Law Society of South Australia v Jordan No. Scgrg-97-1339 Judgment No. S6552

[1998] SASC 6552

In the Matter of the Legal Practitioners Act 1981

THE LAW SOCIETY OF SOUTH AUSTRALIA v JORDAN
Doyle CJ (ex tempore)
The Law Society of South Australia has brought proceedings seeking an order that the name of the respondent be removed from the role of practitioners. The application invokes section 89 of the Legal Practitioners Act, 1981 and the inherent jurisdiction of the court over legal practitioners.

The Society alleges that the respondent has been guilty of unprofessional conduct warranting the making of such an order. The hearing of the application has been delayed for some months by reason of the respondent's ill health.  A manager has been appointed to manage the respondent's practise. A supervisor has been appointed in respect of the respondent's trust account.  In effect, control of the respondent's practice has been taken out of his hands.

Nevertheless, there are a number of loose ends not yet tied up.  These are referred to in Ms Watkins' affidavit of 9 February 1998.  The Law Society seeks an order suspending the respondent's right to practice pending the conclusion of these proceedings.  The respondent does not hold a current practising certificate.

On 5 February 1998 the respondent told me that he is not practising and does not intend to practise for the time being. The respondent does not oppose an order suspending his right to practise.  He told me that on 5 February 1998, and he has confirmed that in a letter exhibited to Ms Watkins' affidavit.

The effect of the order sought would be to impose a barrier to him obtaining a practising certificate should he seek one. In addition, of course, it prohibits him from practising. He is, in any event, not entitled to a practising certificate until he complies with certain audit requirements. There is authority to the effect that the court has power to make the order sought. The court so held in In re Practitioners (1980) 26 SASR 275 at 280; Mitchell J at 283; Mohr and Matheson JJ dissenting at 284.

The terms of s.89(7) may cast some doubt on the continuing application of what the court decided in that case, but pending argument on the matter I am prepared to act on the basis of that Full Court authority which, if still applicable despite the terms of section 89(7), is of course binding on me.

Assuming, as I am prepared to do for the present, that the court has the power to make the order sought, I consider that I can make the order sitting as a single judge.  In that respect I rely upon the rule 95.12 and the fact that in this particular case the practitioner does not oppose the making of the order.

As to the merits of the matter, in view of the fact that the respondent does not oppose the making of the order, I am prepared to do so.  I merely record that I have not had to decide whether such an order should be made if it were opposed by the respondent.  In broad terms, the basis for the making of the order rests on the disarray in which the practitioner's practice is, and his unfitness to practise, for the time being, for medical reasons.

Should the respondent apply to have the suspension lifted, the matter would have to be considered afresh.

Accordingly, the practitioner not opposing the order sought, I order that the right of Neville John Jordan to practise the profession of the law be suspended until further order.  The parties are at liberty to apply in relation to this order and may do so initially by application to me.

I direct that the Law Society forthwith inform the practitioner by letter of the making of this order and serve a copy of the sealed order upon the practitioner as soon as practicable.  I order that the question of the costs of this order be reserved to be dealt with at the same time as the costs of the application to remove the practitioner's name from the role.