RE STOKES; EX PARTE STOKES [2008] WASC 269 (21 November 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RE STOKES; EX PARTE STOKES [2008] WASC 269

MATTER : Application for readmission as a legal practitioner by BRYAN FRANCIS STOKES pursuant to s 34 of the Legal Practice Act 2003 (WA)

Section 30(1) of the Legal Practice Act 2003 (WA)

Legal Practitioners - Application for readmission as a legal practitioner - Applicant struck off the roll of practitioners in 1992 - Role of the court when considering applications for readmission

Legal Practice Act 2003 (WA), s 11, s 34

Legal Practitioners Act 1893 (WA)

Police Act 1892 (WA)

1 MARTIN CJ: Mr Bryan Francis Stokes applied to be readmitted to the roll of practitioners of this court. The application was made pursuant to s 34 of the Legal Practice Act 2003 (WA) (the Act), which provides that a person who has been struck off the roll of practitioners may apply to the Full Bench of the court for readmission as a legal practitioner. Mr Stokes complied with that part of s 34 which required him to produce to the court a certificate from the Legal Practice Board (the Board) certifying that he has satisfied the Board upon inquiry that he is, in the opinion of the Board, a fit and proper person to be admitted, and that the rules relating to readmission have been complied with. Following a hearing on 18 November 2008, the court announced its decision that Mr Stokes would be readmitted for reasons to be published. These are those reasons.

2 Mr Stokes was admitted to the roll of practitioners of this court on 1 April 1980. He was struck off the roll of practitioners by order of the Full Court on 6 August 1992 (Re: A Legal Practitioner (Unreported, WASC Library No 920416a, 6 August 1992)). The proceedings which resulted in Mr Stokes being struck from the roll of practitioners were not the first occasion upon which findings of unprofessional conduct had been made against him. Between September 1982 and June 1992, findings of unprofessional conduct were made against him by the Barristers' Board of Western Australia.

3 In September 1982, Mr Stokes was found guilty of unprofessional conduct as a result of behaviour in court. He was reprimanded by the Barristers' Board. In July 1984, he was found guilty of illegal conduct, as a result of his conviction of a contravention of s 20 of the Police Act, for hindering or interfering with police. No penalty was imposed by the Barristers' Board, but it ordered Mr Stokes to pay costs fixed at $350.

4 In November 1984, the Barristers' Board found Mr Stokes guilty of unprofessional conduct by firstly, misleading his clients by informing them that Supreme Court hearings had been fixed when they had not and, secondly, intimidating his clients by shaking his fist at them. Mr Stokes was fined $1,000 in respect of the first complaint, and reprimanded in relation to the second complaint.

5 In August 1988, Mr Stokes was found guilty of two complaints alleging neglect and undue delay in the conduct of the affairs of two separate clients, and two additional complaints of failure to respond to correspondence from the Law Society. Mr Stokes admitted the facts alleged against him and was fined $1,000 in respect of each of the complaints of neglect and $500 in respect of each of the complaints of unprofessional conduct by reason of failure to respond to correspondence - a total of $3,000. He was also ordered to pay the Barristers' Board's costs of the proceedings.

6 Further, on 17 June 1992, Mr Stokes was found guilty of unprofessional conduct by the Barristers' Board in respect of two allegations of unprofessional conduct being:

(a) that the practitioner misled his client about his relationship with another practitioner, as an excuse to get the client to consult other legal practitioners to pursue a perceived negligence claim against that practitioner; and

(b) the practitioner required his client to enter into a formal agreement not to report him to the Barristers' Board in respect of past delay in dealing with the client's affairs.

7 Upon his undertaking to the Barristers' Board that he would not practise at all until 1 July 1993, and would not practise thereafter without first satisfying the Barristers' Board of his fitness to do so, Mr Stokes was reprimanded in relation to each matter, and ordered to pay the Barristers' Board's costs.

8 This was the context in which the complaints were brought that resulted in Mr Stokes being struck off the roll of practitioners. Four matters of complaint were found to have been made out, which resulted in the order for striking off. They were as follows:

9 On 12 March 1992, Mr Stokes was convicted in the Perth Court of Petty Sessions of wilfully making a false statement in a statutory declaration. The circumstances that gave rise to that conviction were as follows. Mr Stokes was acting for a client in relation to the extension of her permission to reside within Australia. On 4 June 1990, the client attended Mr Stokes' office in order to complete a statutory declaration in respect of her application. However, on 28 June 1990, Mr Stokes realised that she had neglected to sign a relevant portion of the form. The form was due to be lodged by 30 June 1990. Mr Stokes attempted to contact the client, who had returned to Kalgoorlie, but without success. Mr Stokes then forged the client's signature and declared that he had witnessed it.

10 On 13 July 1988, Mr Stokes received an amount of $2,500 from clients on account of costs. He paid those monies directly into his personal account, rather than his trust account, in contravention of s 34 of the Legal Practitioners Act, then in force. On 16 June 1989, Mr Stokes rendered an account to the clients which reflected the previous payment of $2,500.

11 On 18 October 1989, Mr Stokes received a further sum of $2,500 from the clients on account of costs, and again deposited that money directly into his personal account, rather than his trust account, in contravention of the legislation. When he later rendered an account, on 12 April 1990, he failed to bring this amount to account in reduction of the amount owing. However, when he realised his error, he reduced the amount claimed from the clients. However, by then the clients had threatened to complain to either The Law Society or the Barristers' Board in relation to his conduct. In an effort to prevent that occurring, Mr Stokes discounted the amount claimed, and attempted to induce the clients to enter into a contract, a term of which would purport to preclude them from referring matters in dispute to the Barristers' Board. The Barristers' Board concluded that this attempt constituted unprofessional conduct, in addition to the unprofessional conduct relating to the failure to properly deal with trust monies.

12 It was established that on another occasion, Mr Stokes received $500 from another client on account of costs, and again, instead of depositing that money into his trust account as required, deposited it into his personal account. However, the account which he later rendered to that client took account of the $500 which had been received.

13 Following the Barristers' Board's finding that the complaints against Mr Stokes had been made out, the matter was referred to the Full Court by the Barristers' Board with a recommendation that Mr Stokes' name be removed from the roll of practitioners. Mr Stokes consented to an order to that effect.

14 The Full Court observed that evidence had been presented to the Barristers' Board from Dr William J Walker, a consultant psychiatrist, who had been treating Mr Stokes for personality disorders since July 1990. As a result of that evidence, the Barristers' Board found that Mr Stokes had a personality disorder which produced 'avoidant behaviour'. The Barristers' Board further found that this disorder affected his ability to make a proper professional judgment when faced with a crisis. Mr Walker's evidence was to the effect that Mr Stokes had been admitted to hospital for treatment of his condition, which was also addressed with prescribed medication. Dr Walker expressed the view that, with continued treatment, his personality disorder could be overcome within about 12 months.

15 The Full Court reiterated that the dominant consideration in proceedings relating to the discipline of practitioners is the protection of the public, and concluded that the findings made by the Barristers' Board demonstrated that Mr Stokes was unfit to continue in practice as a legal practitioner. The court was unanimously of the view that in the circumstances, there was no alternative to an order striking the practitioner's name from the roll.

The hearing before the Legal Practice Board

16 As I have mentioned, s 34 of the Act requires that a person applying for readmission must produce to the court a certificate from the Board certifying that he or she has satisfied the Board upon inquiry that he or she is, in the opinion of the Board, a fit and proper person to be readmitted. If the Board refuses to grant such a certificate, application may be made to the State Administrative Tribunal for review of that decision.

17 Pursuant to s 11 of the Act, the Board has delegated to the Admissions and Registration Committee of the Board the power to grant a certificate under s 34 of the Act on behalf of the Board. Pursuant to that delegation the Committee undertook an inquiry into the question of whether or not the Board should certify that Mr Stokes is a fit and proper person to be readmitted to practice. This court has received in evidence:

(b) the written submissions of Mr Stokes and counsel assisting the Committee upon its inquiry;

(c) the transcript of the proceedings before the Committee; and

(d) the documentary evidence tendered to the Committee.

18 For reasons which I will explain, that material has been reviewed carefully by the court.

19 Mr Stokes gave evidence at the inquiry, and called a number of other witnesses. In the course of his evidence to the Committee, Mr Stokes explained his previous professional misconduct in a number of ways. First, and perhaps most significant, was the psychiatric condition or conditions from which he suffered at the time of his professional transgressions. Those conditions had been undiagnosed and untreated until at least 1986. Second, Mr Stokes explained that some of his conduct was explicable because of financial pressure to which he had subjected himself by extravagant and unnecessary expenditure. Third, Mr Stokes acknowledged that some aspects of his personality, including arrogance, were responsible for his misconduct. Further, Mr Stokes also stated that his difficulties were compounded by excessive drinking, which was in turn related to troubles in his private and family life.

20 The evidence before the Committee was to the effect that from 1986 until early 1992, Mr Stokes had been treated by Dr Toussaint. He was then treated by Dr Walker, whose evidence was before the Barristers' Board. The Committee received in evidence a report from Dr Paul Skerritt, who is a psychiatrist. Dr Skerrit had taken a comprehensive history from Mr Stokes, and reviewed two prior reports from Dr Walker - one report being the report in 1992 which was before the Barristers' Board and the Full Court, and a later report in 1997. Based on that material, Dr Skerritt's evidence was to the effect that prior to 1992, Mr Stokes had suffered at different times from a serious depressive illness. The first occasion upon which he had suffered in this way was during his youth. In the opinion of Dr Skerritt, this was an illness which is capable of spontaneous resolution, and this had occurred on a number of occasions prior to 1992. However, Dr Skerritt was of the view that the treatment which had been given to Mr Stokes prior to 1992 was inadequate to address his illness, which in turn resulted in his misconduct. However, in Dr Skerritt's view, the illness from which Mr Stokes had suffered in 1992 spontaneously resolved, probably in about 1993, as a result of which Mr Stokes was no longer symptomatic, and was in good mental health.

21 The Committee accepted the evidence given by Dr Skerritt, and made findings which generally corresponded with that evidence.

22 The Committee also found that in his evidence, Mr Stokes had revealed that he had insight into his previous shortcomings and was aware of the reasons for his previous transgressions.

23 The Committee received additional evidence from a number of persons who had dealt with Mr Stokes over differing periods of time. Those persons had known Mr Stokes both professionally and socially. Their evidence was consistently to the effect that they had found Mr Stokes to be a person of honesty and integrity. They had seen no evidence of any difficulties of conduct of the kind that had brought him to the attention of the professional regulatory bodies prior to 1992. The evidence received by the Committee was given orally, in a number of instances, and by way of the tender of affidavits in other instances.

24 The Committee also received evidence from Mr Stokes' wife and his brother, who is a legal practitioner. Their evidence was to similar effect - namely, that any difficulties which Mr Stokes had experienced in the past had been overcome. The Committee accepted their evidence, although making appropriate observations as to the extent to which the significance of that evidence might be diminished by their obvious love and affection for Mr Stokes.

25 In the result, the Committee accepted the evidence of all the witnesses called before it. It concluded that Mr Stokes was well aware of his earlier misconduct and of the reasons for it. It also found, on the evidence, particularly the psychiatric evidence, that the conditions which had led to the misconduct which caused Mr Stokes to be struck from the roll of practitioners were no longer present. The difficulties with alcohol which had contributed to his prior behaviour appeared to have been overcome, on the evidence which the Committee accepted. The Committee also formed the view that Mr Stokes had a number of friends and associates who were aware of his past failures and who were determined to ensure that history would not repeat itself. The Committee was also of the view that the stable, loving and supportive family environment in which Mr Stokes now found himself would diminish the prospect of any repetition of the misconduct which had resulted in his name being removed from the roll in 1992.

26 The Committee concluded, from the evidence, that Mr Stokes has worked consistently and with honesty, integrity and vigour to assist a number of people in different capacities since having been removed from the roll in 1992.

27 In the result, the Committee concluded, on the basis of the findings which it had made, that Mr Stokes was in all respects a fit and proper person to be readmitted to the legal profession.

28 The Committee made this determination without regard to the possibility that conditions might be imposed upon any practice certificate issued to Mr Stokes. In my opinion, that was an entirely correct approach. The question that arises for determination under s 34 of the Act is the question of whether or not the applicant is a fit and proper person to be readmitted. That question is to be addressed by reference to the characteristics of honesty and integrity which are an essential pre-requisite to admission to practice, and particularly by reference to those aspects of the practitioner's conduct which had led to his or her name having been removed from the roll. The question of whether, and if so what, conditions should be imposed upon a practice certificate, having regard to the practitioner's previous misconduct, is an entirely separate inquiry, to be undertaken by the Board following the decision of this court with respect to readmission.

29 It is clear from s 34 of the Act that the question of whether or not a practitioner should be readmitted is a matter to be determined by the court. A pre-requisite to the court's power to readmit is the grant of a certificate by the Board, or the State Administrative Tribunal. However, both Mr Stokes and the Board accept that the jurisdiction in respect of readmission is a jurisdiction of the court, not the Board. As Moffit P stated in Re B [1981] 2 NSWLR 372 (at 378):

The conclusion therefore is that whatever procedural or administrative steps are prescribed, in particular in relation to the admission of barristers, that the ultimate jurisdiction in relation to admission, disbarment and 'readmission' resides without restriction in the Supreme Court of this State. The jurisdiction to admit, in a case such as the present, is original and not by way of appeal from the board_._

30 Accordingly, although the certificate of the Board under s 34 of the Act is a pre-requisite to the jurisdiction of the court, it is the court which must determine whether, in the end, an applicant for readmission is a fit and proper person to be readmitted. That is why it is necessary for the court to receive and fully evaluate the evidence which was before the relevant Committee of the Board prior to the grant of its certificate. While the findings made by the Committee of the Board after hearing and receiving the evidence and the submissions of the parties will obviously be of significance to the court, those findings will not be determinative of the view to be formed by the court on the subject of readmission.

31 It is also appropriate for the court to conduct proceedings in respect of the readmission of practitioners in public. As the Master of the Rolls observed in L v The Law Society [2008] EWCA Civ 811 at [41]:

Part of ensuring that public confidence is maintained is that proceedings such as this, or such as those which take place in the Solicitors Disciplinary Tribunal in respect of solicitors who seek readmission following a strike off, are held in public. Public confidence in the profession and its reputation is to my mind protected by hearings such as this being held in public. It not only ensures that matters are open to proper scrutiny such that the proper administration of justice in this domestic setting is done, but it enables the public to see what steps are taken to ensure that only those who it can properly be said have a suitable character are admitted into the profession. Equally, where an individual is in the position that they are required to justify in the context of restoration to the roll proceedings and in situations such as the present that they have the requisite character and suitability, they ought to be able to hold their head up high and publicly acknowledge their past misdemeanours. If they cannot do so, how can they expect a right minded reasonable member of the public who was aware of their past misdemeanours properly to conclude that they were genuinely capable of being trusted to the ends of the earth? Such trust once lost must be regained; it cannot be properly regained whilst the basis on which it was lost is deliberately shrouded in secrecy ...

32 An applicant who has been previously struck from the roll must bear a much heavier and distinctly different onus to that borne by an applicant seeking admission for the first time. In the case of an applicant for readmission, the applicant carries the onus of proving that there is no significant prospect of repetition of the conduct of the kind which resulted in the removal of his or her name from the roll - see Gregory v Queensland Law Society Inc [2001] QCA 499; [2002] 2 Qd R 583 at [18]. In this context it is worth repeating that the jurisdiction of the court in respect of the maintenance of the roll of practitioners is not a jurisdiction exercised for the purpose of punishing practitioners, but for the purpose of protecting the community (Clyne v The New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 201 - 202), which depends upon the provision of legal services by practitioners of appropriate character, honesty and integrity.

33 However, if the court can have the requisite confidence that there will be no significant risk of repetition of the misconduct which resulted in the removal of the practitioner's name from the roll, there is a public interest in the restoration of the names of such persons to the roll. That public interest derives in part from the fact that such persons will be in a position to serve the community by providing legal services, but also from the encouragement of rehabilitation and redemption of those whose conduct has, in the past, prevented them from conducting their profession - see Kirby P in Kotowicz v Law Society of New South Wales, unreported; NSWCA; 7 August 1987.

34 The legal profession appears to be unusually vulnerable to mental illness. A number of reports have suggested that the rate of mental illness within the legal profession is rather higher than that within the community generally. Obviously, the community must have confidence in the capacity of those who are admitted to practise law. The authorities responsible for regulation of the profession, and the court, must be vigilant to ensure that the public is protected from those who lack that capacity for whatever reason, including mental illness. However, where the court can be satisfied by evidence that the incapacity, which resulted in appropriate steps being taken to protect the community, is no longer present, it will equally be in the interests of the community to take steps to enable the practitioner to resume the delivery of services.

35 In this case, having independently reviewed the evidence given in the proceedings before the Committee of the Board, I have come to the same conclusion as that Committee as to the unlikelihood of any repetition of the conduct which resulted in the removal of the practitioner's name from the roll. The various considerations upon which the Committee relied appear to me to point strongly towards that conclusion. More than 15 years have passed since the removal of the practitioner's name from the roll. The circumstances in which he now finds himself, and in particular, the fact that he no longer appears to suffer the mental condition which was such a significant cause of his prior misconduct, appear to me to support a conclusion, to the requisite degree of confidence, that Mr Stokes is now a fit and proper person to be readmitted to practice.

36 It was for these reasons that I joined in the decision of the court allowing Mr Stokes to be readmitted to practice.

37 MURRAY J: I agree with the reasons of the Chief Justice and have nothing to add.