A Practitioner of This Honourable Court v Legal Practitioners Complaints Committee - [2004] WASCA 221

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: A PRACTITIONER OF THIS HONOURABLE COURT -v- LEGAL PRACTITIONERS COMPLAINTS COMMITTEE [2004] WASCA 221

CORAM: MASTER NEWNES

HEARD: 27 SEPTEMBER 2004

DELIVERED : 29 SEPTEMBER 2004

FILE NO/S: FUL 145 of 2004

BETWEEN: A PRACTITIONER OF THIS HONOURABLE COURT
Appellant
AND
LEGAL PRACTITIONERS COMPLAINTS COMMITTEE
Respondent

Catchwords:

Practice and procedure - Application for stay of decision of Legal Practitioners Disciplinary Tribunal - Turns on own facts

Legislation:

Legal Practitioners Act 1893

Result:

Application for stay refused

Category: B

Representation:

Counsel:

Appellant: Mr M L Bennett
Respondent: Mr P A Tottle

Solicitors:

Appellant: Bennett & Co
Respondent: Tottle Partners

Case(s) referred to in judgment(s):

Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685
Lashansky v Legal Practitioners Complaints Committee [2002] WASCA 34

Case(s) also cited:

Croney v Nand [1999] 2 Qd R 342

MASTER NEWNES: This is an application by the appellant for a stay of an order of the Legal Practitioners Disciplinary Tribunal made 20 September 2004, suspending the appellant from practice pending the decision of the Full Court on the Tribunal's reference that the appellant be struck off the roll of practitioners. The appellant has lodged an appeal against the findings of the Tribunal that he was guilty of unprofessional conduct and the orders of the Tribunal that he be immediately suspended from practice and a report be submitted to the Full Court recommending he be struck off the roll of practitioners. In this application the appellant seeks a stay of the order that he be immediately suspended from practice, pending the hearing of his appeal against the Tribunal's decision.
The appellant was the subject of a number of references instituted by the Legal Practitioners Complaints Committee, under the Legal Practitioners Act 1893, alleging unprofessional conduct. On 1 July 2004, the Tribunal found the appellant guilty of nine counts of unprofessional conduct. Three references were dismissed.
It was not in issue on this application that the Court has jurisdiction to grant a stay and that an application of this nature is to be approached against the background of the general law that applies to the grant of a stay of a judgment of a court or tribunal pending an appeal: Lashansky v Legal Practitioners Complaints Committee [2002] WASCA 34, per Murray J at [6].
Counsel for the appellant submitted that a stay may be granted where, if a stay is not granted, the appeal may be rendered nugatory or serious injury would result to the appellant. In determining whether to grant a stay, the court will weigh the balance of convenience and the rights of the parties. Counsel referred to Seaman, Civil Procedure in Western Australia, par 63.15.1 and the cases there cited; Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 694.
It was submitted that the appellant has an arguable appeal. Counsel referred to the appellant's grounds of appeal and a short affidavit of the appellant filed in this application. I do not think it is possible on this application to form any considered view about the appellant's prospects of success, but I proceed on the basis that the grounds of appeal are reasonably arguable.
Counsel for the appellant submitted that it was of particular relevance to this application that the Tribunal did not give reasons for the making of the order suspending the appellant from practice pending the decision of the Full Court on the report from the Tribunal. It was argued on behalf of the appellant that, if he is suspended from practice pending the hearing of his appeal, there is a real risk his practice will dissipate to the extent that, if he is successful on the appeal, nothing will be left, his clients having obtained the services of other practitioners in the interim. It was suggested, I think reasonably, that the appeal is unlikely to be heard before the early part of 2005, at best.
Counsel for the appellant referred to evidence before the Tribunal that the appellant had ceased practising on his own account and that at the time the orders were made he worked for a small firm as a consultant. The appellant had no further involvement with the handling of trust moneys and was prepared to give the Tribunal an undertaking that this arrangement would continue for such time as the Tribunal considered necessary. A partner of the firm confirmed in evidence before the Tribunal that that would continue to be the arrangement while the appellant worked for the firm. The appellant informed the Tribunal that he would continue to practice solely as an employee or consultant of the firm.
In his affidavit in support of this application the appellant deposed to the firm being a small practice where he was the only solicitor apart from the principals. It was submitted that there was therefore a real risk that without the appellant being able to service the clients he had acted for they may be permanently lost to the appellant.
Counsel for the appellant submitted that the order suspending the appellant from practice had potentially devastating consequences for the appellant and his clients, with a number of whom he has had a long association. There was, however, no evidence before me that the effect of the appellant's suspension would be to visit serious adverse consequences upon the clients, beyond the inevitable cost and inconvenience associated with another solicitor becoming familiar with the matters concerned.
It is apparent from the Tribunal's reasons for decision that it concluded there had been very serious breaches by the appellant of his duty to the two clients whose affairs were the subject of the references. The Tribunal expressly rejected a submission on behalf of the appellant that the appellant had simply got himself into a "muddle" in the course of his dealings with those clients' affairs over a period of some years. The Tribunal considered that the conduct of the appellant was much more serious than that. It appears from the reasons that the Tribunal considered that in important respects the appellant had contravened what it described as the very essence of a duty owed by a solicitor to a client.
It is also the case that the Tribunal was aware of the arrangements under which the appellant now practised as a consultant. It had evidence before it, which was not controverted, that the appellant would not be involved in the management or operation of the firm's trust account or any other aspect of administration of the firm, and the Tribunal was informed that the appellant was prepared to give an undertaking to continue with this arrangement for such time as the Tribunal considered necessary.
The Tribunal also had before it character references "from respectable and responsible practitioners and others", all of which, the Tribunal accepted, indicated that the appellant was a hard‑working and capable solicitor. The Tribunal considered, nevertheless, that in the light of its findings on the references before it, a report should be submitted to the Full Court recommending that the appellant be struck off the roll of practitioners and that the appellant should be suspended from practice pending the determination of the Full Court.
In my view, those matters are important factors on the current application for a stay. In Lashansky v Legal Practitioners Complaints Committee (supra), Murray J said, at [7], in relation to an application for a stay of the sort which the current appellant seeks:
"I am quite prepared, for myself, to take the view that the Court would have an inherent jurisdiction to make such an order but, in my opinion, it ought to do so only in circumstances which are exceptional and very highly persuasive of the need for it, in particular in circumstances which would be concerned to preserve the status quo and to prevent the proceedings in the appellate court from being rendered nugatory unless the stay was granted."
In the same case, Miller J said, at [10]:
" … the Court should, in my view, be slow to make an order staying an order of the Legal Practitioners Disciplinary Tribunal suspending a practitioner from practice pending an application to the Full Court to strike off the roll that practitioner."
What has been put in support of this application was, in substance, put to the Tribunal. The Tribunal plainly took the view that, in the light of the evidence and its findings, the public interest would not be adequately protected by the restrictions on his practice proposed by the appellant.
I am not persuaded that I should depart from that view. I do not under-estimate the hardship that his suspension from practice will impose on the appellant - although I do not consider it can be said that the effect of it would be to render the appeal nugatory. I do not, however, consider that the exceptional and very highly persuasive circumstances that would justify a stay of the Tribunal's decision have been made out and, accordingly, I would refuse the application.