Victorian Lawyers RPA v Young [2001] VSC 28

16. Upon admission by order of this court, the admitted barrister and solicitor must sign the roll - for present procedure see s.6 of the Act. The signing of the roll has always been a prerequisite to the right to practise as a legal practitioner.

21. At all times material, the Act provided in s.160(2) that if the Tribunal made an order cancelling a practising certificate "it must refer the practitioner to the Supreme Court for the court to determine whether the practitioner's name should be struck off the roll of practitioners", see s.160(2)(b).

24. That provision has now been repealed as from 8 December 1999 but it does apply to the present proceeding. The reference having been made, it is now necessary for this court to determine whether the defendant's name should be struck off the role of practitioners.

27. As I have said, the defendant is a barrister and solicitor of this court and signed the roll of practitioners on 1 September 1976. At the time when she ceased practice, she practised as a sole practitioner under the name of Yvonne G. Young at 42 Tarneit Road, Werribee.

32. Complaints were made by five former clients resulting in a number of allegations of misconduct against the defendant. The hearing took place on 3 and 4 August 1999. The complaints concerned unjustified and inordinate delays in the handling of clients' work and failure to communicate with clients. In addition it was alleged that she failed to account for moneys owing to clients, and she breached an undertaking given to a firm of solicitors.

35. In addition she persistently failed to reply to many requests of the plaintiff in respect of all the complaints and the Tribunal expressed the view that, "Her breaches of the statute and rules are indeed grave ones". The Tribunal formed the view that she demonstrated professional incompetence in the handling of the matters in question.

38. None of the complaints made and heard by the Tribunal imputed any dishonesty, nor is there any suggestion that the defendant obtained any pecuniary advantage. The reasons given by the Tribunal which has presided over by His Honour Judge Spence, concluded as follows:

"We are required under s.160(2)(b) to refer the practitioner to the Supreme Court but we would not and will not make a recommendation that her name be struck off the role of practitioners. The evidence falls very far short of justifying that recommendation. Although she said she believed she would not find employment as a solicitor, we are prepared to order that she be entitled to apply for an employee certificate after 1 February 2000." (Emphasis added).

42. I have closely considered the reasons given by the Tribunal and the affidavit evidence relied upon by the defendant and whilst it can never be said that any finding of misconduct against a solicitor is anything but a very serious matter, in the scale of things these complaints are not the most serious. There is no suggestion of criminality, dishonesty or the gaining of any pecuniary advantage.

45. Although the defendant was given permission to apply for an employee certificate she has not done so. At this stage she is working as a home carer looking after her mother and the management of her mother's farm.

48. Serious criminal charges were laid against the defendant, her mother, daughter and her fiance based, according to the defendant, on false accusations that she had forged a signature on a will to benefit her mother. The charges were dismissed at a committal hearing at the Magistrates Court in August 2000. The allegations which were made covered a long period of time and no doubt brought considerable distress on the defendant.

51. There is no doubt the defendant has already suffered considerable punishment by the findings of misconduct made against her and the cancellation of a full practising certificate. She is paying off the fines and costs ordered against her. It is anticipated that all fines and costs will be paid from the collection of costs in relation to her practice which is presently being handled by officers of the plaintiff.

56. Whether a practitioner should be struck off the roll of practitioners involves the exercise of a discretion by the court. The Act does not state any criteria to guide the court in the consideration and determination of the application. By admitting a person to practise as a legal practitioner, the court holds that person out to the public as a person who has met all the requirements for admission but more importantly as a person who is fit and proper to be a legal practitioner.

59. This court has always had the power to control and supervise the members of the profession who are admitted to practise in this State. The power of the court to strike off a practitioner is as old as the court itself and goes back to time immemorial in England, see Re A Solicitor [1952] VicLawRp 51; (1952) V.L.R. 385 at p.388.

62. This court admits a person to practise and that person is only admitted if he or she is a fit and proper person to practise law. It follows that a practitioner may be struck off the roll if that person is no longer a fit and proper person to practise.

65. The authorities going back over many years establish that the power to strike off is not by way of punishment but is protective. The court admits a person as a proper person and he or she must continue to be so and if it is established the person is not a fit and proper person, the court may strike that person's name off the roll.

68. In New South Wales Bar Association v. Evatt [1968] HCA 20; (1968) 117 C.L.R. 177 at p.183, the High Court said:

"The power of the court to discipline a barrister is however entirely protective and notwithstanding that its exercise may involve a great deprivation of the person disciplined, there is no element of punishment involved."

72. These observations equally apply to a solicitor. In Re "B" (Solicitor)[1986] VicRp 69; , (1986) V.R. 695 at p.699, Brooking J said:

"For the protective jurisdiction to be invoked, there will almost invariably have been some act or omission of a discreditable kind which is said to demonstrate unfitness and it would be a serious error to suppose that the court's power to strike off the roll is confined to cases of misconduct."

76. As His Honour pointed out, in the end it is a question whether given all the circumstances, it is proper to permit the person to remain on the roll.

79. If he or she is shown not to be a fit and proper person to practise the law then the court may remove the person's name from the roll. In considering that question it must not be overlooked that this court holds a person out as a fit and proper person to practise law by permitting that person's name to remain on the roll and hence this court bears a heavy responsibility in ensuring that no person who is not fit and proper should remain on the roll.

82. In the case of In Re a Solicitor, [1933] VicLawRp 12; 1933 VLR 101 at p.105, Mann J had this to say in relation to the test which should be applied -

"The tests which have been laid down from time to time and expressions which have been used by various judges as indicating the kind of conduct which will found an application for suspension or removal of a solicitor from the roll are necessarily couched in general and somewhat vague language. 'Personally disgraceful conduct', is one expression that has been so used; 'unfit to be a member of an honourable profession' is another. With regard to these and all similar expressions, the adjectives which have been employed are necessarily capable of wide degrees of meaning."

86. What His Honour said underlines the generality of the jurisdiction the court is exercising. What constitutes grounds for removing a person's name from the roll will vary from case to case. The court sets the standard and the standard may over years change. It is important to continually bear in mind that the jurisdiction is protective and the public must be confident that those who they engage as lawyers are fit and proper persons to provide appropriate, proper, careful and competent legal services. The court must ensure that confidence.

89. In support of the opposition to this application there are two affidavits, one from Mr Adrian McGirr who is the principal registrar of the Victims of Crime Assistance Tribunal and Mr Peter Burke, a solicitor. Both deponents are very supportive of the defendant and speak highly of her reputation and her willingness to assist others. On any view it is a big step for a court to remove a person's name from the roll of practitioners. Some cases are obvious where a solicitor has been convicted of a serious offence involving dishonesty or has committed acts which are tantamount to such a serious offence.

92. In deciding this application the court considers today, taking into account the defendant's history in the profession, whether she is a fit and proper person to be held out as a competent legal practitioner. In determining that question as at today the conduct of the defendant in the past is important. It provides the basis for the court making an assessment as to her present capacity and her fitness to practise hereafter.

95. There are features about the defendant's past which cause this court concern. Her past indiscretions were summarised by the Tribunal as follows -

"If these charges had been isolated cases in the course of her practice our approach might have been more lenient. Unfortunately the evidence as to previous proceedings against her by the RPA or its predecessor between 1992 and August 1997 when a receiver was appointed for two months, reveal an unfortunate but consistent pattern. Previous fines and warnings have not deterred the practitioner for continuing to conduct some matters in a completely unacceptable way. Indeed past fines totalling $1,108 are still unpaid as are costs in the vicinity of $2,000. That consistent pattern was exemplified by her failure to take advantage of and comply with the order of the Registrar of the Solicitor's Board in January 1992 to seek advice from the Law Institute Advisory Service. Again unfortunately the personal circumstances which she says have caused or contributed to her professional shortcomings are continuing, even to a lesser extent. She again frankly said that she thought that, 'there will always be problems'".

99. To this can be added the laying of the criminal charges. Of course the presumption of innocence must be observed and the charges were dismissed at the committal. The significant thing is that her professional conduct put herself in a position which involved her mother and daughter which resulted in complaints being made and the laying of criminal charges. A professional person should never put himself or herself in a position of conflict with respect to obligations or ever put himself or herself in a position where it can be said that he or she could derive directly or indirectly a financial advantage. Without knowing a great deal about the charges, the mere fact of handling the preparation of a will in circumstances in which the mother was to benefit, comprises the integrity of the legal practitioner. One then adds the complaints made to the Tribunal, and there are indeed serious doubts about the fitness of the defendant to practise as a lawyer. It is very important the defendant appreciates that her conduct in the past has not been up to the high standard expected of a competent and careful solicitor. One expects, and one hopes, that her ordeals of the Tribunal Hearing and the committal will ensure that hereafter, if she does practice, she practices in a proper careful and competent manner. The plaintiff does not urge the court to remove the name of the defendant from the role and this fact, coupled with the views expressed by the full Tribunal, carry substantial weight in the determination of the application. In my opinion this is a borderline case. The defendant has, over a period of some six to seven years, demonstrated doubts about her fitness to practise law. With some degree of hesitation I propose not to remove the defendant's name from the roll of practitioners and will dismiss the application. The defendant must understand that if she goes back into practice she must not allow those acts and omissions which reflected upon her performance in the past to reoccur. She would indeed be very wise to practise for a period of time as an employee solicitor.

102. In reaching the conclusion not to remove her name from the roll I rely upon a number of facts, namely first that in the scale of things the misconduct found by the Tribunal is not of the most serious kind. Secondly, that there was no suggestion of dishonesty deriving pecuniary advantage or criminality in respect of the complaints investigated and determined by the Tribunal. Thirdly the Tribunal did not recommend that her name be removed from a roll and indeed made the observation "The evidence falls very far short of justifying that recommendation." Finally, as the evidence from the two deponents testify, the defendant is intelligent and mindful of her duties and would be expected to learn by her recent ordeals and ensure that hereafter she provides and performs legal services in a proper, careful and competent way. Accordingly the court dismisses this summons.

I certify that this and the 7 preceding pages are a true copy of the reasons for judgment of Gillard J of the Supreme Court of Victoria delivered on 6 February 2001.