The Legal Practitioner v Council of The Law Society of The Australian Capital Territory

The Legal Practitioner v Council of The Law Society of The Australian Capital Territory - [2014] ACTSC 9 - ACTSC 2014 case summary — Zoe

[142]

The Tribunal erred as a matter of law in holding that a Jones v Dunkel inference may be drawn to the full extent even in civil penalty proceedings.
The Tribunal erred as a matter of law in holding that it was bound by the line of authority relied upon by the respondent, for example, Re Vernon; Ex parte Law Society of NSW ([1966] 1 NSWLR 511), NSW Bar Association v Meakes ([2006] NSWCA 340), Law Society of NSW v Green ([2008] NSW ADT 149). [I pause to note that the first mentioned case does not appear to exist; I assume that the Legal Practitioner intended to refer to Re Veron; Ex parte Law Society of NSW [1966] 1 NSWR 511.]
The Tribunal erred as a matter of law in holding that in order to be satisfied that the appellant had not been open and frank with the respondent it was required to be "comfortably satisfied" that its findings on the charges were "just and correct".
The Tribunal erred as a matter of law in assessing the evidence of the three solicitors who gave evidence for the appellant at hearing by conflating the issue of the weight of that evidence into the issue of its reliability.
The Tribunal erred as a matter of law in holding that negative inferences could be drawn from the appellant's failure to give evidence.
The Tribunal erred as a matter of law in finding that there is an expectation that legal practitioners will enter the witness box to provide some explanation for their conduct.
The Tribunal erred as a matter of law in finding that the inference to be drawn from the facts is that the appellant's evidence would not have assisted his case and that this inference is more readily drawn from his failure to give evidence.
The Tribunal erred as a matter of law in proceeding upon the basis that a solicitor owes a duty of candour and frankness in his or her dealings with his or her professional body and that that duty applied to the proceedings before the Tribunal and that the appellant's failure to give evidence in the hearing and to subject himself to cross examination justified the Tribunal in making adverse findings.
The Tribunal erred as a matter of law in finding that the test to be applied in respect of an allegation of professional misconduct was whether the misconduct could be reasonably regarded by solicitors of good repute and competency as disgraceful or dishonourable.
The Tribunal erred as a matter of law in finding that the misconduct found in respect of the [Ms L] allegations (LP 1 of 2009) amounted to a professional misconduct.
The Tribunal erred as a matter of law in having regard to irrelevant matters.
The Tribunal erred as a matter of law in not having regard to a number of relevant matters. (Letter to the Society with regards to contacting [Mr C] and the letter to [Ms L] of 14/09/07).
The Tribunal erred as a matter of law in not allowing the appellant to re open his case.
The Tribunal erred as a matter of law in awarding costs in these matters to the applicant.

[205]

[THE LEGAL PRACTITIONER]: No, your Honour, we were going to consent once the order had been set aside.

HIS HONOUR: Right.

[THE LEGAL PRACTITIONER]: And have it remitted back, but on the understanding that the protection contained in the order would stand until the matter was reheard.

HIS HONOUR: How could that be done?

[THE LEGAL PRACTITIONER]: I'm not sure, your Honour, that's what we were negotiating with our friend.

HIS HONOUR: I suppose it could be done by way of an undertaking.

[THE LEGAL PRACTITIONER]: Yes, your Honour.

HIS HONOUR: Without admission, of course, and so on and so forth.

[THE LEGAL PRACTITIONER]: Yes, your Honour. The only concern, your Honour, is from our client, the respondent, is the fact that she's had the order granted by Burns, it's been ---

HIS HONOUR: By Magistrates Burns.

[THE LEGAL PRACTITIONER]: Yes, from Magistrates Burns, since 26 February.

HIS HONOUR: Yes.

[THE LEGAL PRACTITIONER]: The order's in place, the order is working. Of course she needs the order, she's in fear and she doesn't want to be in a situation whether it's overturned here ---

...

HIS HONOUR: All right. Well, what you're saying, correct me if I'm wrong, is that you're prepared to consent to the appeal being upheld, the order being set aside and the application for the order being remitted back to the Magistrates Court on the undertaking of the appellant to what? Do you have a list of things that you want the appellant to undertake not to do?

[THE LEGAL PRACTITIONER]: Exactly what's contained in the original order, your Honour.

HIS HONOUR: All right. So to undertake not to behave in an offensive manner towards the applicant. Is that correct?

[THE LEGAL PRACTITIONER]: Yes, your Honour.

HIS HONOUR: Or a harassing manner. Not to be on the premises at Calwell, not to be within 100 metres of the applicant for the order.

[THE LEGAL PRACTITIONER]: That's correct, your Honour.

HIS HONOUR: Not to contact except at court or except through a solicitor. Well, what's there basically, that's what you're asking me.

[THE LEGAL PRACTITIONER]: Exactly, your Honour. Just after exactly those conditions your Honour.

HIS HONOUR: By way of an undertaking.

[THE LEGAL PRACTTIONER]: By way of an undertaking and then we'll just have to remit it back to the Magistrates Court.

HIS HONOUR: For a determination as to whether an order should be made afresh?

[THE LEGAL PRACTITIONER]: Exactly, your Honour, on the evidence ---

HIS HONOUR: Whatever evidence might be given by either or both parties.

[627]

Now, on 26 November 2007 did you go to a Registrar's conference with Mr [J] accompanying you? --- No. No.

Well, was it the case that the hearing had in fact been set for that day and the normal procedure is that prior to a hearing taking place the parties will meet downstairs in the building in front of the Registrar and confirm their intention in relation to what's to happen that day? --- Yes, that was over the phone because we only had like three days prior to the hearing and Simon asked me would I agree to an undertaking order, well - well it was at that stage. And I said 'No, I want it to go ahead. I want these orders in place'. I did not know at that stage that I had no orders in place. So we didn't have a conference because there wasn't enough time. I had no representation till three days before a hearing, and he had to try and cram time in for me, and what Simon intended on doing was going to court and asking for adjournment so we could have more time for preparation. So no conference then took place.

Did you appear with Mr [J]? --- Only on two occasions, yes.

Well, I'm asking you did you go to the Magistrates Court and attend upon the Registrar on the morning of 26 November 2077? --- No.

I show you this letter? --- No, I didn't go in no room. They spoke outside. I've never been into any room to discuss anything.

So you did go to court with Mr [J]? --- Yes.

Right, well why did you say you didn't? --- No, I've been. I've said - I said I went to court with Mr [J] on two occasions. One was to adjourn the hearing, another one's for the hearing date. I didn't go to have no - no conference. He did something by phone and he may have spoken to Mr - is it [Dai Lee]? Or - yes [Dai Lee]. But I've never sat in a conference room with [Dai Lee] and [Mr J] to discuss anything. We didn't have time, it was only a few days prior to a hearing.

Did you go to a Registrar's conference on 26 November and speak to the Registrar possibly in the precincts of the court about what was going to happen ---? --- There's ---

--- to a hearing that was listed for that day? --- There's a possibility we stood outside, but no one was actually sitting down and I didn't actually get to speak to [Dai Lee] myself.

Well, Mr [Dai Lee] wasn't sure your solicitor, was he? --- I know, but if you - if you were referring to a conference, all of us sitting down to make negotiations then I assumed that we'd all be there. But no, that didn't happen.

At a glance

Court

Decision date

Source

Judgment (797 paragraphs)

The Legal Practitioner v Council of The Law Society of The Australian Capital Territory (No 2) [2014] ACTSC 9 (6 February 2014)

Parties

Legislation Cited (26)

Cases Cited (27)