Supreme Court of the ACT|2011-07-01

The application for removal from the Roll of Practitioners

On 18 August 2010, the Law Society applied to this Court under s 431(3) of the Legal Profession Act for an order that the appellant's name be removed from the roll of practitioners. The ground relied upon is the making by the Tribunal of the recommendation that the appellant's name be removed from the roll of practitioners. On 2 September 2010, Higgins CJ adjourned that application until after the determination of the appeal from the decision of the Tribunal.

On 1 July 2010, the appellant applied to the Court in the present appeal for an order that the Law Society issue a restricted practising certificate to him for the year commencing 1 July 2010.

On 26 March 2009, the Law Society Council filed an application in the Tribunal which alleged that the appellant acted in a way which constituted professional misconduct or unsatisfactory professional conduct in relation to a proceeding in the Magistrates Court (the Magistrates Court matter).
On 19 October 2010, the Tribunal determined that the appellant had engaged in professional misconduct by misleading a Magistrate, and further misleading the Law Society in its investigation of the complaint (The Council of the Law Society of the Australian Capital Territory & The Legal Practitioner (Occupational Discipline) [2010] ACAT 73). The Tribunal stood over the issue of the appropriate sanction to be imposed and when the Court gave its decision on this appeal the sanction question was still outstanding.
The circumstances which gave rise to the application before the Tribunal concern a hearing before the Magistrate on 28 July 2009. The defendant before the court was charged with assault of her partner and applied for bail. When the case was called the defendant told the Magistrate that she was not legally represented. There was a short discussion before the appellant entered the court. He then told the Magistrate that he had been instructed to appear for the defendant. He said that his instructions came from the defendant's partner who was the victim of the assault. The Magistrate refused to accept his appearance, having been told by the defendant that she was not legally represented. The Magistrate later wrote to the Law Society to report that the appellant had claimed to have instructions to appear for the defendant when he did not have those instructions.
The Law Society commenced an investigation and sought the appellant's response. The appellant first responded on 5 September 2008 enclosing a transcript of the bail application and drawing attention to his statement to the Court that he was instructed by the defendant's partner. Then, on 18 October 2009, he again wrote to the Law Society, but this time stating that he was instructed by the defendant herself in the cells and that when he appeared he had a signed legal aid application form nominating his firm to act for the defendant. He enclosed statements from the defendant and her partner which said that the defendant had instructed the appellant in the cells.
The Tribunal observed that the failure to enclose the statements or make any reference to the instructions from the defendant in the appellant's first response called for some explanation from the appellant. The appellant did not give evidence. The Tribunal declined to place any weight on the statements of the defendant and her partner, and did not accept that the legal aid form was signed on the day of the hearing.
The Tribunal referred at [103] to the notation on the legal aid form which read:

I appeared today for an opposed bail app Bail was granted.

As to this the Tribunal said at [105]-[106]:
1. The statement is untrue and misleading. The transcript makes it clear that the practitioner did not appear and that he played no role in the application for bail. The practitioner can have been in no doubt that his attempt to appear was rejected by the Magistrate. His response of 5 September 2008 ... contains an acknowledgement to that effect. His own counsel's submissions quite properly emphasized that the practitioner had not, in fact, acted for anyone on the bail application.

... the fact that the respondent made this untrue and misleading statement about the bail application, on a document allegedly completed on the day of the bail application, when the refusal of the Magistrate to accept his appearance must have been fresh in his mind, raises a serious doubt about the respondent's truthfulness generally, and about the credibility of the respondent's representations to the applicant about the application for aid in particular. It is a serious inconsistency that at least, calls for explanation as to how and why the notation came to be made. That is a matter wholly within the knowledge of the respondent.
The Tribunal found that the appellant deliberately misled the court. It said:
1. The Tribunal acknowledges that the court was not misled to any significant extent and that the court did not act on the respondent's misleading actions but, misleading a court is a serious matter that is properly regarded as disgraceful.
2. The Tribunal is satisfied that the respondent's actions should therefore be characterized as professional misconduct.
The Tribunal also found that the appellant misled the Law Society when he said that he was instructed by the defendant in the cells and that he held a completed legal aid form signed by her on 28 July 2008. The Tribunal concluded at [157]:

... The misleading representations involved a significant degree of deception and are properly characterized as professional misconduct.

The Tribunal determined that several other grounds of complaint made by the Law Society had not been made out.

On 19 May 2010, the Law Society Council filed a further application in the Tribunal alleging professional misconduct or unsatisfactory professional conduct by the appellant in relation to a complaint made by KB (the KB matter). This matter was listed for hearing in the Tribunal on 10 and 11 February 2011.
The appellant acted for a firm, PHS, which was indebted to a company, FNT Pty Ltd (FNT). PH failed to pay and as a result an adverse credit listing was made by a credit reporting agency, VA Pty Ltd (VA). The Law Society Council alleges that the appellant phoned KB, an employee of FNT, on 17 June 2009 and asked her to contact VA to have the listing removed on the basis that it had been placed in error. In return, he said his client would pay FNT $500. The appellant confirmed the request in writing. Later that day he increased the offer to $2,000. He also threatened legal proceedings if FNT did not contact VA, and threatened to contact VA to have FNT restrained from any further placements.
The Law Society Council contends that the appellant deliberately represented that the VA listing was erroneous, which he ought reasonably to have believed was not the case, and thereby acted in breach of r 31.1(a). It also contends that the threat in the letter, to have FNT restrained from any further placements, was calculated to intimidate FNT into accepting an offer which grossly exceeded the legitimate assertion of the rights of PHS which were, in truth, non-existent, and thereby acted in breach of r 31.1(b). Finally, the Law Society Council alleges that the appellant, deliberately or knowingly, on behalf of PHS, offered a financial inducement to FNT in return for that entity falsely representing to VA that FNT's credit listing of PHS was placed in error in circumstances where the appellant knew or ought to have known that this was not the case.

In June 2009, KM made a complaint to the Law Society about the conduct of the appellant. The Law Society is currently investigating the complaint, which alleges that the appellant failed to handle trust money appropriately and that he engaged in threatening behaviour. In response to KM's further complaint concerning the appellant's costs, he refunded her fees of $1,200.

And finally, on 7 July 2010, the appellant gave evidence in an application which followed the appointment of a manager to his employer's legal practice (the BH matter). The transcript of that evidence was tendered at the appeal. Following the appointment of the manager, BH, the appellant met BH in the appellant's office on 1 July 2010. BH asked the appellant not to touch anything in the office. Despite this request the appellant took one of his 2010 diaries from the premises and threw it into a bin at the back of the Reserve Bank building in Canberra. He also removed his computer. On the following day BH brought a successful application in the Supreme Court for production of various items including business diaries and computers. In relation to the application the appellant told BH that he would need to go to Goulburn to retrieve the items. The application was adjourned to allow this to happen. The appellant did not disclose to BH or to the Court that he had disposed of the diary the night before. The appellant agreed in his evidence that he was told by BH that he, BH, had been appointed manager of the practice. The following exchange in cross examination on 7 July is representative of the appellant's unacceptable approach to the situation:

You knew you're not allowed to throw that in the bin, did you? --- No,[sic] doubt at all.

Notwithstanding that, you'd been told a manager had been appointed to your practice? --- If I'd have been served the notice of appointment I would've had more knowledge of what was going on but I hadn't been served the notice of appointment.

All right, let's say you had been served the notice of appointment, what then Mr xxx? Would you still have thrown it into the bin? --- No.

I see, so it's failure to serve the notice of appointment? --- That's correct.

The Law Society Council relied principally on the orders and the reasons of the Tribunal in the Client C and Client N matters. In those matters the Tribunal ordered that the appellant's restricted practising certificate be cancelled forthwith and recommended that his name be removed from the roll of practitioners.
The Law Society Council argued that the cancellation of the appellant's practising certificate (which cancellation, curiously, was ordered after the Law Society had already refused to renew the practising certificate) is virtually fatal to the appeal.
The fact that the appellant's right to practice has been suspended is a matter which the Act expressly allows to be taken into account in relation to an application to renew a practising certificate: Legal Profession Act, ss 36(2) and 11(1)(f).
The Law Society Council then pointed to the seriousness of the misconduct in the Client C matter, which involved acting without instructions, misleading the Law Society in its investigation, and attempting to interfere with a potential witness in the disciplinary hearing. The Law Society Council also referred to the Tribunal's finding that the appellant had falsely represented to the Law Society that he was acting pro bono for Client N in order to minimise the seriousness of the personal relationship with her, the finding that the appellant fabricated the conversation with Mr Phelps, and the observation that there was unanswered evidence that the appellant had threatened others connected with the proceeding. The conduct showed a disposition to disrupt the course of justice by improper means.
The Law Society Council placed emphasis on three passages in the Tribunal's sanctions decision (at [67] above). First, the Council noted:

In its reasons for so concluding, the Tribunal found that [the appellant] "is not only not remorseful about the conduct that the Tribunal found proven, but secondly, that in choosing to deny the findings, shows no insight into the serious nature of the conduct which goes to the very heart of the duties and obligations of a legal practitioner", and "the Tribunal has no confidence that he has undergone any radical change that would be necessary to displace a finding of unfitness in relation to the charges".

In respect of the finding that the appellant consented to the setting aside of the protection order without instructions and then misled the Law Society about the circumstances, the Tribunal said at [18] that this conduct:

... demonstrates comfortably that the Practitioner cannot be trusted by his clients or the public; by his professional association; by the Courts or Tribunals before whom he appears; by his fellow practitioners; and that presence on the roll of someone who cannot be trusted even at this most basic level ... is contrary to the interests of the administration of justice as well as the public interest.

And then in relation to the finding that the appellant attempted to interfere with DC giving evidence, the Tribunal said at [22] that this discloses:

... fundamental flaws in the Practitioner's character, namely, dishonesty, disloyalty and a manifold contempt for his ethical duties to the Society, his clients and the administration of justice.

The Law Society Council then explained the seriousness of the finding in the Magistrate matter involving, as it did, misleading the Magistrates Court.
The Law Society Council particularly focused on the criticism of the appellant's credit in relation to the false claim made on the legal aid form asserting that the appellant had appeared for the defendant. The Law Society Council relied on the Tribunal's view at [106] as follows:

However, the fact that the respondent made this untrue and misleading statement about the bail application, on a document allegedly completed on the day of the bail application, when the refusal of the Magistrate to accept his appearance must have been fresh in his mind, raises a serious doubt about the respondent's truthfulness generally, and about the credibility of the respondent's representations to the applicant about the application for aid in particular.

The Law Society Council drew attention to the Tribunal's description of the appellant's conduct in misleading the Law Society Council about his instructions to appear for the defendant as involving "a significant degree of deception".
Finally, the Law Society Council submitted that the Court should take into account the pending application before the Tribunal in the KB matter, the investigation in the KM matter, and the appellant's conduct in the BH matter. The Court was expressly empowered to take into account the pending application and the investigation: Legal Profession Act, ss 36(2) and 11(1)(f).
Mr Beaumont, who appeared as counsel for the Law Society Council, highlighted the distinction between a finding that a person is unfit to hold a practising certificate and a finding that a person is unfit to remain on the roll of practitioners. Whilst the Law Society Council or the Tribunal may determine whether a person is unfit to hold a practising certificate, only the Court can remove a person's name from the roll of practitioners. Removal from the roll of practitioners is usually appropriate where the Court forms the view that the practitioner is probably permanently unfit to practice (New South Wales Bar Association v Murphy [2002] NSWCA 138; (2002) 55 NSWLR 23 (Murphy) per Spigelman CJ at [25]-[26] and Giles JA at [108]-[113]). Cancellation or refusal to renew a certificate, on the other hand, relates to the limited period of the duration of a certificate, normally one year. Mr Beaumont used this distinction to argue that because the Tribunal not only cancelled the appellant's practising certificate as a result of the Client C and Client N matters, but also recommended that the appellant's name be removed from the roll of practitioners, the appellant could hardly contend now, in view of such a finding, that he is a fit and proper person to hold a practising certificate. If the appellant is not a fit and proper person to be on the roll of practitioners he can hardly be a fit and proper person to hold a practising certificate.

The appellant appeared for himself on the appeal.
He submitted that his restricted practising certificate should be renewed. His principal argument was that he has instituted an appeal in the Client C and Client N matters. In a submission which lacked nothing in boldness, he asserted that he would be exonerated in due course. He also intended to lodge an appeal in the Magistrates Court matter once it was finalised in the Tribunal.
The appellant said that he had not given evidence in those cases on the advice of counsel. He said that he realises now that he should have given evidence.
The appellant contended that the complaints in the Client C and Client N matters and the Magistrates Court matter dated back to October and December 2007 and August 2008 respectively. He said that he had been practising in the meantime and should be allowed to continue in the 2010-2011 year until the disciplinary matters were finally resolved in the Tribunal and the Court.
The appellant relied on an order made in the Supreme Court on 9 June 2009 with consent of the Law Society. The appellant had applied for an unrestricted practising certificate in December 2008. The Law Society refused that application. The appellant appealed to the Supreme Court. The appeal was compromised and a consent order made in the following terms:
1. The respondent shall renew the applicant's restricted practising certificate for the year commencing 1 July 2009 on the applicant's undertaking not to apply for the issue of an unrestricted practising certificate until the three disciplinary matters currently before ACT Civil and Administrative Tribunal have been disposed of.
The appellant says that the intent of the order was to permit him to practise until the Client C and Client N matters and the Magistrate matter had been finally resolved. As they have not been finally resolved, he argued, the restricted practising certificate should be renewed.
Then, the appellant explained the background to the conduct in question. He said that he came to the law late, in his 50s, and was now 57. He was admitted on 6 March 2007. The Client C and Client N matters arose in the first eight months and the Magistrate matter within the first 18 months of practice. The appellant said that he was not adequately supervised. He said he took on too many matters and worked 18 to 20 hours a day and six or seven days a week. In his written submission the appellant said that the ratio of his complaints to his volume of work compared with his colleagues was low.
In relation to the specific cases, the appellant said that the Client N matter was a personal mistake. In his written submission he expressed embarrassment and remorse for his lack of judgment. Nonetheless, he said in his submissions that Client C and Client N were sisters and hence had a motive to lodge the complaints (although without explaining the nature of the asserted motive or why that relationship provided any such motive). In those submissions he stated that the grounds of appeal in these matters are that the Tribunal erred in the way it relied upon the failure of the appellant to give evidence to the Tribunal. He said that the same ground of appeal will be relied upon in the Magistrates Court matter. In relation to the BH matter, the appellant said that the conduct was not reprehensible because BH did not serve him with a notice of appointment. In oral submissions he said "I don't see that I did anything wrong". In relation to the KB matter, in written submissions, the appellant said that he was acting on his client's instructions.

The findings made by the Tribunal in the Client C matter amply justified its conclusion that the appellant's practising certificate should be cancelled. It is fundamental to the obligation of a legal practitioner to act in accordance with, and not contrary to, the instructions of the client. The appellant's failure to do so was particularly serious because it involved a family violence case in which Client C was concerned about her personal safety. The appellant's misconduct was seriously compounded by his dishonesty in dealing with the Law Society in its investigation. The false story which he told was a detailed deception which was elaborated over several responses to the Law Society. The circumstances were further seriously aggravated by the appellant's attempt to threaten DC, Mr Phelps and the Law Society.
We agree with Mr Beaumont that on its own the decision of the Tribunal to cancel the appellant's practising certificate in these circumstances is sufficient to establish that the appellant is not a fit and proper person to hold a practising certificate and the appellant's practising certificate should not be renewed. But there are other features of the case which leave no room for doubt about that conclusion.
A particularly noticeable aspect is that the appellant did not give evidence before the Tribunal in either of the proceedings. It was open to him to give evidence to support his responses to the Law Society, or alternatively, to give evidence of the circumstances which led him to deceive the Law Society. The present appeal was a further opportunity for the appellant to give evidence about these matters. Despite his comments mentioned at [104] above, he again chose not to do so. The result is that the Court has no evidence of the events which contradicts the findings of the Tribunal.
The appellant's central contention on this appeal was that he should be permitted to continue to practise until the appeals against the Tribunal decisions have been disposed of. There is, he argued, a proper process for dealing with applications brought by the Law Society Council to the Tribunal. The process includes the right of appeal to this Court. Until the process is exhausted, the matters are not finally determined, and the appellant's ability to practise should not be curtailed.
The appellant did not argue that the Court was bound to await the outcome of the appeals against the Tribunal decisions. Such an argument would not be available. Whether a person's right to practice has been suspended or cancelled is a matter which the Legal Profession Act expressly allows to be taken into account (s 11(1)(f)), but it is not a matter in respect of which the Act requires the Court to accept automatically and without question the decision of the Tribunal and the opinions expressed in its reasons. It is a matter for the Court to assess the cogency of the decision and the reasons.
The decision of the Tribunal in the Client C matter is comprehensive and careful. The Tribunal's views as to the seriousness of the conduct are justified. Indeed, without any evidence from the appellant on the issues, it is hard to see what other outcome was possible.
It is a mark of the appellant's lack of insight into the seriousness of his conduct in the Client C matter that he expressed an unwarranted confidence in the success of his appeal against the Tribunal's decision. He expressed a certainty that he would be exonerated, notwithstanding that Gray J in the unsuccessful stay application brought by the appellant described the chances of success as minimal. Further, there was little basis for confidence in the grounds of appeal outlined by the appellant in his written submissions. He intends to argue that the Tribunal erred in the use it made of the fact that he did not give evidence before the Tribunal. But in the Client C matter, the Tribunal did not rely on the failure of the appellant to give evidence. Rather, the Tribunal found that the grounds were made out on the positive evidence given by the witnesses who did give evidence.
The appellant's reliance on the order made by consent on 9 June 2009 is misplaced. The plain reading of the order obliged the Law Society to renew the appellant's restricted practising certificate for the year commencing 1 July 2009. The order said nothing about any renewal thereafter. The appellant did not provide any evidence of any particular context in which the order was made which would cause the Court to construe the order other than in accordance with its plain meaning. Further, since the order was agreed, the Tribunal has made very damaging findings in the Client C matter. The consent order did not prevent the Law Society from determining that the appellant's practising certificate should not be renewed for the 2010-2011 year, and certainly does not prevent the Court from so doing.
In view of the opinion expressed by the Tribunal that the appellant showed no remorse over the Client C matter, it may have been expected that on this appeal he would respond to that opinion. But, far from showing any remorse about the Client C matter, the appellant in submissions cast the responsibility for any failing on others. Thus, he said that he had not been given adequate supervision. He suggested that Client C was motivated to complain because of the appellant's failed relationship with her sister, Client N. He said that he did not give evidence before the Tribunal because he was advised by counsel to adopt that course.
The Magistrates Court matter provides further support for the view that the appellant is not a fit and proper person to hold a practising certificate. It is fundamental to the proper administration of justice that the courts can rely on the integrity of practitioners. The deception of the Magistrate by the appellant was a serious breach of his obligation. The wrongdoing was significantly exacerbated by his lying to the Law Society in the course of its investigation, his procuring of statements from the defendant and her partner that the Tribunal declined to rely on, and the submission to the Law Society of the false legal aid application form. Again, it is noteworthy that the appellant did not give evidence to the Tribunal about his actions, nor did he give evidence on this appeal. Whilst no sanction has yet been imposed by the Tribunal in relation to the Magistrates Court matter, the findings of the Tribunal in that matter disclose dishonesty of the appellant at such a high level that those findings alone would justify the conclusion that the appellant's practising certificate should not be renewed for the current year.
The Client N matter is another example not only of a failure of the appellant to deal properly with his client, but of his untruthfulness in dealing with the Law Society's investigation.
Further, the Court is entitled to take into account the investigation being conducted in the KM matter and the unresolved complaint in the KB matter (s 11(1)(f) of the Legal Profession Act). No findings have yet been made in either case, but their existence adds to the picture of the appellant as a person unfit to hold a practising certificate.
The BH matter provides yet further insight into the failure of the appellant to recognise his responsibility as a legal practitioner. He disposed of his diary after a request by BH not to do so. He failed to disclose that fact to BH or to the Court in the application for production of the diary. The appellant knew that BH had been appointed manager of the practice. His reliance on the technicality that he was not served with the notice of appointment shows a disregard for frank dealing with BH, and disregard of his obligation of full disclosure to the Court. Furthermore, his brazen submission on the appeal that he did nothing wrong in the BH matter shows both a lack of insight into his duties as a practitioner, and a lack of remorse for his behaviour.
The power to refuse, or to refuse to renew, a practising certificate is for the purpose of the protection of the public: Murphy per Giles JA at [113]. The power is not designed as a punishment of the practitioner. In view of the serious findings of professional misconduct in the Magistrates Court matter (which we have already noted would of itself be sufficient to justify a refusal to renew), the Client C matter and the Client N matter, and supported by the unresolved complaint and investigation in the KM and KB matters respectively, and his failure to act in accordance with his obligation in the BH matter (established by his own evidence), we found that the appellant was not a fit and proper person to hold a practising certificate.

At the end of the hearing the Court dismissed the appeal and made the usual order as to costs. The effect of dismissing the appeal was that the Law Society Council's decision to refuse to renew the appellant's practising certificate was confirmed.

I certify that the preceding one-hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Civil and Administrative Tribunal Act 2008(ACT)

Supreme Court Act 1934(ACT)

Profession (Solicitor) Rules 2007

Procedures Rules 2006

Supreme Court Act 1934(ACT)

Profession (Solicitor) Rules 2007

Procedures Rules 2006

Civil and Administrative Tribunal Act 2008(ACT)

Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110 (1 July 2011)

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616

Council of the New South Wales Bar Association v Slowgrove [2009] NSWADT 150

New South Wales Bar Association v Murphy [2002] NSWCA 138; (2002) 55 NSWLR 23

The Council of the Law Society of the Australian Capital Territory & The Legal Practitioner (Occupational Discipline) [2010] ACAT 73

Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110

At a glance

Court

Decision date

Source

Judgment (29 paragraphs)

Parties

Legislation Cited (16)

Cases Cited (9)

Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110 (1 July 2011)