Law Society of Tasmania v J B Walker, D B Walker, J R Hurburgh, P H T Stops, P B Walker (Deceased)

[1989] TASSC 24

Serial No 17/1989
List “A”

CITATION:Law Society of Tasmania v J B Walker, D B Walker, J R Hurburgh,

P H T Stops, P B Walker (Deceased) [1989] TASSC 24; A17/1989

PARTIES:  LAW SOCIETY OF TASMANIA
  v
  WALKER, J B
  WALKER, D B
  HURBURGH, J R
  STOPS, P H T
  WALKER, P B (Deceased)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  298/1986

299/1986
  300/1986
  301/1986
  303/1986

DELIVERED ON:  27 April 1989
JUDGMENT OF:  Green CJ

Judgment Number:  A17/1989
Number of paragraphs:  14

Serial No 17/1989

List "A"

File Nos 298/1986

299/1986
   300/1986
   301/1986
   303/1986

LAW SOCIETY OF TASMANIA v J B WALKER
LAW SOCIETY OF TASMANIA v D B WALKER
LAW SOCIETY OF TASMANIA v J R HURBURGH
LAW SOCIETY OF TASMANIA v P H T STOPS
LAW SOCIETY OF TASMANIA v P B WALKER (DECEASED)

REASONS FOR JUDGMENT  GREEN CJ

27 April 1989

1. Pursuant to s76 of the Legal Practitioners Act 1959 the Law Society of Tasmania made allegations in affidavits made on its behalf by its Executive Director, Mr C E  Clark, against each of the abovenamed respondents who are or were legal practitioners and members of a Hobart firm of solicitors. No rule or order to compel the respondents to answer the allegations was made, but the respondents answered the allegations. By consent of all parties the proceedings were treated in the same way as would proceedings in which answers lied been given in response to a rule or order. The proceedings against each respondent were separate but were, by consent, heard together. On 29 July 1987 I published reasons for judgment in which I made various findings. I was not satisfied that the respondent P H T Stops was guilty of professional misconduct and made no adverse findings against him in respect of any of the allegations made against him. Mr P B Walker died before judgment was given but I recorded that had the proceedings against him not abated my findings would have been that I was not satisfied that he was guilty of professional misconduct and that I made no adverse findings against him in respect of any of the allegations made against him.

1. I made the following findings in respect of the proceedings against the other respondents. For convenience of exposition I retain the numbering used in my reasons for judgment published on 29 July 1987:—

"2       James Robert Hurburgh

2.1I am not satisfied that the respondent was guilty of professional misconduct.

2.2That in respect of the transactions referred to in the following allegations I find that by failing to give his client the best indication he could of the rates of interest which the Savings Bank of Tasmania deposits were likely to yield, the respondent did not make as complete a disclosure to his client as his duty as a solicitor required him to make—

8(o), 8(ha), and 8(hr); 8(q), 8(hc) and 8(ht).

2.3I make no adverse findings against the respondent in respect of any of the other allegations made against him.

3        James Benson Walker

3.1I am not satisfied that the respondent was guilty of professional misconduct.

3.2That in respect of the transactions referred to in the following allegations I find that by failing to give his client the best indication he could of the rates of interest which the Savings Bank of Tasmania deposits were likely to yield, the respondent did not make as complete a disclosure to his client as his duty as a solicitor required him to make—

8(d), 8(e), 8(gp), 8(gq), 8(hg) and 8(hh); 8(f), 8(gr) and 8(hi); 8(g), 8(gs) and 8(hj); 8(h), 8(gt) and 8(hk); 8(k), 8(gw) and 8(hn); 8(m), 8(gy) and 8(hp); 8(n), 8(gz) and 8(hq).

3.3In respect of the following allegations I find that the respondent was in breach of his duty as a solicitor by withdrawing his client's funds from the trust account without authority and retaining part of the interest earned on those funds—

8(i), 8(j), 8(gu), 8(gv), 8(hl) and 8(hm).

3.4I make no adverse findings against the respondent in respect of any of the other allegations made against him.

4        David Benson Walker

4.1I am not satisfied that the respondent was guilty of professional misconduct.

4.2That in respect of the transaction referred to in the following allegations I find that by failing to give his client the best indication he could of the rates of interest which the Savings Bank of Tasmania deposits were likely to yield, the respondent did not make as complete a disclosure to his client as his duty as a solicitor required him to make—

8(a), 8(gm) and 8(hd).

4.3In respect of the following allegations I find that the respondent was in breach of his duty as a solicitor by withdrawing his client's funds from the trust account without authority and retaining part of the interest earned on those funds—

8(p), 8(hb) and 8(hs).

4.4I make no adverse findings against the respondent in respect of any of the other allegations made against him."

1. I concluded my reasons for judgment with the words:—

"If the Law Society wishes to move that some admonitory, disciplinary or punitive step should now be taken by the Court I shall hear it. If not, I shall declare that these proceedings have been finally determined."

1. The Law Society unsuccessfully appealed to the Full Court against those findings and at the request of all parties the hearing of the proceedings resumed before me on 4 April 1989. At that hearing the Law Society submitted that I ought to make an order censuring or admonishing or reprimanding the respondents against whom I made adverse findings, but did not submit that I should impose any other penalties or make any other substantive orders. The Law Society also sought orders for costs against those respondents. On the same day applications for costs were made by the representatives of P B Walker (deceased) and the other respondents.

1. The reasons for judgment which I gave on 29 July 1987 were only published to the parties. However, as those reasons and findings form an integral part of the materials to which I must have regard for the purposes of all the applications which are now before me I now publish those reasons generally. I am less inhibited about taking that step as a result of the fact that in large measure those reasons and findings have already been generally published by the Full Court.

1. In a letter to the solicitors for the respondent dated 18 August 1987 the Law Society adopted the following stance:—

   "Re:     The Law Society of Tasmania and Clark, Walker & Stops

   We refer to our telephone discussion yesterday. We now put forward our client's proposals with precision.

   Our client proposes that neither party return to His Honour for the making of any orders upon the following basis.

   1That the firm accepts the authority of the Society's memorandum of 20th June, 1986, referred to at page 35 of the Judgment.

   2That the firm undertakes that henceforth it will account to its clients for all interest earned upon clients' funds and received by the firm.

   3That the firm pay its own costs and pays $20,000.00 towards our client's costs."

   The Full Court held that the attitude of the Law Society, although not decisive, is capable of being relevant to the evaluation of the seriousness of the respondents' conduct and prima facie therefore the contents of that letter are capable of being relevant to the determination of what orders I should now make. However I have reached the conclusion that in the absence of evidence I should not regard that letter as anything more than an expression of a negotiating position taken by the Society and that I would not be justified in regarding it as a considered expression of the Society's view of the gravity of the respondents' conduct.

1. I accept the respondents' submissions that the considerations set out on pp36 and 37 of my reasons which especially influenced my determination of whether the respondents' conduct could be characterised as professional misconduct are also relevant to my determination of what course I should now take. I also take into account the matters referred to by the members of the Full Court when they were considering how the respondents' conduct should be characterised. I also take into account that the amounts involved were relatively small, that the respondents have otherwise had impeccable professional careers and that these prolonged and complicated proceedings have already imposed a heavy personal burden on the respondents. I also take into account that these proceedings will have indirectly involved them in financial loss as a result of the time they have had to devote to them and that as will appear later in these reasons they will be required to pay some costs.

1. However, whilst giving full weight to those considerations and to the other matters which have been put to me, I must also keep steadily in mind that in breach of their duty as solicitors the respondents J B Walker and D B Walker were instrumental in the firm gaining a benefit from the use of clients' monies and that they and J R Hurburgh failed to deal with their clients with the complete candour which should characterise the dealings of legal practitioners with their clients. I have reached the conclusion that the court's responsibility to the public and to the profession requires it to formally express its disapprobation of those breaches of duty.

1. I turn to the question of costs. The allegations made against the respondents fell into groups. The Law Society completely failed to sustain some groups of allegations, whilst in respect of others the above orders were made.

1. In my view the following observations made by Bray CJ in In re a Practitioner (1975) 12 SASR 166 at p173, in a judgment concurred in by the other members of the court, are applicable to the circumstances of the case before me:–

"I quite agree that if several separate and unrelated charges are made against a practitioner before the Statutory Committee and some succeed and others fail he ought not to be saddled With the costs of those that failed and, in a proper case, should indeed receive his own costs in relation to those charges against his accuser;"

1. It is plain that P H T Stops and the representatives of P B Walker (deceased) should have their costs. In case some procedural step is necessary to give effect to the order in respect of the costs of P B Walker (deceased) I shall reserve liberty to apply as to it. I turn to the question of costs insofar as it relates to the other three respondents.

1. Counsel for the Law Society submits that approximately one third of the hearing should be regarded as being attributable to the determination of the matters found proved, whereas counsel for the respondents submits that it was less than one fifth. Both counsel have invited me to adopt a broad brush approach rather than delegating the determination of the issue to an officer of the court or attempting a minute analysis myself.

1. I have refreshed my memory from he transcript as to the evidence and submissions at the hearing and based upon my own broad appreciation of the time and effort which had to be devoted to the various groups of allegations and bearing in mind that the Law Society wholly failed to sustain its primary allegation that the respondents were guilty of professional misconduct, in the exercise of my discretion I have concluded that the respondents should pay the Law Society 25% of its costs and that the Law Society should pay the respondents 75% of their costs.

1. I make the following orders and declarations:—

1Pursuant to O.1 r.22 of the Civil Process Rules I adjourn these proceedings into court.

2The Court declares its disapprobation of the conduct of James Robert Hurburgh, James Benson Walker and David Benson Walker referred to in paras. 2.2, 3.2 and 4.2 of my findings respectively.

3The Court declares its strong disapprobation of the conduct of James Benson Walker and David Benson Walker referred to in paras. 3.3 and 4.3 of my findings respectively.

4Order that the Law Society of Tasmania pay the costs of P H T Stops and P B Walker (deceased).

5Liberty to apply reserved in respect of the order made in respect of the costs of P B Walker (deceased).

6Order that the Law Society of Tasmania pay 75% of the costs of J R Hurburgh, J B Walker and D B Walker.

7Order that J R Hurburgh, J B Walker and D B Walker pay 25% of the costs of the Law Society of Tasmania.

8        Insofar as these proceedings were in chambers I certify for counsel.