De Vere v Queensland Law Society Incorporated

[1993] QCA 560

IN THE COURT OF APPEAL

[1993] QCA 560

QUEENSLAND

Appeal No. 106 of 1993

Brisbane

Before The Chief Justice

The President

Mr Justice Cullinane

[de Vere v. The Queensland Law Society]

BETWEEN:

GARY RAYMOND DE VERE

(Practitioner) Appellant

- and -

THE QUEENSLAND LAW SOCIETY INCORPORATED

Respondent

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 20/12/93

I have had the advantage of reading the reasons prepared in this matter by the President and Cullinane J. and they sufficiently state the facts and issues with which we are concerned. I find, however, that the conclusion at which I arrive in the appeal differs from that which they express.

It is desirable to make clear that I agree with the meaning which the President and Cullinane J. suggest should be attributed to "rehearing" appearing in s. 6(4) of the Queensland Law Society Act 1952 and r. 29 of the Queensland Statutory Committee Rules 1987 that is that it shall be on the evidence presented before the Statutory Committee. The considerations which bear upon the task of construction which is involved in deciding on the correct meaning of the word are surveyed in Builders' Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd. (1976) 135 C.L.R. 616 at 619- 620. The Court, on appeal, is separately authorised by r. 31 of the Statutory Committee Rules to admit fresh evidence if, in its discretion, it considers this course to be "necessary or expedient" in the interests of justice. This power is governed by the terms of r. 31 itself. Rules established in other contexts governing the admission of fresh evidence are not made applicable by this power which is given independent expression.

In this case we are informed of the nature of the fresh evidence on which the appellant relies before us and on which he would wish to rely before the Statutory Committee if that body's order refusing a rehearing is set aside and an order is made by this Court that it undertake a rehearing. Without offering any final assessment of the strength of that fresh evidence offered by a psychologist and two medical practitioners, one observation can be made in respect of it, namely that it is of a kind which could and should have been collected and placed before the Statutory Committee when the application for a rehearing was heard by that body. To the suggestion that the appellant and his advisers had some difficulty in collecting this evidence prior to the hearing below, the rejoinder has to be made that an adjournment of that hearing could have been sought. Instead, the appellant's advisers chose to rely on a generalised analysis contained in a published article dealing with the psychological difficulties which can result from stress and pressures in a solicitor's practice.

However, the principal reliance at the rehearing application below was placed on the claim that the appellant was not aware that the original hearing on 23 March, 1993 was to take place. In support of this contention the appellant gave evidence before the Statutory Committee but he was disbelieved. The Committee found that on the whole of the evidence it was "satisfied that the Practitioner (the appellant) was aware of the nature of the proceedings and of the date of the hearing of the application". The Statutory Committee seeing the appellant give evidence and being cross-examined would have had a very significant advantage in coming to its conclusion on this issue and this Court should not decide the appeal on the basis that the fact was otherwise.

The position then is that the appellant was aware of the original hearing but did not attend, that he subsequently sought a rehearing principally on the basis of a personal explanation which was not accepted and being aware of the possibility of offering a different essentially psychological explanation both for his non-attendance and for the difficulties he had got into in conducting certain aspects of his practice, offered the Statutory Committee only an outline of the claimed psychological factor but no evidence from witnesses through whom he might hope to establish it. It should be added that he sought no adjournment to obtain evidence to support the explanation.

Having, so far, made such ineffective use of a very full opportunity to meet the charges both at the hearing and the rehearing, I consider it would cause an undue dislocation of the prescribed course for the conduct of disciplinary proceedings and would do so for reasons insufficient in justice and otherwise, if an order were made that the Statutory Committee undertake a further rehearing.

I would dismiss the appeal.

I am aware that a dismissal would allow the appellant some advantage in that the order for suspension structured to run for a fixed term until June 1994 has been stayed by the Statutory Committee pending the outcome of this appeal but, nevertheless, in the circumstances I think that a dismissal of the appeal is a proper order to make.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 106 of 1993

Brisbane

Before The Chief Justice

The President

Mr Justice Cullinane

[De Vere v. Qld Law Society]

BETWEEN:

GARY RAYMOND DE VERE

(Practitioner) Appellant

AND:

THE QUEENSLAND LAW SOCIETY INCORPORATED

Respondent

REASONS FOR JUDGMENT - THE PRESIDENT AND CULLINANE J.

Judgment delivered 20/12/93

On 23 March 1993 the Statutory Committee of the Queensland Law Society Incorporated ordered that the appellant practitioner be suspended from practice as a solicitor of this Court until 30 June 1994. The Statutory Committee found proven against the appellant charges alleging (i) breaches of Rules 82(2), 82(3) and 82(5) of the Rules of the Law Society in that he failed in specified respects to give to the Council of the Law Society a sufficient and satisfactory explanation in writing of matters referred to in specified complaints and failed in the respects specified to produce books, papers, files, securities or other

documents after being called upon to do so and (ii) breaches of Rule 83(2) of the Rules of the Law Society in that he failed to furnish a sufficient and satisfactory reply in writing to requests therefor, which failure continued for a period of 14 days from the practitioner's receipt of a notification given pursuant to Rule 83(1) of the Rules of the Law Society. In consequence of its findings, the Statutory Committee held that the appellant was guilty of professional misconduct.

The appellant did not appear at the hearing conducted by the Statutory Committee on that occasion but, on 20 April 1993, applied to the Statutory Committee, pursuant to Rule 12 of the Rules of the Law Society, for a rehearing of the charges against him.

On 3 June 1993, the Statutory Committee refused the application for a rehearing, not being satisfied that "... it is just that the case should be reheard ...": Rule 12(2) of the Rules of the Law Society. However, upon an undertaking by the appellant to institute this appeal, the Statutory Committee stayed its earlier order.

The appellant has appealed to this Court against the refusal of his application for a rehearing.

By subsection 6(4) of the Queensland Law Society Act 1952 (as amended), the appeal to this Court is "... in the nature of a re-hearing ...". See also Rule 29 of the Rules of the Law Society. The parties were in dispute concerning what is meant by a "re-hearing" in this context, but we are satisfied that a rehearing on the evidence given before the Statutory Committee is intended, although fresh evidence is to be admitted, pursuant to Rule 31 of the Law Society's Rules, if "necessary or expedient in the interests of justice": see Qld Law Society Inc. v. A Solicitor (1989) 2 Qd R 331, 333; Adamson v. Qld Law Society Incorporated (1990) 1 Qd R 498, 508.

The respondent Law Society submitted "that the normal principles governing the reception of fresh evidence on appeal serve as appropriate guidelines" for the exercise of the discretion given by Rule 31 of the Law Society's Rules, but this is plainly incorrect. Rule 31 establishes its own broad test, under which further evidence is to be received if "necessary or expedient in the interests of justice".

Shortly stated, the role of the Court in this appeal is to do what is just. The application to the Statutory Committee for a rehearing was required to be granted if it was "... satisfied that it is just that the case should be reheard ..." (Rule 12(2) of the Law Society's Rules), and the Court must now review the exercise of that discretion in accordance with what the Court considers just. Further, in doing so, it must receive further evidence if it is "... necessary or expedient in the interests of justice to do so ...".

The primary basis advanced by the appellant for his application of 20 April 1993 to the Statutory Committee for a rehearing was that he was unaware of the hearing on 23 March 1993 until after that hearing, despite being served with a "Notice of Hearing" (and a quantity of other material) on 15 March 1993. There was also some attempt made to explain the matters which the Statutory Committee had earlier found amounted to proven breaches of the Rules of the Law Society, but that was not pursued before us or expressly decided by the Statutory Committee. The Statutory Committee did not "... accept the evidence of the Practitioner that he was not aware of the Application of the Society against him ...", but was "... satisfied that the Practitioner was aware of the nature of the proceedings and of the date of the hearing of the application."

No challenge was made by the appellant to these findings, a course which explains the importance sought to be placed by him upon the extra evidence upon which he wished to rely; namely, evidence from a psychiatrist, a neuropsychologist and a general medical practitioner, which it was said on his behalf explained both his conduct in breaching the Rules of the Law Society and his failure to appreciate that the initial hearing was to take place on 23 March 1993 despite being served. That evidence was not available to the appellant at either hearing.

During the course of argument, attention was drawn to the facts that over a month had elapsed between the time when the appellant filed his application for rehearing on 20 April 1993 and the Statutory Committee's consideration of that application on 3 June 1993, during which period the appellant took no steps to obtain the additional evidence now sought to be relied upon. The explanation given for this was that he was unaware of his problems at that time.

The applicant swore an affidavit stating:

"Prior to the findings of the statutory committee in June 1993, I was not aware that I was suffering from any psychological problems in relation to my private life and law practice."

Further, his solicitor swore an affidavit stating:

"With respect to the preparation of his case for hearing before the statutory committee I only received instructions from the appellant several days before the hearing date and the short period of time available precluded me from obtaining expert medical evidence as to the appellant's psychological condition."

However, no adjournment was sought at the hearing on 3 June.

In these circumstances, it is apparent that the additional evidence must be of considerable potential significance before the Court would rely upon it as the basis for a further hearing. It is convenient to explain the nature of the evidence by setting out an extract from the appellant's written submissions.

"ISSUES RAISED BY THE FRESH EVIDENCE

Report of Louis K Salzman, Clinical Neuropsychologist

12.  This report deals squarely with the Appellant's conduct in failing to attend the hearing before the Statutory Committee on the 23rd March 1993.

13.  The report makes findings that were extenuating circumstances which affected the Appellant's performance from 1989 to the present time:-

(i)	Grief due to his father's death at the end of 1989;
(ii)	A failed personal relationship with a professional woman, with further complications involving an abortion and a restraining order;
(iii)	Staff problems;
(iv)	Problems with computerised accounting system;
(v)	Ongoing litigation with the Commissioner of Taxation;
(vi)	A further failed relationship with another woman in 1992.

14.  Psychological tests were conducted (page 6) to reveal that the Appellant as "almost naive emotional genuineness" (page 8) and that the Appellant has been exposed to a considerable degree of stress and that his behaviour symptoms were consistent with that of the solicitor mentioned in the article "The Case of the Legal Ostrich" in the Australian Lawyer, May 1993 and exhibit "C" to the Affidavit of Vincent Pennisi filed herein.

15.  That if suspended, his career will come to an end which would be a devastating blow to the Appellant and cause him major psychological problems (at p. 11).

16.  That the Appellant has the inner resources necessary for a positive outcome in counselling and therapy and has already started to take the necessary steps to correct his problems (at page 11).

Report of Dr John C Slaughter, Psychiatrist

17.  This report corroborates the findings of Louis Salzman in that the appellant is suffering from a severe chronic anxiety state due to work load and economic circumstances and grief reaction.

18.  That the Appellant's clinical symptoms are consistent with the symptoms listed in the "Ostrich Syndrome" Article.

Report of Dr Alexius Loo

19.  The Affidavit of Dr Loo of the 14th September 1993 confirms, that since November 1992 the Appellant exhibited quite obvious symptoms of stress.

..."
Notwithstanding some reluctance in view of the wholly

unsatisfactory course of conduct by the appellant in relation to these proceedings, we have concluded that justice requires that the appellant be given an opportunity to place his additional material before the Statutory Committee. There is a sufficient possibility of a different outcome if the Statutory Committee is persuaded by that material, a question which we emphasise is entirely for the Statutory Committee; the Court's decision that there should be a further hearing involves no express or implicit finding as to the cogency or significance of the appellant's extra evidence. It is of particular importance to our conclusion that, if it is accepted, the expert evidence may explain, or partially explain, not only the appellant's conduct in this proceeding but also the breaches of the Rules which he has been held to have committed. We have also taken into account the desirability of a further hearing to deal afresh with penalty if the Statutory Committee again holds the appellant guilty of professional misconduct.

The appeal should therefore be allowed and an order made for rehearing. In the circumstances, however, especially the appellant's dependence upon evidence which was not placed before the Statutory Committee, the appellant should pay the Law Society's taxed costs of all parties to the proceedings to date, including the costs of the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 106 of 1993

Brisbane
[De Vere v. Qld Law Society]

BETWEEN:

GARY RAYMOND DE VERE

(Practitioner) Appellant

AND:

THE QUEENSLAND LAW SOCIETY INCORPORATED

Respondent

The Chief Justice
The President

Mr Justice Cullinane

Judgment delivered 20/12/93

Reasons for Judgment by the President and Cullinane J. jointly. The Chief Justice dissenting.

1. APPEAL ALLOWED
2. ORDER A REHEARING.

3.    THE APPELLANT MUST PAY THE RESPONDENT'S TAXED COSTS OF ALL PARTIES TO THE PROCEEDINGS TO DATE, INCLUDING THE COSTS OF THE APPEAL.

CATCHWORDS:LEGAL PRACTITIONERS -

Misconduct and discipline - Statutory Committee refused application for a rehearing - nature of appeal to Court of Appeal - whether fresh evidence should be admitted by Court - rr. 12(2), 31 Rules of the Queensland Law Society; s. 6(4) Queensland Law Society Act 1952.

Counsel:	R I Hanger QC, with him T Somers for the appellant. B O'Donnell for the respondent.
Solicitors:	V Pennisi & Associates for the appellant. Clayton Utz for the respondent.

Hearing Date: 23 September 1993