Del Castillo

[1999] FCA 626

FEDERAL COURT OF AUSTRALIA

Del Castillo [1999] FCA 626

LEGAL PRACTITIONERS – Admission to practise – whether Court erred in dismissing application for admission by taking into account an irrelevant matter – whether possible revocation of admission by a court in another jurisdiction irrelevant – whether Court’s exercise of discretion was in deference to a court in another jurisdiction

Legal Practitioners Act 1970 (ACT) – s 11(1)

IN THE MATTER OF THE APPLICATION OF FRANK DEL CASTILLO TO BE
ADMITTED AS A LEGAL PRACTITIONER

AG 126 OF 1998

BLACK CJ, RYAN, NORTH, FINKELSTEIN AND WEINBERG JJ
12 MAY 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	AG 126 OF 1998

ON APPEAL FROM A FULL COURT OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

IN THE MATTER of the Application of Frank Del Castillo to be admitted as a Legal Practitioner Appellant
JUDGES:	BLACK CJ, RYAN, NORTH, FINKELSTEIN AND WEINBERG JJ
DATE OF ORDER:	12 MAY 1999
WHERE MADE:	MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.        The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	AG 126 OF 1998

ON APPEAL FROM A FULL COURT OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

IN THE MATTER of the Application of Frank Del Castillo to be
admitted as a Legal Practitioner
Appellant

JUDGES:

BLACK CJ, RYAN, NORTH, FINKELSTEIN AND

WEINBERG JJ

DATE:

12 MAY 1999

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

THE COURT

1. This is an appeal from a judgment of a Full Court of the Supreme Court of the Australian Capital Territory (“the Supreme Court”) which on 11 December 1998 refused to admit the appellant as a legal practitioner pursuant to s 11(1) of the Legal Practitioners Act 1970 (ACT) (“the Legal Practitioners Act”). The appellant’s application for admission was supported by his own affidavits and affidavits of good fame and character by Professor Tomasic, Professor of Law at the University of Canberra, Mr Anforth, a solicitor and barrister in Canberra and Mr Mullins, who described himself as an “economist and lawyer”. Each of those affidavits contained a paragraph in the following identical terms:

   “6.To the best of my knowledge the applicant has never, in Australia or elsewhere, been prosecuted for and convicted of any offence or had an offence proven against him.”

2. In fact, the appellant had been tried for murder in the Supreme Court in 1992 and acquitted.  That circumstance was the subject of a requisition by the Legal Practitioners Admission Board filed on 17 July 1998.  In response to that requisition, the appellant filed an affidavit sworn 20 July 1998 which included this paragraph 4:

   “I have never, in Australia or elsewhere, been prosecuted for and convicted of an offence, nor has an offence ever been proved against me.  However, I am directed by the Supreme Court Registry to disclose the following.  In 1991-1992, allegations were made against me in the accidental death of a friend, and I was accused, committed for trial before the Magistrate of the Australian Capital Territory charged, tried and acquitted of murder in the Supreme Court of the Australian Capital Territory.  Justice Ken Crispin, then the Director of Public Prosecutions represented the Crown, Messrs Ben Salmon, QC, Terry O’Donnel [sic], Public Defender, and Martin Hochridge [sic] acted on my behalf, Justice Terry Higgins presiding.  I have been advised that whilst no adverse inference can be drawn from [this] incident, it is of importance that the court is assured that deponents of character affidavits are aware of this matter.”

3. The appellant also filed six further supporting affidavits, including further affidavits by Professor Tomasic and Mr Mullins, in which the deponents all acknowledged the facts set out in paragraph 4 of the appellant’s supplementary affidavit and deposed to their opinion that he was a person of good fame and character.

4. As well, the appellant filed a further affidavit sworn 23 July 1998 in which he explained his earlier failure to disclose his trial and acquittal.  Paragraph 3 of that affidavit was in these terms:

   “In February 1998 when I started Legal Workshop at the Australian National University, I approached Mr Douglas Hassall, Senior Lecturer and Barrister for advice on how, (given that I had been tried for murder in the Australian Capital Territory) I should apply for admission.  I told Mr Hassall about the trial and was advised that applicants for admission have a duty to disclose relevant matters.  In that regard the rules required that I list only those matters which had been criminal matters, had been prosecuted and had resulted in a conviction, or case proven, and since I did not have a conviction there was no requirement to raise the fact that I had not been convicted.  I received a copy of the sample document used by applicants for admission and on the basis of the advice given, my affidavit followed the sample document.  I was given similar advice by my solicitor of record Mr Michael Eley.”

5. That evidence was corroborated by affidavits by both Mr Hassall and Mr Eley. 

6. The appellant’s application for admission first came on for hearing before the Supreme Court on 24 July 1998 when it was adjourned and was eventually heard on 10 and 11 November 1998.  In the meantime, the appellant had been admitted to practise as a solicitor in New South Wales.  The circumstances surrounding that admission were described as follows by the Supreme Court in its reasons for judgment:

   “7.…That fact [of the appellant’s admission to practise in New South Wales] was not elicited in evidence in this Court until 10 November 1998.  The evidence was further that there had been no disclosure to the Supreme Court of New South Wales in the applicant’s admission proceedings in that Court of the facts and circumstances of the murder charge and his acquittal.  The explanation for that failure before this Court was similar to his explanation for failing to disclose those matters on his application for admission to this Court which was that, having notice of the requisition referred to above, he discussed the murder charge and acquittal with one of his lecturers at the Legal Workshop of the Australian National University and was advised that he need only reveal to this Court his evidence-in-chief at his trial.  Furthermore, in relation to his application for admission in New South Wales, he was advised that he need make no disclosure to the Supreme Court of New South Wales after his admission to practise in that State.  The advice he received was ‘to let sleeping dogs lie’.  The applicant has never applied for a practising certificate pursuant to s 25(1) of the Legal Profession Act 1987 (NSW) and, accordingly, is not entitled to practise law in that State.

   …

   9.On 24 July 1998, when his application for admission to this Court was listed for hearing and adjourned as set out above, he was advised by his counsel that having already been admitted as a solicitor in New South Wales, he would have to make full disclosure to the Law Society in New South Wales without delay.  The arrangement with his counsel was that his counsel would wait on the secretary of the New South Wales Legal Practitioners Admission Board and ask what should be done.  Nothing was done before the application to this Court came on for hearing on 10 November.  It was explained that the applicant had been overseas from 26 July to 15 August 1998 and disclosure to the New South Wales Legal Practitioners Admission Board was simply let slip.”

7. The Supreme Court accepted that the appellant’s failure to disclose, both to the Supreme Court, and in relation to his admission in New South Wales, that he had been charged with murder and acquitted had been attributable to what the Court regarded as wrong legal advice.  The reasons for the judgment then continued:

   “24.Nevertheless, it is apparent that his failure to disclose the full circumstances surrounding his murder trial on his application for admission to this Court was not due to any secretiveness on his part.  He had sought advice about disclosure and had been given the wrong advice.  It may have been irresponsible of the applicant not to have adverted to r 15 and its predecessors to the same effect or to Re Evatt (1987) 92 FLR 380, but he has now made full disclosure to rectify that serious defect in his application. All the relevant circumstances concerning his murder trial are ‘relevant to his … fitness for admission as a legal practitioner’ within the meaning of r 15. His failure to bring those circumstances to the attention of the Court was due to the advice he received. He himself was not unmindful of the probable importance of those circumstances and sought advice accordingly.

   25.There are some additional things that can and should properly be said in the applicant’s favour.  He is approaching 60 years of age.  His lifelong absence of any brush with the law, save for the murder charge, tends to some extent against the view that he would have intended to deceive the Court by suppression of uncomfortable truths.

   26.More importantly, the applicant knew that a presently serving judge of the Court had presided over his trial and that another presently serving judge had prosecuted him.  He would hardly think that either would have forgotten the matter, nor have failed to bring it to mind if either saw his name:  the matter had the ingredients of scandal and his name is not a common one.  He would have known that his application for admission to practise would be considered by a Full Court and he would likely have assumed that at least one of those judges would probably be a member of that Full Court.  He would not have assumed that, if his trial for murder ought to be disclosed, non-disclosure would go unnoticed. It is therefore likely that he did intend to disclose his trial, if that were a relevant matter.”

8. Why the Supreme Court considered the advice which the appellant had received to have been wrong is explained in paragraph 10 of its reasons:

   “It is true that the bare facts that a person has been tried for a charge, even a very serious one, and acquitted do not logically tend to the detriment of that person’s character nor of his or her fame.  But experience shows that matters are often otherwise.  The acquittal may be entirely upon unmeritorious grounds or it may occur in circumstances which nevertheless reveal untoward collateral behaviour on the part of the accused.  Particularly, but not only, in cases where serious harm has been wholly or in part caused by an accused person, and the court has evidently accepted that there was a reasonable chance that the circumstances were exculpatory (as in the present case), it is likely that, logically or not, some people will consider the fame and/or character of the accused to be defective.”

9. We have reservations about the suggestion that an acquittal may be “unmeritorious”.  It is, however, unnecessary to explore the reasons for those reservations, first, because Mr Costigan QC, who appeared with Dr Freckelton for the appellant, did not contend that the fact that an applicant for admission has been charged with, and acquitted of, a serious offence could never be relevant to an assessment of fitness to practise.  In the second place, the Supreme Court grounded its dismissal of the appellant’s application essentially on his failure, at least after embarking on the hearing in the Supreme Court, to disclose to the authorities in New South Wales the matter which the Legal Practitioners Admission Board of the Australian Capital Territory obviously regarded as relevant.  The Supreme Court said:

   “34.Nevertheless we are concerned about his approach to the matter of his admission in New South Wales.  We now know that the applicant comes to this Court as one who has applied for and been admitted to practise in that State with the consequent right under the Mutual Recognition Act 1992 to recognition as a legal practitioner in this Territory and with similar rights in all other Australian jurisdictions.  Whilst it is not for this Court to pre-empt any decision that might be made in New South Wales, it is impossible to overlook the fact that at the time of the hearing in this Court he had still taken no action to bring relevant matters to the attention of the proper authorities in New South Wales.  His application to be admitted as a legal practitioner (not, as he said, as a solicitor) was granted by the Supreme Court of New South Wales on 17 July 1998.  That was the same day on which the requisition was made by the Legal Practitioners Admission Board in this Territory that he disclose matters relating to his trial.  His admission in New South Wales was attested to by the Chief Justice of New South Wales and the seal of the Supreme Court of New South Wales placed upon his admission certificate on 28 August 1998.  Yet, mindful of the non-disclosure which had been drawn to his attention by the requisition of the Legal Practitioners Admission Board in this Territory, he took no steps in the meantime to disclose relevant matters in New South Wales.  It is not clear whether he fully understood, or accurately described, the advice to ‘let sleeping dogs lie’.  During the hearing in this Court he gave evidence that he intended to go to Sydney on the Friday following the hearing in order to make full disclosure of relevant matters, including the proceedings in this Court.  That evidence was inconclusive.

   35.In our view, the matter of the applicant’s status as a legal practitioner in New South Wales would need to be resolved before this Court would be in a position to make a final decision on his fitness to be admitted in this Territory.  Should the New South Wales authorities decide, assuming proper disclosure, that his previous failure requires that his name should be removed from the Roll there, then that would be a relevant factor to take into account in deciding whether he should be admitted here.  If a failure to disclose relevant matters to another admitting authority is sufficient to prevent a person being admitted by that authority (as it is in New South Wales: see New South Wales Bar Association v Prince (unreported, NSW Court of Appeal, 2 March 1993)), that would be a powerful factor standing in the way of that person being able to resort to this jurisdiction in order to be admitted here.

   36.If, after full disclosure, the New South Wales authorities decided to take no action, or, after adjudication, it was decided that the applicant’s name should remain on the Roll in New South Wales, it might be that a renewed application to this Court would gain favour, especially if it were accompanied by more compelling evidence from the applicant about his appreciation of his responsibilities.

   37.Unless and until the applicant has made full disclosure in New South Wales and the outcome of that disclosure is made known, we are not prepared to make the positive finding that the applicant has shown that he is a person of good character.  We have given consideration to adjourning the application in order to enable the applicant to take the necessary further steps in New South Wales, but have concluded that the appropriate order is to dismiss the application.  No doubt the applicant will consider a further application for admission by this Court, or an application for enrolment in the Territory pursuant to s 12 of the Legal Practitioners Act, if and when the circumstances warrant.”

10. The critical issue in this appeal is whether the Supreme Court erred in law by taking into account an irrelevant matter, namely the possibility that the Supreme Court of New South Wales might revoke his admission to practise in that State by reason of his failure to disclose to that Court the fact of his trial for murder.  Counsel for the appellant contended that this was an entirely irrelevant matter for the Supreme Court to consider, which meant that its discretion had miscarried.  Counsel also contended that the course taken by the Supreme Court amounted, in substance, to a prospective failure to exercise its own discretion in deference to the Supreme Court of New South Wales.  We are unable to accept either of these submissions.

11. What the Supreme Court had to determine was whether the appellant was entitled to apply to be admitted as a legal practitioner and whether he was of good fame and character. In determining whether it is satisfied that the latter requirement has been met, the Supreme Court is clearly entitled to take into account that an applicant has been refused admission or been removed from the roll of practitioners in another relevant jurisdiction.   Such a circumstance is relevant to an applicant’s good fame and character.  That had not happened in the present case but the Supreme Court was entitled to take the view that there was a possibility that it might.  If that were to happen it would clearly bear upon the appellant’s good fame and character.

12. For the Supreme Court to approach the case in that way was not inconsistent with its approach to the initial failure to disclose the trial and acquittal on the charge of murder which it regarded as having been satisfactorily explained.  What was evidently of concern to the Supreme Court was the appellant’s failure to disclose that matter to the relevant authorities in New South Wales once he had received a requisition from the Legal Practitioners Admission Board of the Australian Capital Territory on 17 July 1998 and had been advised by his counsel, Mr O’Donnell, shortly after that to make the requisite disclosure.  By the time the matter returned to the Supreme Court in November no disclosure had yet been made.  Thus, it was open to the Supreme Court to conclude, consistently with its other findings, that the Supreme Court of New South Wales might take action against the appellant that would affect his good fame and character.

13. The Supreme Court’s regard to the possible consequences that might be visited on the appellant by the Supreme Court of New South Wales cannot, in these circumstances, be seen as irrelevant to the exercise of the discretion to admit the appellant to practise.  Nor should it be concluded that the Supreme Court in any way failed to exercise its own discretion in deference to the potential exercise of a similar discretion by the Supreme Court of New South Wales.

14. It was in these circumstances that the Supreme Court concluded that it was not prepared to make the positive finding that the appellant had shown that he was a person of good fame and character and dismissed his application.   It should be noted, however, that the Supreme Court left open the possibility of a successful application being made to it in the future once the position with respect to the Supreme Court of New South Wales had been resolved.

15. For these reasons the appeal should be dismissed.

16. It remains to consider the question of costs. The Law Society, although not strictly a party to the appeal, seeks an order for the payment of its costs on a party and party basis.  This is resisted by Dr Freckelton who submits that there should be no order for costs in the circumstances.

17. The Law Society has an important statutory function to perform in relation to the admission of practitioners in the Australian Capital Territory.  Submissions by the Law Society in an appeal such as this are made in the public interest and for the assistance of the Court.  It is important that the Law Society perform this function and that the Court should have the benefit of submissions that may contradict those made on behalf of the appellant.  No order for costs was made in favour of the Law Society in the Supreme Court, and we understand that it did not ask for costs at that stage.  It has now, however, been put to the additional expense of making submissions in the public interest on this appeal.  In these circumstances we consider that the costs of the Law Society of this appeal, on a party and party basis, should be paid by the appellant.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             12 May 1999

Counsel for the Appellant:	Mr F X Costigan QC with Dr I R Freckelton
Solicitors for the Appellant:	Gary Robb & Associates
Counsel for the Law Society of the Australian Capital Territory:	Mr A Robertson SC with Mr D C D Harper
Solicitors for the Law Society of the Australian Capital Territory:	Abbott Tout Harper & Blain
Date of Hearing:	12 May 1999
Date of Judgment:	12 May 1999