IN THE MATTER OF The Legal Practitioners Act 1970 AND IN THE MATTER OF An Application by THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY in relation to the conduct of JOHN WILLIAM GATES

[2006] ACTSC 126

IN THE MATTER OF The Legal Practitioners Act 1970
AND IN THE MATTER OF An Application by THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY in relation to the conduct of JOHN WILLIAM GATES
[2006] ACTSC 126 (19 May 2006)

PROFESSIONAL MISCONDUCT – Persistent and egregious misconduct in regard to trust accounts – respondent’s right to practice in Australian Capital Territory suspended.

EX TEMPORE JUDGMENT

No. SC 902 of 2005

Judges:  Higgins CJ, Crispin and Connolly JJ
Supreme Court of the ACT
Date:  19 May 2006

IN THE SUPREME COURT OF THE  )
  )  No. SC 902 of 2005
AUSTRALIAN CAPITAL TERRITORY  )

In the matter of The Legal Practitioners Act 1970

And in the matter of an application by

THE LAW SOCIETY OF THE AUSTRALIAN

CAPITAL TERRITORY in relation to the conduct

of JOHN WILLIAM GATES

ORDER

Judges:  Higgins CJ, Crispin and Connolly JJ
Date:  19 May 2006
Place:  Canberra

THE COURT ORDERS THAT:

1. The respondent, John William Gates, is found guilty of professional misconduct.

1. The respondent’s right to practice be suspended for 12 months and thereafter until such time as he has paid the applicant’s costs in these proceedings on a solicitor/client basis.

1. That the respondent not apply for, and the applicant is directed not to issue to the respondent, an unrestricted practicing certificate without prior leave of the Court.

1. That the non-publication order over the respondent now be lifted.

IN THE SUPREME COURT OF THE  )   
  )  No. SC 902 of 2005
AUSTRALIAN CAPITAL TERRITORY  )

In the matter of The Legal Practitioners Act 1970

And in the matter of an application by

THE LAW SOCIETY OF THE AUSTRALIAN

CAPITAL TERRITORY in relation to the conduct

of JOHN WILLIAM GATES

Judges:  Higgins CJ, Crispin and Connolly JJ
Date:  19 May 2006
Place:  Canberra

REASONS FOR JUDGMENT

HIGGINS CJ:

1. In this matter we propose to proceed with ex tempore reasons, necessarily brief in the circumstances.  I note that the grounds of complaint in this matter are supported by affidavit evidence.  The allegations are admitted.  I note in that context that ground 1G is not pressed.  The admissions indicate a persistent and egregious failure to comply with trust account regulations, and, more importantly, to properly deal with trust account funds.  This failure, in my opinion, was both wilful and serious as well as being persistent.  That finding follows from the admissions the solicitor has made.

1. In mitigation, it is clear that the solicitor had suffered ill health.  He is generally of good character.  He has displayed competence in the performance of legal work.  I note expressly that there was no defalcation, dishonesty or failure to advance his client’s interests which has been alleged.  Indeed, the solicitor has been candid and forthcoming concerning his shortcomings. 

1. In those circumstances, I propose that there be a declaration that the solicitor has been guilty of professional misconduct, that the respondent’s right to practise in the ACT be suspended for a period of 12 months, and thereafter until such time as the respondent has paid the costs of these proceedings as taxed or agreed.  Secondly, that on and from the conclusion of the period of suspension, the respondent be prohibited from applying for - and the Law Society is directed not to issue - an unrestricted practising certificate to the respondent without the prior leave of the court.  And there is a further order that the respondent pay the applicant’s costs of and incidental to these proceedings. Such costs will be taxed if not agreed.  I propose those declarations and orders. 

1. MR LINDSAY:  There are two matters that arise. We would seek an order for the cost to be paid on a solicitor and client basis, which we understand to be the usual basis.  That’s the first thing. The second thing is I understand that there was a non-publication order at an earlier stage and - - -

1. HIGGINS CJ:  There was.

1. MR LINDSAY:  - - - we would ask that be left in - - -

1. HIGGINS CJ:  I don’t know that it’s necessary. I think it expires once an adverse finding is made.

1. MR LINDSAY:  That may be so. I don’t have access to the terms of the order, but - -

1. HIGGINS CJ:  It’s not the terms of the order; I think it’s the terms of the Act. In any event, yes, it may be noted that the non-publication order would, on the making of these findings and the pronunciation of these orders, be thereby discharged.

1. MR GILLIES: Could your Honour just briefly hear me on the issue of costs?

1. HIGGINS CJ:  Yes.

1. MR GILLIES: Mention has been made that the usual order in cases like this is an order on the basis of solicitor/client costs, and that’s borne out by a perusal of the authorities. I draw to the attention of your Honours that these proceedings are in essence designed to attain or achieve justice, the regulation of legal practitioners at one end, and that is the efficient and timely provision of justice. Party/party costs are costs which are necessary and proper to attain justice. Solicitor/client costs are costs which are defined as reasonable costs of a reasonable amount. There’s a difference between the two types of costs.

1. I would submit, your Honours, in the context of this case, bearing in mind the protective jurisdiction that is being exercised, that the appropriate costs order is a party/party costs order, that is a costs order which reflects work that is designed to attain justice from the solicitor/client order. I appreciate that there’s a long history to the making of solicitor/client orders in these matters, though I draw your attention that these proceedings are special proceedings which were designed to - for want of a better expression - attain a measure of justice. Please the court.

1. HIGGINS CJ: Yes, well as far as the basis of the order for the costs is concerned, we’re agreed that the order should be made on a solicitor/client basis. Briefly, while it is true that the ordinary rule in other kinds of proceedings is that costs are ordered on a party and party basis, in cases of this kind it is not appropriate that those solicitors who have complied with trust account regulations and other strictures as to their conduct should be called upon to pay, effectively, for Mr Gate’s misconduct.

1. As I say, I would propose that the order be on a solicitor/client basis, to which I understand my colleagues agree, but I’ll now invite Crispin J to add any remarks that he wishes to make.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour Chief Justice Higgins.

Associate:
Date: 19 May 2006

IN THE SUPREME COURT OF THE  )   
  )  No. SC 902 of 2005
AUSTRALIAN CAPITAL TERRITORY  )

In the matter of The Legal Practitioners Act 1970

And in the matter of an application by

THE LAW SOCIETY OF THE AUSTRALIAN

CAPITAL TERRITORY in relation to the conduct

of JOHN WILLIAM GATES

Judges:  Higgins CJ, Crispin and Connolly JJ
Date:  19 May 2006
Place:  Canberra

REASONS FOR JUDGMENT

CRISPIN J:

1. I agree with all of the orders proposed by the Chief Justice. I also agree with his Honour’s reasons for those orders and add nothing to that.

I certify that the preceding paragraph numbered sixteen (16) is a true copy of the Reasons for Judgment herein of his Honour Justice Crispin.

Associate:

Date: 19 May 2006

IN THE SUPREME COURT OF THE  )   
  )  No. SC 902 of 2005
AUSTRALIAN CAPITAL TERRITORY  )

In the matter of The Legal Practitioners Act 1970

And in the matter of an application by

THE LAW SOCIETY OF THE AUSTRALIAN

CAPITAL TERRITORY in relation to the conduct

of JOHN WILLIAM GATES

Judges:  Higgins CJ, Crispin and Connolly JJ
Date:  19 May 2006
Place:  Canberra

REASONS FOR JUDGMENT

CONNOLLY J:

1. I also agree with his Honour’s reasons and the formal orders proposed.

1. HIGGINS CJ:  In that case, the court orders by declaration that the solicitor has been guilty of professional misconduct. Further orders that the solicitor’s right to practise in the ACT be suspended for a period of 12 months until such time as the solicitor has paid the costs of these proceedings as taxed or agreed; that on and from the conclusion of the period of suspension the solicitor be prohibited from applying for, and the Law Society is directed not to issue, an unrestricted practising certificate without prior leave of the court. The solicitor is to pay the applicant’s costs of and incidental to these proceedings to be taxed if not agreed on a solicitor/client basis.  And I note that the order prohibiting the publication of the solicitor’s name is, by virtue of those orders, now suspended. I now terminate it.

1. MR LINDSAY:  May it please the court, thank you.

1. HIGGINS CJ:  Anything further?  Court will now adjourn.

I certify that the preceding paragraphs numbered seventeen (17) to twenty (20) are a true copy of the Reasons for Judgment herein of his Honour Justice Connolly.

Associate:

Date: 19 May 2006

Counsel for the Applicant:  Mr G C Lindsay SC
Solicitor for the Applicant:  Phelps Reid
Counsel for the Respondent:  Mr J Gillies
Solicitor for the Respondent:  Ken Cush & Associates
Date of hearing:  19 May 2006
Date of judgment:  19 May 2006