker rejected the application on the grounds that written materials supplied by the applicant, and her answers in an interview, demonstrated a lack of bona fides. The applicant argued that the decision maker had breached the rules of natural justice by, inter alia, not giving the applicant an opportunity to deal with the finding that she was not a genuine student. The appeal was dismissed. According to Olney J, at 38, the facts in Somaghi and Heshmati were:

" ... quite extraordinary in that the decision maker drew an inference of lack of bona fides from facts which were not relied upon by the applicants in support of their applications ...

The decisions in Somaghi and Heshmati are not authority for a general proposition that in cases where a decision-maker proposes to reach a decision based upon a finding that a party has not acted bona fide, the party must first be given the opportunity to address that issue. In the two cases cited the issue of bona fides was not one which so obviously arose from the circumstances that the applicants should be treated as having knowledge of what the decision-maker`s judgment of the particular conduct would be. As indicated above, the decision-maker had made an assumption as to the basis upon which the applicants sought to support their applications which did not accord with the cases as presented."

His Honour found that the applicant was well aware that the purpose of the interview was to establish whether she was a bona fide applicant for a student visa, and that she had an opportunity at the interview to have a final say on the subject. The court also distinguished Waniewska v Minister for Immigration and Ethnic Affairs (1986-1987) 70 ALR 284, which also dealt with an appeal against a deportation order. In that case, a submission was made to the Minister's delegate that the applicant had attempted to extend her stay "on the pretext of a marriage". The court found that the delegate`s failure to give to the applicant an opportunity to respond to this allegation constituted a non-observance of the principles of natural justice and, in itself, was a sufficient ground to set aside the decision (at 294, per Keely J). In Isaachsen v The Medical Board of Western Australia (1991) 4 WAR 303, the appellant was a medical practitioner charged with improper conduct and an inquiry was held before the Medical Board. The appellant was found not guilty of the two charges brought against him, but the Board, when delivering its reasons, found that the appellant should be responsible for the costs of the hearing to be determined by the respondent Board. The question of costs had not been raised during the hearing and the respondent had not called for submissions in connection with costs. Neither counsel had made submissions as to costs, nor did the respondent, prior to handing down its reasons and ordering the appellant to pay costs, intimate that it was considering making any

order in respect of costs. Shortly after the respondent delivered its reasons, it informed the appellant that he was to pay costs amounting to $12,500. The appellant appealed on the ground that inter alia "... the respondent erred in law in that it made the order for costs ... without having first given the appellant the opportunity of making submissions through counsel on the question of costs." Ipp J upheld this ground of appeal, stating that the inquiry had been of a judicial character and, therefore, required the observation of natural justice and the application of procedural fairness, stating at 306:

"That being so the respondent cannot lawfully make any finding adverse to the interests of a practitioner facing charges under such an inquiry without first giving him the opportunity to make submissions against the making of such a finding ... The respondent's failure to allow the appellant an opportunity to make submissions to it before ordering him to pay the costs of $12,500 was plainly a breach of the rules of natural justice and procedural fairness."

In McNab v Gildea & Others (1986-1987) 70 ALR 60, the Federal Court was required to determine whether a Promotions Appeal Board, which was required to make full enquiry into the claims of the appellant, had breached the rules of natural justice by failing to contact the appellant`s "principal referee". Wilcox J held that the Board should have endeavoured to contact referees nominated by the appellant or, at least, to inform him of its intention not to do so. Failure to do this was held to lead to "a serious risk that the applicant will be denied the opportunity of having before the Board the whole of the material in support of his or her claim to the position."

The above principles, decided on matters involving administrative law, have relevance to the proceedings under consideration.

O'Reilly v The Law Society of New South Wales (1990-1992) 24 NSWLR 204, was an appeal from the Solicitors Statutory Committee as to the findings of the Committee of alleged misconduct which was said to justify the removal of the appellant`s name from the Roll of Solicitors. One category of misconduct alleged was "the making of false statements to the Law Society and to the Statutory Committee." The appellant complained, through his counsel, both during the hearing before the Statutory Committee and the appeal, that the introduction of allegations of deception at a very late stage in the hearing and after the appellant had been cross-examined, breached the rules of natural justice. Clarke JA commented at 231:

"The respondent replied by pointing out that the courts had on more than one occasion said that a solicitor who deceived the Committee would almost certainly be guilty of professional misconduct and that charges asserting that he deceived the Committee could not be laid until after he had given his evidence. Mr Taylor went so far as to say that the charges, or questions as they are more accurately described, were made the subject of the supplementary reference in order to enable the appellant to know the case he was to meet and to facilitate his opportunity to reply to that case.

This answer is an effective riposte to those additional questions which asserted that the appellant lied before the Committee. They do not however, provide any answer to his complaint that if he were to be charged with lying to the Law Society or its investigators in 1983, or at any time before the commencement of the hearing, it was quite unfair to delay the preferment of questions raising those charges until after he had given his evidence and been cross-examined. No reason has appeared from the material given in evidence, nor in the reasons of the Statutory Committee for allowing the supplementary reference to be relied upon in the hearing, which exposes a sound basis for raising matter which should have been raised prior to the commencement of the hearing at a time when the appellant's evidence had been concluded.

The course followed necessarily involved a degree of unfairness to the appellant which, in my opinion, should have been avoided. Nonetheless it lay in the

discretion of the Committee to allow that course to be taken, and apart from observing that the introduction of questions concerning deception at points of time earlier than the commencement of the hearing gave force to the appellant`s complaints of unfairness, I see no reason for dwelling upon the subject."

It would appear from these comments that Clarke JA did not consider that unfairness arose from findings that the appellant had lied at the hearing itself.

The test common to the above cases is whether a person, at the time of an application, hearing or interview, is afforded the opportunity to direct his or her mind to the critical issue and be permitted to respond. In Kioa, Waniewska, Heshmati and Somaghi (supra), the parties were unaware that certain issues would be relied upon by the decision maker and were unable to make response. In Isaachsen (supra), the applicant had not been made aware that costs would be an issue if he were to succeed. In contrast, the applicant in Amerasinghe was aware at the time of interview that her bona fides were in issue and she was afforded opportunity for response. The appellant Howes, like O'Reilly, must have known that his veracity was an important issue at the hearing, and have realised the consequences of lying. He was, after all, a legal practitioner. The fact that he was informed beforehand of the respondent`s intention to apply for a striking-off order, would have further directed his mind to the issue. Notice of the issues had been clearly given to the appellant and the matters fully canvassed during the hearing. There was no failure to afford procedural fairness. The grounds of appeal ought not be sustained.

The appellant, on his own version, had been guilty of unprofessional conduct. He had broken his solemn word. His involvement as trustee was prolonged and continued well beyond his statement to the Society that he had divested himself of the Seaton trusteeship. He had failed to make proper response to a request from his professional body which had a legal duty to supervise the conduct of its members. He had displayed, by his conduct, an absence of understanding of his professional responsibilities and a lack of skill and competence in the performance of his duties in the areas of the law in which he was engaged and in which members of the community were entitled to assume he possessed. That conduct might, of itself, have warranted the removal of the practitioner from the Roll. But it was the sworn evidence of the appellant which had greatest significance in the final determination. Findings of dishonesty against a legal practitioner must result in a conclusion that the community can no longer trust the integrity of that practitioner. The relevant grounds of appeal claim:

"10 that His Honour was wrong in law and wrong in fact in determining that the Appellant was not a fit and proper person to remain a Legal Practitioner and in Ordering that the Appellants name be removed from the Roll of Legal Practitioners;

13 that His Honour gave too much weight to evidence against the Appellant and failed to give proper or sufficient weight to evidence in favour of the Appellant, and in particular, as to the personal circumstances of the Appellant at all relevant times;

14 that in all circumstances the Order removing the name of the Appellant from the Roll of Legal practitioners was harsh and oppressive and constituted a penalty which was manifestly excessive having regard to all the circumstances of the case."

The learned primary judge made the following findings concerning the honesty of the appellant:

"3 His dishonesty when he untruly stated in his affidavit, sworn for the purpose of these proceedings, that after receiving Mrs Watkins' request of 26 November 1994 that he finalise the transfer of the units, he `overlooked' carrying out her request and the matter went out of his mind until June 1995. As I said earlier in these reasons, I have no doubt that he was well aware that the file required his attention.

6 His dishonest and untrue statement in oral evidence that he believed at the time that he had not breached his undertaking to the Society because he believed that by signing the transfer forms he had completed his last duty as trustee (notwithstanding that he was aware that the transfers then remained lying in his file).

7 His lack of candour, and probable dishonesty, in his affidavit, when he claimed that `I was distracted at the time by continuing suggestions by the Applicant that I was in breach of my undertaking, the pressure of work and an increasing personal commitment to a court action involving myself and the Trust Bank.

8 His dishonest and untrue statement in his affidavit when he claimed that he had relinquished his fiduciary capacity in Seaton's estate on 22 August 1995, fifteen months earlier than he in fact had.

9 His initially untruthful claim in cross-examination that the cause of his delay in relinquishing his fiduciary relationship with respect to Haros` estate was that he 'was under an extreme lot of pressure`.

10 His lack of candour ('this estate has been fully administered`) regarding what had been done in Haros' estate in his letter dated 22 August 1995, which was in response to the Society`s demand for information concerning the steps he had taken to comply with his undertaking to relinquish any positions giving rise to fiduciary relationships. In this regard I note that in evidence he admitted that by that date he was aware that he was in breach of his undertaking to the Society. He gave no indication of that awareness in his letter."

The Court has the ultimate responsibility for the integrity of the legal profession. The Court, like the disciplinary committee about which his Honour's comments were made, has the obligation to exercise the powers of supervision. In the words of Cosgrove J in Dickens v Law Society A421981, at 15, that obligation is:

"... for the purpose of, and in a manner seen to be likely to achieve, the maintenance of (the) high standard of conduct within the profession which will continue its good reputation, and so protect, not only the future of the profession, but also protect its clients from harm."

If the honesty and integrity of a legal practitioner be not trusted, then a central tenet of the discipline is diminished. The ultimate question for the learned primary judge was whether the appellant was "a fit and proper person to be entrusted with the important duties and grave responsibilities which belong to a solicitor?", In re Weare, a Solicitor, In the Solicitors Act 1888 [1893] 2 QB 439, Lopes LJ, at 448. The learned primary judge referred to and took into account the subjective circumstances of the appellant.

To a practitioner, a "striking off" order will be perceived as a punishment. But to the Court and community it is regarded as a protective mechanism. As Dixon CJ stated in Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 at 286:

"The duty of a court cannot be affected by either description of consideration just as it cannot be affected by a consideration of the hardness of the case of the man who has been convicted. The jurisdiction the court exercises has nothing to do with punishment. The purpose of the power to remove from the roll of barristers is simply to maintain a proper standard, and that is a necessarily high standard, for the Bar is a body exercising a unique but indispensable function in the administration of justice."

(See also Clyne v The New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 201-202, and New South Wales Bar Association v Evatt (supra).)

The consequence to the appellant was significant, but the removal of a practitioner of the law, no longer trusted by the Court, has far greater benefit for society. Grounds 10, 13 and 14 ought be dismissed.

Grounds 11 and 12 are compilations of the consequences of claimed specific errors and have no independent effect. The relevant grounds claim general error in the following terms:

"11 that His Honour erred in law by making findings against the Appellant, which said findings were not established having regard to all the evidence;

12 that His Honour erred in law by drawing inferences against the Appellant which said inferences ought not to have been drawn having regard to all the evidence."

These grounds have already been considered in relation to earlier grounds and require no further consideration. They ought be rejected.

The grounds of appeal are not made out and the appeal ought be dismissed.