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FILE NO/S: Appeal No 6458 of 2004

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Legal Practitioners Admission Board

DELIVERED EX TEMPORE ON: 28 October 2004

DELIVERED AT: Brisbane

HEARING DATE: 28 October 2004

JUDGES: de Jersey CJ, McMurdo P and Mullins J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Appeal dismissed

CATCHWORDS: PROFESSIONS AND TRADES – LAWYERS – QUALIFICATIONS AND ADMISSION – QUEENSLAND – ARTICLES OF CLERKSHIP AND STUDENTSHIP AT LAW – where the respondent Board found the appellant unsuitable for service under articles because of his “lack of candour with the Board and premeditated dishonesty over an extended period” – where the appellant appeals against the decision of the respondent Board to oppose his application for consent to enter into articles of clerkship – whether the appellant “is of good character and is fit and suitable for service under articles” under Rule 29 of the Solicitors’ Admission Rules 1968 (Qld) / Re Hampton [2002] QCA 129; Appeal No 10413 of 2001, 5 April 2002, cited / A Solicitor v Council of the Law Society of New South Wales (2004) ALJR 310, cited

COUNSEL: J P Murphy for the appellant / J C Bell QC for the respondent

SOLICITORS: Porter Davies Lawyers for the appellant / Legal Practitioners Admission Board for the respondent

THE CHIEF JUSTICE: The appellant appeals against the decision of the respondent Board to oppose his application for consent to enter into Articles of Clerkship. The Board communicated that decision by a letter to the appellant dated the 7th of July 2004. The ground of its decision was the appellant's unsuitability for service under Articles because of his:

"Lack of candour with the Board and premeditated dishonesty over an extended period."

He appeals under section 25 of the Supreme Court (Legal Practitioner Admission) Rules 2004. It is accepted that the appeal is by way of rehearing in the strict sense, so that the principles expressed, for example, in House v. The King (1936) 55 CLR 499 apply. Accordingly, if the Board's conclusion was reasonably open on the material before it, this Court should not interfere with that determination.

The appellant applied for the Board's consent under rule 29 of the Solicitors' Admission Rules which obliged the Board to refuse consent unless satisfied that the appellant "is of good character and is fit and suitable for service under Articles". In his application to the Solicitors' Board lodged on or about 23rd February 2004 the appellant disclosed, in addition to his traffic history, that he had, in his terms,

"Pleaded guilty to a debt charge in 1995/6 in the Inala Magistrates Court at which time no conviction was recorded. No probation or community service was issued either."

The requisite form 1 required the following detail in its proforma presentation, that is a response consistent with this specification:

"Prior to the date of this statement I have not been convicted of, pleaded guilty to or been found guilty of any criminal or quasi criminal offence whether in Queensland or elsewhere, even though a conviction may not have been recorded."

The form goes on to specify that if that is not so the applicant:

"Must furnish full details thereof".

Contrary to that clear direction the appellant failed to disclose full details of his convictions. In particular he failed to disclose that they were charges of fraudulent misappropriation, that he had pleaded guilty in the year 1998 at a time, significantly, when he was almost 21 years of age and that he had been fined the not insubstantial sum of $2,500.

Having received that deficient form the Secretary of the Board requested the appellant to furnish relevant documentation, including Court documents concerning that "debt charge". On the 9th of March 2004 the appellant advised that he had requested the documents from the Court but that they may not be available for up to three days, and he concluded his fax saying:

"Please confirm your receipt of this fax and notify me if there will be any issues in my Articles proceeding from tomorrow."

The Board did meet the following day, 10th March, and determined then to refuse the application because the requisite further information had not yet been furnished. The Board advised the appellant of that decision on the 18th of March.

On about the 26th of May 2004 the appellant lodged with the Board a further application for consent accompanied this time by a statement setting out the details of a 1998 offence and a Certificate of Order. That certificate disclosed that the appellant had been charged in the Inala Magistrates Court on nine counts of dishonestly obtaining property over a period of almost three months and that the Magistrate had fined him $2,500 with no convictions being recorded.

At its meeting on the 9th of June 2004 the Board reconsidered the appellant's application and determined to refuse it on the basis that, as to the 1995-6 and 1998 offences, the appellant had not, to that stage, yet provided a proper explanation for them, whether one or more of them, including information as to when they occurred and also a copy of both a police report and a criminal record. The Board informed the appellant of that decision by letter dated 16th June 2004.

Apparently just before that time the appellant provided a three page document from which I will quote shortly. Also on 25th June 2004 the appellant provided the Board with a copy of his criminal history and the Queensland Police Service Court brief. That brief showed that although the appellant declined to participate in a formal interview he had admitted fraudulently obtaining money amounting to $8,640, which he had repaid. In that letter to the Board the appellant inaccurately stated:

"There has only been one offence committed on 10th August 1998."

The Board then on 7th July 2004 made the decision which is the subject of this appeal. In the three page document to which I referred earlier, the appellant disclosed the following details of the offences and surrounding circumstances:

"In mid 1997 I was approached by Fowles management to see if I was interested in accepting a position as a junior auctioneer in their Brisbane facility. I was assured that I would have time to finish my studies and be trained as an auctioneer. I signed an employment contract for $18,000 per annum and moved to Brisbane some weeks later.

During the months of my employment I found it difficult to make ends meet and I found the offer of making extra money by one of my work colleagues, a necessary requirement, even though I knew that it was illegal and I had always condoned those sorts of actions. My work colleague assisted me in misappropriating funds from Fowles with the assistance of tow truck drivers who we paid for delivering cars to sites that were not actually delivered. The drivers then returned payment to us in the form of cash.

I was approached by Fowles' management in January 1997 and questioned regarding my involvement in the misappropriation. I made a full admission to both Fowles and the police at Acacia Ridge. My father assisted me in obtaining a mortgage on his house to repay the moneys immediately, which I repaid back to my father in a matter of months after."

As to lack of candour the Board had in mind the following observations made in Re Hampton [2002] QCA 129 paragraphs 26-28:

"Of considerable concern is the feature that the applicant did not initially disclose these significant matters to the Board when making his application. He certainly should have been aware of the seriousness of the Board's approach to such applications and the seriousness of the Court's ultimate determination of them.

An applicant for admission is obliged to approach the Board and later the Court with the utmost good faith and candour, comprehensively disclosing any matter which may reasonably be taken to bear on an assessment for fitness to practise ... in these situations the Court cannot allow the legitimacy of its endorsement or otherwise of a person as sit to practise to depend on such intervention. By taking a strong line in a case like this the Court must take the opportunity to emphasise the primacy of the proactive obligation of an applicant to make candid, comprehensive disclosure. If it emerges an applicant has not, in some significant respect, been frank with the Court, then the application should ordinarily be rendered doubtful at least ... the applicants either having failed to appreciate that or having determined not voluntarily to place those matters before the Board provides further confirmation that he is not a person who should at this stage be held out by the Court as fit to practise as a solicitor."