THE COUNCIL OF THE LAW SOCIETY RESPONDENT OF NEW SOUTH WALES
A Solicitor v The Council of the Law Society of
New South Wales
[2004] HCA 1
4 February 2004 S406/2002
ORDER
1. Appeal allowed in part.
2. Set aside declarations 1(a) and 2, and the order that the name of the appellant be removed from the Roll of Practitioners, made on 12 March 2002 by the Court of Appeal of the Supreme Court of New South Wales.
On appeal from the Supreme Court of New South Wales
Representation:
P L G Brereton SC for the appellant (instructed by the appellant)
J E Griffiths SC with N J Beaumont for the respondent (instructed by R J Collins, Law Society of New South Wales)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
A Solicitor v The Council of the Law Society of New South Wales
Legal practitioners – Solicitors – Jurisdiction of the Supreme Court with respect to the discipline of legal practitioners – Declaration of professional misconduct in circumstances where person convicted of sexual offences – Declaration of professional misconduct in circumstances where person failed to disclose fact of conviction of offence but where conviction ultimately set aside on appeal – Duty of candour to professional association – Distinction between professional misconduct and purely personal misconduct – Removal from Roll of Practitioners on basis that person not a fit and proper person to be a legal practitioner – Relevance of rehabilitation and character – Relevance of findings of professional misconduct to question of whether fit and proper person.
Words and phrases – "inherent power or jurisdiction of the Supreme Court with respect to the discipline of legal practitioners", "professional misconduct", "fit and proper person to be a legal practitioner".
GLEESON CJ, McHUGH, GUMMOW, KIRBY AND CALLINAN JJ. This is an appeal by a solicitor against a decision of the Court of Appeal of New South Wales[1] making declarations that he was guilty of professional misconduct in two respects, and that he is not a fit and proper person to be a legal practitioner of the Supreme Court of New South Wales, and ordering that his name be removed from the Roll of Legal Practitioners. The appellant's name, and the names of members of his family, were not stated in the reasons for judgment of the Court of Appeal to ensure compliance with s 11 of the Children (Criminal Proceedings) Act 1987 (NSW). This requirement arises from the nature of the offences referred to in the declarations, and the ages of the victims. It is appropriate for this Court to follow the same course and no party suggested otherwise.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1
Case
[2004] HCA 1
Decision Date
CaseChat Overview and Summary
This case concerned an appeal by a solicitor to the High Court of Australia against declarations of professional misconduct and an order for removal from the Roll of Practitioners made by the Court of Appeal of the Supreme Court of New South Wales. The dispute arose from the solicitor's conviction for sexual offences and a subsequent failure to disclose this conviction to the Law Society, although the conviction was later set aside on appeal. The Council of the Law Society of New South Wales was the respondent.
The High Court was required to determine whether the Court of Appeal had erred in its findings of professional misconduct and in ordering the solicitor's removal from the Roll. Specifically, the court had to consider the definition of professional misconduct under the relevant Act, the distinction between conduct in connection with the practice of law and purely personal misconduct, and the relevance of a conviction that was subsequently set aside to the question of whether a legal practitioner is a fit and proper person to remain on the Roll. The court also had to consider the inherent jurisdiction of the Supreme Court over legal practitioners and the principles governing appellate review of such decisions.
The High Court allowed the appeal in part, setting aside the declarations of professional misconduct and the order for removal from the Roll. The Court reasoned that while a failure to disclose a conviction could, in some circumstances, constitute professional misconduct, the subsequent setting aside of the conviction on appeal fundamentally altered the situation. The court emphasised that the ultimate question for removal from the Roll is whether the practitioner is a fit and proper person, and that a conviction later overturned could not, in itself, justify such a finding. The court applied the principle that appellate courts must examine such matters with meticulous care due to the severe consequences of disbarment, while also acknowledging the Supreme Court's supervisory jurisdiction over its officers.
Orders
Orders of the court
1. Appeal allowed in part.
2. Set aside declarations 1(a) and 2, and the order that the name of the appellant be removed from the Roll of Practitioners, made on 12 March 2002 by the Court of Appeal of the Supreme Court of New South Wales.
Background
Background to the litigation
There was a procedural complication, in that the respondent originally instituted a complaint against the appellant under Pt 10 Div 3 of the Act, but, because of a failure to comply with s 171J of the Act, the Administrative Decisions Tribunal, Legal Services Division, ("the Tribunal"), decided it had no jurisdiction. The respondent then invoked the inherent jurisdiction of the Supreme Court of New South Wales referred to in s 171M of the Act. It should also be mentioned that, in the Court of Appeal, the respondent alleged an additional matter of professional misconduct on the part of the appellant. The Court of Appeal decided that aspect of the case in favour of the appellant, and it has played no part in the proceedings in this Court.History and background of professional discipline Part 2 of the Act deals with "Admission of legal practitioners". It empowers the Supreme Court to admit and enrol, as a legal practitioner, a person approved by the Legal Practitioners Admission Board as a suitable candidate for admission (s 4). A candidate must not be admitted as a legal practitioner unless the Admission Board is satisfied that he or she is of good fame and character (s 11). A legal practitioner is, on and from admission, an officer of the Supreme Court (s 5). The Supreme Court Rules 1970 (NSW) require a person, upon admission, to sign the Roll of Legal Practitioners in the Court (Pt 65C, r 2(2)). The Act stipulates that a legal practitioner must not practise without being the holder of a current practising certificate (s 25(1)). The Council of the Law Society of New South Wales ("the Council"), the present respondent, may grant a practising certificate to a legal practitioner authorising that person to practise as a solicitor and barrister (s 28(1)). The Administrative Decisions Tribunal[5], on complaint by bodies including the Council (s 167(1)), may make certain orders, including removal from the roll of legal practitioners, if the legal practitioner is guilty of "professional misconduct". That term (and the distinct expression "unsatisfactory professional conduct") are defined in s 127. [5]Established by the Administrative Decisions Tribunal Act 1997 (NSW). The Legal Practitioners Act 1898 (NSW) ("the 1898 Act") was repealed by the Act with effect from 1 January 1988. In its original form, the 1898 Act conferred no such disciplinary powers as those now found in Pt 10 upon any professional or other body outside the Supreme Court. Such provision was first made by the changes effected by the Legal Practitioners (Amendment) Act 1935 (NSW). Thereafter, Pt X of the 1898 Act (ss 75-81) conferred such powers upon The Statutory Committee of the Incorporated Law Institute of New South Wales with respect to "charge[s] and question[s] as to the professional misconduct". However, s 79 stated:"Nothing in this Act contained shall prejudice, diminish, or affect the jurisdiction, powers and authorities which are exercisable by the Court over solicitors."This was described by Wallace P, with whom Jacobs and Asprey JJA agreed, in Re an Application by a Solicitor[6], as a provision "specially preserving the inherent jurisdiction of [the Supreme Court] as an overriding jurisdiction in connexion with the discipline and control of its officers in proper cases". The same jurisdiction is preserved in the current Act. Part 10 of the Act (which includes ss 127 and 167 to which reference has been made) deals with "Complaints and Discipline". It sets up a scheme with the objects of redressing consumer complaints of users of legal services, ensuring compliance by practitioners with the necessary standards of honesty, competence and diligence, and maintaining at a sufficiently high level the ethical and practice standards of the legal profession (s 123). The statutory procedures for making, and dealing with, complaints of professional misconduct and unsatisfactory professional conduct, which, as indicated above, are both defined expressions, were examined in Barwick v Law Society of New South Wales[7]. The definition of "professional misconduct" in s 127(1) states that for the purposes of Pt 10, it includes, among other matters:[6][1966] 1 NSWR 42 at 42. See also Clyne v NSW Bar Association (1960) 104 CLR 186 at 189; Weaver v Law Society of New South Wales (1979) 142 CLR 201 at 207 per Mason J.[7](2000) 74 ALJR 419; 169 ALR 236."(a)unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence, or(b)conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law which, if established, would justify a finding that a legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners."The expression "unsatisfactory professional conduct" is defined in s 127(2) for the purposes of Pt 10 as including:"conduct (whether consisting of an act or omission) occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner."The Tribunal, if satisfied that a legal practitioner is guilty of professional misconduct, may order that the name of the practitioner be removed from the roll of legal practitioners (s 171C). Division 10 of Pt 10 contains the following provision:"171M (1) The inherent power or jurisdiction of the Supreme Court with respect to the discipline of legal practitioners is not affected by anything in this Part or Part 2.(2) That inherent power or jurisdiction extends to interstate legal practitioners and locally registered foreign lawyers."
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
HUGH, GUMMOW, KIRBY AND CALLINAN JJ
In an appropriate case, where there is utility in so doing[15], the Supreme Court may make a declaration of professional misconduct either with or without an order removing the name of a practitioner from the roll. However, given the particular meaning now given that expression by the definition of "professional misconduct" in s 127(1) of the Act, some care may be necessary to indicate the sense in which the term is being used. A declaration that certain conduct constitutes professional misconduct may be of importance for the information of others[16]. Furthermore, it may be relevant to future proceedings for removal, or readmission, of the practitioner[17]. In Myers v Elman[18], Lord Wright distinguished conduct by a solicitor of litigation in a fashion amounting to professional misconduct which was not of so serious a character as to justify suspension or striking off from the Roll. Thus not all cases of professional misconduct justify or require a conclusion that the name of a practitioner should be removed from the roll[19]. Where an order for removal from the roll is contemplated, the ultimate issue is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner of the Supreme Court upon whose roll the practitioner's name presently appears[20].[15]See the remarks of Priestley JA in Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 at 211.[16]eg Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN (NSW) (Pt 1), 136; New South Wales Bar Association v Cummins (2001) 52 NSWLR 279.[17]Bridges v Law Society of New South Wales [1983] 2 NSWLR 361 at 362.[18][1940] AC 282 at 318.[19]eg Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201.[20]Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 at 297-298.The decision in Ziems' case Where a practitioner appeals to this Court from an order of the Supreme Court removing him or her from the roll of practitioners, two potentially countervailing considerations arise. They were referred to by Fullagar J in Ziems v The Prothonotary of the Supreme Court of NSW[21], who said:"[T]he appellant challenges what is not merely an exercise of discretion by the Supreme Court, but an exercise of discretion in a matter which is in a special sense the province of the Supreme Court as the highest court of New South Wales. It relates to the right of a man to practise in that court and in other courts of New South Wales over which that court exercises a supervisory jurisdiction in certain ways. On the other hand, the possibly disastrous consequences of disbarment to the individual concerned [are such that] a court to which an appeal comes as of right is bound to examine the whole position with meticulous care."[21](1957) 97 CLR 279 at 287-288. The present appeal required special leave, but the appellant has already obtained that leave. As his counsel pointed out, the Court of Appeal was exercising its jurisdiction at first instance. This is the appellant's one opportunity for appellate review of an adverse decision.
Ratio Decidendi
Legal Principle Established
Established by:
HUGH, GUMMOW, KIRBY AND CALLINAN JJ