Plaintiff v Defendant

1 The plaintiff seeks the removal of the defendant's name from the roll kept by this Court of persons admitted to the legal profession (the 'Roll').

2 This application has been brought pursuant to s 2.4.42(5) of the Legal Profession Act 2004 (the 'Act'). Sections 2.4.42(2)-(4) of the Act outline a series of necessary preconditions to the making of an application pursuant to s 2.4.42(5). This procedure is enlivened when the plaintiff becomes aware that a Victorian practitioner has been convicted of an offence and forms the view that that practitioner is no longer a fit and proper person to remain on the Roll.

3 The defendant was served with the necessary documents and had notice of the hearing. He did not attend the hearing or otherwise inform the court of his attitude to the application to remove him from the Roll. Therefore, the matter proceeded unopposed leaving the plaintiff to be put to its formal proofs.

4 Whilst, s 2.4.42(5) allows the plaintiff to apply to this Court to have a practitioner's name removed from the Roll, the Court may, at its own discretion, make such orders as it sees fit. Section 2.4.42(5) is supplementary to the Supreme Court's inherent jurisdiction to discipline lawyers under its supervision.[1] The legislative procedure outlined in ss 2.4.42.(2)-(4) does no more than bring the fact that a Victorian practitioner has been convicted of an offence to the notice of the Court and provide the plaintiff with standing to address the court on the individual's fitness to remain on the Roll. As to the further steps which are to be taken, they are decided by the Court.

5 The defendant was admitted to practice on 1 April 1981. Until the events giving rise to this application occurred, the defendant had never been the subject of any complaint, been suspended from practice, or struck off the Roll. He practised as a sole practitioner under the entity name 'F McGrath & Co' from 31 January 1992 until 30 June 2008. Prior to that he was an employee, and then a partner at a law firm known as 'Petersons'.

6 On 21 October 2008, the defendant pleaded guilty to

[on 8 February 2008] one count of knowingly possessing child pornography, contrary to s 70(1) of the Crimes Act 1958; and

[between 1 July 2007 and 8 February 2008] one count of using an online information service to publish child pornography contrary to section 57A of the Classification (Publications, Films and Computer Games)(Enforcement) Act 1995.

7 He was sentenced to 12 months imprisonment on each charge to be served concurrently by way of an intensive correction order. He was also registered as a Sex Offender for fifteen years.

8 On 11 May 2010, the defendant was convicted of (on 20 February 2009) two counts of knowingly possessing child pornography, contrary to s 70(1) of the Crimes Act 1958. He was sentenced to 290 days imprisonment, 90 days of which were suspended, and was registered as a Sex Offender for life. He lodged an appeal against that decision and was granted bail on his own undertaking.

The exercise of the court's discretion to remove a practitioner from the Roll

9 An exercise of the Court's discretion to remove a practitioner from the Roll is made by reference to a number of long standing principles.[2] Whilst conviction for an offence is a necessary precondition for an application being made pursuant to s 2.4.42(5), it does not necessarily follow that such a practitioner will be removed from the Roll, even if the offence in question is a serious one.[3] Such a decision will only be made when the Court is satisfied at the time of the hearing[4] that the practitioner in question is shown 'not to be a fit and proper person to be a legal practitioner'[5] or is shown not to be a 'fit and proper person to be entrusted with the important duties and grave responsibilities which belong to a solicitor'[6] and will likely remain so for the indefinite future.[7] The person or entity bringing such an application bears the onus of satisfying the court of the requisite degree of indefinite unfitness on the balance of probabilities.[8] As was set out in Briginshaw v Briginshaw,[9] that standard is not a fixed or simple one, but depends upon the matters before the court. Whilst, the onus of proof is a civil one, the Court approaches the making of such decisions with caution[10] and 'meticulous care'[11], and with a great appreciation for 'the possibly disastrous consequences of disbarment to the individual concerned'.[12]

10 On occasion, the court's inherent power to discipline members of the legal profession has been mistakenly characterised as simply 'protective of the public',[13] an approach which may gain undeserved strength from the comments of McHugh J in Rich v Australian Securities and Investment Commission.[14] Whilst the authorities indicate that the disciplinary power in question is entirely protective,[15] that protection extends beyond protection of the public to include the legal profession as a group,[16] the courts, the justice system and community confidence in that system.[17] It is for this reason that striking off may follow where a practitioner's conduct shows 'a defect of character incompatible with membership of a self-respecting profession' or where a conviction carries,

such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails.[18]

11 However, this protective rationale follows, rather than anticipates, the court's enquiry. A practitioner is deemed unfit to remain on the Roll, therefore, they pose a direct risk to the public, to the legal fraternity, to the courts, to the system of professional co-operation and trust on which they both depend, and to the administration of justice, not vice-versa. The fundamental issue is whether the practitioner in question is fit and proper, or not.

12 Discussing that concept in the context of a different form of accreditation, Walters J saw it as requiring technical and moral aptitude sufficient to meet the demands of the role in question:

The issue whether an appellant has shown himself to be 'a fit and proper person', within the meaning of s 16(1) of the Act, is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an plaintiff must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails (cf. Ex parte Meagher (1919) 19 SR(NSW) 433).[19]

13 The High Court has described the enquiry in the widest terms:

The expression 'fit and proper person' is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability: 'honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it' - Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.[20]

14 Finally, the courts have drawn a distinction between conduct occurring outside a practitioner's professional life, and conduct in the course of their professional obligations and responsibilities. Misconduct in the course of both may be indicative of whether a person is fit to remain on the Roll, but the enquiry into how such conduct affects that fitness is, in each case, necessarily different:

Personal misconduct, as distinct from professional misconduct, may no doubt be a ground for disbarring, because it may show that the person guilty of it is not a fit and proper person to practice as a barrister ... But the whole approach of a court to a case of personal misconduct must surely be very different from its approach to a case of professional misconduct. Generally speaking the latter must have a much more direct bearing on the question of a man's fitness to practice than the former.[21]

15 The material filed in support of the application occurred in two phases. The first occurred prior to the actual hearing; the second occurred after the hearing.

16 When making its application to have the practitioner struck from the Roll, the plaintiff relied upon a single affidavit sworn by Ms Sonia Rivelland, a lawyer employed by the plaintiff, on 28 April 2008 (the 'first affidavit'). There are a number of evidentiary problems with this affidavit. I will only deal with those that are fatal to this application in detail.

17 The first affidavit contains a number of statements which are inadmissible as hearsay evidence, particularly paragraphs [9] - [13] which is headed 'Defendant's criminal offences'. This section purports to set out the nature of the defendant's offences, the circumstances giving rise to his conviction on 21 October 2008, and to shed some light on the manner in which the hearing where he was convicted was conducted. There are particular problems with these paragraphs. They begin:

1. On about 8 February 2008, the Defendant was charged with:

(a) one count of knowingly possessing child pornography, contrary to subsection 70(1) of the Crimes Act 1958 (Vic) (Count 1); and

(b) one count of use of on line information service to publish child pornography contrary to section 57A of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic) (Count 2);

1. The Defendant pleaded guilty to both counts. A plea hearing was conducted in front of his Honour Magistrate Hodgens in the Magistrates Court of Victoria at Frankston on 19 January 2009. A 'Summary of Facts' has been provided by Police in relation to the matter. I am informed by Detective Senior Constable Paul Cole and believe that the Summary of Facts was relied upon in sentencing the Defendant.

Now produced and shown to me and marked 'SR4' is a true copy of the 'Summary of Facts'.

18 The remainder of this section of the affidavit, paragraphs [11]-[13], detail the defendant's conviction on 21 October 2008 to the two counts already set out.[22]

19 Paragraphs [9] and [10] of the first affidavit are inadmissible pursuant to s 59(1) of the Evidence Act 2008 (the 'Evidence Act') because they purport to record, or are based upon, out of court representations made by others, presumably members of the police force, and are adduced as evidence of the truth of those statements. They are a description at second hand of events of which the deponent has no primary knowledge, a fact which she acknowledges in paragraph [10]. Secondly, the document exhibited in support of those statements, Exhibit SR4, is not able to support the statements deposed to, even were it admissible. That document, headed 'Summary of Charges', purports to set out the facts which led to the defendant being charged with child pornography offences. It is dated 8 February 2008, although it is clear from its contents that it was added to subsequently. The full heading of that document is as follows:

SUMMARY OF OFFENCE (What the defendant is alleged to have done, including any explanation given.): THIS SUMMARY HAS BEEN PREPARED AS A GUIDE ONLY

20 To state that a 'summary' 'was relied upon in sentencing' the defendant on 28 October 2008, sheds no light on those proceedings whatsoever, or the background or reasons behind the defendant's offences. Furthermore, this document purports to contain admissions made by the defendant to the police on or around 8 February 2008. I have concerns about admitting evidence of such admissions in a document which the defendant may not have even seen, which he has not signed, and without any first hand testimony of someone present when those admissions were made being filed into court.

21 Secondly, ss 91 and 92 of the Evidence Act limit the admissibility of evidence of the defendant's convictions on 28 October 2008. Relevantly, s 91(1) is as follows:

Evidence of the decision ... in an Australian ... proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

22 Section 92 contains a number of saving provisions related to s 91(1). Relevantly, s 92(2)(a) provides:

In a civil proceeding, subsection 91(1) does not prevent the admission or use of evidence that a party ... has been convicted of an offence, not being a conviction:

(a) in respect of which a review or appeal (however described) has been instituted but not finally determined.

23 By operation of s 92(3) 'the hearsay rule and the opinion rule do not apply to evidence of the kind referred to in' s 92. Section 178 provides a procedure whereby evidence may be adduced in certificate form of the fact of a conviction.

24 Therefore, whilst evidence of the defendant's convictions on 28 October 2008 is admissible as evidence in the present proceeding, none of the other material deposed to by Ms Rivelland in paragraphs [11]-[13] of her first affidavit or in the documents exhibited thereto, except for the certified extracts of the defendant's convictions and the material contained therein exhibited as SR5, are admissible in these proceedings. Of course, the plaintiff would be able to cure these defects in its proofs by filing, for example, an affidavit sworn by the informant of the relevant charges.

25 The issue that must be decided is, whether on the bare fact that he was convicted on 28 October 2008 of the two offences I have referred to, the defendant is not now a fit and proper person to be a legal practitioner, and likely remain so for the indefinite future.

26 The Court did not have the benefit of the defendant's appearance at the hearing of the application. On one view, this is a breach, and a potentially serious one, of the defendant's obligation of candour to the Court. The charges are serious, as is the application. In light of those facts, the Court would expect the practitioner to appear to defend, or at least try to explain, the convictions out of which this application arises and his continuing fitness and properness to remain on the Roll. As Pagone J observed in Frugtniet v Board of Examiners:

A legal practitioner, upon being admitted to practice, assumes duties to the courts, to fellow practitioners, as well as to clients. At the heart of all those duties is a commitment to honesty and, in those circumstances, when it is required, to open candour, and frankness, irrespective of self-interest or embarrassment.[23]

27 However, the onus is on the plaintiff to prove that the defendant is not a fit and proper person. The question remains: has it satisfied that onus to the Briginshaw standard?

28 This question can only be answered negatively. The defendant has been convicted of serious charges. However, those convictions are almost two years old and the facts giving rise to them are between four and two-and-a-half years old. On the face of the certified extracts with which the court has been supplied they are not offences occurring in the course of the practitioner's professional life, and, it should be noted in his favour, that prior to them he had an unblemished record as a practitioner. I am not satisfied at this stage that the practitioner is not a fit and proper person to remain on Roll, and what is even more serious, will remain so for the indefinite future. The evidence provided does not support the application made to the requisite standard. Therefore, I will order that the application for removal of the defendant's name from the Roll be refused at this time.

Further material filed in support of the application

29 On 19 May 2010, Ms Rivelland, on behalf of the plaintiff, filed a second affidavit (the 'second affidavit') in support of the application already made. Whilst the plaintiff did not change the nature or detail of its application, it invited the court to also consider the additional material when deciding whether to remove the defendant's name from the Roll. No affidavit of service accompanied this material indicating that the defendant knew that these additional matters had been brought to the court's attention.

30 In summary, this material detailed the fact that Ms Rivelland had become aware after the 14 May 2010 hearing, that the defendant had been convicted of the second set of charges on 11 May 2010 to which I have referred. She included authenticated extracts of the relevant court records as exhibits to her second affidavit. If this material is admissible, then it provides persuasive evidence that the defendant is not a fit and proper person to remain on the Roll because it evinces a lack of insight into his original offences coupled with a disdain for the authority of the court and his obligation to comply with its orders as both a citizen subject to its jurisdiction and a practitioner who is also its officer.

31 I have already set out the relevant sections of the Evidence Act which address the admissibility of evidence of convictions in civil proceedings. By reason of the operation of ss 91(1) and 92(2)(a), such convictions are not able to be admitted into evidence where 'a review or appeal (however described) has been instituted but not finally determined'. As the certified extracts detailing this second set of convictions show, the defendant lodged an appeal in respect of his conviction on 11 May 2010. Therefore, until that appeal has been finally determined, these convictions cannot be taken into account for the purpose which they appear to have been adduced because they are not admissible as such. To do so would be to create a serious risk, should the appeal be successful, of inconsistent judgments being rendered by the courts.

32 There is only one purpose for which, at present, the second set of convictions could be admitted into evidence,[24] though it does not appear to have been the plaintiff's intention to do so in this case. Such evidence would be admissible to prove that the defendant had been charged with a second set of child pornography offences and had failed to inform the plaintiff of that fact, despite being aware that the present proceedings were on foot. Such behaviour would constitute a breach of the defendant's obligations of candour to court and to the plaintiff. Since he was charged with the first set of offences of which he was convicted, the defendant has been under a continuing obligation to the plaintiff to 'disclose facts that were material to the [plaintiff's] decision as to what, if any, action to take against him.' [25]

33 However, such a breach, whilst it would be relevant to the defendant's present fitness and properness to remain on the Roll, would not be sufficient to justify his removal from that Roll, although it might justify a period of suspension.[26]

34 Before concluding I would wish to make some comments about the plaintiff's approach to this issue from early 2008 to the present. The plaintiff has a statutory right to bring these types of applications, provided it has complied with the statutory obligations which activate that right, and must be aware of the obligations which that right imposes upon it.

35 Convictions for offences involving child pornography have, in recent years, been the precipitating cause for removing practitioners' names from the rolls kept by the Supreme Courts of various states. In some cases, this has been done by consent.[27] Offences related to child pornography have been held to justify the revocation of tax agent's registration for lack of fitness and proprietary.[28] They have also arisen in disciplinary proceedings against medical professionals.[29]

36 In cases of this type, especially where the application is not consented to, the court deciding the application should always provide reasons for its decision and record its findings.[30]

37 Courts approach applications of this type with caution and meticulous care. For that reason, the applications themselves should be prepared with the same level of care and foresight. There appears to have been a level of carelessness and unseemly haste in the plaintiff's approach to this case. Upon becoming aware that the defendant had been charged with child pornography offences in early 2008, the defendant immediately suspended his Practising Certificate for 56 days. This decision, subject to certain undertakings by the defendant, was overturned by the Victorian Civil and Administrative Tribunal a few months later.[31]

38 The plaintiff has not made sufficient effort to relate the conduct in question to the defendant's unfitness. It is not simply a matter of asserting that certain conduct is wrong or criminal. The conduct in question must go to the ultimate question of whether the defendant is a 'fit and proper person' and should be particularised as such with supporting evidence. This is especially so, when the alleged misconduct is personal rather than professional. The Australian Law Reform Commission noted, in respect of allowing the evidence of convictions to be admitted into subsequent civil disputes in their report on the Uniform Evidence Law, that:

The proposal is designed to assist plaintiffs to fill gaps in evidence but should not encourage them to become complacent about discharging the overall onus of 'he who asserts must prove'.[32]

39 Sections 91 and 92 of the Evidence Act may pose difficulties to the plaintiff when making applications pursuant to s 2.4.42(5). It is the very fact that a conviction has occurred which empowers the plaintiff to make such an application. But the plaintiff must bear in mind that the fact that a conviction has occurred is not of itself sufficient to demonstrate unfitness, nor is the fundamental question in issue whether such a conviction has occurred. The fundamental question is whether the person in question is not a fit and proper person to be a legal practitioner and likely remain so, on the balance of probabilities, for the indefinite future, and it is the plaintiff who has the onus of proving that fact. That task may be assisted by tendering an agreed statement of facts into court in support of the application, or by obtaining the defendant's consent to the application sought.

40 In light of my views, I would refuse this application. However, it is desirable that this matter be resolved in the interests of the public and, also, for the standing of the legal profession. I would grant the plaintiff liberty to apply to make the application again, should it think fit, once the defendant's present appeal has been determined and based on proper material and proof of service on the defendant of that material.

[1] Clause 20 Legal Profession Amendment (Education) Bill 2007 (Explanatory Memorandum).

[2] Ex parte Brounsall [1778] EngR 95; (1778) 2 Cowp 829; 98 ER 1385 ('Brounsall').

[3] Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 ('Ziems').

[4] A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253, 268 ('A Solicitor').

[6] Re Weare (1893) 2 QB 439, 448. See also Southern Law Society v Westbrook [1910] HCA 31; (1910) 10 CLR 609, 612.

[7] Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93, [54] ('Stanoevski').

[8] The Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 (Unreported, Hodgson, Tobias and Basten JJA, 29 November 2007) [9]-[16].

[9] [1938] HCA 34; (1938) 60 CLR 336.

[10] Legal Services Board v Bourozikas [2009] VSC 382, [15]. See also, Ziems, 288, and A Solicitor, 268.

[13] Law Institute of Victoria v Gough [1995] VSC BC9506541 (Unreported, Hansen J, 10 February 1995) 11.

[14] [2004] HCA 42; (2004) 220 CLR 129, 148-9. See also Council of the New South Wales Bar Association v Power [2008] NSWCA 135; [2008] 71 NSWLR 451, 463 ('Power'). See also, Gleeson CJ, Gummow, Hayne, Callihan and Heydon JJ discussing the difficulty between distinguishing between punitive and protective proceedings 144-5.

[15] New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177, 183-4.

[16] See on this point, Ziems, 298, and Brounsall.

[17] See particularly, Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186, 201-2.

[19] Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, 76.

[20] Hughes and Vale Pty Ltd v The State of New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127, 156-7.

[22] It should be noted that Ms Rivalland deposes at [11] that the defendant was sentenced on 19 January 2009. This is in fact the date on which the Registrar of the Frankston Magistrates' Court certified the extract attached to her affidavit as Exhibit SR5. It should be noted that Ms Rivalland deposes a few paragraphs later [13] that the relevant orders were made by the Frankston Magistrates' Court on 24 October 2008. As the certified extract shows, this date should be 28 October 2008.

[23] [2002] VSC 140 (Unreported, Pagone J, 1 May 2002) 10.

[24] Section 91(2) Evidence Act.

[27] Power; Legal Services Board v Neil James Williams [2009] VSC 561. Also note, Legal Services Commissioner v Richard Francis Quinn [2008] LPT 19, in which the practitioner did not appear to oppose the application to strike his name from the roll. Fryberg J consequently made the orders sought without providing any reasons for doing so

[28] Sargent v Tax Agents' Board of Victoria [2009] AATA 219.

[29] Healthcare Complaints Commission v Wingate [2007] NSWCA 326.

[30] New South Wales Bar Association v Cummins [2001] NSWCA 284; [2001] 52 NSWLR 279, 285.

[31] McGrath v Law Institute of Victoria Ltd (Legal Practice) [2008] VCAT 692 (Unreported, Senior Member Howell, 29 April 2008).

[32] ALRC, 26 Evidence (Interim) (1985) [778].