In the Matter of an Application for Admission as a Practitioner No. Scgrg-97-1014 Judgment No. 6487 Number of Pages 15 Professions and Trades Lawyers

[1997] SASC 6487

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

DOYLE CJ, COX, MATHESON, PRIOR AND WILLIAMS JJ

CATCHWORDS:

Professions and trades - lawyers - qualifications and admission - legal practitioners - application for admission as practitioner of court - whether applicant is fit and proper person to be admitted - role of practitioners in due administration of justice - whether courts and the profession will be able to have confidence in the honesty and integrity of applicant as a practitioner - application adjourned for twelve months. Legal Practitioners Act, 1981 s15(a), referred to. Re B [1981] 2 NSWLR 372; Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279; Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655; In re Vadasz (1985) 146 LSJS 455; In re Harrison (1992) 168 LSJS 84, considered.

HEARING:

ADELAIDE, 3 December 1997 (hearing) 22 December 1997 (decision)

#DATE 22:12:1997

#ADD 30:12:1997

Appearances:

Applicant S:

Counsel: Mr T Anderson QC with Mr M Fuller

Solicitors: Manuel Fuller Merrigan

Respondent Law Society:

Counsel: Mr W J Wells QC with Mr M Manetta

Solicitors: Law Society of South Australia

ORDER: adjourn the application for a period of twelve months.

DOYLE CJ

Introduction

This is an application for admission as a practitioner of this Court.

The Board of Examiners has reported to the Court that the applicant has completed the academic and practical requirements for admission as a practitioner, and that he is eligible for admission.

The Board has further reported that it has resolved, by a majority, that the applicant is a fit and proper person to be admitted. In relation to that part of the report, the Court has been provided with a report by the majority of the Board, and with a separate report from each of two dissenting members.

The Supreme Court Admission Rules empower the Court to act upon a report of the Board without any further evidence: r59(2). However, it remains the function of the Court to decide for itself whether the statutory requirements for admission are satisfied: Re B [1981] 2 NSWLR 372 at 378 Moffitt P.

In view of the difference of opinion among the members of the Board, the Court set aside time to hear the application. The application does not proceed as an appeal from, or review of, the decision of the Board. As I have already said, it is for the Court to be satisfied that the applicant is of good character: Legal Practitioners Act, 1981s15(a). The Court may make such use as it sees fit of the report to it by the Board.

Facts

The applicant was born in 1953. He is now forty-four years of age. In 1982 he married H.

In 1983 the applicant and H emigrated to Australia from Jordan. A son was born to them in 1983. In 1986 H's parents came to live in Australia, and later that year so did H's two brothers. Serious differences arose between the applicant and H's parents, and this affected the marriage relationship. Not long after H's parents arrived, the applicant and H separated.

In August 1986 the Family Court ordered that H have custody of the child of the marriage, and made orders for access. Access proved difficult. There were complaints on both sides. The custody order included an order restraining the applicant from removing the child from South Australia.

The applicant wished to take his son to Jordan so that the applicant's parents could see their grandson. The applicant says that an aspect of the Jordanian culture is a very close bond between grandparents and grandchild, and for that reason he was particularly anxious to take his son to Jordan.

The applicant applied to the Family Court for an order permitting him to take the son to Jordan. Meantime, without the knowledge of H, he had the son added to his passport through the Jordanian Embassy. The applicant resigned his employment, arranged to sell his house and transferred money to Jordan. It appears that H was unaware of this.

On 29 August 1987, the applicant picked up his son for weekend access. He took him to Adelaide Airport, and attempted to board an international flight. He was prevented from boarding, by the intervention of the federal police. This came about because the injunction to restrain the husband from taking his son out of South Australia had been recorded by the Department of Customs and Immigration.

This led to the applicant being convicted, somewhat later, for contempt of the Family Court. He was sentenced to imprisonment for two months, but was released after serving one month.

The reasons of the judge who convicted the applicant indicate that it was regarded as a serious contempt. It is not surprising that it should have been so regarded. The judge rejected evidence by the applicant that he intended to return to South Australia with his son, come what may. He accepted that the applicant had not definitely decided to remain in Jordan. However, the departure from Australia was carefully planned. The applicant had so organised his affairs that he would be in a position to remain in Jordan if he wished.

Thereafter the applicant remained in South Australia. His relationship with H continued to be difficult. However, although there were many applications to the Family Court, and many orders, there is no suggestion that the applicant failed to comply with any orders of the Family Court after the incident referred to.

In 1990 the applicant remarried. However, access to his son continued to cause problems. In December 1994 there was a dispute between the applicant and H over access arrangements. This resulted in the applicant being charged with having, on 5 December 1994, knowingly or recklessly used a telecommunication service to menace another person. It was alleged that he, in the course of a telephone conversation with his son, threatened to kill H and her solicitor, and to harm H's parents and brothers.

The applicant pleaded not guilty. In a judgment delivered on 19 December 1995, a magistrate found him guilty. The magistrate came to the "firm conclusion" that the applicant, in his evidence, was "very untruthful".

From that conviction, the applicant appealed to a judge of this Court. That appeal was dismissed. The applicant sought leave to appeal to the Full Court. Leave to appeal was refused. The applicant sought special leave from the High Court to appeal from the decision of the Full Court. The High Court refused to grant leave.

The conviction for contempt, and the conviction by the Magistrates' Court, are the source of the only obstacles to the applicant's admission as a practitioner of this Court. The applicant has a number of tertiary qualifications, has maintained regular employment and, judging by character references put before the Board, he is well regarded by those with whom he has worked, and others with whom he has come into regular contact.

The application for admission

The applicant filed the standard form affidavit in support of his applicant for admission. Annexed to it was a sealed envelope with details of his two convictions.

I understand that this document was prepared by the applicant himself. However, it was prepared by the applicant at a time when he had completed all training required for admission.

The applicant referred to his conviction for contempt of the Family Court. His treatment of that conviction suggests that he regards the matter as quite minor. He said that he tried to take his son for a four week holiday. No mention is made of the circumstances suggesting that he might not have returned to Australia. The concluding paragraph of this document is troubling. He says that no harm was done, and that as H's lawyers had ensured the registration of the injunction, H and her lawyers "all knew that any attempt to take the child overseas would not succeed." He concludes by saying "... all that did not mean anything to Burton J." There is no expression of regret or remorse. The reasons of Burton J were not provided, and some of the facts to which I referred earlier emerged only when those reasons were later provided.

The applicant's attitude to the conviction for contempt, as disclosed by this document, is completely inappropriate. Nothing more need be said.

The applicant dealt also with his conviction by the Magistrates' Court. He sets out some of the background, and his own version of events. He denies his guilt. He says there were "one thousand and one things wrong in the trial ...". He criticises the manner in which the prosecutor conducted the case. He refers to the appeal to a judge of this Court, and to a remark in the judgment that it was a case that depended solely on credibility. He attacks the credibility of the family of H, who gave evidence at the trial. As to the application to the Full Court, he says that the Court "avoided the real issues". Referring to the decision of the High Court to refuse to grant leave, he says that "the absence of justice was clear and stunning", referring there to the decision of the Full Court.

There is no hint in this of any acceptance of the decision of the Magistrates' Court, nor is there any acceptance of the fact that his case was dealt with according to law.

Somewhat later the applicant must have received some legal advice. He filed an affidavit in support of his application. It conveniently summaries much of the background to the application. To it were exhibited the reasons for decision of Burton J in the Family Court and the reasons for decision of the magistrate, and certain other documents including character references.

In the affidavit there is no attempt made to minimise the seriousness of the contempt of the Family Court. Quite reasonably, the applicant explains that at the time of the contempt he was "under enormous emotional and mental stress." He refers to the fact that since then he has complied with all orders of the Family Court. There is no expression of regret for the contempt.

He refers to the conviction by the Magistrates' Court. He says that he maintains his innocence of the offence. He says that he was falsely accused of the offence. He then says: "17. In spite of my claim of innocence and my views as to how the prosecution came about, I now accept and understand that I was afforded due process and had the benefit of a trial of the issues at first instance and a review of the decision as to those issues on appeal."

He goes on to say that he has determined to put these incidents behind him and to focus on "my new family and my professional life."

The applicant gave evidence before the Board. He was questioned about the conviction by the Magistrates' Court.

He sensibly acknowledged that in the earlier document referred to he had expressed himself inappropriately (T13, T17). He now accepted that he had been accorded due process (T18). But, when referred to his earlier document he maintained his innocence, and maintained some of his criticisms of the prosecutor (T14, T15, T17). I think that his approach is fairly summarised by the following short extract from the transcript (T20): "A. I mean, I will withdraw anything that on the face of it looks inappropriate wording or offensive or is taken to be inappropriate or offensive. I'm prepared to withdraw and apologise for that. But, my sincere belief and (sic) my innocence would never disappear. There is no apology for that. I'm innocent and in my heart I believe that I was - that justice was not done but I mean, many people would probably have worked through the court experience and say justice is not done but they live their lives and they go forward and they obey the court's orders and I did that. Q. Would you agree that you have just exaggerated the situation, you have said 'Absence of justice was clear and stunning'. A. I would like to have believed that the way I wrote my application I have showed the Court the absence of justice was clear and stunning but probably I did not manage to show that. Obviously if I managed the decision would have been overturned."

I comment at this stage that three things emerge from what the applicant has written and said. First, an inadequate appreciation of the seriousness of his contempt of the Family Court, and a failure to appreciate the importance of respect for orders of a Court. Secondly, in relation to the decision of the Magistrates' Court, an apparent inability to accept an adverse decision, at least to the extent of acknowledging without qualification that, right or wrong, the decision was reached by a process that was fair. The third matter that emerges from this material is the finding that the applicant had lied to the magistrate who heard the charge against him.

The Court was assisted by submissions from counsel for the applicant, and from counsel for the Law Society.

A number of points were made on behalf of the applicant. I will not repeat all of them.

The point was made that the contempt conviction was ten years ago, that since then the applicant had complied with orders of the Family Court, and that the contempt occurred at a time of great personal stress. I accept those submissions. I am prepared to treat the contempt, in itself, as not constituting an obstacle to the applicant's admission. However, I am concerned by the failure of the applicant to express any regret or contrition, and by his tendency to underestimate substantially the significance of his conduct.

I found the submission relating to the conviction by the Magistrates' Court more difficult. The effect of the submission, as I understood it, was that "in his heart" the applicant believed that he was innocent, but now accepted the fact of his conviction, accepted that he had been accorded due process, accepted the foolishness of his continued criticism of the process and of the prosecutor, and accepted that the Court must proceed on the basis that he had lied to the magistrate and had been convicted correctly.

However, although that was the submission put, it did not sit comfortably with the applicant's evidence before the Board. As I mentioned earlier, his affidavit maintained that he was falsely accused and wrongly convicted, even if convicted by a fair and lawful process. Counsel argued that the statements in the affidavit that the applicant maintained his innocence, and had been falsely accused, were a preamble to para 17 of the affidavit, which I have set out above. He argued that para 17 was an acceptance of guilt.

I am unable to accept this submission. It is not consistent with my reading of the affidavit. More importantly, it is not consistent with the evidence of the applicant. His evidence is clear. He continues to maintain his innocence. He merely accepts, now, that he has been convicted by fair and lawful process, but even there his acceptance is grudging. I do not understand him to be now accepting his guilt.

Another thing that stands out is the finding by the magistrate that the applicant lied.

Finally, I refer to the character references that the applicant put before the Board. It came out in evidence that some of the referees had not been told about the applicant's two convictions. I do not conclude that this was done to deceive the Board. However, in my opinion it shows a troubling failure to appreciate the way in which those references might be relied upon, and a failure to appreciate the need for complete candour when references are put forward.

Conclusions on the facts

It goes without saying that this is a difficult case. I have considerable sympathy for the applicant.

I do not regard the conviction for contempt as precluding a finding that the applicant is of good character. The time that has passed, and the circumstances of the conviction enable me to conclude that the conviction can be treated as a past lapse, and one that does not demonstrate a continuing inability to behave in a manner befitting a practitioner.

However, the applicant's attitude to the conviction does indicate that the applicant lacks that respect for the courts and the processes of the law which one would expect in a legal practitioner, who is obliged to uphold those institutions and processes. Or, at the least, the applicant's attitude indicates that when his personal interests are involved he finds it difficult to behave in the manner in which a practitioner should.

As to the conviction in the Magistrates' Court, I can accept the applicant's refusal to acknowledge his guilt. But I must, and do, proceed on the basis that he is guilty, and on the basis that he lied to the magistrate. It was not submitted that we should not. I also proceed on the basis that the applicant finds it difficult to accept that he has been treated lawfully and fairly, and difficult once again to accept an adverse decision, at least when his own interests are involved.

I accept that the applicant has suffered considerably from the breakdown of his marriage and from the hostility between him and H. No doubt, he has learned a lot. But, despite that, there are the indications already referred to that the applicant will find it difficult to support and uphold the integrity of the legal process when the outcomes are unacceptable to him.

The finding that the applicant has lied on oath to the magistrate is troubling. This is a serious matter. It relates to conduct that occurred only about two years ago.

That finding also leads to a conclusion that the applicant's fellow practitioners and clients may lack confidence in him.

I accept that all of the applicant's difficulties must be considered in the light of their origin, a turbulent marriage breakdown. I realise that it is quite common for the stresses attributable to a marital breakdown to cause people to act in a manner quite out of character. I must give due weight to that.

I also find that the applicant has, by his handling of the character references, shown an inadequate appreciation of his responsibility to the Board when proposing to make use of character references.

Relevant principles

The ultimate issue is whether the applicant has satisfied the Court that he is of good character: s15(a) Legal Practitioners Act.

I gratefully adopt what was said in relation to this by Moffitt P in Re B [1981] 2 NSWLR 372. The following portion of his judgment conveniently summarises the thrust of his observations (at 382):

"From what has been said, it will appear that the essential inquiry is directed to the character of the person namely whether his character is such that he can be trusted to perform his duty as a barrister including that performed when what he does is unlikely to be subject to scrutiny. Reputation is also a relevant factor because the effectiveness of the law depends materially upon the confidence of the public in the due administration of it. That confidence is the less if those who administer the law whether judges, barristers or solicitors lack a reputation for integrity and that they will uphold and observe the law."

I accept that there is a distinction between personal misconduct and professional misconduct: see Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 at 290 Fullagar J, at 298 Kitto J. However, I consider that the particular matters under consideration are relevant to the applicant's fitness to practise.

In Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR
655, Isaacs J referred to the reliance placed by courts upon members of the legal profession to assist the courts in doing justice, and upon the important role that the profession plays in the administration of justice. He then said (at 681):

"There is therefore a serious responsibility on the Court - a duty to itself, to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential."

This passage is a useful reminder of the importance of the courts being able to place their trust in members of the profession.

By admitting a person as a practitioner of the Court, this Court holds out that person to the public as someone upon whom the public can rely. The public must and does rely upon the integrity of solicitors, as well as upon their technical skills. The public has no choice. In addition, as I have already said, the courts themselves rely upon the integrity of members of the legal profession. They rely upon that integrity not just when practitioners appear before the courts as advocates. The courts also rely upon members of the profession, when they deal with clients, to support and to uphold the integrity of the legal processes. A practitioner who lacks respect for the courts and for their orders is likely to damage the integrity of the system of justice, by communicating that lack of respect to clients.

Another matter to take into account is the importance of the reputation of the profession. None of us are perfect. But a profession cannot survive unless the public regards its members as trustworthy and honourable people. The Court has to consider the impact upon the public of the knowledge that a member of the profession has committed offences. What I have just said is based upon what was said by King CJ in In re Vadasz (1988) 146 LSJS 455, in a judgment with which the other members of the Court concurred, and upon what was said by this Court in In re Harrison (1992) 168 LSJS 84.

In the end, the questions to be considered by this Court are these. First, is the Court satisfied that it can hold the applicant out to the public as a person upon whom the public can rely, not just for his professional skills, but as someone who will act with integrity in the course of the administration of justice? Secondly, is the Court satisfied that the courts and the profession will be able to have confidence in the integrity of the applicant as a practitioner? In considering both of these matters the Court must consider whether it is satisfied that the applicant correctly appreciates his role, as a practitioner, in the administration of justice. The Court must also bear in mind that, as a practitioner, much of what the applicant will do will be unsupervised and, indeed, protected from scrutiny.

Conclusions

I am not satisfied, in view of the applicant's present attitude to his contempt of the Family Court and in view of his tendency to criticise the conduct of the prosecution against him, that the applicant appreciates his responsibility as a practitioner, to maintain and support respect for the courts and for the legal process.

I am not satisfied, in view of the finding by the magistrate only two years ago, that the applicant lied to the magistrate, that the Court can hold the applicant out to the public as a person upon whose integrity the public can rely, or as a person in whom the courts and the legal profession can have confidence.

I accept that the events that result in that lack of satisfaction arise from circumstances that commonly cause people to behave in a manner in which they usually would not behave. But, as I have attempted to indicate, my concern is not so much with the contempt itself and with the commission of the more recent offence, but with the applicant's current attitude to those matters, and with the fact that he had lied to the magistrate.

I consider that the public interest requires, before the applicant be admitted, that the Court have some further assurance that the applicant can be trusted to conduct himself properly as a practitioner.

I have given very careful consideration to the possibility of admitting the applicant, but on condition that he practise not as a principal, but as an employee of a practitioner of at least five years' standing, for a substantial period of time, with the removal of that restriction being subject to a report from the Board of Examiners, in the light of such report as might be made to the Board from the applicant's employer or employers.

The purpose of such a condition would be to ensure that the applicant got the guidance and exposure to professional standards that I consider he requires, before the Court can be satisfied that he is fit to be admitted.

However, in light of my conclusions, I do not consider that I can take this step. At this stage I am not satisfied that the applicant is fit to be admitted, but merely requires some further professional training.

I have already remarked that the obstacles to his admission arise out of trying personal circumstances. However, in the course of legal practice occasions arise in which a practitioner's duty of candour, and the practitioner's duty to respect the processes of the law, can require the practitioner to sacrifice the practitioner's own interests, to make difficult personal decisions, to admit to personal error, and to treat with respect decisions that are thought to be wrong. At present I am not satisfied that the applicant can cope with these pressures.

I do not regard the obstacle to his admission as permanent. But I do require some further assurance before I would agree to admit the applicant. I acknowledge the difficulty of the applicant providing that further assurance, without obtaining conditional admission. That is why I have given particular consideration to the possibility of a conditional admission.

The public interest in the maintenance of professional standards prevents me from agreeing to the applicant's admission on the basis that, given appropriate guidance, he probably will be able to satisfy the Court that he should be admitted. To proceed on that basis would be to acknowledge that the applicant is not yet fit to be admitted, but to say that all being well he will be fit to be admitted after an appropriate period. I consider that it is not open to me to take that course.

I have considerable sympathy for the applicant. Firstly, because of the circumstances out of which his difficulties arise. Secondly, because one must acknowledge that the Court admits young men and women as practitioners on the basis that, nothing adverse to their character being known, the Court expects that they will be able to cope with the pressures of professional practice, but knowing that some of them will require additional maturity and experience in the profession before they are fully able to do so. The process of scrutiny of applicants for admission is not infallible. The applicant might think that the Court should be prepared to accept that he, as a man of mature years, will quickly learn what has to be learned. Unfortunately, in my opinion the obstacles to his admission are too serious to take that merciful course.

I am prepared to adjourn the application for a period of, say, twelve months, to enable the applicant to attempt to obtain employment. Such employment should ideally be in the legal profession, but not necessarily. I consider that what is required is employment in a field that will expose the applicant to professional standards of the sort that he must observe as a practitioner, and expose the applicant to some scrutiny by a person familiar with those professional standards. If a favourable report were received after such a period, I would then contemplate conditional admission for an appropriate period. That would depend upon the Court then having satisfactory assurance that the applicant is fit to be admitted, and merely requires some further exposure to the standards of the legal profession.

I do not underestimate the difficulty of the applicant getting appropriate employment, without conditional admission. However, as things stand, I am not satisfied that such admission should be granted.

Accordingly, I would adjourn the application for a period of twelve months.

COX J

Mr Anderson QC, for the applicant, accepted - in my view, correctly - that this Court must consider the application on the footing that the applicant was correctly convicted in the Magistrates Court of making a threatening telephone call. Cf Parothonotary (NSW) v Pangallo (1993) 67 A Crim R 77, at 79-81. Nor did Mr Anderson challenge the Magistrate's finding that the appellant lied in the witness box - a necessary corollary, indeed, in the circumstances of this case to the finding of guilt. However, I would not pursue the logical consequences of that approach so far as to regard as a serious fault the applicant's stated unwillingness to accept the correctness of his conviction or his criticism of the conduct of the prosecution. With that qualification I am in agreement with the reasons that have been prepared by the Chief Justice and I concur with the procedure that he has proposed.

MATHESON J

Let me say immediately that I would admit the applicant on condition that he practise as an employee of a practitioner of at least five years' standing and adjourn the matter for two years to the intent that a further report then be obtained from the Board of Examiners as to whether they consider the condition should be removed in the light of any report made to the Board by the applicant's employer or employers. Such an order would clearly imply that the Court was of the view that the applicant required more guidance in relation to the high standards required of a legal practitioner. Because I am the only member of a five judge bench to have reached that view, and because I consider it desirable that there be a majority decision that at least holds out some hope for the applicant's admission to practice, I am prepared to join in the Chief Justice's proposal simply to adjourn the application for a period of twelve months.

I do not want to be understood to regard other than very seriously the applicant's contempt of the Family Court or his conviction in the Magistrate's Court for making a threatening telephone call or the finding that he lied to the Magistrate who heard that charge. However, I take a more sympathetic view of the application than the other members of the Court, possibly because I still recall from my years at the Bar how strongly emotions can be aroused in custody and access disputes, especially where, as here, one party's in-laws belong to a religious sect, and how lasting the effect of such disputes on a party's judgment of his own affairs. I propose to state my reasons quite briefly:

1 The applicant would no doubt have been well advised to apologise for his contempt of the Family Court. However, it happened ten years ago. He pleaded guilty and went to gaol for one month for it. I can also understand that he would find it difficult to overlook the fact that his then wife had earlier been convicted of contempt, and only fined $200 (but that observation is certainly not intended as a criticism of the sentencing judge).

2 I regard the reasons of the majority of the Board of Examiners (seven out of a Board of nine, including two Queen's Counsel and a Vice President of the Law Society) as persuasive. They saw and heard the applicant cross-examined by Mr David Smith, who then appeared as counsel for the Law Society. The majority expressly said that they were not prepared to find that the applicant was deliberately misleading them in explaining why he maintained his innocence of the charge relating to the telephone conversation. Their reasons included this passage:

"It was thought by the majority that the tenor of [the applicant's exhibit to his affidavit in support of his admission referring to the contempt of court and conviction by a magistrate] was the product of a very difficult and prolonged matrimonial proceedings between himself and his former wife and the bitterness which had arisen from those proceedings. It was thought the applicant is a proud person who found it difficult to back down. The view was taken that the applicant had now entered a new phase of his life. He had married again and settled down with his second wife and there were two children of that marriage. He no longer saw his son Raja and, although that must be difficult for the applicant, it at least appeared to have closed a turbulent chapter in his life. Character references from fellow workers and students supported that the applicant's difficulties were confined to that front. There is no indication that this has or will affect the ability of the applicant to deal properly and honestly with the public at large or other members of the profession in the practice of the law. Further, and most importantly, after taking the advice of Mr Fuller, the applicant expressed himself in his affidavit of 23 September 1997 in language more temperate and more appropriate to an officer of the Court."

The majority quoted, and I repeat, what was said about the applicant by the Full Court of the Family Court of Australia in (1993) FLC at p37,530:

"The husband has paid a heavy price for his foolish attempt to remove the child from Australia in August, 1987. He was appropriately punished by the Court for that attempt, and he has paid his penalty to society in respect of it. Nevertheless, the shadow of that attempt has continued to hang over his head, and has naturally affected practically every order which this Court has subsequently made in relation to his contact with his child, whom he undoubtedly loves, and with whom he shares a good relationship. In that sense, he has continued to suffer and still continues to suffer the consequences of his foolish action. Whilst it may be right that he do so in some degree, with the passage of time and his continuous obedience of and respect for the orders of this Court we are of the opinion that the Court should attempt to ensure that the degree of that suffering is no greater than is strictly necessary to safeguard the welfare of the child. It is no part of the Court's function to maintain draconian restraints upon his freedom of action merely to pander to the wife's fears, however sincerely held, that somehow or other he may again attempt to remove the child from her custody and from the jurisdiction of this Court, when the application of all logic and commonsense indicates that those fears are, on the balance of probabilities, unjustified. In our opinion, that position has arrived in relation to the orders in question, and the time has therefore come for them to be modified sufficiently to ameliorate the degree of the husband's suffering consistent with the welfare of the child. In our opinion, the orders which we propose will achieve that."

3 The applicant is clearly academically gifted and very intelligent, and I have no doubt that the hearing and cross-examination of him before the Board, the two judgments of the minority members of the Board, what was said by members of this Court during the hearing of his application and the judgment of the Chief Justice, could not fail to have made a strong and lasting impression on him.

4 He has been employed continuously by the South Australian Public Service for ten years in responsible work, and has clearly performed creditably. I would not hold it against him that he did not tell some of his referees about his convictions for contempt and in the Magistrates Court. The references were merely proffered, as I understand it, as references to his general reputation. I have no doubt his general reputation is good.

5 In his affidavit sworn on 23 September 1997, the applicant said that he had been a member of the Australian Computer Society Incorporated since 13 February 1985. He exhibited the Society's National Regulations which he exhibited and which contain, inter alia, a Code of Ethics which reads: "4. Code of Ethics 4.1 To uphold and advance the honour, dignity and effectiveness of the profession of information technology and in keeping with high standards of competence and ethical conduct, a member must: (a) be honest, forthright and impartial, and (b) loyally serve employers, clients and the public, and (c) strive to increase the competence and prestige of the profession, and (d) use special knowledge and skill for the advancement of human welfare. 4.2 The personal commitments set out in NR4.3 and NR4.4 bind each member with regard to that member's professional conduct. 4.3 Values and Ideals I must act with professional responsibility and integrity in my dealings with clients, employers, employees, students, and the community generally. I acknowledge: 4.3.1 Priorities I must serve the interests of my clients and employers, my employees and students, and the community generally, as matters of no less priority than the interests of myself or my colleagues. 4.3.2 Competence I must work compentently and diligently for my cleints and employers. 4.3.3 Honesty I must be honest in my representations of skills, knowledge, services and products. 4.3.4 Social Implications I must strive to enhance the quality of life of those affected by my work. 4.3.5 Professional Development I must enhance my own professional development, and that of my colleagues, employees and students. 4.3.6 Information Technology Profession I must enhance the integrity of the information technology profession and the respect of its members for each other."

He deposed that he had abided by that Code of Ethics throughout the time of his membership and that his conduct as a member of the Society had never been questioned.

6 Mr Wells QC appeared as counsel for the Law Society before the Full Court. When pressed by Cox J, he said the Society neither opposed nor consented to the application being granted, but I do not recall him saying anything favourable to the applicant. I note that before the Board of Examiners, counsel then appearing for the Society, cross-examined the applicant, but when invited by the Chairman, did not address the Board. Mr Wells, in his submissions, frequently referred to the applicant's failure to demonstrate allegiance to the law. I have not come across that word in any of the cases, and personally I do not favour it. Moreover, I think one must guard against hypocrisy in this area. I imagine there would not be a legal practitioner who has not from time to time said to his client that a judge or magistrate or an appellate court has treated a party unjustly, and said it in much more offensive terms than that. It is no doubt even more common for a litigant to think that. In saying what I have just said, I wish to make it clear that I agree with what Doyle CJ has said in his reasons about the importance of a legal practitioner supporting and upholding the integrity of the system of justice.

7 If this applicant had been admitted prior to his convictions, he would no doubt have been punished by the Disciplinary Tribunal or this Court, but the punishment would not necessarily be an order striking his name from the role of practitioners. The High Court in Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 was concerned with a case involving a barrister who was sentenced to two years' imprisonment for manslaughter involving driving a motor car whilst under the influence of drink. I cite the case for the following observations: At p290, Fullagar J said:

"... the whole approach of a court to a case of personal misconduct must surely be very different from its approach to a case of professional misconduct. Generally speaking, the latter must have a much more direct bearing on the question of a man's fitness to practise than the former."

At p298, Kitto J said:

"... it cannot be that every proof which he may give of human frailty so disqualifies [a barrister]. The ends which he has to serve are lofty indeed, but it is with men and not with paragons that he is required to pursue them. It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self-respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily co-operation which the satisfactory working of the courts demands. A conviction may of its own force carry such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails. But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar; and to draw the dividing line is by no means always an easy task."

8 The Law Society now does much to help its members when they have problems. That is thoroughly admirable, and I hope that even though this applicant may not yet qualify for membership, one or more senior members of the Society might be prepared to counsel him on a regular basis during the next twelve months about legal professional standards. In my opinion, it would be most unfortunate if this well educated applicant possessing the important and comparatively rare additional qualifications in computing science, did not ultimately become a useful member of the legal profession.

PRIOR J

On the material before the Court, I am not satisfied that the applicant is a fit and proper person to be admitted now.

I am in substantial agreement with the reasons published by the Chief Justice. In particular, the applicant's lack of candour makes it inappropriate to admit him at this time. I agree that the identified obstacles to his admission are not permanent. However, I would simply refuse rather than adjourn the application. Twelve months may not be long enough for the applicant to be able to satisfy the Court of his fitness to practise.

WILLIAMS J

This applicant has not demonstrated that he is fit to be admitted as a Legal Practitioner. The evidence shows that he does not display a proper awareness of his responsibility to observe certain fundamental professional standards. In particular the applicant shows a lack of appreciation of his duty to uphold the authority of the Courts - even when he may disagree with a decision. The applicant also lacks an understanding of the need for candour in his dealings with the Court.

In the course of his application for admission the applicant disclosed some personal experiences which called for investigation. When these matters were explored before the Board of Examiners, the applicant's attitude became a cause for concern.

What then is required to enable this applicant to be admitted?

In my opinion the applicant should develop his understanding of the standards expected of a legal practitioner and the reason for these standards. He may need to seek some instruction in order to gain this insight.

After then giving himself time to reflect and with the benefit of some guidance, the applicant eventually may be able to embrace these standards as the basis for his own conduct. Hopefully, at that point, his comprehension of the reasons which presently stand in his path to admission will enable him to submit himself to further scrutiny by the Board of Examiners and to demonstrate a genuine commitment to the basic tenets of professional conduct. He may thereby be able to establish the pre-requisite for admission which he now lacks.

I would be reluctant to anticipate how long this process might take. Therefore I would refuse the present application.