Law Society of South Australia v Trueman No. Scgrg-00-967

[2000] SASC 359

[2000] SASC 359

THE LAW SOCIETY OF SOUTH AUSTRALIA v SCOTT MALCOLM TRUEMAN

Civil (Ex Tempore)

1................ LANDER J....... This is an application, by way of Notice of Motion, dated 10 October 2000 in which the Law Society of South Australia is applicant and a legal practitioner is respondent whereby the Law Society seeks, pursuant to s 89A of the Legal Practitioners Act 1981 (the Act) that the legal practitioner’s practising certificate be suspended until further order.

1. The Law Society has also sought, in the alternative, in the exercise of the inherent jurisdiction of this Court that the legal practitioner’s right to practise the law be suspended until further order.  Various consequential orders are sought in the Notice of Motion.  This morning, Mr Hugh Abbott, who appeared for the Law Society also sought an order that the legal practitioner deliver up his practising certificate to the court.

2. The proceedings have been brought both under the inherent jurisdiction of the court and pursuant to s 89A of the Act. That section provides that if disciplinary proceedings have been instituted against a legal practitioner before the Legal Practitioner’s Disciplinary Tribunal (the Tribunal), and the Supreme Court is satisfied that the circumstances are such to justify invoking the provisions of the section, the Supreme Court may, of its own motion or on the application of the Legal Practitioners Conduct Board (the Board), the Attorney-General or the Law Society, make an interim order suspending the legal practitioner’s practising certificate until disciplinary proceedings against the practitioner have been finalised, or until further order.

3. Clearly enough that section provides for an interlocutory order where a legal practitioner is subject to an inquiry by the Tribunal.

4. I should first say something about the procedure adopted by the Law Society. In my opinion, this matter should not have been commenced by way of Notice of Motion. The Act does not require proceedings of this kind to be commenced by way of Notice of Motion. In my opinion r 66 of the Supreme Court Rules does not apply. The proceedings should have been commenced by way of summons and in those circumstances the procedure would have been regulated by r 7.02 which provides that:

   “A summons under these Rules shall be deemed to be, and treated as, a writ, motion, petition, originating summons or any other form of originating process which is referred to in any Statute or statutory instrument.”

5. The summons should have been an inter partes summons pursuant to r 7.04 and should have been served upon the practitioner. However, Mr Barrett QC, who has appeared for the practitioner, has taken no objection to the procedure which had been adopted and, indeed, has indicated that he would consent to the court making the necessary orders to regularise the procedure which has been adopted.

6. I make an order pursuant to r 3.04(a) dispensing with compliance with the Rules in so far as the Law Society has not commenced these proceedings by way of summons under r 7 of the Supreme Court Rules and I make an order validating the procedure which has been adopted by the Law Society in purporting to commence these proceedings by way of Notice of Motion: r 3.04(c).

7. On 26 August 2000 the Council of the Law Society resolved to appoint Ms Susan Remfrey Bishop as the supervisor of the practitioner’s trust account.  It did so in circumstances where the Council believed that there were reasonable grounds to suspect that the practitioner was not attending properly to the affairs of his practice, and a serious irregularity had occurred in the course of practice. On 27 September 2000 the Council of the Law Society resolved to appoint Ms Bishop as manager of the practice of the practitioner pursuant to s 45 of the Act on the grounds that he was not attending properly or was unable to attend properly to the affairs of his practice, and had committed a serious irregularity or irregularities in the course of practice, or a serious irregularity had occurred in the course of practice.

8. The intention of s 44 of the Act is to give the supervisor full control over the trust account of the legal practitioner, the subject of the order. The intention of s 45 of the Act is that the manager will act in the practice to the exclusion of the practitioner. That in my opinion is clear from the provisions of s 45(3)(c), and s 45(4) of the Act.

9. The practitioner has been charged on two separate charges with a number of counts of unprofessional conduct. The first charge relates to a number of clients over a period between April 1995 and September 1999. Broadly the complaints against the practitioner are that he delayed, failed to communicate with his clients, and failed to comply with statutory notices. The second charge relates to the period 1999 and to the year 2000 and the complaints are that the practitioner delayed, failed to comply with the instructions of his clients, and failed to communicate with those clients.

10. Those matters are presently before the Tribunal. Since the matters have been brought to the attention of the Tribunal further complaints have been made. The Law Society asked the Board to make an application to this Court for the suspension of the legal practitioner’s practising certificate, but the Board refused. In those circumstances the Law Society itself has sought an order under s 89A of the Act. Ms Bishop has filed two affidavits in which she has deposed that to her knowledge the practitioner is still acting for clients and, in acting, is failing to comply with instructions. She says that the practitioner is acting in a class action which involves some 1000 clients. She says that various clients have been approached by the solicitor since her appointment as manager. She complains that the practitioner will not co-operate with her. She has also exhibited to her affidavit the evidence of a medical practitioner which discloses medical treatment which the practitioner is presently undergoing.

11. In her second affidavit which was filed only yesterday she has deposed to the legal practitioner continuing to act for clients and meddling in the affairs of the practice and thereby frustrating her role as manager.

12. Of course the jurisdiction to make an order under s 89A is not so much enlivened by the frustration occasioned to a manager in the carrying out of her duties under s 45 of the Act, but by the fact that disciplinary proceedings have been instituted against a practitioner, and that there are circumstances such to justify invoking the provisions of the section.

13. However it is not irrelevant for the court to have regard to the legal practitioner’s conduct in relation to the manager’s duties under s 45. In the end result of course, the jurisdiction under s 89A will be exercised by this Court, if the Court believes that it is in the interest of the practitioner’s clients so to act. There can be no doubt that the paramount interests which must be considered, in any application under s 89A, are those of the practitioner’s clients. The practitioner’s own interests cannot be disregarded of course, but those interests must in the end be subordinate to the interests of the practitioner’s clients.

14. In my opinion, the Law Society has demonstrated that this Court ought to exercise the jurisdiction given to the court under s 89A. Indeed Mr Barrett conceded that in the circumstances of this case, an order suspending the practising certificate of the practitioner should be made.

15. There remains one further matter to be considered before any order can be made, and that is whether or not a single Judge has jurisdiction to make such an order. A number of sections of the Act refers to this Court in relation to the supervision of legal practitioners. Section 86 of the Act provides for a right of appeal to this Court, against a decision of Tribunal made in the exercise or purported exercise of powers or functions under the Act.  Section 87 provides that this Court may suspend the operation of an order made by the Tribunal until the determination of an appeal under s 86.  Section 89 provides for proceedings before the Supreme Court where the Tribunal, after conducting an inquiry into the conduct of a legal practitioner, has recommended that disciplinary proceedings be commenced against the legal practitioner in this Court.

16. The Act does not include any definition of Supreme Court and specifically, it does not define the Supreme Court to be the Full Court of the Supreme Court. Section 48 of the Supreme Court Act 1935 provides:

    “Subject to any express enactment, and to the rules of court, the jurisdiction vested in, or exercisable by the court, shall be exercisable either by the Full Court or by a single judge sitting in court.”

17. The section then provides for circumstances where the Full Court must exercise the jurisdiction of the court. The particular circumstances to which s 48 refers, where the Full Court must exercise the jurisdiction of the court, do not include applications of this kind.

18. Therefore on the face of it, the jurisdiction vested in the court, may be exercised either by the Full Court or by a single Judge sitting in court, unless there is an express enactment or the rules of court otherwise provide. The rules of court are silent in respect of this matter, so the question has to be answered by reference to the Act itself. There is nothing in either s 86 or s 87, in my opinion, which would indicate that the jurisdiction given to the Supreme Court must be exercised by the Full Court.

19. There are hints, in my opinion, in s 89, which suggest that the jurisdiction, which is to be exercised pursuant to that section should be exercised by the Full Court.

20. Section 89(4) provides:

    “In any disciplinary proceedings the Supreme Court may refer any matter to a Judge or Master, or to the Tribunal for investigation or report.”

21. Section 89(5)(a) provides that:

    “The Supreme Court may, without further inquiry, accept and act on any findings of the Tribunal or of a Judge or Master to whom the matter has been referred for investigation and report under subsection (4).”

22. If the jurisdiction could be exercised by a single Judge, one would not have thought that it would be necessary to include the power to refer the matter to a judge, because if the judge was exercising a jurisdiction given to him or her, no referral would be necessary.  It may, therefore, be that the jurisdiction to determine disciplinary proceedings must be exercised by the Full Court.

23. That would not be surprising.  The power given to the Court, if unprofessional conduct is established, includes the power to strike the name of the legal practitioner off the roll.

24. However the jurisdiction which I have been asked to exercise this morning, is the jurisdiction under s 89A. There is nothing in s 89A, in my opinion, which suggests that the jurisdiction must be exercised by the Full Court. Indeed, s 89A provides for an interlocutory procedure as it were, to suspend a legal practitioner’s practising certificate until disciplinary proceedings against the practitioner have been finalised, or until further order. It being in the nature of an interlocutory order to protect a legal practitioner’s client it might be expected that the jurisdiction would be exercised by a single Judge. In this State the Full Court does not sit continuously and is not thereby always available to hear an application of this kind which might have to be made as a matter of urgency.

25. Even if the ultimate jurisdiction, if I can describe the jurisdiction under s 89 that way, must be exercised by the Full Court, there is jurisdiction under s 89A for a single Judge to make the orders there sought. In other words, in my opinion, there is nothing in the Act, and in particular in s 89A, which would mean that the jurisdiction of the court must be exercised by the Full Court. I am therefore prepared to make the order provided for in s 89A(d), suspending the legal practitioner’s practising certificate until further order.

26. Mr Abbott also asked me to make an order suspending the practitioner’s right to practise. He submitted that if the second order was not made, it might mean that the legal practitioner could, on 1 January 2001, apply for a new practising certificate.  If I suspend the legal practitioner’s practising certificate, the legal practitioner cannot practise during the period of the suspension. If he does practise during the period of suspension, he will commit an offence under s 22 of the Act.

27. Section 16 provides:

    “Where a legal practitioner who has been admitted and enrolled as a barrister and solicitor of the Supreme Court (not being a legal practitioner who has been suspended from practice) applies to the Supreme Court for a practising certificate, the Court will, subject to this Act, issue a practising certificate in the practitioner’s name.”

28. In my opinion, the words in parentheses mean not being a legal practitioner who has been suspended under either s 89 or s 89A. If it were otherwise the power to suspend until further order in s 89A could have no effect. I do not think that there is anything in the words of s 16 which would suggest that a legal practitioner who has been subjected to an order under s 89A suspending his practising certificate, could apply during the period of suspension for a practising certificate. I do not think there is any need to make any order suspending the practitioner’s right to practice if I make an order suspending the practitioner’s practising certificate until further order.

29. The third order that was sought this morning was that the legal practitioner deliver up to either the applicant or to the Court his practising certificate.  No notice of that application had been made to the practitioner and Mr Barrett was not in a position to consent to that order. In the circumstances I am not prepared to make that order.

30. The further order that I make therefore will be that pursuant to s 89A of the Act, the practitioner’s practising certificate will be suspended until further order.

31. I will make an order under s 69A of the Evidence Act 1929 suppressing from publication, Exhibit SRB14, exhibited to the affidavit of Susan Remfrey Bishop sworn on 18 October until further order.