Legal Practitioner v Council of The Law Society of The Australian Capital Territory [2014] ACTSC 13

Legal Practitioner v Council of The Law Society of The Australian Capital Territory [2014] ACTSC 13 - ACTSC 2014 case summary — Zoe

[88]

Complaint

The Society contends that the Respondent has, whilst purporting to act for [Ms V] on or about 28 July 2009, engaged in conduct which was misleading to the court, would have potentially placed the Respondent in a conflict of interest position, and, subsequently, the Respondent engaged in conduct in breach of Rule 39 of the Legal Profession (Solicitors) Rules 2007 as well as misleading and deceptive conduct.

The Society further contends that such conduct amounts to professional misconduct or unsatisfactory professional conduct, justifying an order by the Tribunal.

Legal Profession (Solicitors) Rules 2007

Rule 39.1 provides as follows:

"Subject only to his or her duty to the client, a practitioner should be open and frank in his or her dealings with the Law Society."

Grounds of Complaint

Ground 1

Misleading the Court

Particulars:

1.1 The Respondent, deliberately or recklessly, misled the court when he appeared before Magistrate Doogan on 28 July 2009 purporting to act for Ms [V] on a bail application in circumstances were he had no actual instructions from Ms [V] at the time of his appearance.

Ground 2

Conflict of Interest

Particulars:

2.1 The Respondent purported to act for Ms [V] upon instructions from Mr [G] who was the victim of the alleged assault on a bail application involving a charge of assault occasioning actual bodily harm and in circumstances were the Respondent had previously acted for Mr [G] in a separate matter, albeit as agent for another practitioner, in interlocutory proceedings where Mr [G] was the perpetrator of an alleged assault upon Ms [V].

Ground 3

Failure to be open and frank in dealings with the Law Society and misleading and deceptive conduct

Particulars:

3.1 The Respondent deliberately or recklessly, made misleading representations to the Society that:

(a) he was unaware that Ms [V] was the victim of Mr [G]'s assault in circumstances were he knew that she was; and

(b) he was unaware that Mr [G] was a victim of Ms [V]'s assault in circumstances were he knew that she was the victim; and

(c) he was instructed by Ms [V] in the court cells prior to the hearing of her bail application when in fact he had no such instructions; and

(d) he held a signed legal application form when he appeared before Magistrate Doogan when this was not in fact the case.

[104]

[THE LEGAL PRACTITIONER]: Your Honour, I apologise.

HER HONOUR: [The Legal Practitioner].

[THE LEGAL PRACTITIONER]: I've just been instructed in regard to this matter.

HER HONOUR: What, just this instant? Because Ms ---

[THE LEGAL PRACTITIONER]: I've been instructed by ---

HER HONOUR: Ms [V] said she didn't have anyone appearing for her.

[THE LEGAL PRACTITIONER]: I've been instructed outside the court by Ms [V]'s partner ---

HER HONOUR: Who's that, Mr [G]?

[THE LEGAL PRACTITIONER]: --- ho is the victim of the assault.

HER HONOUR: Mr [G] I'm not accepting instructions from somebody who comes and stands before me and says that they are instructed by the victim of an alleged assault representing the defendant.

[THE LEGAL PRACTITIONER]: No. My only instruction was to speak to the defendant.

HER HONOUR: Say no more, [the Legal Practitioner]. I'm proposing to grant her bail so ---

HER HONOUR: I'll put conditions on it. And it's bizarre, [the Legal Practitioner], that you would - is that what you're saying to me, that you've been instructed by - just sit for a moment.

[THE LEGAL PRACTITIONER]: Your Honour, I was ---

[MS V]: Sorry, I was ---

[THE LEGAL PRACTITIONER]: Your Honour, I was approached outside the court by the victim in the matter ---

HER HONOUR: By Mr [G]?

[THE LEGAL PRACTITIONER]: --- and asked if I would go downstairs and see the defendant. They were my instructions, your Honour. And it is bizarre your Honour.

HER HONOUR: I think that's ---

[MS V]: Yes, he needs to go to the ---

HER HONOUR: It's unbelievable, [the Legal Practitioner], that you would purport to act on behalf - that you are instructed by a victim to go and speak to a defendant in a matter.

[THE LEGAL PRACTITIONER]: Your Honour.

HER HONOUR: If that's not a serious conflict of interest ---

[THE LEGAL PRACTITIONER]: Yes, your Honour.

HER HONOUR: --- what on earth in this court is? This is a family violence matter.

[THE LEGAL PRACTITIONER]: Yes, your Honour.

[MS V]: It's a mental case, it is.

HER HONOUR: I'll just pretend that you didn't even appear, [the Legal Practitioner].

[THE LEGAL PRACTITIONER]: Thank you, your Honour.

[254]

The Tribunal erred as a matter of law in holding that a Jones v Dunkel inference may be drawn to the full extent even in civil penalty proceedings.
The Tribunal erred as a matter of law in holding that it was bound by the line of authority relied upon by the respondent.
The Tribunal erred as a matter of law in finding ground 1 proven when in fact the appellant could not have 'misled the court when he appeared before Magistrate Doogan on 28 July 2008. The Tribunal could not be 'comfortably satisfied that this ground is made our'. The finding is impossible.
The Tribunal erred as a matter of law in finding that the practitioner 'deliberately or recklessly misled the court' as referred to in Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115 at 58. The charge laid was that of misleading the court not that of attempting to mislead the court and as it has been found that the appellant did not appear and did not represent anyone this charge as made has to fail and is an incorrect finding.
The Tribunal erred as a matter of law in finding grounds 3 a and d proven 'it follows from the findings in relation to Ground 1'.
The Tribunal erred as a matter of law in finding that at 64 'It is trite to say that it should only be applied in appropriate cases and that the applicant must prove its case'. Or in the alternative the Tribunal erred as a matter of law in its findings on the failure to cross examine V and G by the applicant.
The Tribunal erred as a matter of law in holding that in order to be satisfied that the appellant had not been open and frank with the respondent (grounds 3 (c) and (d)) it was required to be only 'comfortably satisfied' that its findings 'that the respondent was not instructed by V in the cells before her bail application was heard, and that the respondent did not hold a signed legal aid application form when he appeared before the magistrate'.
The Tribunal erred as a matter of law in holding that in finding ground 1 proven that it was required to be only 'comfortably satisfied' that this ground is made out.
The Tribunal in making its findings on Grounds 1 and 3 (c) and (d) applied the incorrect standard of proof required for these findings.
The Tribunal erred as a matter of law in assessing the evidence of the two witnesses V and G whose evidence was not challenged.
The Tribunal erred as a matter of law in holding that negative inferences could be drawn from the appellant's failure to give evidence.
Alternatively to para 11 above the Tribunal erred as a matter of law in not finding that a Jones v Dunkel inference should be made as a consequence of the applicant not cross examining G and V.
The Tribunal erred as a matter of law in finding that there is an expectation that legal practitioners will enter the witness box to provide some explanation for their conduct.
The Tribunal erred as a matter of law in proceeding upon the basis that a solicitor owes a duty of candour and frankness in his or her dealings with his or her professional body and that duty applied to the proceedings before the Tribunal and that the appellant's failure to give evidence in the hearing and to subject himself to cross examination justified the Tribunal in making adverse findings.
The Tribunal erred as a matter of law in its reasoning at para 67 of its judgement in considering that an adverse inference could not be drawn against the respondent by way of its counsels actions in not calling V and G after subpoenaing the witnesses.
The Tribunal erred as a matter of law in finding that at para 66 the statements of V and G were 'not for the purpose of proving the facts asserted in the response documents'.
The Tribunal erred as a matter of law in finding that the only two witnesses V and G who had any direct knowledge of the instructions prior to the bail hearing apart from the appellant were not given ample weight.
The Tribunal erred as a matter of law in finding that the inference to be drawn from the facts is that the appellant's evidence would not have assisted his case and that this inference is more readily drawn from his failure to give evidence. Whilst finding the reverse from the respondent in the above ground 17.
The Tribunal erred as a matter of law in finding that the text to be applied in respect of an allegation of professional misconduct was whether the misconduct could be reasonably regarded by solicitors of good repute and competency as disgraceful or dishonourable. Instead of applying the definition contained in section 387 of the Legal Profession Act 2006 (the LP Act).
The Tribunal erred as a matter of law in finding that although '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.' Notwithstanding that the court was not significantly misled in any way a finding of professional misconduct was entered. There is significant case law on penalty that indicated the Tribunal erred in classifying the conduct as professional misconduct.
The Tribunal erred as a matter of law in finding that the misconduct found amounted to professional misconduct.
The Tribunal erred as a matter of law in having regards to irrelevant matters.
The Tribunal erred as a matter of law in not having regards to a number of relevant matters. The evidence of V and G, the incorrect evidence of Ms Werner etc.
The Tribunal erred as a matter of law in finding that it did not attach any weight to G's statement as a result of inconsistencies. This is an impossibility as the statements are in evidence and unchallenged.
The Tribunal erred as a matter of law in finding that it did not attach any weight to V's statement as a result of inconsistencies. This is an impossibility as the statements are in evidence and unchallenged.
The Tribunal erred as a matter of law in finding that although Ms Werner's evidence was incorrect that the only other evidence given by V and G was given no weight.
The Tribunal erred as a matter of law in the delay in making the findings and in imposing the penalty so much so that the proceedings amounted to a denial of natural justice and an abuse of process.
The Tribunal erred as a matter of law in allowing the delay to interfere with any benefit to be allowed to the appellant for his first offence as no such consideration has been considered or given.
The Tribunal erred as a matter of law in finding that 'the only interpretation that can be placed on the words and actions of the respondent and of V during the bail application' this is an unsafe finding as the evidence and the submissions clearly support another interpretation. p.27 at 116. She did not say when asked the obvious answer to question being 'No', 'I don't' or no I haven't all three being present tense and obvious answers. Instead she replies past tense 'I didn't.
Or in the alternative the Tribunal erred as a matter of law in its findings in that 'the words used by both the respondent and V should be taken to mean what they say'. The Tribunal erred in that the it ruled that the words should be taken to mean what they say and then did not follow that ruling. 'I didn't' not that 'I don't'. p.27 at 117. I didn't is past tense and taking the word to mean what it says means I didn't but now I have. Further V answers the question she answers it in two distinct parts. 'No, I didn't' - then she follows up with 'yeah, sorry'. When taken as two distinct parts the response is clear when put together the response is equally as clear. Didn't and yeah to a layperson do not mean no and no. V says nothing further from p.2 at 16 about her representation.
The Tribunal erred as a matter of law in finding that there is no evidence to refute the proposition that V was confused or affected by drugs or alcohol as there is no evidence to show she was not. p.27 at 118.
The Tribunal erred as a matter of law in not taking into account the evidence contained in Exhibit A Annexure A specifically the Statement of facts at p.2 para 7 and p.3 at para 4 which confirm V's level of intoxication at about 11.50pm 26/07/08 p.2 at para 7 and 1.57am 27/07/08 p.3 at para 4.
The Tribunal erred as a matter of law in finding that there was no evidence to refute the proposition that she had no legal representation. p.27 at 118. Her words taken to mean what they say are clear and at no time does she say anything to the practitioner about him not having the right or her authority to represent her. The transcript is contrary to all of Ms Werner's evidence and V thanks the practitioner for coming p.5 at 24.
The Tribunal erred as a matter of law in finding that G's statement adds nothing relevant. p.27 at 119.
The Tribunal erred as a matter of law in finding that the legal aid application does not provide any evidence. p.27 at 119.
The Tribunal erred as a matter of law in finding that an inference can be drawn from the appellant's failure to give evidence. p.28 at 121.
The Tribunal erred as a matter of law in finding that there is clear evidence set out in the transcript and audio recording. p.28 at 121. Or in the alternative the Tribunal erred in not understanding that 'the words used by both the respondent and V should be taken to mean what they say' with regards to the transcript and audio recording.
The Tribunal erred as a matter of law in having regard to irrelevant matters in deciding the penalty.
The Tribunal erred as a matter of law in not having regard to a number of relevant matters in deciding the penalty.
The Tribunal erred as a matter of law in not having regard to the excessive delay in making its findings on the matter and the penalty when deciding the penalty.

[256]

The Tribunal erred in finding that V's answer was responsive and without hesitation at para 74. Or in the alternative failed to apply its ruling that 'the words used by both the respondent and V should be taken to mean what they say'.
The Tribunal erred in finding that V spoke without hesitation and that her words were clear and that she understood and was following the discussion at para 75. Or in the alternative failed to apply its ruling that 'the words used by both the respondent and V should be taken to mean what they say'.
The Tribunal erred in finding that V was familiar with criminal bail applications at para 83. And failed to take into account that her criminal record as at 27/07/08 that was tendered disclosed that she had two FTA and a record composed of mainly breaches of recog and failures to abide by court orders.
The Tribunal erred in finding that the transcript shows that 'no one was representing her and her response to the Magistrate's question was made without hesitation or qualification at para.84 the words stated were MAGISTRATE 'You haven't got anyone representing you?' V 'No, I didn't - yeah, sorry'. She did not say when asked the obvious answer to the question being 'No', 'I don't' or no I havn't all three being present tense and obvious answers. Instead she replies past tense 'I didn't. Or in the alternative failed to apply its ruling that 'the words used by both the respondent and V should be taken to mean what they say'.
The Tribunal erred in finding that V did not say anything indicating that she recognised or acknowledged the appellant when he entered the room it fails to take into account that V did not say or indicate anything to stop the appellant from acting on her behalf as the Tribunal has found that she was following the proceedings para 85.
The Tribunal erred in finding that although V did not say anything in support of the appellant's attempt to appear for her she also did not say anything to stop him or object to the prosecutor or Magistrate para 86.
The Tribunal erred in finding that although V did not say anything in support of the appellant's attempt to appear for her she also did not say anything to stop him or object to the prosecutor or Magistrate the Tribunal has evidence in regards to V's drug use and as such it would be an unsafe finding for it to decide that there is no objective evidence that she was affected by drug or alcohol use and the reverse applies in that there is objective evidence to say she was affected referring to the Statement of Facts.
The Tribunal erred in finding that there is an alternate explanation and meaning on the words used between V and the appellant as opposed to the meaning submitted by Mr Archer. The failure by the Tribunal to consider the alternative is an error and is further compounded by the fact that it found that although V was lucid non drug affected and following the proceedings and was not shy about speaking out despite hearing what the appellant had said to the court she did not correct him or speak out. Para 88.
The Tribunal erred in finding that 'It was consistent with V assuming that G had manipulated a scenario in which the practitioner would not be able to appear for her'. This is not the evidence para 88.
The Tribunal erred in finding that 'the exchange is consistent with V's statement to the Court that she was not represented'. Para 88.
The Tribunal erred in its finding at para 89 as there is evidence in the transcript at p.4 at 15 'my only instruction was to speak to the defendant'. p.4 at 40 'and asked if I would go downstairs and see the defendant'.
The Tribunal erred in not taking into account the evidence at p.4 at 40.
The Tribunal erred in not taking into account the transcript at p.4 at 15.
The Tribunal erred in finding that despite the only applicant witness Ms Werner being found not to assist the Tribunal it disregards the two witnesses V and G's uncontested evidence.
The Tribunal erred in finding that the dates and the time written on the form, that the form was signed before the bail application occurred. The failure to accept this fact is an error of fact and no other evidence has been given about the signing of the firm apart from the exhibit and V's uncontested statement that she signed it in the cells prior to the bail application. p.23 at 102.
The Tribunal erred in finding that G's statement at 25 para 107 was inconsistent.
The Tribunal erred in finding that G's statement at p.25 para 108 was inconsistent.
The Tribunal erred in finding that it did not attach any weight to G's statement as a result of inconsistencies. This is an impossibility as the statements are in evidence and unchallenged.
The Tribunal erred in finding that the statements made by V in her statement were inconsistent.
The Tribunal erred in finding that it did not attach any weight to V's statement as a result of inconsistencies. This is an impossibility as the statements are in evidence and unchallenged.

[312]

At common law two different standards of persuasion developed. It became gradually settled that in criminal cases an accused person should be acquitted unless the tribunal of fact is satisfied beyond reasonable doubt of the issues the burden of proving which lie upon the prosecution. In civil cases such a degree of certainty is not demanded ... The truth is that, when the law [Starkie's Law of Evidence] requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency ...

It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues ... But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.

At a glance

Court

Decision date

Source

Judgment (517 paragraphs)

Legal Practitioner v Council of The Law Society of The Australian Capital Territory [2014] ACTSC 13 (21 February 2014)

Parties

Legislation Cited (18)

Cases Cited (26)