ACT Civil and Administrative Tribunal|2012-05-15|Before: Ms J

COUNCIL OF THE LAW SOCIETY OF THE ACT & LEGAL PRACTITIONER "S" (Stephen Stubbs) (Occupational Discipline) [2012] ACAT 29 (15 May 2012)

COUNCIL OF THE LAW SOCIETY OF THE ACT & LEGAL PRACTITIONER "S" (****Stephen Stubbs) (Occupational Discipline) [2012] ACAT 29

Catchwords: OCCUPATIONAL DISCIPLINE - penalty - costs - absence of contrition - relevance of past disciplinary history - principles that embody fundamental principles of honesty and fair dealing - recommendation for removal from the roll of legal practitioners

List of legislation: Legal Profession Act 2006, ss 425 and 433

List of cases: On Appeal from the Council of the Law Society of the ACT.

SCA 44 of 2009

The law society of the Australian Capital Territory & The Legal Practitioner, [2011] ACAT 57

The Law Society of the Australian Capital Territory v the Legal

Practitioner 'S' (Occupational Discipline) [2011] ACAT 70

List of Texts: Riley's Solicitors Manual at paragraphs [33,0651] to [33,105]

The Tribunal recommends that the name of the respondent be removed from the local roll.

The respondent is to pay two-thirds of the applicant's costs of this application on a party/party basis at the Supreme Court scale in an amount to be agreed, or failing agreement to be determined in accordance with the procedure set out in paragraph 27 of these reasons for decision.

The respondent is to pay the costs of Ms Bourne and First Netrader Pty Ltd, of and incidental to, responding to the subpoenas issued to them within 28 days of the date of this order in an amount to be agreed, or failing agreement to be determined in accordance with the procedure set out in paragraph 27 of these reasons for decision.

On 13 December 2011, the Tribunal decided in the matter The Law Society of the Australian Capital Territory v the Legal Practitioner 'S' (Occupational Discipline) [2011] ACAT 70 that the respondent had been guilty of two instances of unsatisfactory professional conduct, and one instance of professional misconduct. The parties have filed written submissions regarding penalty and costs, and a brief hearing of supplementary oral submissions was conducted.[1]
In addition to a decision on penalty, the application by the applicant for costs must be considered as well as the applications for costs by persons the subject of subpoenas to produce documents.

Section 425 of the Legal Profession Act 2006 contains the penalty provisions. They are set out as orders that the Tribunal may make if the Tribunal is satisfied that a practitioner is guilty of professional misconduct or unsatisfactory professional conduct. The Tribunal is empowered by Section 425(3)(b) to cancel or suspend a practitioner's practising certificate. However Section 425(3)(a) provides that the Tribunal may make an order recommending that the practitioner may be removed from the local roll of practitioners.
Both the statutory objectives of the legislation and the authorities established by case law indicate that the disciplinary jurisdiction is primarily one to be exercised to protect the public rather than as a punishment to practitioners.
The Tribunal in The law society of the Australian Capital Territory & The Legal Practitioner, [2011] ACAT 57 said at paragraph 13:

'The factors that are relevant to the determination of an appropriate sanction include among others: the nature of, and the circumstances surrounding, the acts found to constitute misconduct; the level of understanding demonstrated by the practitioner of the nature of his conduct; the attitude of the practitioner especially whether he demonstrates any remorse or regret for the conduct; the likelihood of a future re-occurrence of behaviour warranting disciplinary action and any previous adverse findings in relation to the practitioner's professional conduct[2]. These factors are to be considered in the context of the purposes of disciplinary proceedings. The Tribunal's sanction should aim to uphold the administration of justice and, so far as is possible, protect the public from the risk of future acts of professional misconduct or unsatisfactory professional conduct.'.

The findings made by the Tribunal in relation to the practitioner in this case reflect the views of the Tribunal as to the severity of the behaviour constituting the individually particularised breaches that were alleged.
In the first matter, he fabricated the allegation that the adverse credit listing had been placed in error. This was found to be unsatisfactory professional conduct. In the second, he made a threat he knew to be without foundation. This was found also to be unsatisfactory professional conduct. Finally, his offer of a financial inducement was found to be professional misconduct.
There are a number of matters to be considered and dealt with.

The respondent's Submissions open with the rather extraordinary statement - "It is my intention to appeal this Tribunal's decision in this matter on a number of grounds."
Consistent with that opening broadside, even the most careful and generous reading of the respondent's submissions will not reveal one statement of regret, contrition, or remorse relating to this matter now in its sanction phase. The respondent indicated a belief that to do so might jeopardise the chances of success of his appeal.

The respondent submitted that 'whilst previous disciplinary proceedings may be relevant in a protective context they are not relevant in this matter as the practitioner is not currently practising and has not practised since 20/06/10' [para 47 of his written submissions]. The respondent also submitted that prior disciplinary history cannot be relevant as 'they are all under appeal'.
The applicant pointed to what it described as the respondent's significantly adverse prior disciplinary history. It attached to its written decisions a number of prior decisions relating to disciplinary proceedings involving the respondent. It submitted that as fitness to practise was 'the ultimate question' in the proceedings, that prior disciplinary history was important.
On 1 July 2011, the Full Court of the ACT SC handed down judgment in On Appeal from the Council of the Law Society of the ACT. SCA 44 of 2009. It was an appeal from a decision by the Law Society refusing to renew the respondent's practicing certificate for the 2010/2011 year. A copy of the decision was attached to the Submissions for this hearing made by the applicant.
The respondent's disciplinary history is set out in that judgment. The Court did have regard to previous decisions of this Tribunal against which appeals had been lodged. It also (para. 121/2) took into account matters which had been investigated but had not reached finality by determination, including this matter.
The Tribunal agrees with the submissions of the applicant and does not accept the submissions of the respondent in regard to disciplinary history.

MATTERS ARISING OUT OF THE RESPONDENT'S PRACTISE HISTORY AND EXPERIENCE

The respondent submitted that inadequate supervision, pressure of business, and general inexperience were mitigating matters in the matters the subject of the Tribunal's findings.
The Tribunal considers that the standards that the respondent has infringed embody fundamental principles of honesty and fair dealing. They are standards that should be upheld at the most elementary level independently of work pressures, experience or supervision. They are standards that all practitioners should regard as being intuitive, and not requiring to be committed to memory or being reinforced from time to time by a supervisor.
This Tribunal agrees with the following statement by the Tribunal in [2011] ACAT 57:

'The issues in this application concern professional conduct as a practitioner. In this case, the respondent's lack of professional practice experience should be weighed against his age and life experience. It is incumbent on a practitioner to know the obligations placed on him or her in relation to the duties owed to courts and to regulatory authorities regardless of his level of professional experience'.

The respondent seems to have little appreciation of the imperative for the legal profession to have, maintain, and enforce high standards. So much can be inferred from his reference to and reliance upon outcomes for other practitioners in disciplinary proceedings.
This is unfortunately a theme which has been referred to in earlier proceedings involving the same practitioner. It is that very lack of insight which apparently has led to his breach of standards in this case. He apparently either did not think that what he was doing was wrong, or alternatively knowing that it was wrong, he proceeded without regard to the potential consequences; or, perhaps even proceeded having assessed that the risk of being found out was worth running.
The respondent has submitted that an appropriate penalty would be a fine and a public reprimand. He also proposed that a number of restrictive conditions be placed on his right to practice which in his view would 'sufficiently protect the public and maintain the reputation and standards of the legal profession'. Considering the severity of the respondent's offending behaviour against the background of previous infringements, the Tribunal cannot accept those submissions. Sterner action is required.
The Tribunal is of the view that the circumstances justify viewing the respondent's actions on 17 June 2009 as one combined event, rather than as single but related events to be dealt with by way of sanctions separately. The Tribunal also notes its findings in relation to the respondent's credit during the hearing. After hearing his cross examination relating to what Penfold J described as the "Magistrates Court matter", the Tribunal found that the respondent's answers and demeanour in cross examination were very unsatisfactory. Taken with the respondent's evidence and cross examination on other issues the Tribunal was left with an adverse view of the respondent's credibility. The respondent's actions, when viewed as a combined event, and finding reinforcement in the previous matters annexed to the applicant's submissions, cause the Tribunal to consider it appropriate to make an order pursuant to subsection 425(3)(a) and recommend that the respondent's name be removed from the local roll of practitioners.
The Tribunal notes the respondent's submission in relation to penalty and suggests that he has failed to grasp the serious nature of the Tribunal's findings and further to appreciate the professional obligations owed to his client and the public, the Court and to the Law Society.

Section 433 of the LP Act sets out what the Tribunal may order in relation to payment of costs. Section 433(1) provides that if the Tribunal finds that a legal practitioner is guilty of professional misconduct, it must order the practitioner to pay the costs of the applicant unless the Tribunal is satisfied that exceptional circumstances exist.
The applicant submitted that since the respondent had been found guilty of professional misconduct he should be ordered to pay the applicant's costs in the matter. The applicant submitted that there were no exceptional circumstances that would apply. The respondent submitted that the significant changes made to the application on the first day of hearing constituted exceptional circumstances.
The Tribunal agrees with the respondent on this matter. The amendments made to the application were such that the Tribunal adjourned the matter at the end of the first day to provide the respondent with additional time to prepare his case lest he suffer prejudice due to the nature of the amendments that had been made. Accordingly, the Tribunal orders that the respondent pay two-thirds of the applicant's costs in the matter.
Costs should be paid on a party/party basis on the scale applicable to matters proceeding in the Supreme Court. The parties should attempt to reach agreement on the quantum of costs but if they are unable to do so within

28 days, the applicant may file and serve a Bill of Costs using Form 2.45 approved under the Court Procedures Rules 2006. The respondent is to file and serve a document setting out any objections he has to the Bill within 14 days of its service. The Bill and respondent's objections will be referred to the Registrar of the Tribunal. The Registrar is to assess the costs and make a recommendation to the Tribunal concerning the amount that it should state be paid by the respondent. 5. Solicitors acting for the complainant in the matter also submitted an application for costs. The Tribunal orders that the respondent pay Ms Bourne's and First Netrader Pty Ltd's (FNT) costs of and incidental to responding to the subpoenas. The Tribunal orders that the respondent pay the costs of the complainant and FNT in complying with the subpoenas within 28 days of the date of this order. The parties should attempt to reach agreement on the quantum of costs but if they are unable to do so within 28 days, the applicant may file and serve a Bill of Costs using Form 2.45 approved under the Court Procedures Rules. The respondent is to file and serve a document setting out any objections he has to the Bill within 14 days of its service. The Bill and respondent's objections will be referred to the Registrar of the Tribunal. The Registrar is to assess the costs and make a recommendation to the Tribunal concerning the amount that it should state be paid by the respondent.

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

[1] This decision was previously anonymised and cited as Council of the Law Society of the ACT & Legal Practitioner "S" [2012] ACAT 29 pursuant to section 423A of the Legal Profession Act 2006. As the appeal period has ended, the practitioner has now been identified in the citation of this decision. The reasons for decision otherwise remain unchanged from the date of publication.

[2] The authorities are discussed in detail in Riley's Solicitors Manual at paragraphs

Procedures Rules 2006

> _The Law Society of the Australian Capital Territory v the Legal_

At a glance

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Judgment (23 paragraphs)

COUNCIL OF THE LAW SOCIETY OF THE ACT & LEGAL PRACTITIONER "S" (Stephen Stubbs) (Occupational Discipline) [2012] ACAT 29 (15 May 2012)

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Legislation Cited (2)