or TITLES v Appeul allowed. SPENCER.

or TITLES v Appeul allowed. SPENCER. - [1909] HCA 87 - HCA 1909 case summary — Zoe

[27]

perjury for the fraudulent purpose of putting into his own pocket berg money to which he was not justly entitled. This, therefore, is an pees application for re-admission of a person confessedly guilty of Srimtn c.3. forgery, and adjudged to be guilty of perjury; and the main ground of the application is, that he has already, by being seven years off the roll, suffered punishment enough for his delinquency. It seems to me that we should be guilty of the greatest possible dereliction of our duty, if we were to re-admit a man so tainted with crimes which of all others are the most calculated to engen- der suspicion and distrust. . . . Uponthe whole, giving its due weight to all that has been urged on his behalf, I think I should be almost as criminal as the applicant himself if I were to yield to this application." Williams J. said (1): - "I, therefore, agree with my Lord in thinking that we should be guilty of a very gross dereliction of our duty, if, by replacing this man upon the roll of attorneys, we were to put him in a position to exert his talents to the possible detriment of the public." In Jn re Poole (2) the attorney had been struck off the roll for fraudulent appropriation of the moneys of a client. After a lapse of six years he applied for restoration to the roll on materials similar to those used in In re Garbett (3). Willes J. (with whom Montague Smith and Brett JJ, concurred), after referring to the facts, said (4) : - * Upon the whole, looking at the power vested in this Court of admitting to the responsible position of attorneys and officers of the Court persons who thus have the sanction of the Court for saying that, primdé facie at least, they are worthy to stand in the ranks of an honourable profession, to whose members ignorant people are frequently obliged to resort for assistance in the conduct and management of their affairs, and in whom they are in the habit of reposing unbounded confidence ; and looking to the fact that in restoring this person to the roll we should be sanctioning the con-

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offence for which nothing short of absolute removal from th rolls would have been an appropriate punishment. : Before Ist June 1906 had occurred what has been spoken of as A the land scandals. By the Crown Lands Act 1895, sec. 26, a new form of tenure of Crown lands had been created under the name of improvement leases. 'The lands in respect of which they might be granted were lands which for various reasons were not suitable for settlement until improved, and could only be ren- dered suitable by the expenditure of large sums of money in their improvement. The tenure was not to exceed 28 years, the maximum area was 32 square miles, the lease was to be: ; offered at auction or to public tender, but an upset price might be fixed, and the Governor was not bound to accept any tender. The conditions of the lease were to be fixed at the time of - offering the land. The administration of this part of the land. law was entirely in the hands of the Minister for Lands until 1st- January 1904, after which day, under the provisions of the Crown Lands Act Amendment Act 1903, sec. 31, the power to grant improvement leases could not be exercised except upon the recommendation of the local Land Board. Before 1903 it had been discovered that pastoral tenants, whose tenure was practically at will, could obtain very substantial advantages if they could induce the Land Minister to grant them a 28 years' lease of part - of their land under these provisions. It was found also that the highest tenderer did not always obtain the lease, and, in short, that much might be obtained by conciliating the favour of the Minister. A class of persons called land agents came into exist- ence, a great part of whose business appears to have been to endeavour to induce the granting of improvement leases to their clients, for which services three of them charged enormous sums of money - in one case £6,000 - the destination of which was - suspected to be in great part illicit. The most conspicuous of these three was one W. N. Willis, who was a member of the Legislative Assembly. Respondent, who was also a member of the Legislative Assembly, was another land agent. On lst May 1905, Mr. Justice Owen was appointed a Royal Commissioner to inquire, amongst other things, into the applica- tions of certain persons to convert their settlement leases into

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Hiecrns J. From my point of view it is unnecessary for me to refer in detail, after the judgments of my colleagues, to the much contested facts of the respondent's relations with - MissinsJ. Willis, or to express any final opinion as to the ingenious ex- planations of particular transactions offered by the respondent's counsel. For, in my opinion, the respondent has not shown any "solid and substantial grounds" for now altering the de- cision of the Supreme Court in 1896 - the decision under which he was struck off the roll of solicitors (see In ve Poole) (1). The order striking off is prima fucie final, although the name may be restored if good cause be shown. But the burden clearly lies on the applicant to establish that the moral per- versity which he exhibited in connexion with the Dean Case no longer exists ; and, under the circumstances of the Dean Case, the burden is very heavy indeed. To get his client off deserved punishment, and with the knowledge that he was guilty, the respondent made repeated misrepresentations to his partner and to the public. He fastened on Dean's innocent wife and her mother a charge of conspiracy. He vilified those who fought for the truth. He perverted the course of justice - that justice which, as a solicitor, he was under a duty to assist. I do not presume to say that under no circumstances could a man be re-instated after such conduct, atrocious as it was. In that respect it seems to me that the appellant's contention goes too far. I can imagine a young man, eager to get professional reputation, yielding to temptation, and then through years of unimpeachable conduct, proving that there was no ingrained obliquity of character. But the evidence in this case falls short of any such proof. It is almost enough to say that he was for years on the closest intimacy with Willis. After being struck off the roll he practised as a land agent - an agent for persons seeking to get title to Crown lands, In this capacity, as he admits, he "called into Willis's

At a glance

Court

Decision date

Before

Source

Judgment (210 paragraphs)

Parties