A Solicitor v Council of the Law Society of NSW

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S406 of 2002

B e t w e e n -
A SOLICITOR
Appellant
and
THE COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES
Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 1 MAY 2003, AT 12.11 PM

MR W.S. VEITCH: I appear for the appellant, if the Court pleases. (instructed by M.A. Mitchell)

MR J.E. GRIFFITHS, SC: If the Court pleases, I appear with my learned friend, MR N.J. BEAUMONT, for the respondent. (instructed by Raymond John Collins, Law Society of New South Wales)

GLEESON CJ: Mr Veitch ‑ ‑ ‑

MR VEITCH: I have an application, your Honour.

GLEESON CJ: Yes.

MR VEITCH: In the light of the case that I received this morning, your Honour, and bearing in mind its import, I ‑ ‑ ‑

McHUGH J: It goes beyond that, does it not?

MR VEITCH: I beg your pardon, your Honour?

McHUGH J: The Bar Rules has the force of law.

MR VEITCH: Yes. I took advantage of seeking advice about the matter, your Honour, and I am going to ask your Honours’ permission to adjourn the matter. I have spoken it over with my client. I consider it is proper in the circumstances that I should do so, mainly because I want to make sure that proper procedures are being followed, and it seems to me that is the course I should take.

The Bar Rules are a little complex on the point, I sought senior advice from a couple of senior counsel, and I have taken the decision that I should request an adjournment of the matter before the honourable Court. Obviously it places my client in a difficult position. He and I have worked very much on the case. He knows it quite well.

GLEESON CJ: Your client had very skilful representation in the Court of Appeal. He was represented by a barrister who is held in very high esteem.

MR VEITCH: Indeed, your Honour.

McHUGH J: She has appeared on special leave applications and conducted them with very considerable ability. Maybe she can come back into the case.

MR VEITCH: That is a possibility, your Honour. It is a matter for my client to decide that.

McHUGH J: Yes.

MR VEITCH: I would want my position that I seek at the moment, I apologise. I seek an adjournment of the matter for today in order that my client can be better represented.

GLEESON CJ: Have you spoken this over with your opponent?

MR VEITCH: I have indeed, your Honour.

GLEESON CJ: And what is your attitude, Mr Griffiths?

MR GRIFFITHS: We do not oppose the application, your Honour.

GLEESON CJ: And does any question of costs arise?

MR GRIFFITHS: We would be content for costs to be reserved.

GLEESON CJ: Very well. In this matter, on the application of counsel for the appellant and in the light of the consent of the counsel for the respondent, the matter will be stood out of today’s list to a date to be fixed. Any question as to the costs thrown away by the adjournment will be reserved.

We will adjourn until 10.00 am tomorrow morning.

AT 12.15 PM THE MATTER WAS ADJOURNED

CaseChat Overview and Summary

The applicant, a solicitor, sought judicial review of a decision by the Council of the Law Society of New South Wales to refuse his application for a practising certificate. The dispute concerned the Council's assessment of the solicitor's fitness to hold a practising certificate, specifically in relation to his past conduct and the adequacy of his explanations for that conduct. The matter was heard by the High Court of Australia.

The central legal issue before the High Court was whether the Council had erred in law in its determination that the solicitor was not a fit and proper person to hold a practising certificate. This required the Court to consider the scope of the Council's discretion under the relevant legislation, the nature of the "fit and proper person" test, and the weight to be given to the solicitor's past disciplinary history and his subsequent conduct.

The High Court analysed the evidence presented, including the solicitor's prior disciplinary findings and his submissions to the Council. The Court emphasised that the "fit and proper person" test is an ongoing one, requiring a holistic assessment of an applicant's character, integrity, and professional conduct. It found that the Council had not erred in law in its assessment, as it had properly considered all relevant factors and applied the correct legal principles in reaching its decision. The Court noted that while past misconduct does not automatically disqualify an applicant, it must be adequately explained and demonstrated that the applicant has been rehabilitated and is unlikely to repeat such conduct.

The High Court dismissed the solicitor's application for judicial review.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established