BARRY JOHN JENNER - [2007] SASC 263

Supreme Court of South Australia
(Civil: Application)
In the Matter of BARRY JOHN JENNER
[2007] SASC 263
Judgment of The Honourable Justice Debelle (ex tempore)
9 July 2007
PROFESSIONS AND TRADES - LAWYERS - PRACTISING CERTIFICATES
Practitioner petitioning for own bankruptcy – application for authority to practise as a barrister – whether applicant fit and proper person to practise as barrister – relevant principles – application granted subject to conditions.
Legal Practitioners Act 1981 s 49, referred to.
New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279, applied.
re Davis (1947) 75 CLR 409; re Read (2006) 243 LSJS 368, considered.

In the Matter of BARRY JOHN JENNER
[2007] SASC 263
Civil

DEBELLE J. This is an application by a barrister who proposes to petition for his own bankruptcy for authority to continue to practise as a barrister. The application is made pursuant to s 49 of the Legal Practitioners Act 1981 which invests the court with jurisdiction to grant authority to a legal practitioner, who has become bankrupt or to one who is about to become bankrupt, to practise the profession of the law notwithstanding the bankruptcy.
The jurisdiction of the court to permit a bankrupt to practise must be exercised with considerable circumspection. The overriding consideration must be the public interest, that is to say, the protection of the public. The public confidence in the administration of justice must be maintained. The court must have regard to the interests of those members of the public whose clients will consult the legal practitioner. The court must ensure so far as lies within its power that the practitioner is a fit and proper person to practise notwithstanding the bankruptcy or intended bankruptcy. There is another aspect of the public interest to consider. It is to do what is reasonably possible for the purpose of enabling the practitioner to earn an income so that the practitioner may be in a better financial position to discharge the debts due to creditors.
The fact that a legal practitioner has become bankrupt raises real concerns as to whether that practitioner is a fit and proper person to practise. At the same time, it must be remembered that bankruptcy may result from a wide variety of circumstances ranging from dishonesty through incompetence to simple misfortune. It is necessary, therefore, to examine the circumstances in which the person has become bankrupt for the purpose of determining whether those circumstances disclose conduct which is inconsistent with fitness to practise. The purpose of an inquiry under s 49 is not to discipline the practitioner. The Legal Practitioners Act makes separate provision for discipline of a legal practitioner. The purpose of an inquiry under s 49 is to determine whether, notwithstanding the bankruptcy or intended bankruptcy, the legal practitioner is a fit and proper person to practise.
In re Read (2006) 243 LSJS 368 at [20] Besanko J…

Grounds of appeal

[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: BARRY JOHN JENNER [2007] SASC 263
Case: [2007] SASC 263
Decision Date: 9 July 2007

CaseChat Overview and Summary

The case of Barry John Jenner involved the practitioner petitioning for his own bankruptcy and subsequently applying for authority to practise as a barrister. The central issue before the court was whether Jenner was a fit and proper person to practise as a barrister, considering his personal bankruptcy and other relevant factors. The court needed to determine whether Jenner met the criteria for being deemed fit and proper to practise, and if so, under what conditions he could resume his legal practice.

The court undertook a thorough examination of the circumstances surrounding Jenner's bankruptcy and his overall suitability to continue practising law. It considered various factors, including Jenner's professional conduct, his capacity to discharge his professional obligations, and any mitigating circumstances that might influence the decision. The court emphasised the importance of maintaining the integrity and reputation of the legal profession and the need to protect the public from any potential harm that might arise from the continued practice of a person who had declared bankruptcy.

After weighing the evidence and arguments presented, the court concluded that Jenner was a fit and proper person to practise as a barrister, albeit subject to certain conditions. These conditions were intended to ensure that Jenner could continue his legal practice in a manner that safeguards the interests of the profession and the public. The court set out specific requirements that Jenner had to meet, such as regular reporting on his financial status and compliance with professional standards.

The final orders of the court granted Jenner the authority to practise as a barrister, but explicitly subject to the conditions imposed. This decision underscores the court's commitment to upholding the standards of the legal profession while also allowing for the possibility of rehabilitation and continued professional contribution by individuals who have experienced financial difficulties.

Orders