The Prothonotary of the Supreme Court of New South Wales v Farran [2003] NSWCA 372 | Case summary

Friday 12 December 2003 THE PROTHONOTARY OF THE SUPREME COURT OF NEW SOUTH WALES v FARRAN Judgment 1 MASON P: I invite Giles JA to give the first judgment. 2 GILES JA: By a summons filed on 22 September 2003 the claimant sought a declaration that the opponent is guilty of professional misconduct, a declaration that the opponent is not a fit and proper person to remain on the roll of legal practitioners and orders that the opponent's name be removed from the roll and that he pay the claimant's costs. The declaration as to professional misconduct was amplified by specification of the opponent engaging in conduct in his practice as a solicitor for which he was, on 6 September 2002, convicted by the District Court of New South Wales of eight counts of using a forged instrument under s 300(2) of the Crimes Act 1900, particulars of the charges then being set out. The declaration as to fitness was not similarly amplified. 3 The opponent is currently in custody, serving the terms of imprisonment imposed upon his conviction. He was served with the summons and the supporting affidavit of Mr Jerry Riznyczok sworn 5 September 2003. In correspondence with the Crown Solicitor's office he said that he consented to the orders sought, in which he included the declarations, save that he wished that each party pay his own costs. He said that he would not attend at the hearing of the summons. The claimant is content with an order that each party pay his own costs. The opponent did not attend at the hearing of the summons. 4 With the modification as to costs, in my opinion the declarations and orders sought should be made, not by consent but upon the Court satisfying itself that they should be made and recording the findings upon which they are made (see The Prothonotary of the Supreme Court of New South Wales v Ritchard (CA 31 July 1987, unreported); New South Wales Bar Association v Somosi (2001) 48 ATR 562). 5 The opponent was born in 1952. He worked as a teacher and became engaged in Aboriginal education in remote parts of New South Wales. He undertook legal studies, and was admitted as a legal practitioner on 5 July 1985. He practised as a sole practitioner solicitor, ultimately with offices in Sydney and Wollongong. He also engaged in real estate agency, property development, and other commercial activities. He last held a practising certificate for the period until 26 March 1998. 6 The opponent pleaded guilty to the charges on which he was convicted. He forged the mortgagors' signatures on mortgages by which he obtained money for use in his commercial ventures. The mortgages were of properties of former clients who had left title deeds with the opponent for safe keeping or of clients whose title deeds were in his possession for current legal work, and the forgeries were of the clients' signatures. The eight forgeries involved the properties of seven different clients, and spanned the period from April 1997 to March 1998. The total amount of money obtained was a little over $1,600,000. 7 When the opponent was sentenced the judge took into account on a Form 1 a further 18 offences, described in Mr Riznyczok's affidavit as arising from and related to the same transactions the subject of the eight charges. The declaration as to professional misconduct did not take up these 18 offences. The declaration as to fitness and the order for removal were not expressly confined to consideration of the conduct underlying the eight charges, but that was a natural reading of the summons. I therefore pay no regard to the further 18 offences. 8 The materials before the sentencing judge included psychiatric and psychological reports, and these were before us also. The sentencing judge summarised the reports - "Dr Clark, forensic psychiatrist, who has treated the prisoner since 1998, records that the prisoner is suffering from a long standing bipolar disorder, probably induced by the death of his mother and a number of miscarriages suffered by his wife. In the case of the prisoner, the condition manifested itself in inflated self esteem, frenetic activity and unrealistic commercial schemes, being the motivation for the fraudulent money raising activities of the prisoner. This diagnosis is confirmed by a report of Dr Walker, consultant psychologist, who also has treated the prisoner since 1998 although she takes the view that the condition has been more intense involving 'a full blown manic episode, out of control and edging towards psychosis'. Dr Olav Nielssen, forensic psychiatrist, who has also examined the prisoner on instructions from the Director of Public Prosecutions, generally agrees." 9 Dr Clark said in his report - "In the manic episodes, he lost his judgment and went out of control in his objectives and ambitions. Overreaching and over-stretching himself with a delusional grandiosity, he thought he could juggle all the ventures to pay everybody back. Now, he realises he was deranged during this period. He is now insightful and does not have any present formed delusions. With this insight is extreme shame and contrition for his actions. His thought systems are now normal." 10 Dr Clark said that the opponent had been on mood stabilising medication for some years and has "settled very well with few residual signs", but that the opponent should continue on treatment and would need to be regularly reviewed. He said - "With such treatment and review, the disorder from which he suffers is highly unlikely to recur. That is, unlikely to manifest in the kind of manic behaviour exhibited during the 'Bipolar Disorder Hypomanic Episodes' in which the criminal activity occurred." 11 Dr Walker's report included that the opponent's "mental order does not, I believe, absolve him from responsibility, but it does strongly suggest that his offences occurred in the context of increasing mania, as he felt increasingly driven, important, even invulnerable." She considered that the opponent's remorse was sincere, and in concurring with Dr Clark's diagnosis of bipolar disorder she said - "I believe that this disorder was a major contributor to the committing of his offences. He has attended treatment, which he continues. He now has insight into his mental disorder. Bipolar Disorder is biologically based and he should have ongoing psychiatric supervision. He is brilliantly intelligent and highly motivated to do good in the world." 12 Dr Nielssen's report included - "Mr Farran did not report any grandiose delusions or symptoms of psychotic illness that would be recognised in law to be a defect of reason depriving him of the knowledge that what he was doing was morally wrong. Hence he does not have the defence of mental illness available to him. However, hypomania is recognised to be a condition in which there is often impaired judgment arising from an overly optimistic assessment of one's circumstances. People who are hypomanic also justify their symptoms and behaviour to others with glib rationalisation that they would not use at other times. Mr Farran's condition appears to have been on the milder end of the spectrum, as he recovered from the episode without treatment, and at the recent interview appeared well, despite not having received treatment with mood stabilising medication at any stage. He should probably consider long term care by a psychiatrist, as he carries a risk of further episodes of illness, including more severe depressive episodes." 13 The declaration as to professional misconduct should be made. The conduct would plainly be regarded as disgraceful and dishonourable by the opponent's professional brethren of good repute and competency (see Allinson v General Council of Medical Education and Examination (1894) 1 QB 750, taken up in Prothonotary of the Supreme Court of New South Wales v Costello (1984) 3 NSWLR 201 and many other cases). The opponent engaged in a sustained course of fraudulent behaviour, serious in criminality and in the consequences to his clients. He abused the trust of the clients who had left their title deeds with him and gave him their legal work. In this respect, if not otherwise, the opponent's misconduct was in the exercise of his profession and in a professional respect. Although the psychiatric and psychological evidence explained loss of judgment and insight, it did not negate appreciation that he was doing wrong. That was explicit in Dr Nielssen's report, and as Dr Clark said, "He thought he could juggle all the ventures to pay everybody back". 14 It does not follow that the declaration as to fitness and the order for removal should be made. They address the opponent's present fitness to remain on the roll. Past professional misconduct may demonstrate that the practitioner "lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner" (see In re a Practitioner (1984) 36 SASR 590 at 591; Council of the Law Society of New South Wales v A Solicitor (2002) NSWCA 62 at [89], [113], [125]). But if, for example, the past conduct is sufficiently explained as the product of psychiatric illness now controlled by medication, it may be that the protective function of the exercise of the Court's jurisdiction is met by less than unalloyed unfitness and removal. On the reports to which I have referred, that question arises in the present case. 15 It is unfortunate that there has not been an effective contradictor to assist in this respect. The Council of the Law Society conveyed to the Court its view that "it is proper" for the name of the opponent to be removed from the roll but that view, we were informed, was formed without knowledge of the psychiatric and psychological reports to which I have referred. Counsel for the claimant nonetheless responded to the question, and in my opinion the response should be accepted. 16 The reports were not uniform. There was agreement that the opponent's bipolar disorder contributed to his misconduct, with different emphasis on the extent of contribution (for example, Dr Clark's and Dr Walker's "out of control" and Dr Neilssen's "impaired judgment"). Dr Clark considered that with treatment and review recurrence was unlikely, although he did not exclude it entirely. Dr Walker's opinion as to the future was less clear, no doubt because of her different expertise. Dr Nielssen recognised a risk of further episodes of illness. Curiously, while Drs Clark and Walker spoke of ongoing treatment, Dr Nielssen noted only that the opponent had taken Zoloft from time to time for depression and said that the opponent had recovered without treatment with mood stabilising medication. Dr Nielssen's report was the most recent, written with the benefit of the other reports. The varied weight and reconciliation of the detail of these reports was, however, not something which could really be gone into. 17 I have concluded, in essence accepting the submission of counsel for the claimant, that the Court's protective function would not properly be discharged if, absent more full assurance that the opponent's misconduct was attributable to psychiatric illness and will not recur, it permitted him to remain on the roll. The opponent has not considered it appropriate to appear and contend for a regime by which he remained on the roll subject to supervision and medical monitoring, or in some other tailored manner short of removal. Hence I consider that the declaration as to unfitness and the order for removal should be made. 18 I propose therefore that the two declarations and the removal order sought in the summons should be made, and in accordance with the joint stance that no order should be made as to costs with a view to each party paying his own costs. 19 MASON P: I agree. 20 MEAGHER JA: I agree with Giles JA. 21 MASON P: The Court therefore makes declarations and orders in accordance with paras 1, 2 and 3 of the summons. No order as to costs. **********

The Prothonotary of the Supreme Court of New South Wales v Farran

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (7 paragraphs)

Parties

Cases Cited (2)

Cited By (3)