> * The Law Society of South Australia v Rodda

Supreme Court of SA|2002-10-10|Before: Doyle CJ, Besanko JJ

The applicant applied for re-admission in 1992. On 24 September 1992 the Board of Examiners reported to this Court that the Board, by majority, was not satisfied that the applicant was a fit and proper person to be re-admitted, and was not satisfied that the applicant was fit to act as a practitioner in all business and matters usually transacted by or entrusted to practitioners. On 23 December 1992 the Court refused the applicant's application for re-admission.

The applicant initiated the second application for re-admission by notice dated 16 July 2001. The Board of Examiners has provided two reports to this Court in relation to this application, dated 1 November 2001 and 4 June 2002. The Board, by majority, is not satisfied that the applicant is a fit and proper person to be re-admitted, and is not satisfied that the applicant is fit to act as a practitioner in all business and matters usually transacted by or entrusted to practitioners.

The Law Society does not oppose the application.

The applicant was admitted as a practitioner of this Court in 1967. He is now 67 years of age.

A chronology of events leading to the removal of the applicant's name from the Roll of Practitioners is set out in the reasons of Sangster J (Judgment No. 6613, 18 February 1983) in In Re Harrison, A Legal Practitioner: Ex Parte the Law Society of South Australia Inc. ("the striking-off proceedings"). That chronology identifies complaints made by six of the applicant's clients to the Society, in 1977, 1978, 1979 and 1980. Details of the applicant's misconduct, as found by the Full Court, are set out below.

The Society referred the complaints to the Statutory Committee of the Law Society for investigation. Prior to the commencement of proceedings in the Full Court, the Statutory Committee conducted a hearing and reported to the Society in relation to one of the complaints, that made by Mr Loschman. Relying on that report, the Society commenced proceedings in the Full Court against the applicant. The Full Court began hearing the proceedings on 9 April 1981.

On 10 April 1981, the Full Court ordered that questions referred to the Statutory Committee in relation to the other five complaints - those made by Mrs Reddington, Mr Earley, Mrs Lekic, Mr Anninos and Mr Medley - be referred to Mr PJ Rice QC, appointed as Special Referee, pursuant to s 65 of the Supreme Court Act 1935-1980. Mr Rice was to conduct an inquiry into the complaints and report to the Full Court. The evidence and report of the Statutory Committee in relation to the Loschman complaint was to be treated as having been tendered upon that inquiry. The Full Court proceedings were adjourned pending the completion of Mr Rice's inquiry. That inquiry commenced on 8 May 1981.

The applicant withdrew from Mr Rice's inquiry on 5 June 1981. The inquiry continued in the absence of the applicant, and Mr Rice filed his report to the Full Court on 14 September 1982.

The matter came on again before the Full Court on 7 February 1983. The hearing was adjourned to 9 February 1983, following the withdrawal of the applicant's legal representatives. The applicant did not appear on 9 February, and the hearing concluded in his absence. The Court adopted Mr Rice's report, pursuant to s 65 of the Supreme Court Act. The report set out details of the misconduct which was the subject of the five complaints investigated by Mr Rice.

The Full Court dealt with the matter on the basis that there was no explanation for the applicant's misconduct, other than the conclusions arrived at by Mr Rice, which were, in effect, that the applicant had dishonestly retained for himself, from settlements made on behalf of clients, sums of money in excess of lawful costs to which he was entitled. The Court found the applicant guilty of illegal and unprofessional conduct in that regard.

On 9 February 1983, the Court ordered that the applicant's name be struck off the Roll of Practitioners.

In his reasons in the striking-off proceedings, Sangster J set out details of the applicant's misconduct. Summarising the factors common to the five matters, Sangster J referred to the following elements present in each case:

1. The applicant acted for the client in a claim under the Workers' Compensation Act.

2. The applicant reached a settlement with the solicitors acting for the employer or its insurer. In two cases, the applicant settled without instructions or contrary to instructions.

3. The Industrial Court entered judgment by consent for a lump sum, inclusive of costs in four cases, and with costs to be agreed or taxed in the fifth case.

4. The applicant retained part of the lump sum and paid the remainder to the client.

5. The applicant indicated to the client that the money he was sending came from a settlement of the client's claim, but in no case did the applicant indicate to the client the full amount of the settlement, or the amount he had retained, or that the amount he had retained exceeded his lawful costs in respect of the claim.

6. The applicant conducted himself so as to prevent or delay the full facts becoming known to the client, the Industrial Court, the Law Society, the Special Referee, or the Supreme Court. Sangster J referred to this conduct as "a sorry and shameful set of dishonest manoeuvrings".

Sangster J put those matters to the applicant at the hearing on 7 February 1983. The applicant did not put anything in response to the matters then put to him by Sangster J. He did not appear at the continuation of the hearing on 9 February.

The following is a summary of the details of the applicant's misconduct as set out in the reasons of Sangster J.

The applicant retained money from each of the settlements the subject of the five complaints. It is convenient to set out the relevant figures in a table.

When the applicant sent the money to each client, he did not refer to the full settlement amount, to the amount he had retained, or to the maximum amount of lawful costs in respect of the claim. In other words, he presented each client with an amount which would have appeared to the client to be the full amount of the settlement he had made on their behalf. He did not tell the clients that he had retained money from the settlements.

In one case, that relating to Mr Earley, the applicant advised Mr Earley that he had settled the claim for $2200, exclusive of legal costs. However, he did not inform Mr Earley that the settlement amount was $3300 or that he had retained $1100. In other words, he did not specify the amount of legal costs he said were excluded from the amount sent to Mr Earley, and, of course, he did not advise Mr Earley that the maximum lawful costs were $950.

In regards to Mrs Lekic, and some time after sending her what he described as her settlement, the applicant disclosed the relevant amounts to Mrs Lekic, in a document he called a "trust statement". In that document the applicant described the $2500 sum he had retained as "agreed costs and disbursements at trial". There had been no trial, and the applicant had no agreement with Mrs Lekic that he retain that amount.

The settlement sum relating to Mr Anninos was received by the applicant in three separate payments. From an initial payment of $7000, the applicant paid Mr Anninos $5000, and retained $2000. A second payment of $542 was received by the applicant and sent on to Mr Anninos, and there was no complaint about that sum. From a third payment of $2000, the applicant paid $1500 to Mr Anninos, and retained $500, which he told Mr Anninos was for costs. At no stage did the applicant expressly advise Mr Anninos of the full amounts received and the amounts he had retained.

In two of the five cases complained of, the applicant settled the clients' claims in a manner that contradicted the clients' instructions.

Mrs Reddington's instructions to the applicant were to settle her claim against General Motors Holden ("GMH") on condition that she would, or could apply to, get back her job with GMH. Contrary to those instructions, the applicant settled the claim with GMH's solicitors on the express condition that Mrs Reddington not work for GMH again.

When the applicant paid Mrs Reddington $8000 from the $11000 settlement he had made on her behalf, he did not inform Mrs Reddington that the settlement was conditional upon her not working for GMH again. Indeed, he suggested to her that she contact GMH about getting back her job.

Mr Medley instructed the applicant not to settle his claim. Contrary to those instructions, the applicant made a settlement offer to, and reached settlement with, the solicitors acting for Mr Medley's employer.

After Mrs Reddington's complaint to the Law Society, the applicant, in a bill of costs for taxation, falsely claimed disbursements for certain medical expenses relating to Mrs Reddington's claim. The applicant claimed he had paid a Dr Gardner $489, when he had paid the doctor $140.70. The applicant also claimed to have paid $80 to a Dr Spitzer, when in fact he had not paid any money to Dr Spitzer.

Some time after Mrs Reddington's settlement, the applicant, acting without instructions, commenced two separate applications in the Industrial Court for the recall of the original consent order relating to the settlement. The applicant misled Mrs Reddington as to the nature of those proceedings. He procured from her a written consent to the Industrial Court awarding him $3000 in costs.

Three months after Mr Medley's settlement, the applicant falsely advised the Department of Social Security, and Mr Medley, that Mr Medley's claim had settled for $19000, which included $3000 for costs. As indicated above, the applicant had settled for $20000, initially paid Mr Medley $16000, and retained $4000 for himself (the maximum lawful costs being only $1800).

Within a few days of Mr Medley complaining to the Law Society, the applicant paid Mr Medley a further $4000. The applicant subsequently negotiated with Mr Medley's new solicitors for $4000 to be paid to the applicant for costs and disbursements said to relate to his work for Mr Medley. Later still the applicant, in letters to Mr Medley and his new solicitors, made false assertions concerning Mr Medley's instructions to the applicant, and concerning costs awarded by the Industrial Court.

In relation to Mr Earley, Sangster J said in his reasons that the applicant made fraudulent misrepresentations of fact to the Industrial Court, in an attempt to justify his retention of $1100 from the settlement made on Mr Earley's behalf. The misrepresentations related to statements made by the applicant about paying certain medical expenses on Mr Earley's behalf, and about the amount of his costs taxed by the Industrial Court.

Similarly, in relation to Mrs Lekic, the applicant, after retaining money from the settlement, made subsequent attempts to justify his retention of the money. The applicant indicated to Mrs Lekic's new solicitors that $1000 of the $2500 he had retained was to cover medical expenses at the Royal Adelaide Hospital which he had paid on Mrs Lekic's behalf. The applicant did pay that $1000, although that was after his retention of the $2500. Sangster J suggested that the applicant's payment to the Hospital was an "obvious" and "devious" attempt to justify his retention of $2500.

Following Mrs Lekic's complaint to the Law Society, the applicant procured her signature to a letter to the Society, stating that the applicant still acted for Mrs Lekic, that he claimed legal professional privilege over documents held by him, and that he had her authority to retain $2500 pending taxation of his costs.

When Mr Anninos complained about the sums retained by the applicant, the applicant sent him a further $500. Subsequently, the applicant sent Mr Anninos a bill for costs exceeding $4800, plus $732 in disbursements. In his report to the Full Court, Mr Rice described that bill as "a concoction and a sham drawn with a view to persuade Mr Anninos to withdraw his complaint". The applicant procured Mr Anninos' signature to a letter addressed to the Law Society purporting to withdraw the complaint, and claiming privilege in respect of documents held by the applicant.

The Full Court's Conclusions in the Striking-Off Proceedings

In relation to the applicant's conduct, Sangster J stated (at 17-18):

"There clearly emerges from these five matters a pattern of settling - not always with proper instructions and sometimes contrary to instructions - workers' compensation claims for agreed lump sums - usually including unspecified costs - deducting sums in excess (mostly grossly in excess) of proper costs and sending the balance to the client, and giving less than a full account to the client (and sometimes a false account to the client) of what had transpired."

As to the applicant's conduct after the complaints - that is, his conduct in relation to the clients, the Law Society, the Industrial Court, Mr Rice and the Supreme Court - Sangster J characterised it in the following terms (at 18):

"In each of the five matters there was a sorry and shameful set of dishonest manoeverings [sic] in a blatant attempt by Harrison to cover up or to wriggle out of the consequences of his misconduct by any means conjured up by his cunning, his lack of scruples, and his disregard of the truth, the law, and his duty to his client and to the Courts in which he practised. I do not suppose that the full story will ever be told. Mr. Rice has carefully pieced together enough of it to warrant my characterisation of it."

Sangster J, with whom the other members (Zelling and White JJ) of the Court agreed, concluded (at 25), that in respect of the five matters investigated by Mr Rice, the applicant was "guilty of illegal and unprofessional conduct."

The applicant put nothing to the Court in mitigation. The only factor in mitigation considered by Sangster J related to what the applicant had earlier suggested (to the Statutory Committee) was a common practice amongst practitioners of failing to observe the express requirements of s 41(2) of the Workers' Compensation Act, which prohibited any deduction for costs without an order from the Industrial Court. Sangster J distinguished the applicant's conduct from any such practice by characterising the applicant's retention of money as "disregarding the provisions of S.41(2) as part of a scheme to defraud the client".

On the basis of its findings, the Court ordered that the applicant's name be struck off the Roll of Practitioners.

I mention one matter that appears to have particularly influenced the Board in reaching its conclusion that the applicant was not a fit and proper person to be re-admitted.

The majority stated (at 18 of the report) that "the applicant has been less than forthcoming and frank in relation to matters which the Board has had to consider in making its report." The applicant did not explain, to the satisfaction of the Board, his conduct in retaining the money from the settlements, his conduct in withdrawing from or resisting the enquiries and the proceedings brought against him, nor his bankruptcy (in 1984).

The applicant's failure adequately to explain why he said, in his affidavit in support of his application, that he "partly resisted the application" for striking-off, assumed significance in the light of Sangster J's characterisation of the applicant's approach to the proceedings as "challenge and delay". (I mention here that this remains a concern in the current application, and it is further discussed later in these reasons).

In addition, the question of the applicant's bankruptcy in 1984 raised concerns about his fitness to conduct the business of a practitioner, and the Board considered that the applicant had not adequately addressed those concerns. The majority stated (at 20) that the applicant continued to show a "lack of frankness" and "reticence to provide information".

The Full Court, in a joint judgment delivered on 23 December 1992, refused the applicant's application for re-admission.

The Court referred to the applicant's conduct in Mr Rice's inquiry and in the striking-off proceedings. Before withdrawing from the inquiry before Mr Rice, the applicant sent a letter to Mr Rice in which he made false allegations as to Mr Rice's conduct of the inquiry. In the striking-off proceedings, the Court considered that those allegations might have constituted a contempt. In relation to other conduct on the part of the applicant the Full Court stated:

"The applicant issued proceedings in this Court to challenge the validity of the enquiry and report of the Statutory Committee in relation to the first complaint investigated by the Statutory Committee. On 13 May 1982, the Full Court dismissed the application. The applicant then sought special leave from a differently constituted Full Court to appeal to the Privy Council against the order of this Court suspending him from practice. The application was refused. The applicant then sought but failed to obtain special leave to appeal from the Privy Council. There are other matters noted in the reasons of Sangster J, with whom the other members of the Full Court agreed. His Honour concluded that the applicant's attitude to the proceedings in which he was then involved as [sic] one of 'challenge and delay'."

After referring to the applicant's conduct in retaining money from settlements made on behalf of his clients, the Court went on the say:

"What is striking about these matters is the applicant's dishonesty and complete lack of candour to his clients, and to other bodies or organisations, and to this Court. The applicant has engaged in deliberate deception and cheating of his clients and, when challenged, failed not only to explain his conduct and answer the allegations but also failed to express any regret or contrition."

The Court noted that the applicant had, since 27 February 1983, been employed by the Australian Building and Construction Workers Federation ("the Federation") as an industrial officer. The applicant performed private legal and industrial consultancy work, for no fee, while employed by the Federation. From time to time he assisted the Federal Office of the Federation and different branches of the Australian Building Construction Employees and Builders Labourers Federation ("the BLF"). The applicant described his work for the Federation and the BLF as being in the nature of in-house counsel in relation to disputes and arbitrations.

As to the applicant's conduct after the complaints were made, the Court said (at 6):

"In an affidavit in support of this application, the applicant has sworn that his conduct after the complaints had been made was caused by his failure to be in rational control of his actions which, he says, was the result of his shock and depression and some self deceit in consequence of his having falsely rationalised his behaviour."

In his affidavit the applicant had stated that he had "partly resisted the application to strike me off", but accepted "that the removal of my name from the Roll of this Honourable Court was right and proper." He said:

"The matters investigated by the Law Society resulted initially from my own inability to cope with a busy practice. I should have employed senior people, delegated work more efficiently, and developed a proper management structure. I was shocked and depressed when the complaints, and subsequently the charges were made against me. I believe I deceived myself by falsely rationalising my behaviour, and that led me to fail to admit the substance and truth of the charges, and to oppose the Law Society in the proceedings before the Statutory Committee. It led me also to challenge the authority this Court had granted to the Special Referee to deal with me ... . I was further shocked and depressed by the prospect of professional disgrace and bankruptcy. ... I believe the [sic] I was not thinking clearly and was not in control of my actions, during the period between the complaints being raised before the Statutory Committee and my striking off. I do not put these matters forward as an excuse for any of my conduct which was properly criticised by Mr Justice Sangster and the other members of the Court. I offer them as a partial explanation of my failure to admit my fault and to express contrition at the time."

Having said that the applicant "has been found guilty of very serious breaches of his duty to his clients, breaches which involved dishonesty and cheating his clients out of monies to which they were entitled", the Court went on to consider whether the applicant "has proved that he is now a fit and proper person to be a legal practitioner notwithstanding his past misconduct". The Court said that an applicant for re-admission must "demonstrate that his experiences in the past have alerted him to a proper sense and understanding of the duties required of him and a capacity to implement them in the future"; he must "satisfy the Court that the unfortunate incidents which led to his being struck off were a solitary deflection from the path" and that "he might be trusted to act honestly in the future". The onus upon the applicant was described as a heavy one, though not equivalent to the onus used in criminal proceedings.

The Court referred to the report of the Board of Examiners, and noted the Board's concern about the applicant's failure adequately to explain certain matters. In response to continuing questions about his bankruptcy, the applicant tendered to the Court an affidavit which exhibited the report of the Official Trustee on his bankruptcy. Nevertheless, the Court was concerned that the applicant had not made full and frank disclosure to the Board. The applicant said that any lack of frankness was unintended and that he was not trying to conceal anything from the Court. He said he should have provided a copy of the Official Trustee's report when the Board sought further information about the applicant's bankruptcy. The Court said:

"We agree with Mr Sulan that it is difficult for an applicant to be able to anticipate everything upon which the Board might like to have information. But once the Board seeks further information on a particular topic, it behoves an applicant to be completely forthcoming and to place all relevant material before the Board in an open and frank manner. That duty is the higher when, as here, the applicant was initially struck off for conduct which included a failure to be honest and frank with his clients.

The applicant was less than forthcoming and frank in relation to the matters which the Board had to consider. The applicant's conduct in giving what the majority of the Board calls 'a bare minimum of information' indicates a lack of the proper candour required by a legal practitioner. The additional information in the form of the Official Trustee's Report is supplied at the eleventh hour and only after strong criticism by the Board. These responses viewed against his proven misbehaviour make it difficult for the Court to conclude that he will, if admitted, be candid and frank with his clients or the Court. The applicant was censured by the Full Court for misleading his clients and for failing to be frank with the Court and other bodies and organisations. The applicant has not demonstrated that he has learned from the lessons of the past."

In relation to misconduct that led to the applicant's name being struck off the Roll, the Court noted the applicant's age and experience as a practitioner when the misconduct occurred, and concluded:

"It was not the conduct of a young and immature person nor an isolated act committed under stress. The applicant's conduct in his mid forties towards the clients who placed their trust in him was flagrantly dishonest. That conduct, together with his behaviour in the subsequent proceedings, demonstrates a character so flawed as to preclude re-admission to the legal profession."

The Court referred to affidavits filed on the applicant's behalf. The practitioners who swore affidavits stated that they would be prepared to deal with the applicant professionally if he were re-admitted. The Court said that any weight to be attached to those statements was diminished by the fact that the practitioners would have an obligation to do so. None of the affidavits addressed the applicant's capacity to deal honestly with the property of others.

Finally, the Court rejected the idea of re-admitting the applicant on condition that he be supervised by another practitioner.

The Board of Examiners has provided two reports to this Court in relation to the current application for re-admission.

In its first report, dated 1 November 2001, the Board states that, by majority, it is not satisfied that the applicant is a fit and proper person to be re-admitted, and is not satisfied that the applicant is fit to act as a practitioner in all business and matters usually transacted by or entrusted to practitioners. The Board has provided reasons of the majority and of the minority.

In its second report, the Board states that it is satisfied that the applicant has the capacity to act as a practitioner in all business and matters usually transacted by or entrusted to practitioners. The Board repeats the recommendation set out in the 1 November 2001 report, that it considers the applicant is not a fit and proper person to be re-admitted.

In the second report, the Board further reports that in arriving at its conclusion, it has taken into account the undertakings given to the Board by the applicant, which are in the following terms:

"(1) The applicant undertakes to the Board that, if he is re-admitted by the Full Court, he will not practise, other than as an employed solicitor, for a period of one year after the date of issue of a practising certificate, and he undertakes to complete a period of employment of one year under the supervision of a practitioner admitted in South Australia of not less than five years standing before applying for an unconditional practising certificate.

(2) That the applicant also undertakes that during the period of such employment he will not hold trust monies.

(3) The applicant also undertakes that he will complete to the satisfaction of the Law School of the University of Adelaide the course in Legal Ethics offered by that institution during the year 2003 together with components of the Graduate Diploma in Legal Practice to be offered by the Law Society at the beginning of or during 2003, as set out in Ms Watkins' letter to the Chairman of the Board dated 28 May 2002.

(4) Undertakes, in addition, to attend a Risk Management program to be offered by the Law Society in three half-day sessions in September 2002 or such later time as permitted by the Chairman of the Board."

I refer to some of the particular concerns raised in the reasons of the majority of the Board in November 2001.

The Board expressed concern about whether the applicant properly appreciated the nature and extent of the misconduct for which his name was removed from the Roll of Practitioners. The Board said the applicant had to appreciate and accept the wrongfulness of his conduct. The Board referred to the applicant's statement in his statutory declaration of 20 July 2001 that he had "partly resisted" the proceedings that led to his striking-off. That statement was not consistent, the Board said, with the approach the applicant had actually taken.

In his evidence before the Board on 2 October 2001, the applicant acknowledged the tension between the reason he gave in his statutory declaration for withdrawing from Mr Rice's inquiry - that is, that he accepted Mrs Reddington was telling the truth - and his action in writing the letter to Mr Rice making the false allegations about the conduct of the inquiry. In evidence the applicant said that he withdrew from the inquiry because "that was the end of the case", and he said that he expected to be dealt with accordingly. The majority of the Board was not satisfied with that explanation, and thought that the applicant was then attempting "to give a very different explanation of his conduct in withdrawing from" the inquiry.

In his statutory declaration the applicant "explained his non-attendance before the Full Court on the basis that he had been threatened with contempt by one of the judges and he made a decision not to participate thereafter." The Board found that explanation "difficult to reconcile with what actually occurred before the Full Court".

The Board expressed concern about the applicant appearing "to justify his conduct [in retaining the money from the settlements] by reference to the alleged conduct of others". That was a reference to the applicant's suggestion that there was a practice amongst practitioners of not complying with the strict requirements of s 41(2) of the Workers' Compensation Act. The Board said the applicant's explanation "does not deal with the dishonest nature of his conduct."

As to whether the applicant had shown a proper appreciation of his misconduct, the Board concluded:

"It seems to the Board that the applicant's explanation of his conduct in his statutory declaration and his evidence falls far short of evidencing a proper insight into the dishonest nature of the conduct in which he engaged. Without that insight, it is difficult if not impossible to conclude that the applicant's character has changed for the better such that he is now ready to meet the high standards of honesty demanded of a legal practitioner."

The Board did take into account the applicant's evidence that, in effect, he accepted he had acted dishonestly and that there was no excuse for his misconduct. However, the Board's view was that "notwithstanding the unqualified acceptance of the dishonesty of his conduct, there appears to be a lack of perception on the applicant's part of the nature and extent of his dishonest behaviour."

The Board accepted that the applicant had worked for many years in industrial and employment relations without attracting any adverse comment.

The minority of members of the Board did not agree "that there is a tension between the all encompassing and unqualified acceptance that his conduct was wrong, and the statements of the applicant in relation to specific matters which indicate some lack of perception of his understanding or acceptance." Those members were satisfied that the applicant accepted his wrongdoing and was contrite about it, and on that basis that he had demonstrated he was a fit and proper person to be re-admitted.

The issue to be determined by this Court is whether the applicant has established that he is a fit and proper person to be a legal practitioner, notwithstanding the finding of illegal and unprofessional conduct, which conduct occurred some 21 years or more ago: New South Wales Bar Association v Davis [1963] HCA 31; (1963) 109 CLR 428 at 432. The fact that the applicant has previously been struck off the Roll is relevant. As Latham CJ, Dixon and Williams JJ said in Ex parte Lenehan [1948] HCA 45; (1948) 77 CLR 403 at 422:

"When such a person applies for reinstatement he is in a more disadvantageous position than an original applicant because he must displace the decision as to probable permanent unfitness which was the basis of his removal. A solicitor may be restored to the Roll after he has been struck off, but the power to reinstate should be exercised with the greatest caution and only upon solid and substantial grounds. ..."

See also Incorporated Law Institute of New South Wales v Meagher [1909] HCA 87; (1909) 9 CLR 655. It is also relevant to recall that in such a matter the Court acts in the public interest, and not with a view to punishment. The Court is concerned to protect the public. It is not concerned with punishment of a practitioner who has done wrong, although the removal of the practitioner's name from the Roll of Practitioners will operate as a punishment, and a refusal to restore the name of a former practitioner to that Roll may seem to be a form of punishment. The Court's concern is to protect the public and the administration of justice by preventing a person from acting as a legal practitioner if that person is not fit to remain a member of the profession: see The Law Society of South Australia v Murphy (1999) 201 LSJS 456 at 460 - 461 and The Law Society of South Australia v Rodda [2002] SASC 274 at [20] - [22].

The reasons for this approach are well established. A legal practitioner is held out by the Court as a person fit and proper to discharge an important responsibility. A practitioner is an officer of the Court, and is involved in the administration of justice. Legal practitioners are also held out to the public as persons upon whom the public may rely, and in whose integrity they may trust. The Court cannot hold a person out to the public as a fit and proper person to be a practitioner, if it is not satisfied that this is the case. As I have said, this has nothing to do with questions of punishment or reform or rehabilitation. As I said in Rodda at [29], another factor to consider is the reputation and standing of the legal profession. The Court must consider whether public confidence and trust in the legal profession would be eroded if a person were permitted to remain or to become a member of the profession, notwithstanding the past conduct that is in question.

The conduct for which the applicant's name was removed from the Roll was very serious. It was a serious departure from proper standards of professional conduct. The elements of dishonesty and deception were significant. The conduct cannot be attributed to inexperience, to immaturity or to mere incompetence. At the time of the relevant conduct, the applicant had been admitted for about 10 years, and was 47 years of age.

It is also relevant that, on the first application for re-admission, the Board of Examiners found that the applicant was not completely frank. This requires careful consideration. On the other hand, it is also relevant that much of the criticism related to the applicant's failure to provide material relating to his bankruptcy. The material was part of the public record. There was no suggestion that the applicant concealed private information, or information not available from other sources.

These matters are to be considered in light of the circumstances as they now stand. Some 20 years have passed since the applicant acted as he did. He is now about 67 years of age. In the meantime, he has been employed by various trade unions as an industrial officer and legal officer. He has practised as a lay advocate and as a layperson in the area of industrial law for much of this time. There is no suggestion that during this period any adverse comment has been made upon the applicant's conduct. On the other hand, experience suggests that adverse comments are unlikely to be made unless some kind of formal disciplinary procedure has been initiated against the applicant. The applicant has provided an affidavit from a representative of the Master Builders' Association who has dealt with the applicant in many matters during this time and who says, in effect, that in all of his dealings with the applicant the applicant has behaved properly. The applicant has also provided an affidavit from a solicitor who says that he and the applicant have discussed the reasons for the applicant being struck off on a number of occasions. The solicitor says that the applicant appears to be contrite.

The applicant's statutory declaration contains a number of assurances that the applicant now unreservedly accepts that the order striking his name from the Roll of Practitioners was made on proper grounds and was fully justified. The applicant acknowledges that his conduct was improper. He apologises to the Court and to the profession. He expresses deep regret over his behaviour. As far as words can do it, his statements disclose recognition of the wrongness of his conduct, regret and contrition, and an intention to observe appropriate standards of conduct in the future. While the applicant's unprofessional conduct cannot be attributed in any way to inexperience or immaturity, it is of some relevance that he is now 67 years of age.

The applicant attributes his unprofessional conduct to a number of matters, without seeking to excuse his behaviour. In particular, he identifies overwork, poor organisation and feelings of shock and depression when he had been charged, and when he quickly found himself in financial difficulty as a result of proceedings brought against him. These matters are not put forward as excuses, but as partial explanations for his subsequent reprehensible conduct in connection with the inquiries and disciplinary proceedings.

The Board was rightly concerned to determine whether or not the applicant "properly appreciated the nature and extent of his conduct which led to his name being removed from the Roll of Practitioners". The Board also rightly said that the applicant "should demonstrate that he has a proper insight into the nature and extent of his previous conduct and a complete acceptance of the inappropriateness of that conduct".

In considering these matters, the Board made particular reference to the applicant's explanation for his past behaviour. In doing so, the Board recognised that the applicant was dealing with events that occurred at a time when, as the applicant acknowledged, his behaviour was irrational.

My impression is that but for the particular matters to which I am about to refer, the Board would have concluded that the applicant was a fit and proper person to be re-admitted, notwithstanding the past misconduct. That is my own starting point. But in saying that, I wish to emphasise that it is a conclusion that I reached only after a good deal of thought. It is conceivable that, if admitted, the practitioner will again be faced with pressures due to an excessive amount of work and due to poor office organisation. It is therefore conceivable that he will again be exposed to pressures which played a part, as he acknowledges, in the occurrence of the past unprofessional conduct. The seriousness of that conduct, and its prolonged nature, is every reason for caution. But, in the end, taking account of the applicant's acknowledgement of his wrongdoing, and the fact that he appears to have been engaged in something akin to legal practice for a substantial period without any problems arising, leads me to the conclusion that he can be re-admitted, subject to the matters that influenced the Board.

The first of these was the practitioner's statement, in his statutory declaration, that he had "partly resisted" or "partially resisted" the application to strike him off the Roll. That is an odd thing for him to have said. What I have said earlier in these reasons demonstrates that he actively resisted the proceedings, and that throughout the proceedings he ignored his duty as a practitioner to assist in the due conduct of those proceedings. While his withdrawal from the proceedings may have been attributable to a realisation that it was inevitable that he would be struck off, the fact is that even at that stage he was not prepared to acknowledge his wrongdoing.

However, he now does acknowledge his wrongdoing, and he now does acknowledge that in this further respect he was guilty of unprofessional conduct.

The Board was concerned by the fact that what he says in the statutory declaration is inconsistent with what occurred at the time.

I agree that it is. However, having considered the statutory declaration as a whole, and the evidence that the applicant gave before the Board, I would not attribute to this matter the significance that the Board did. To my mind, the more significant fact is the applicant's acknowledgement that the relevant conduct was completely wrong. Looking at matters as a whole, I do not consider that the reference to partial resistance is an attempt to minimise the seriousness of the conduct or to escape responsibility. In this respect the declaration is poorly expressed, but I would not put it any higher than that.

The Board was concerned that the applicant had said that one reason for withdrawing from the proceedings before the Full Court was that he had been threatened with contempt by Sangster J. The Board found this statement "difficult to reconcile" with what occurred before the Full Court. That may be so, but once again it seems to me that the applicant is here referring to his state of mind at the time, and in any event to something that was nothing more than one factor, and probably a factor of no great importance.

The Board referred to evidence that the applicant gave before the Board to the effect that the applicant was personally responsible for the relevant conduct in only two of the five cases under consideration, being vicariously responsible for conduct of employees in the other three cases. The Board states that when Sangster J referred to the applicant being involved personally in only two or three of the cases, he was referring to the matter of settling the claims without instructions, and not to other aspects of the professional misconduct. As to that, in fairness to the applicant, it seems to me that this refinement was not clearly adverted to in the evidence before the Board. As well, the applicant accepted, without equivocation, that anything not done by him personally was done by younger practitioners who relied upon his guidance or direction, and who were acting in accordance with the system that he had established. He accepted full responsibility.

Once again, it seems to me that this aspect of the applicant's evidence does not undermine his acceptance of responsibility and contrition.

Finally, the Board referred to the applicant's statements that other practitioners at the time took the view that s 41 of the Workers' Compensation Act was not breached when a practitioner deducted costs if there had been an order for "compensation inclusive of costs". In his statutory declaration, the applicant goes on to explain that later the relevant provisions were amended in a manner that would have, or might have, meant that he would not have "fallen into error". As to this, I agree that in raising this the applicant is, in a sense, "clutching at straws". It was the dishonesty and deception in which he engaged which led to him being struck off. Failure to comply with the relevant legislative provision was of much lesser significance. And it is true that in offering this explanation, the applicant does not allude to the dishonest nature of his conduct. But it seems to me that he has dealt with that in other parts of his statutory declaration, and that it is rather hard on the applicant to hold it against him that he offers this insubstantial explanation for his conduct, without repeating his acknowledgement of the fact that the conduct was in any event dishonest and unprofessional.

For those reasons, I do not draw the adverse inferences that the Board drew from these aspects of the applicant's statutory declaration and evidence.

To my mind, these matters can be put to one side, by and large, on the basis that they are attributable to a poorly expressed declaration, rather than to an inability or unwillingness to acknowledge the past unprofessional conduct.

Having done that, my view is that the situation can be summarised as follows. The applicant was rightly removed from the Roll of Practitioners, some 20 years ago, for serious unprofessional conduct. He now acknowledges that what he did was wrong. The nature of the conduct is such that that acknowledgement provides some assurance that the conduct, or anything like it, would not be repeated. He has offered a partial explanation for his conduct, but it is no more than a partial explanation. It does not really explain the dishonest and deceptive aspects of the conduct. For some 20 years since the time of the unprofessional conduct, the applicant has engaged in work that has similarities to that of a legal practitioner, without apparently attracting any adverse attention. I find no reason to reject the applicant's claim that he now appreciates what was wrong about his conduct, that he is contrite, and would in future strive to behave in an appropriate manner.

That being so, the question I must consider is whether that causes me to be satisfied that he is now fit to be re-admitted, and that the Court can now, notwithstanding his past, hold him out to the public as a person fit and proper to be a legal practitioner. I remind myself that the passage of 20 years is of no significance, except to the extent that what has occurred during that time might satisfy me that the applicant is now fit to be re-admitted. There can be no question of saying that the applicant has been sufficiently punished, and on that basis can be re-admitted.

There will be cases in which the seriousness of unprofessional conduct will be such that the passage of time cannot erase its effect on the Court's assessment of the character of a former practitioner, or in which the unprofessional conduct is such that public confidence in the profession would be damaged were the former practitioner ever to be re-admitted to the profession. When the matter was before this Court in 1992, the Full Court came close to putting this case in that category. Nevertheless, having weighed up all of the matters to which I have referred, and recognising that there is an element of impression in this process, I am satisfied that the applicant is a fit and proper person to be re-admitted as a practitioner of the Court. Accordingly, I would order that the applicant be admitted as a practitioner of the Court, and that his name be restored to the Roll of Practitioners, subject to the undertakings offered by the applicant, and subject further to the applicant modifying the first undertaking so that he undertakes not to practise other than as an employed solicitor for a period of two years under the supervision of a practitioner admitted in this State for not less than five years, and to provide to the Board of Examiners a report from that practitioner or practitioners after the expiry of 18 months of the period of supervision.

BLEBY J: As has been pointed out by the other members of the Court, an applicant for readmission in the circumstances of those now before us carries a particularly heavy onus. I will not repeat the passages cited in the judgments of the Chief Justice and of Besanko J. I accept as appropriate the test referred to in Incorporated Law Institute of New South Wales v Meagher [1909] HCA 87; (1909) 9 CLR 655 per Issacs J at 681 - 682 and Higgins J at 692. I also accept what Latham CJ, Dixon and Williams JJ said in Ex parte Lenehan [1948] HCA 45; (1948) 77 CLR 403 at 422.

We are not here to punish the applicant. We must be mindful of the great responsibility placed on this Court in holding out as legal practitioners persons in whom their clients can have trust in their honesty, their integrity and their competence. There is also a need for this Court to be able to rely on the integrity of all members of the legal profession in the administration of justice. It is for those reasons that the law imposes on an applicant for re-admission a very high onus to satisfy the Court that the applicant is now a fit and proper person to be readmitted as a practitioner where his past conduct clearly demonstrates a serious failure to comply with the necessary standards.

Whether the applicant has discharged that heavy onus must be considered not only by what he and others say in support of this application but by viewing that information against the circumstances which led his name to be removed from the Roll and, in this case, the circumstances of his previous application for re-admission in 1992. Those circumstances are fully described in the reasons of the Chief Justice and I will not repeat them. I will merely add reference to some particular circumstances relevant to these reasons.

In rejecting the applicant's application for readmission in 1992, the Full Court was concerned about the applicant's lack of candour both to the Board of Examiners and to the Court. It said in its joint judgment delivered on 23 December 1992, at 14:

"The applicant was less than forthcoming and frank in relation to the matters which the Board had to consider. The applicant's conduct in giving what the majority of the Board calls "a bare minimum of information" indicates a lack of the proper candour required by a legal practitioner. The additional information in the form of the Official Trustee's Report is supplied at the eleventh hour and only after strong criticism by the Board. These responses viewed against his proven misbehaviour make it difficult for the Court to conclude that he will, if admitted, be candid and frank with his clients or the Court. The applicant was censured by the Full Court for misleading his clients and for failing to be frank with the Court and other bodies and organisations. The applicant has not demonstrated that he has learned from the lessons of the past."

In an affidavit in support of his application on that occasion the applicant said:

"19. Though I partly resisted the application to strike me off I now accept that there were good and impelling reasons for my conviction, particularly in the circumstances of my failure to either give evidence or otherwise take part in the proceedings, and have accepted the penalty so imposed as just and proper. I accept that the removal of my name from the Roll of this Honourable Court was right and proper. I realise that my course of conduct at that time was entirely improper for a Barrister and Solicitor of this Honourable Court to do, and express my apologies to this Honourable Court and the profession for my actions. I sincerely undertake never to be involved in conduct or actions of that sort again and deeply regret those occurrences."

That is almost word for word what appears in paragraphs 17 and 18 of the applicant's statutory declaration in support of his present application. In his 1992 affidavit the applicant continued:

"20. .............. I was shocked and depressed when the complaints, and subsequently the charges were made against me. I believe I deceived myself by falsely rationalising my behaviour, and that led me to fail to admit the substance and truth of the charges, and to oppose the Law Society in the proceedings before the Statutory Committee. It led me also to challenge the authority this Court had granted to the Special Referee to deal with me, and finally to question the position of Mr McCarthy QC, who had generously agreed to represent me, to such an extent that he was justified in withdrawing his assistance. I was further shocked and depressed by the prospect of professional disgrace and bankruptcy. ................ I believe the (sic) I was not thinking clearly and was not in control of my actions, during the period between the complaints being raised before the Statutory Committee and my striking off. I do not put these matters forward as an excuse for any of my conduct which was properly criticised by Mr Justice Sangster and the other members of the Court. I offer them as a partial explanation of my failure to admit my fault and to express contrition at the time. ....."

The concerns expressed by the majority of the Board of Examiners at that time and reflected in the judgment of the Full Court in 1992 were:

That the applicant had given no explanation about the five matters the subject of the report of the Special Referee, Mr Rice QC;

That his "partial explanation" for the conduct was not adequate;

That there had been a failure to volunteer any information concerning restitution;

That there had been no apology or contrition over the incurring by the Law Society of substantial costs in the various proceedings associated with his striking off, which costs were never to be reimbursed because of the applicant's intervening bankruptcy;

The failure of the applicant to give any meaningful assistance to the Board or explanation concerning his bankruptcy; and

It was many of those concerns, particularly relating to the lack of candour concerning the applicant's bankruptcy, which caused the Full Court to reach the conclusion that it did.

The applicant's explanation on this occasion for his failure to participate in the inquiry before the Special Referee and his failure to attend on the final hearing before the Full Court is somewhat different. Having repeated what he had said in par 19 of his 1992 affidavit, he says in his statutory declaration before this Court:

"19. I say I partially resisted the application to strike me off because I ceased to take part in the Inquiry before the Special Reference after I became convinced that the complainant Reddington was telling the truth when she said I had not discussed costs with her. I had no independent recollections of our conversations with her and I had not obtained her instructions in writing. I expected the Special Referee to immediately report my withdrawal and the Full Court would call upon me to show cause why I should not be dealt with on that basis. Similarly I ceased to take part in the Full court proceedings after Mr Justice Sangster threatened to imprison me for contempt. I was surprised at the length of the hearing before the Special Referee and the Full Court."

He continues with an explanation almost word for word with that which I have quoted from par 20 of his affidavit in support of the 1992 application. He then continues in par 25:

"25. I was of the view that when I withdrew from the Special Referee's Inquiry he would immediately report the fact to the Full Court and that I would be dealt with on that basis saving a large amount of costs. Above all, I was in no fit mental state to look after my interests in the proceedings as was evident when Mr Justice Sangster took exception to my approach before the Full Court."

In evidence before the Board of Examiners he explained:

"I cross-examined the first witness and I was satisfied that she was telling the truth. So as far as I was contended (sic) it was all over by that stage. I walked out in the belief that the referee would hold me in contempt, report to the Full Court, and that would be the end of my career. It was a great surprise to me that it went on ex parte. If it had been finished at the second day of hearing I suppose the cost might have been $10,000 and life would have been somewhat different over the last few years. But they went on and that compounded my difficulties."

Besides repeating the "partial explanation" that he gave in 1992 for his "partly" resisting the application for striking off, the applicant on this occasion suggests, as I interpret his statutory declaration and his evidence before the Board of Examiners, that, having heard Mrs Reddington's evidence and not being in a position to refute it, that was sufficient, in the applicant's view, to justify his being struck off. There was no point in further resistance or incurring further time and costs of the Special Referee's proceedings or in the Full Court proceedings which would inevitably follow.

However, not only is this the first time that that has been suggested as the reason for his behaviour, it does not accord with the objective facts as found by the Court in the original striking off proceedings.

It will be remembered that Mr Loschman's complaint was heard by the Statutory Committee of the Law Society in 1980 and 1981. The Committee's report of 6 March 1981 gave rise to the notice of motion by the Law Society to strike the applicant off the Roll. On 10 April 1981 the Full Court appointed Mr Rice QC as Special Referee to inquire and report into the remaining five matters of complaint. The mandate and the extent of the inquiry to be conducted by Mr Rice must have been quite apparent to the applicant at that time. He consented personally to the order. Unless directed otherwise, Mr Rice was obliged to carry it out in respect of all matters referred.

On 8 May 1981 Mr Rice began hearing evidence, presumably in respect of Mrs Reddington's complaint. Rather than conceding that there were grounds for his striking off the applicant continued to resist the proceedings at every turn.

On 13 May 1981 the applicant withdrew his undertaking previously given to the Full Court not to practise as a solicitor, whereupon he was suspended from practice by the Full Court until further order. On 5 June 1981 the applicant withdrew from Mr Rice's inquiry after having made allegations of bias against Mr Rice and after sending a letter to him which made untrue allegations as to his conduct of the inquiry.

He unsuccessfully sought leave from a differently constituted Full Court to appeal to the Privy Council against his suspension from practice. When that failed he sought leave to appeal, again unsuccessfully, from the Privy Council itself. Early in 1982, before Mr Rice had delivered his report, the applicant challenged the validity of the report of the Statutory Committee in respect of the Loschman matter. An order nisi for certiorari in respect of that matter was discharged by the Full Court in May 1982.

None of those events sit happily with the applicant's present explanation to the effect that, having heard Mrs Reddington's evidence he considered that his striking off was almost inevitable and that there was no point in further participating in the proceedings or in incurring further costs.

In my opinion, these facts belie the explanation which the applicant now gives for his withdrawal from the proceedings because of what he then perceived was inevitable. The proceedings which eventually resulted in his being struck off were being actively resisted at every point. What he now says he then considered to be inevitable was sought to be frustrated and delayed by the applicant at every step. His response may, as he now says, have been irrational. Nevertheless, it gives the lie to what he now says was his then state of mind. That cannot instil in me the necessary confidence that the applicant now has a full insight into his offending and its gravity, or that he has displayed the necessary degree of frankness or integrity which would now justify his readmission.

This was one of the matters which caused the majority of the Board of Examiners to report adversely on the present application. I find that view justified.

The majority of the Board was also concerned about two other aspects of the applicant's evidence. One was that he was not personally responsible but only vicariously so for some of the matters the subject of the complaint. For the reasons given by the Chief Justice I do not consider this to be a matter of great concern.

The third matter of concern to the Board arises out of paragraphs 24 and 28 of the applicant's statutory declaration. He says:

"24. ......... I, like most other firms then operating in the jurisdiction acted in the belief that Section 41 of the Workers Compensation Act was not breached if the Industrial Court made an order for 'compensation inclusive of costs'. The Full Court effectively held in my case that Section 41 would be breached if the client/solicitor costs taken exceeded the costs obtained on taxation by the Court. Subsequent to my case the Industrial Registrar was given power to approve a practitioner's claim for client/solicitor costs. If that facility had been available to myself I do not believe I would have fallen into error. I believed that I had in all of the cases in which I was involved disclosed orally the sum to be deducted from the 'compensation inclusive of costs'. Obviously I ought to have obtained written instructions in all such cases. To that time I had not obtained written instructions in any matters in any jurisdiction in which I practiced (sic). In any event, I also sent out statements stating the amount taken from trust moneys held after the compensation inclusive of costs had been paid. During the proceedings before the Special Referee the complainant Reddington had in fact conceded that she had signed such a statement but denied it had accompanied the cheque sent to her after the case. She could not say when she had signed the statement. I did not provide detailed trust statements to my clients nor had I in any jurisdiction in which I had practiced (sic) since I had been admitted. I was not aware that such was a requirement. As an articled clerk I did not carry out any billing's (sic) or accounting work. I believed that a simple pro forma statement noting an amount drawn from Trust Account was all that was required.

28.2 The riggers (sic) of Section 41 of the Workers compensation Act, if 'all up' settlements were to be illegal, as His Honours findings must decide, were subsequently mitigated by the amendment of the Industrial Court Rules to allow ex parte memoranda of costs to be presented by worker's solicitors for certification of client/solicitor costs. Prior to that a full Bill had to be served upon the client/worker and taxed by the Industrial Registrar or a Judge. There was a commonly held belief, to which His Honour's judgment put pay, that a sum inclusive of costs, satisfied S. 41's requirements.

28.3 Some twelve months before the amendment in (2) above the Judges of the Industrial Court, I believe in late 1982 began to refuse to make 'all up' orders, meaning orders inclusive of costs.

28.4 There is no equivalent provision to Section 41 in the current Workers Compensation legislation nor has there been since 1986."

This appears to be presented as some ex post facto justification for the applicant's initial conduct. If it is, I reject it. It cannot excuse dishonesty or a breach by a solicitor of the provisions of the Workers Compensation Act. If the practice of other firms was not intended as some explanation or justification, it is difficult to understand why it was referred to at all. The answer may be in the applicant's evidence before the Board, not pursued in detail before the Board, that he himself had taken proceedings, on behalf of former clients of another firm of solicitors, against that firm in respect of what were said to be similar breaches of s 41 of the Workers Compensation Act. Whether that was to expose the practice, to test its legality, to deflect attention from his own practice or some other reason does not really matter. There was no acknowledgment of his wrong-doing at any stage of the proceedings leading up to his removal from the Roll. To raise the practice of other solicitors now in the manner in which it is raised suggests that even now there is a failure to fully recognise the gravity of the applicant's conduct.

The applicant has expressed regret and contrition in various ways for the whole of his conduct. The matters to which I have referred regrettably tarnish those expressions of contrition.

I also do not doubt that during his years of employment by trade unions in the building industry and in representing those unions and their members as an industrial advocate, the applicant has behaved competently and with apparent integrity in the affairs in which he was involved. I take all that into account. However, it does not follow that, from an apparently unblemished record as an employee of a trade union, the Court can be satisfied that the public and the Court can have that necessary degree of trust and confidence in his ability to discharge the fiduciary responsibilities of a practising solicitor, at least while serious reservations remain as to his candour and integrity.

BESANKO J: The facts are set out in the reasons for judgment of the Chief Justice. I will need to mention some of the facts, but for the most part I rely on the statement of facts in the reasons for judgment of the Chief Justice.

The applicant was struck off the roll of practitioners by order of this Court made on the 18th of February 1983.[1] He made an application for readmission as a practitioner in 1992. That application was dismissed by the Full Court on the 23rd of December 1992.[2]

A description of the conduct which led to the order in the striking off proceedings is contained in the reasons for judgment of the Chief Justice. The Full Court which dismissed the application for readmission described the conduct which led to the order for striking off in the following terms:

"What is striking about these matters is the applicant's dishonesty and complete lack of candour to his clients, and to other bodies or organisations, and to this Court. The applicant had engaged in deliberate deception and cheating of his clients and, when challenged, failed not only to explain his conduct and answer the allegations but also failed to express any regret or contrition ...

The applicant has been found guilty of very serious breaches of his duty to his clients, breaches which involved dishonesty and cheating his clients out of monies to which they were entitled. These breaches plainly constituted a very grave departure from his duties as a legal practitioner."

That characterisation of the offending conduct is not challenged.

Plainly the public interest demands that only fit and proper persons be permitted to practise as legal practitioners. This Court has found that by reason of the conduct identified, the applicant was not a fit and proper person to practise as a legal practitioner.

The applicant carries the onus of establishing that he is now a fit and proper person notwithstanding a previous finding that he was not such a person. In 1992, the Full Court described that onus, where a practitioner has been involved in financial dishonesty, as a particularly heavy one.[3] I agree. On the other hand, the Full Court rejected the suggestion that the applicant must leave the Court in no doubt that he should be readmitted. The Court said that applying an onus used in criminal proceedings - the applicant must prove his fitness for readmission beyond all reasonable doubt - is unhelpful.

Two decisions of the High Court state the test which must be applied. In Incorporated Law Institute of New South Wales v Meagher[4] Isaacs J said at 681:

"It may be that the error, though flagrant, has proved to be a solitary lapse. It may be that after sufficient time has passed the applicant can satisfy the tribunal that his purgation is complete, his repentance real, his determination to act uprightly and honourably so secure that he may be fairly re-entrusted with the high duties and grave responsibilities of a minister of justice. But that obligation lies upon him, and is no light one. The errors to which human tribunals are inevitably exposed, even when aided by all the ability, all the candour, and all the loyalty of those who assist them, whether as advocates, solicitors, or witnesses, are proverbially great. But, if added to the imperfections inherent in our nature, there be deliberate misleading, or reckless laxity of attention, to necessary principles of honesty on the part of those the Courts trust to prepare the essential materials for doing justice, these tribunals are likely to become mere instruments of oppression, and the creator of greater evils than those they are appointed to cure. There is therefore a serious responsibility on the Court - a duty to itself, to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential. It is not a question of what he has suffered in the past, it is a question of his worthiness and reliability in the future."

"The true question is not whether the respondent has been proved 'almost conclusively' guilty of misfeasances since 1896, but whether he has proved that notwithstanding his misconduct before 1896 he is now a 'fit and proper' person. The presumption in favour of innocence is not applicable. The respondent has been found guilty in 1896 of misconduct such as showed him to be unfit for the office of a solicitor. As he has shown himself to be capable of such misconduct, has he shown that he is now incapable of it, or, at the least, that he is no longer likely to err in the direction of deception? It is not his reputation that is in question, but his intrinsic character."

In Ex parte Lenehan[5] Latham CJ, Dixon and Williams JJ said at 422:

"The decisions cited refer to cases where a solicitor who had been on the roll was struck off the roll. When such a person applies for reinstatement he is in a more disadvantageous position than an original applicant because he must displace the decision as to probable permanent unfitness which was the basis of his removal. A solicitor may be restored to the roll after he has been struck off, but the power to reinstate should be exercised with the greatest caution and only upon solid and substantial grounds (Incorporated Law Institute of New South Wales v Meagher (1))."

In dealing with the application for readmission in 1992, the Full Court referred to the fact that the applicant was aged 47 years and had been in practice for at least 10 years at the time of the offending conduct. The Court said that he was not a younger person whose dishonesty could be regarded as the false steps of youth or early adulthood or as conduct of a person who has been misled. On one view of the Court's reasons, the nature of the offending conduct and the applicant's age at the time of the conduct was sufficient of itself to lead to the dismissal of the application for readmission.[6] Similar reasoning in relation to this application would lead to an order dismissing the application.

The evidence placed before the Board of Examiners and before this Court included:

(1) evidence that the applicant has been usefully employed in a variety of responsible positions since the order striking him off and that he has been and is trusted by others and that there has been no further conduct involving financial dishonesty, or indeed any form of dishonesty, and

(2) evidence from the applicant expressing his contrition for his offending conduct and an acknowledgment by him that such conduct was wrong.

However, a majority of the Board of Examiners was concerned about certain statements made by the applicant in his statutory declaration filed in support of the application for readmission, and in his evidence before the Board. In particular, the Board had concerns about some of the statements contained in the following paragraphs of the applicant's statutory declaration.

"17. Though I partly resisted the application to strike me off I now accept that there were good and impelling reasons for my conviction, particularly in the circumstances of my failure to either give evidence or otherwise take part in the proceedings and have accepted the penalty so imposed as just and proper. I accept that the removal of my name from the Roll of this Honourable Court was right and proper. I realise that my course of conduct at that time was entirely improper for a barrister and solicitor of this Honourable Court to do, and express my apologies to the Honourable Court and the profession for my actions.

19. I say I partially resisted the application to strike me off because I ceased to take part in the Inquiry before the Special Reference (sic) after I became convinced that the complainant Reddington was telling the truth when she said I had not discussed costs with her. I had no independent recollections of our conversations with her and I had not obtained her instructions in writing. I expected the Special Referee to immediately report my withdrawal and the Full Court would call upon me to show cause why I should not be dealt with on that basis. Similarly I ceased to take part in the Full Court proceedings after Mr Justice Sangster threatened to imprison me for contempt. I was surprised at the length of the hearing before the Special Referee and the Full Court.

24. Of the six complaints that resulted in my disbarment all of them had been accepted as adequately dealt with by the various Law Society Complaints officers who dealt with them. Some of the complaints did not directly involve me but I accept that I was vicariously liable for those who work for me. I, like most other firms then operating in the jurisdiction acted in the belief that Section 41 of the Workers Compensation Act was not breached if the Industrial Court made an order for 'compensation inclusive of costs'. The Full Court effectively held in my case that Section 41 would be breached if the client/solicitor costs taken exceeded the costs obtained on taxation by the Court. Subsequent to my case the Industrial Registrar was given power to approve a practitioner's claim for client/solicitor costs. If that facility had been available to myself I do not believe I would have fallen into error. I believed that I had in all of the cases in which I was involved disclosed orally the sum to be deducted from the 'compensation inclusive of costs'. Obviously I ought to have obtained written instructions in all such cases. To that time I had not obtained written instructions in any matters in any jurisdiction in which I practiced (sic)."

A chronology of the relevant events is set out in the reasons of the Chief Justice. To my mind the following matters are of particular importance:

1. On the 5th of June 1981 the applicant withdrew from the inquiry by Mr Rice QC after sending a letter to Mr Rice which made untrue allegations as to Mr Rice's conduct of the inquiry, and which Sangster J said (in the reasons for judgment on the application to strike off) went very close to if in fact they did not amount to a contempt.

2. The applicant instituted proceedings challenging the jurisdiction and power of the inquiry and the report of the Statutory Committee in relation to the matter into which it had inquired. On the 13th of May 1982 the Full Court dismissed the proceedings.

3. The applicant challenged the decision of the Full Court suspending him from practice by seeking leave to appeal to the Privy Council, and when that leave was refused by instituting proceedings in the Privy Council and appearing before that tribunal.

4. The applicant took other proceedings whereby he sought to bring to the attention of the authorities the fact that other firms were engaging in conduct which he said was in some respects similar to the conduct in which he engaged. The precise nature of these other proceedings is unclear. They were referred to by the practitioner in his evidence before the Board of Examiners.

5. There is no suggestion that during the period from 1981 to 1983 the applicant at any time acknowledged the unprofessional nature of his conduct to the Court or to the Law Society of South Australia. In fact when Sangster J put certain allegations to him on the 7th of February 1983, he told the Court that he denied the allegations.

Sangster J said that the applicant's participation in the proceedings that commenced in April 1981 could be summarised in two words, namely "challenge" and "delay".

A majority of the Board of Examiners was concerned about statements in the statutory declaration and in the evidence the applicant gave before the Board. The particular matters of concern are (in summary) as follows:

1. The applicant's statement in paragraph 17 of his statutory declaration that he "partly resisted" the application to strike him off, and his explanation in paragraph 19 as to what he meant by this statement.

2. Evidence given by the applicant that he was only personally involved in two or three of the five matters, and that that was the finding of Sangster J.

3. The applicant's statement in paragraph 24 to the effect that if the Industrial Registrar had the power he was subsequently given he did not believe that he would have fallen into error.

A majority of the Board concluded that the applicant's explanation of his conduct fell short of evidencing a proper insight into the dishonest nature of the conduct, and that without that insight it was difficult if not impossible to conclude that the applicant's character had changed for the better such that he was now ready to meet the high standards of honesty demanded of a legal practitioner.

A statutory declaration or affidavit must be read as a whole. Words and statements should not be taken out of context. Clearly misleading statements and a lack of proper candour may form the basis of appropriate findings and action, but a court should be careful not to be too ready to seize upon what are essentially matters of poor expression. In addition, an applicant for readmission may face a difficult task. He or she may wish to acknowledge that the conduct was wrong and express contrition, but at the same time put forward professional and personal circumstances which provide a context in which the conduct occurred.

Having regard to the objective facts and circumstances, the use of the words "partly resisted" is surprising. However in terms of drawing a conclusion adverse to the applicant, I do not place much weight on the precise words used because the applicant goes on to explain what he means in paragraph 19 of the statutory declaration. It is the explanation which he provides in paragraph 19 which I find unsatisfactory. In elaboration of what he says in that paragraph, the applicant said in evidence before the Board:

"I cross-examined the first witness and I was satisfied that she was telling the truth. So far as I was contended (sic) it was all over by that stage. I walked out in the belief that the referee would hold me in contempt, report to the Full Court, and that would be the end of my career. It was a great surprise to me that it went on ex parte. If it had been finished at the second day of hearing I suppose the cost might have been $10,000 and life would have been somewhat different over the last few years".

The applicant admitted during his evidence that there was a tension between his conduct on or around the 5th of June 1981 in writing a letter to Mr Rice containing untrue allegations and the belief referred to in paragraph 19 and the above passage of evidence. I have great difficulty in accepting that the applicant did hold this belief at the time. It is inconsistent with his conduct at the time and thereafter. Even if the applicant is given the benefit of the doubt on this point, it is difficult to see how a belief which was uncommunicated and not acted upon can now be put forward in some way as a matter in the applicant's favour. It seems to me that if the applicant did hold the belief referred to it makes his conduct at the time all the more reprehensible.

A majority of the Board of Examiners also expressed concern about evidence given by the applicant concerning the number of matters in which he was personally involved. I would not draw any adverse conclusion against the practitioner in relation to this topic for the reasons given by the Chief Justice.

A majority of the Board of Examiners was also concerned about the extent of the applicant's acknowledgment that his conduct was wrong having regard to statements in paragraph 24 (see also paragraph 28) of the statutory declaration to the effect that other firms acted in a similar way to the way he acted in relation to the requirements of s 41(2) of the Workers Compensation Act, and to the effect that he would not have fallen into error had a power subsequently given to the Industrial Registrar been available at the time. In view of the applicant's general expressions of contrition I would not place as much weight on this point as the first point. However, having read the transcript of the applicant's evidence before the Board I think it is a matter of concern.

The applicant's statutory declaration and evidence is unsatisfactory in the respects I have identified. That conclusion by itself would not lead to a conclusion that the applicant's character is so flawed that he is not a fit and proper person to be a legal practitioner. I do not think the evidence rises to that level. However, the Court is dealing with an application for readmission, not an application to strike off the practitioner. The applicant must satisfy the Court that he is now a fit and proper person to be a practitioner in circumstances in which this Court has previously found that he is not such a person by reason of his dishonesty, both financial and otherwise.

Having regard to the nature of the offending conduct, the applicant's age at the time of the conduct and the unsatisfactory nature of some of the applicant's evidence, I am not satisfied that the applicant is now a fit and proper person to be a practitioner of this Court.

Accordingly, I would dismiss the application.

1. In Re Harrison, a Legal Practitioner: Ex Parte the Law Society of South Australia (Judgment No 6613 delivered 18th January 1983).

2. In Re Harrison (1992) 168 LSJS 85.

[1] In Re Harrison, a Legal Practitioner: Ex Parte the Law Society of South Australia (Judgment No 6613 delivered 18th January 1983).

[2] In Re Harrison (1992) 168 LSJS 85.

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