Council of the Law Society of the Australian Capital Territory v The Legal Practitioner (Stephen Stubbs) (Occupational Discipline)

[2010] ACAT 46

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY v THE LEGAL PRACTITIONER (Stephen Stubbs) (Occupational Discipline) [2010] ACAT 46

LP 6 of 2008 & LP 1 of 2009

Catchwords:              OCCUPATIONAL DISCIPLINE - LEGAL PRACTITIONERS –unsatisfactory professional conduct – professional misconduct – admissibility of the practitioner’s affidavit – fitness to be a legal practitioner – compartmentalisation of conduct – assessing the gravity of lack of honesty and integrity – penalty

List of legislation:      Legal Profession (Solicitors) Rules 2007 (ACT), rules 1.1, 1.2 and 39.1

Legal Profession Act 2006 (ACT), s. 425
ACTCivil and Administrative Tribunal Act 2008, s.79

List of cases:              A Solicitor v Law Society (NSW)

(2004) 216 CLR 253 at

264, [12]

Council of the New South Wales Bar Association v Slowgrove
[2009] NSWADT 150
In re Weare; in re The Solicitor’s Act 1888 [1893] 2 QB 439 at 448, cited in TheSouthern Law Society v Westbrook (1910) 10 CLR 609 at 612
NSW Bar Association v Cummins (2001) 52 NSWLR 279 at
284

Tribunal:                   Professor P Spender                Presidential Member

Ms L Donohoe, SC                 Member

Mr G. Wright  Member

Date of Orders:  27 May 2010              
Date of Reasons for Decision:         4 August 2010

AUSTRALIAN CAPITAL TERRITORY               )
CIVIL & ADMINISTRATIVE TRIBUNAL          )          LP 08/6 & LP 09/1   

BETWEEN:THE COUNCIL OF THE LAW SOCIETY

OF THE AUSTRALIAN CAPITAL

TERRITORY

Applicant

AND:  THE LEGAL PRACTITIONER

Respondent

TRIBUNAL:             Professor P. Spender               Presidential Member

Ms L. Donohoe, SC                Member

Mr G. Wright  Member

DATE:                      4 August 2010

ORDER

1.The Tribunal orders that the respondent’s local practising certificate be cancelled forthwith pursuant to s 425(3)(b) of the Legal Profession Act 2006 (ACT).

2.The Tribunal recommends that the name of the Practitioner be removed from the local roll pursuant to s 425(3)(a) of the Legal Profession Act 2006 (ACT).

3.The Tribunal reserves the costs.

……………………………..
Professor P. Spender

Presidential Member

REASONS FOR DECISION

1.On 1 February 2010, the Tribunal published its Reasons for Decision in relation to LP 6 of 2008 and LP 1 of 2009. The Tribunal made the following order:

Upon being satisfied that the respondent has breached rules 1.1, 1.2 and 39.1 of the Legal Profession (Solicitors) Rules 2007 (ACT); and is guilty of unsatisfactory professional conduct in relation to LP 6 of 2008; and guilty of professional misconduct in relation to LP 1 of 2009, the Tribunal orders that:

the applications be stood over for further hearing concerning any orders to be made pursuant to s. 425 of the Legal Profession Act 2006 (ACT).

2.The respondent (the ‘Practitioner’)[1] appealed against the findings and the order of the Tribunal pursuant to s. 79 of the ACTCivil and Administrative Tribunal Act 2008 (the ‘ACAT Act’). On 31 March 2010, the Appeal President heard the Practitioner’s appeal and ordered that it be struck out as being incompetent.

[1] [1] This decision was previously anonymised and cited as Council of the Law Society of the Australian Capital Territory v The Legal Practitioner [2010] ACAT 46 pursuant to section 423A of the Legal Profession Act 2006. As the appeal period has ended, the practitioner has now been identified in the citation of this decision. The reasons for decision otherwise remain unchanged from the date of publication.

3.Accordingly, this matter was listed for hearing in relation to penalty on 27 May 2010. Mr. Thomas of counsel appeared for the Practitioner and Mr. Beaumont of counsel appeared for the applicant (the ‘Society’).

The Evidence

4.On behalf of the Practitioner, Mr. Thomas sought to lead evidence contained in an affidavit sworn by the Practitioner on 10 May 2010. The Tribunal will return to the question of the admissibility of the contents of that affidavit shortly. No evidence was led by the Society. Comprehensive written submissions were filed on behalf of the Practitioner and the Society.[2] The submissions filed on behalf of both parties were of assistance to the Tribunal. Both Mr. Thomas and Mr. Beaumont made oral submissions[3] which were also of assistance to the Tribunal.

[2] Society’s written submissions dated 9 March 2020; Practitioner’s written submissions dated 25 March 2010; and Society’s written submissions in reply dated 6 April 2010.

[3] Transcript 27 May 2010 (‘Transcript’) p 38.15 – p 49.25.

5.The Tribunal heard argument regarding the admissibility of the Practitioner’s affidavit. With the exception of paragraphs 1 to 16, Mr. Beaumont objected to the affidavit. Mr. Thomas submitted that paragraphs 17 to 33 were relevant because until the appeal process was exhausted, the Practitioner was entitled to assert in sworn evidence that he did not accept the findings of the Tribunal.[4] Mr. Beaumont submitted that his objections to those paragraphs was put on the basis that it was in the form of substantive evidence, which contradicted the Tribunal’s findings and was therefore inadmissible, although that evidence was relevant, he submitted, in a negative sense because the Practitioner was deposing to the fact that he did not accept those findings.[5] The Tribunal considered the submissions put on behalf of both parties and rejected paragraphs 17 to 33 of the Practitioner’s affidavit.

[4] Transcript p 31.16 – p 32.4.

[5] Transcript p 32.9 – p32.20.

6.Mr. Thomas pressed paragraphs 34 to 40. After hearing submissions on behalf of both parties,[6] the Tribunal rejected paragraphs 34 and 35 and allowed paragraphs 36 to 40.[7] The Tribunal then invited cross-examination of the Practitioner by Mr. Beaumont in light of the Tribunal’s evidentiary ruling.

[6] Transcript p 32.25 to p 34.30.

[7] Transcript p 34.34.

7.The Practitioner was cross-examined.[8] It is helpful to set out some relevant extracts of the cross-examination.[9]

[8] Transcript p 35.20 – p 38.1.

[9] Transcript p 37.1 – p37.45.

Q: We’ve agreed that you deny that you attempted to intimidate [DC], correct?
A: Yes.
You cannot apologise then for attempting to intimidate [DC], can you?
A: No, I can’t.
Q: And you don’t, do you
A: No, I don’t………

Q: Yes, but Mr…., my question was you don’t apologise for any of the charges found against you, do you?
A: I can’t. I can’t.

The Submissions

8.The Practitioner rejected all of the Tribunals’ findings in relation to his very serious conduct, which constituted the charges and findings (LP 6 of 2008 – unsatisfactory professional conduct and LP 1 of 2009 – professional misconduct). This evidence and indeed the tenor of the submissions both oral and in writing put on behalf of the Practitioner, to which the Tribunal shall turn in due course, demonstrate to the Tribunal that first, the Practitioner is not only not remorseful about the conduct that the Tribunal found proven, but secondly, that he, in choosing in the face of the findings, to deny them, shows no insight into the serious nature of the conduct which goes to the very heart of the duties and obligations of legal practitioners. Thirdly, his stance in this regard gives this Tribunal no confidence that he has undergone any radical change that would be necessary to displace a finding of unfitness in relation to the charges. 

9.In A Solicitor v Law Society (NSW)[10] the High Court said:

As Griffith CJ pointed out in Southern Law Society v Westbrook [(1910) 10 CLR 609 at 612], the question that arises when the power of the Supreme Court is invoked in such a case as the present is not one of punishment but “whether the court is justified in holding out [the solicitor in question] as a fit and proper person to be entrusted with the duties and responsibilities of a solicitor”.

[10] (2004) 216 CLR 253 at p 264, [12].

10.The question, which the court and this Tribunal in such cases must pose for itself is this: bearing in mind the circumstances of the case before it, is the Tribunal justified in holding out the legal practitioner in question as ‘a fit and proper person to be entrusted with the important duties and grave responsibilities which belong to a solicitor’?[11]

[11] In re Weare; in re The Solicitor’s Act 1888 [1893] 2 QB 439 at 448, cited with approval in TheSouthern Law Society v Westbrook (1910) 10 CLR 609 at 612

11.As to this aspect of the Tribunal’s reasons for decision, we do not propose, for the main part, to set out again the comprehensive findings in relation to the charges. References to paragraph numbers in the Tribunal’s reasons for decision published on 1 February 2010 will, in most instances, be made.

LP 6 of 2008 (Client N Complaint – finding of unprofessional conduct)

12.Notwithstanding that the Tribunal found that the Practitioner’s conduct amounted to unprofessional conduct rather than professional misconduct, his conduct was, nonetheless very serious, involving dishonesty and demonstrating a lack of integrity. Moreover, the Tribunal found the Practitioner’s conduct in covering up and/or attempting to minimise the seriousness of his conduct in his dealings with the Society to be ‘preposterous’.[12]

[12] Reasons for Decision, 1 February 2010, paragraphs 112, 114, 122, 123 and 127 – 137.

13.As to those essential characteristics of honesty and integrity in a legal practitioner, the NSW Court of Appeal in NSW Bar Association v Cummins per Spigleman CJ said:[13]

Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire privileges associated with a particular status. The legal profession has long required the highest standards of integrity.

There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.

[13] (2001) 52 NSWLR 279 at p 284.

14.Mr. Beaumont submitted that even though the charges were to be considered separately, it was not possible and indeed commonsense dictates that they not be compartmentalised.[14] That is not the same thing, as Mr. Thomas suggested, as [aggregating] a whole series of diverse events in coming to a particular conclusion.[15] These events were not disparate or diverse. They shared a common factual thread.

[14] Transcript p 40.34.

[15] Transcript p 46.7 – 46.8.

15.The Tribunal is persuaded by the submissions put on behalf of the Society that the conduct cannot be compartmentalised or viewed in a vacuum and that is particularly so in this case when the facts and circumstances relating to all the charges are so closely interrelated or have some common factual connections. 

16.True it was that the Tribunal did not make a finding of professional misconduct against the Practitioner in relation to the two grounds of this complaint, but that does not mean that the Tribunal did not regard the conduct, lacking in a grave manner as it did in honesty and integrity - characteristics going to the very heart of the obligations of a legal practitioner - as very serious indeed. The Tribunal rejects the submission put on behalf of the Practitioner that the appropriate penalty in respect of this charge is a restriction on the Practitioner’s right to apply for an unrestricted certificate for five years together with supervision and the requirement that he undertake appropriate courses in legal practice and ethics. The Tribunal regards the suggested penalty as being manifestly inadequate and inappropriate.

LP 1 of 2009 (Grounds 1 and 2)

17.At paragraphs 201 and 203 of the reasons for decision of 1 February 2010 this Tribunal stated as follows:

201. The Tribunal finds that the conduct charged is proven and is serious indeed.  It goes to the very heart of the solicitor/client relationship and to those duties owed by a solicitor to his or her client that are fundamental to a legal practitioner’s awareness of professional responsibility. Moreover, a solicitor owes a duty of candour and frankness in his or her dealings with his or her professional body. This duty is fundamental to the ethical duties of a solicitor. Breaches as serious as the ones charged in Grounds 1 and 2 warrant a finding of professional misconduct against the Practitioner and the Tribunal so finds.

…

203. Further, applying the general law test for professional misconduct, the question is; would acting without and contrary to instructions and then falsely representing to the Society that the client was present and gave those instructions be reasonably regarded by solicitors of good repute and competency as disgraceful or dishonourable? The answer must inevitably be yes.

18.The Tribunal is persuaded by Mr. Beaumont’s submission in this respect,[16] that the professional misconduct found by this Tribunal in relation to grounds 1 and 2 of LP 1 of 2009, even taken in isolation, but, more particularly, when viewed with ground 3 of LP 1 of 2009 demonstrates comfortably that the Practitioner cannot be trusted by his clients or the public; by his professional association; by the Courts or Tribunals before whom he appears; by his fellow practitioners; and that the presence on the roll of someone who cannot be trusted even at this most basic level by his own peers, the Society, the Courts or clients is contrary to the interests of the administration of justice as well as the public interest.

[16] Written submissions dated 9 March 2010 page 6 – 7

LP 1 of 2009 (Ground 3 – threat to DC)

19.At paragraph 213 of the reasons for decision of 1 February 2010 this Tribunal found:

213 … For an officer of the Court to attempt to dissuade, deter or intimidate a witness from giving or adhering to their evidence in any proceedings, but especially disciplinary proceedings about that very solicitor, is conduct which of itself would justify a finding that a person is not fit and proper to remain on the roll. It is certainly professional misconduct.

20.In addition, the Tribunal also made related findings[17] of a very serious nature.  It was submitted by Mr. Thomas that this conduct by the Practitioner while serious was nonetheless at the lower end of the scale of professional misconduct, because it did not involve conduct of a criminal nature. That submission however overlooks the threat to DC and the serious way in which such conduct might be characterized as a matter of criminal law. The Tribunal regards this finding, comfortably made, as the gravest of all the findings made against the Practitioner.

[17] Reasons for Decision 1 February 2010 paragraphs 198, 209, 210 and 211

21.The Tribunal does not accept that this conduct is therefore at the lower or less serious end of the scale of professional misconduct. Mr. Thomas submitted that regulation by supervision of the Practitioner for a significant period of time, a fine, a restriction on his ability to obtain an unrestricted practising certificate and restricting the type of legal work that the Practitioner could engage in were all appropriate sanctions in these circumstances. Suffice to say, the Tribunal rejects that submission. Again, the Tribunal regards the submission as to the appropriate penalty for such conduct as suggested by Mr. Thomas as manifestly inadequate and inappropriate.

22.Rather, the Tribunal is persuaded by the submission put on behalf of the Society that the Tribunal’s findings disclose fundamental flaws in the Practitioner’s character namely, dishonesty, disloyalty and a manifold contempt for his ethical duties to the Society, his clients and the administration of justice.[18]

[18] Written submissions dated 10 March 2010 page 9

23.Moreover, there was no evidence that these undesirable flaws in the Practitioner’s character have changed since being identified. Of major concern to the Tribunal was the evidence given by the Practitioner, which demonstrated that he plainly has no insight into the serious nature of his conduct. All of these factors indicate to the Tribunal the fundamental unfitness of this Practitioner to remain on the roll.

24.Mr. Thomas submitted that a finding of professional misconduct did not require that a legal practitioner’s name be removed from the roll. The jurisdiction, he submitted, was a protective one. In support of this submission he relied on Council of the New South Wales Bar Association v Slowgrove.[19] That case had a similar feature to the finding against the Practitioner in the present case regarding the threats made to DC. In Slowgrove the barrister had made a threat against the magistrate who was to hear a case involving the barrister’s client. In Slowgrove there was a finding of professional misconduct and the Tribunal ordered, inter alia, that the practitioner’s name be removed from the roll of practitioners. It is helpful to set out the whole of the relevant passage in Slowgrove. [20]

A finding of professional misconduct does not, of course, automatically lead to an order for removal of a Respondent’s name from the Roll: Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470. However, where that finding involves, as here, a finding in effect that the misconduct proven demonstrates unfitness to practise, and where, as here, there is a strong basis for considering that that defect is still operative, it is a course that must be considered….

[19] [2009] NSWADT 150

[20] At paragraph 26.

25.It was submitted by Mr. Beaumont[21] that, where there has been a finding of unfitness to practise, which is what the Tribunal has found in respect of the Practitioner, there is a firm basis for the order made in Slowgrove’s case to be made. Mr. Beaumont submitted that if there was a finding, as here there has been, that the Practitioner is unfit to be on the roll of practitioners then a fortiori a practitioner is unfit to hold a practising certificate.[22] The Tribunal may only recommend removal from the roll, but the Tribunal has express statutory power to order that a practising certificate be cancelled.

[21] Transcript p 49.20.

[22] Transcript p 39.14 – p 39.17.

26.Having regard to all of the charges, all of which have been proved, together with the findings, the Tribunal is comfortably satisfied that the appropriate penalty is to order that the Practitioner’s practising certificate be cancelled forthwith and recommends that the Practitioner’s name be removed from the roll of practitioners in the ACT.

………………………………..

Professor P. Spender

Presidential Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  
FILE NO: LP 08/6 & LP 09/1

APPLICANT:  COUNCIL OF THE LAW SOCIETY OF THE ACT
RESPONDENT:  THE LEGAL PRACTITIONER          

COUNSEL APPEARING:         APPLICANT:  BEAUMONT 

RESPONDENT:                   THOMAS

SOLICITORS:  APPLICANT:  PHELPS

RESPONDENT:                   FLYNN          

OTHER:  APPLICANT:  

RESPONDENT:                   

TRIBUNAL MEMBER/S:        P. SPENDER            PRESIDENTIAL MEMBER

L. DONOHOE, SC    MEMBER                

G. WRIGHT             MEMBER

DATE/S OF HEARING:            27 May 2010   PLACE: CANBERRA

DATE/S OF DECISION:           4 August 2010  PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )         CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS: