Law Society of South Australia v Le Poidevin No. Scgrg-98-1488 Judgment No. S7014
[1998] SASC 7014
•23 December 1998
THE LAW SOCIETY OF SOUTH AUSTRALIA v LE POIDEVIN
[1998] SASC 7014
Full Court: Prior, Lander and Wicks JJ
PRIOR J I agree with the reasons given by Wicks J and with the orders he proposes.
LANDER J I agree with the orders proposed by Wicks J. This practitioner has been guilty of unprofessional conduct. The first count was brought about by conduct outside his practice as a legal practitioner. He wrongly thought he had the right to remove people from property and in doing so he committed an assault for which he was imprisoned for a short time. The second and third matters related to unguarded comments made upon his trial for the first count. They are serious matters but they were said in circumstances where the practitioner’s future as a legal practitioner was at risk. He was also at risk of being convicted and having to serve a term of imprisonment. The fourth matter arose out of an inability to understand the effect of a conviction on the first matter. In that sense, they are all interrelated and may be explained, but not excused by his personal rather than his professional involvement.
He has not held a practising certificate for four years. In those circumstances suspension for a further period of two years is an appropriate order. By that time he should well understand the serious obligations which are attached to the privilege of being a legal practitioner.
I agree with the order proposed.
WICKS J These proceedings have been brought by the Law Society pursuant to s89 of the Legal Practitioners Act 1981 seeking an order that the name of the practitioner be struck off the roll of legal practitioners.
The practitioner was admitted to practice on 20 December 1976. The last practising certificate held by him expired on 31 December 1994.
This application follows proceedings before the Legal Practitioners Disciplinary Tribunal in which the practitioner was found guilty of four counts of unprofessional conduct and in which there was a recommendation that disciplinary proceedings be commenced against the practitioner in this Court pursuant to s89 of the Act.
The first count was that on 30 March 1994 at Angle Vale the practitioner committed the offences of threatening to endanger life (Criminal Law Consolidation Act 1935 s19(1)) and common assault (Criminal Law Consolidation Act s39).
The practitioner was a director and shareholder, together with his mother, of Le Poidevin Industries Pty Ltd. On 30 September 1991 that company was the registered proprietor of land at Angle Vale and at Owen. On 13 November 1991, the company was wound up by an order of this Court and a liquidator appointed.
After the issue of the summons for winding up, the practitioner lodged transfers of land for registration. The transfers were from Le Poidevin Industries Pty Ltd to Northern Australia Land & Agency Co Pty Ltd of which the practitioner and his mother were directors and shareholders. The liquidator brought proceedings in this Court for a declaration under s468 of the Corporations Law that the transfers were void. The matter came on before Perry J when a declaration that the transfers were void was made. The matter went on appeal to the Full Court but the appeal was dismissed.
In the meantime, on 30 March 1994, real estate agents engaged by the liquidator set about conducting auctions to sell the properties. At that stage, an appeal from Perry J’s order had been instituted but no stay of the order had been directed. The practitioner attended at the Angle Vale property where the auction was being conducted. He told the auctioneer (Mr Warmington) and a security guard employed by the liquidator (Mr Walker) and other persons assembled for the purposes of the auction that they were trespassing. He approached the auctioneer and a scuffle ensued in which the auctioneer was punched by the practitioner.
There was then a struggle between the security guard and the practitioner. The practitioner yelled at the group of people assembled, words to the effect of “I have a gun in the car. I will shoot anyone who stays on the land and tries to get back on it again”. As a result of these words, the practitioner was charged with the offence of threatening to endanger life. As a result of the incident referred to, he was also charged with common assault.
On 6 February 1995, the practitioner was found guilty of the offences of threatening to endanger life and common assault by a jury in the District Court. He pleaded not guilty to the charges. On 28 April 1995, he was sentenced to imprisonment for six months in respect of both counts, the sentences to be served concurrently. On appeal to this Court, the total sentence was reduced to three months. There was an application for special leave to appeal to the High Court but that was refused.
In the course of the proceedings before the Tribunal, a question arose as to whether the practitioner was acting in the course of his practice or whether he was acting in a personal capacity in connection with the commission of the two offences referred to earlier in these reasons. In the end the Tribunal became of the view that it was unnecessary to decide the question. The Tribunal said:
“What is of more significance is the fact that the practitioner, whether as a solicitor for or manager of a company, decided to intervene in what he should have known was perfectly lawful activity and, most significantly, he did so in a way which was a breach of the criminal law.”
The Tribunal found that the practitioner’s actions in committing the criminal offences as a result of his misunderstanding of applicable law and his continued refusal to acknowledge the inappropriateness and unlawfulness of his behaviour was unprofessional conduct.
“Unprofessional conduct” is not defined exhaustively in the Legal Practitioners Act 1981 (SA). The meaning of the term under the general law remains with two additions, viz illegal conduct in the course of practice and an offence of a dishonest or infamous nature in respect of which a term of imprisonment can be prescribed. The definition of “unprofessional conduct” used under the general law in disciplinary proceedings is found in In Re R, a practitioner of the Supreme Court [1927] SASR 58. At p60 the Full Court said:
“In our view ‘unprofessional conduct’ is not necessarily limited to conduct which is ‘disgraceful or dishonourable,’ in the ordinary sense of those terms. It includes, we think, conduct which may reasonably be held to violate, or to fall short of, to a substantial degree, the standard of professional conduct observed or approved of by members of the profession of good repute and competency”.
In In Re R, a practitioner of the Supreme Court, the Court was considering “professional conduct” and had in mind conduct or behaviour in the course of or in relation to practice as a legal practitioner. What of conduct or behaviour which bears no relationship to professional practice?
In Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, it was held that conduct unrelated to the practitioner’s practice would not normally be the subject matter of professional disciplinary action. In that case, Kitto J said at p299:
“If a barrister has been convicted and sentenced to imprisonment on a charge of manslaughter arising out of the death of a person in a road collision caused by the barrister’s driving of a motor car while under the influence of drink, is it a necessary conclusion from those facts that he is not a fit and proper person to be a member of the Bar?
With the greatest possible respect for those who answer that it is, I find myself unable to agree. The conviction is of an offence the seriousness of which no one could doubt. But the reason for regarding it as serious is not, I think, a reason which goes to the propriety of the barrister’s continuing a member of his profession. The conviction relates to an isolated occasion, and, considered by itself as it must be on this appeal, it does not warrant any conclusion as to the man’s general behaviour or inherent qualities.”
In my opinion, from the passage just quoted, a finding on facts which leads to an adverse conclusion as to a person’s general behaviour or inherent qualities, even though not directly related to the conduct of his practice, would amount to “unprofessional conduct” under the general law in that it has an important bearing on the person’s fitness to continue to practise. Having regard to that statement of principle, I am of the opinion that the practitioner’s proven conduct in relation to the first count did not amount to unprofessional conduct under the general law.
I turn now to the extended meaning of “unprofessional conduct” under the Legal Practitioners Act. “Unprofessional conduct” may include an illegal act of any kind committed in the course of practice. That definition is not relevant for present purposes as I am satisfied that the offences in question were unrelated to the practitioner’s practice.
The extended meaning also includes “any offence of a dishonest or infamous nature in respect of which punishment is prescribed or authorised by law” There is no question of dishonesty here. That leaves the matter of infamous conduct. In the Shorter Oxford Dictionary “infamous” is defined as “of ill fame or repute, notorious for badness of any kind; held in public disgrace, of a character or quality deserving utter reprobation”. In relation to professional discipline, the expression used is generally “infamous conduct in a professional respect”: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 and Hoile v Medical Board of SA (1960) 104 CLR 157.
In Mair v Public Accountants Registration Board (1989) 17 ALD 153, Hunt J of the New South Wales Supreme Court, reviewed the cases and came to the conclusion that “infamous” must, in the context of professional discipline, be read only as “shameful” or “disgraceful”. I propose to follow that definition of the term here. I do not think there is much doubt that engaging in an assault or threatening to shoot someone is shameful conduct if not also disgraceful conduct. In my opinion, the conduct alleged in count 1 amounts to an offence of an infamous nature. A period of imprisonment is prescribed in respect of each offence.
For the reasons given, I consider that in respect of the first count the practitioner was guilty of unprofessional conduct.
The second count was that in February 1995 during the course of the trial before Judge Lunn in the District Court of South Australia on the charges of common assault and threatening to endanger life, the practitioner scandalised this Court.
In cross-examination, the following evidence was given by the practitioner at pp201 and 202 of the transcript:
“Q...... You say the sales effected in August 1990 of the land being Angle Vale and Owen, do you accept this proposition that Perry J ruled against that proposition in October 1993?
A...... He raised some doubts. The difficulty was he wouldn’t allow some documents into evidence without me identifying them as a witness. He would not allow me to give evidence because I also appeared as counsel and because he refused to look at the documents he virtually treated them as if they didn’t exist. He simply makes up his own rules and did as he pleased, this is why there is still an appeal going on in the High Court of Australia that I haven’t given any evidence in that case.” (My italics)
The Tribunal found that the practitioner’s primary complaint with respect to Perry J was that despite the fact that he had appeared as solicitor and counsel for Le Poidevin Industries Pty Ltd before Perry J, His Honour had refused to allow him to give evidence in the matter.
The Tribunal found that the words in italics clearly scandalised the Court. It also found that in uttering the words in question, the practitioner was guilty of unprofessional conduct.
In my opinion, the finding of unprofessional conduct in relation to the second count is clearly correct.
The third count was that in February 1995 the practitioner disparaged other legal practitioners in their professional calling contrary to Rule 10.2 of the Professional Conduct Rules.
The Professional Conduct Rules do not have the force of law. They merely represent the view of the Law Society on what is proper professional behaviour in various situations. They are nevertheless a useful guide on professional standards. Conduct amounting to “unprofessional conduct” would, however, need to be judged by the standard which is set by In Re R, a practitioner of the Supreme Court and the expanded definition of “unprofessional conduct” in s5 of the Legal Practitioners Act 1981.
In the criminal proceedings in the District Court to which I have referred, the practitioner was asked whether he had received a notice of demand from Ward & Partners in September 1991 addressed to Le Poidevin Industries Pty Ltd. He conceded that he had received the notice. However, it appears that Ward & Partners had issued a summons based on the notice seeking the winding up of the company and that the practitioner had not been notified of the fact. In evidence the following passage appeared:
“Q...... Anyone [ever] notify you of their intention [to] do that by letter, wind up the company should you not pay the debt.
A...... No I don’t believe so and certainly Ward & Partners were not the firm that would send such letters. They don’t give notice of anything. They simply try to take the law into their own hands.”
Further, the practitioner was asked whether he understood that the order of Perry J dated 29 October 1993 had the practical effect of placing control of the two pieces of land at Angle Vale and at Owen into the hands of the liquidator. He replied”
“A...... I don’t believe so, as long as there is an appeal in the High Court of Australia, I don’t believe so and I had no intention of handing over possession or control of the land to anybody. I was surprised Ward & Partners would attempt to interfere with the title in the way they did. I thought that was extremely unethical and should have been waited for the appeals to be finalize[d].”
Later in giving his evidence the practitioner said that he believed Ward & Partners to be “the most unethical firm of solicitors”.
The practitioner had no basis for criticising Ward & Partners in the manner in which he did. I agree with the Tribunal’s finding of unprofessional conduct in respect of the third count.
The fourth count was that on or about 6 February 1996, the practitioner made a statement in writing under oath which statement the practitioner knew or ought to have known was false. Particulars of the charge were that on 6 February 1996, the practitioner swore an affidavit which was subsequently filed in the Supreme Court in support of his application for a practising certificate, paragraph 5 of the affidavit being untrue.
The paragraph in question was in the following terms:
“5....... That I have not practised the profession of the law without holding a practising certificate nor have I committed any other act that might constitute a proper ground for disciplinary action.”
The practitioner’s practising certificate expired in December 1994.
An affidavit in support of an application for a practising certificate was sworn on 9 August 1995. Paragraph 5 was in substantially the same terms as the paragraph set out above.
On 23 August 1995, the practitioner’s appeal to the Court of Criminal Appeal against his convictions for endangering human life and assault was dismissed.
On 7 September 1995, the Registrar of the Supreme Court wrote to the practitioner advising him that he was aware of his own knowledge that the practitioner had been found guilty in the District Court of an indictable offence. In the letter, the Registrar questioned whether full disclosure had been made in the August 1995 affidavit and requested further information pursuant to s17(1) of the Legal Practitioners Act.
The practitioner wrote to the Registrar in response to his letter of 7 September 1995. The practitioner’s letter said in part:
“With reference to the District Court of South Australia hearing you refer to please advise what offence you are referring to and what further information you require.”
By letter dated 9 November 1995, the Registrar advised the practitioner of the fact that he was referring to the convictions recorded against him in the District Court. The practitioner then swore and filed an affidavit on 6 February 1996, paragraph 5 of which I have quoted above. The paragraph in question referred to the fact that the practitioner had not practised the profession of law and had not committed any other act that might constitute a proper ground for disciplinary action.
In fact, the practitioner had been found guilty by the District Court of endangering human life and of common assault. For the reasons given earlier, the convictions in these matters constitute unprofessional conduct.
The practitioner may well have entertained a genuine belief that the convictions in question had nothing to do with his practice and that they would not constitute a proper ground for disciplinary action against him. If the practitioner genuinely entertained a belief of that kind, then in my view, the appropriate course would have been to add a further sentence or sentences to paragraph 5 setting out details of the two offences concerned and of the material circumstances. If that procedure had been followed, no one could claim to have been misled.
In its report in this matter, the Legal Practitioners Disciplinary Tribunal said:
“The four counts proved against the practitioner, together with their surrounding circumstances, are of the utmost seriousness. That conduct was exacerbated by the practitioner’s adherence to his belief in the lawfulness of his conduct.”
The Tribunal found the practitioner guilty of unprofessional conduct on each of the four counts and has recommended that disciplinary proceedings against the practitioner be commenced in this Court.
During the proceedings before the Full Court, the practitioner was asked whether he regretted assaulting the auctioneer and resorting generally to self-help rather than going through the proper channels. Despite the proceedings in the District Court and the proceedings before the Tribunal and this Court, the practitioner maintained the appropriateness of his actions and expressed any form of regret only grudgingly and after pressure from the bench to do so.
There is no doubt that the practitioner’s conduct amounted to a serious departure from a standard of behaviour acceptable for a member of an honourable profession. However, I do not think striking off is an appropriate penalty in this case. The practitioner has not been guilty of dishonesty. The conduct complained of has been largely due to his inability to control his temper in circumstances which he found to be stressful. These proceedings are a clear reminder that the practitioner must guard his tongue and watch his conduct. In this case I would suspend the right of the practitioner to practise the profession of the law for a period of two years from today’s date.
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