Law Society of Tasmania v Matthews
[2010] TASSC 60
•15 December 2010
[2010] TASSC 60
COURT: SUPREME COURT OF TASMANIA
CITATION: Law Society of Tasmania v Matthews [2010] TASSC 60
PARTIES: LAW SOCIETY OF TASMANIA
v
MATTHEWS, Joanne Frances
FILE NO/S: 1083/2008
DELIVERED ON: 15 December 2010
DELIVERED AT: Hobart
HEARING DATE: 30 September 2010
JUDGMENT OF: Tennent J
CATCHWORDS:
Professions and Trades – Lawyers – Professions and trades – Lawyers – Complaints and discipline – Disciplinary proceedings – Tasmania – Professional misconduct – Unprofessional conduct – What constitutes - Acts of dishonesty in personal life for financial gain – What order appropriate.
Law Society v Turner (2001) 11 Tas R 1; New South Wales Bar Association v Cummins [2001] NSWCA 284; Council of New South Wales Bar Association v Einfeld [2009] NSWCA 255; Kennedy v The Council of the Incorporated Law Institute of New South Wales (1940) 13 ALJ 563; Legal Practitioners Complaints Committee v Pepe [2009] WASC 39; Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279; in A Solicitor and Council of the Law Society of New South Wales (2003) 216 CLR 253; The Council of the Law Society of NSW v Doherty [2010] NSWCA 177, referred to.
Legal Profession Act 1993 (Tas), ss56, 80.
Aust Dig Professions and Trades [1274]
REPRESENTATION:
Counsel:
Applicant: C J Gunson
Respondent: S P Estcourt QC
Solicitors:
Applicant: Clerk Walker
Respondent: Hilliard and Associates
Judgment Number: [2010] TASSC 60
Number of paragraphs: 34
Serial No 60/2010
File No 1083/2008
LAW SOCIETY OF TASMANIA v JOANNE FRANCES MATTHEWS
REASONS FOR JUDGMENT TENNENT J
15 December 2010
On 1 December 2008, the Law Society of Tasmania ("the Society") filed an originating application pursuant to the Legal Profession Act 1993 ("the Act"), s80, by which it sought declarations that the respondent, Joanne Matthews, was guilty of professional misconduct by reference to five grounds set out in the application. The Society also sought, in the event such declarations were made, that the Court make such orders as it deemed appropriate pursuant to the legislation governing the regulation of the legal profession in Tasmania. The application came on for hearing on 30 September 2010. At the commencement of the hearing, counsel for the Society advised the Court that the Society did not pursue ground three in the application.
The evidence before the Court consisted of a statement of agreed facts, agreed documents and some documents tendered without objection by the respondent's counsel. The respondent did not read any affidavits and gave no oral evidence. The issue to be determined in this case was not so much what the respondent had done, but the way in which the behaviour should be characterised and what the appropriate order was to reflect the behaviour.
Facts
On or about 6 March 1993, the respondent married Steven Gates. During the period April 1994 to May 2001, they jointly owned two pieces of real property, and in respect of each, had a joint mortgage. The couple occupied each property as their home during the period of ownership. The couple later divorced, and, on or about 3 July 2004, the respondent married Scott Mark Bywater.
On or about 24 February 2005, the respondent and Mr Bywater entered into an unconditional contract to purchase a property at 1 Barrack St Hobart. The respondent paid the deposit of $30,000 from her savings. On or about 21 July 2005, Mr Bywater signed an application for a first home owner's grant in respect of the purchase. The respondent signed the application as Mr Bywater's spouse, declaring certain information in it to be true. In response to questions as to whether she was a person who had never owned a residential property, the respondent said that she was such a person. That declaration was clearly false. That application was handed to a representative of Wizard Home Loans who had been engaged to assist with the financing of the purchase. Offers of finance through Wizard were subsequently declined by the respondent and her husband.
On 11 August 2005, the respondent and Mr Bywater signed a second application for a first home owner's grant, this time as joint applicants. The respondent answered the same questions in the same way that she had done for the first application. The contents of this application were again clearly false. This application was given to a mortgage broker. He in fact lodged it with the relevant government authority. This application was suspended, and ultimately neither the respondent nor Mr Bywater received any grant. Had their application been successful, they would have received $7,000.
On 2 November 2006, the accused was charged with two offences arising out of the declaration she had signed on the August first home owner grant application. The first charge was that of dishonestly acquiring a financial advantage (later amended to a charge of attempting to dishonestly acquire a financial advantage), and the second was a charge of making a misleading statement in connection with an application contrary to the First Home Owner Grant Act 2000, s37(2). The respondent pleaded not guilty to the first charge and guilty to the second, although that second charge was also amended before plea. A hearing was conducted before a magistrate in respect of the first charge and the respondent was found guilty. On 15 November 2007, the magistrate convicted the respondent of the count in respect of which she was found guilty and fined her $15,000. He dismissed the second charge.
The respondent appealed against her conviction and sentence. She did not however pursue the appeal, and it was dismissed by consent on 7 April 2008. The respondent was not prosecuted in respect of the application signed in July 2005. However, she accepted that, had she been charged, the inevitable result would have been a conviction for the same offence in respect of which she was convicted on 15 November 2007.
As to the respondent's personal history, she was admitted to practice as a legal practitioner in Tasmania on 13 September 1991. She practised in this State until approximately July 1998. In September 1998, she was admitted to practise in New South Wales. She held a practicing certificate in that state for six months during which time she was employed with a firm in Sydney. The respondent was then admitted to practise in Victoria in 1999 and for the next five years held a practicing certificate in that State. On 22 October 2004, the respondent applied to renew her practicing certificate in Tasmania. Such a certificate was issued and remained in force in various forms until 31 December 2006. On 29 June 2007, the respondent advised the Society that she intended to practise as a barrister as and from 1 July 2007. She has never however applied for a barrister's practicing certificate.
On 30 November 2009, the respondent lodged a debtor's petition, which was an application that she be declared bankrupt, with Insolvency and Trustee Service Australia. She remains an undischarged bankrupt.
On 10 August 2010, the respondent gave an undertaking in writing to the Legal Profession Board of Tasmania that she would not engage in legal practice with or without a practicing certificate otherwise than with the written approval of the Board.
Grounds of application
Each ground relied on by the Society asserted that the respondent's conduct identified in the particular ground amounted to professional misconduct in that it should reasonably be regarded as disgraceful or dishonourable by legal practitioners of good repute and competency. A summary of the conduct asserted is as follows:
Ground 1the signing of the declaration on the July 2005 application for a first home owner grant knowing that answers given to questions in it were false;
Ground 2the signing of the declaration on the August 2005 application for a first home owner grant knowing that answers given to questions in it were false;
Ground 4committing the offence of and pleading guilty to the offence of "Making a false or misleading statement in connection with an application contrary to the First Home Owner Grant Act 2000, s37(2)";
Ground 5committing the crime of and being found guilty of attempting to dishonestly acquire a financial advantage.
The law
The term "professional misconduct" is defined in the Act, s56, in the following terms:
"'professional misconduct' includes conduct on the part of a practitioner which results in -
(a) a contravention or failure to comply with -
(i) any provision of this Act or any regulations, rules or by-laws made under this Act; or
(ii) any terms and conditions imposed under this Part; or
(b) fiduciary default; or
(c) any serious neglect or undue delay; or
(d) the charging of excessive fees or costs; or
(e)consistent or substantial failure to reach reasonable standards of competence and diligence;"
The term "unprofessional conduct" is also defined in the same section. That definition is in the following terms:
"'unprofessional conduct' includes –
(a)professional conduct that falls short of a standard of conduct that a member of the public is entitled to expect of a practitioner of good repute and competency; and
(b)conduct of a kind referred to in paragraphs (c), (d) and (e) of the definition of 'professional misconduct' but of a lesser degree of seriousness."
Crawford J (as he then was) in Law Society v Turner (2001) 11 Tas R 1 canvassed the nature of these definitions and matters generally to be had regard to when dealing with a complaint where professional misconduct was asserted. The head note in that report contains the following statements:
"Held:
(1)Apart from the statute's inclusory meanings, professional misconduct consisted in behaviour on the part of a legal practitioner which would reasonably be regarded as disgraceful or dishonourable by legal practitioners of good repute and competency.
In re a Solicitor [1912] 1 KB 302; Grahame v Attorney-General of Fiji [1936] 2 All ER 992; Myers v Elman [1940] AC 282; Re Thom; ex parte the Prothonotary (1963) 80 WN (NSW) 968; Re Veron; ex parte Law Society of New South Wales (1966) 84 WN (Pt1) (NSW) 136; In re Three Solicitors [1949] VLR 72; Re a Solicitor [1960] VR 617, followed.
(2) That definition was not an exhaustive one.
Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201, followed.
(3)In this State, 'unprofessional conduct' extended to conduct which might 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 who were of good repute and competency; and also to conduct falling within the descriptions in pars (a) and (b) of the definition in the Act, s 56.
Re R, A Practitioner of the Supreme Court [1927] SASR 58; Fordham v Legal Practitioners' Complaints Committee (1997) 18 WAR 467, considered.
A v Law Society of Tasmania (2001) 10 Tas R 152, not followed.
(4)In a general sense, professional misconduct should be regarded in this State as a more grave form of misconduct that unprofessional conduct."
In New South Wales Bar Association v Cummins [2001] NSWCA 284, Spigelman CJ said about professional misconduct and how it should be defined at [50]:
"It has not generally been useful or necessary to distinguish the terminology of 'professional misconduct' from other phrases such as a 'fit and proper person', 'good fame and character', 'unprofessional conduct', 'unsatisfactory professional conduct' etc. Statutory formulations differ from one jurisdiction to another. Some of the terminology, originally based on statute, has been adopted in cases decided under the inherent jurisdiction. In the exercise of this jurisdiction, it is not appropriate that the Court should indulge in the splitting of fine hairs on terminology."
Another issue arising in this case is the context in which the respondent's behaviour occurred. Spigelman CJ commented about this in Cummins case at [56] where he said:
"There is authority in favour of extending the terminology 'professional misconduct' to acts not occurring directly in the course of professional practice. That is not to say that any form of personal conduct may be regarded as professional misconduct. The authorities appear to me to suggest two kinds of relationships that justify applying the terminology in this broader way. First, acts may be sufficiently closely connected with actual practice, albeit not occurring in the course of such practice. Secondly, conduct outside the course of practice may manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice. In this second case, the terminology of 'professional misconduct' overlaps with and, usually it is not necessary to distinguish it from, the terminology of 'good fame and character' or 'fit and proper person'."
In this State and elsewhere, courts have had regard to conduct of a legal practitioner outside the scope of their practice for the purpose of determining whether that conduct amounts to professional misconduct. In Council of New South Wales Bar Association v Einfeld [2009] NSWCA 255, the respondent, a distinguished legal practitioner with 45 years experience, was found to have committed professional misconduct and removed from the Roll of Local Lawyers after making a false statement to the effect that he was not the driver of a particular vehicle that was identified as having committed a traffic offence. In their reasons, Allsop P and Giles and Hodgson JJA said at [17]:
"Quite apart from this question of public interest, here, it is important to understand, by reference to the evidence before the Court, the full context and history of the defendant's conduct in order that its seriousness be understood. The commission of an untruth in relation to a mundane and everyday event such as dealing with a speeding offence is the subject of consideration. No one is perfect. People make mistakes, including ones that involve a degree of dishonesty. Sometimes, these mistakes can be made in circumstances where they can be viewed as stupid and, perhaps, uncharacteristic; such mistakes may not, when examined in all their circumstances, reflect profoundly on the overall character of the person involved. Conversely, when placed in context what occurred may be seen as not involving mistake, but as bearing a much more serious character."
Evaluating the conduct of the respondent
Counsel for the Society submitted that I should find that the conduct of the respondent should be regarded as dishonest. Counsel for the respondent did not concede that finding should be made but made no submissions to the contrary. He directed his submissions more to the context in which the asserted dishonesty may have occurred and the appropriate penalty for the conduct.
At the time the conduct asserted to be professional misconduct occurred, the respondent had been continuously practising as a legal practitioner for about 14 years. There was no information before the Court as to the nature of the respondent's practice. I do not therefore know what the extent of the respondent's experience in civil and commercial matters was. However that lack of information is perhaps not important. The respondent, as an experienced legal practitioner in any area of the law, cannot have been unaware of the importance of reading and understanding the nature of documents to be signed. She can also not have been unaware of the need to ensure that the content of a statutory declaration was accurate.
Against that background the respondent signed two statutory declarations, a matter of weeks apart in July and August 2005, in which there was information she had to have known was false. The subject matter of the falsity is relevant. It went to the heart of the applications which the statutory declarations were supporting, in that eligibility for first home owner grants was dependent upon the applicant being a first home owner. The respondent knew very well that she did not fall into that category. Making one such false declaration might perhaps be categorized as a mistake. However repeating the same conduct a matter of weeks later takes the conduct out of the context of a possible mistake. The finding of guilt and conviction in 2007 in relation to the August 2005 declaration related to an offence, an element of which was dishonesty.
The respondent gave no evidence to explain her conduct. There is therefore nothing before this Court by way of any explanation from the respondent which might be able to be taken into account in determining, for example, the context in which her dishonesty occurred. The Court is left with the fact that the two false declarations were signed, the evidence as to the use made of them and evidence of a conviction for attempting to dishonestly acquire a financial advantage arising as a direct consequence of the signing of the August declaration. There is in my view no doubt that the respondent's conduct in signing two statutory declarations containing false statements was dishonest.
Did that dishonest conduct amount to "professional misconduct"?
Counsel for the Society submitted that concepts of dishonesty were essential to the consideration of whether a person was a fit and proper person to be held out by the Court as one of its officers. It is, he said, an inherent quality all legal practitioners should possess. As Rich J said in Kennedy v The Council of the Incorporated Law Institute of New South Wales (1940) 13 ALJ 563 at 563:
"... a charge of misconduct as relating to a solicitor need not fall within any legal definition of wrong doing. It need not amount to an offence under the law. It was enough that it amounted to grave impropriety affecting his professional character and was indicative of a failure either to understand or to practice the precepts of honesty or fair dealing in relation to the courts, his clients or the public. The particular transaction the subject of the charge must be judged as a whole and the conclusion whether it betokened unfitness to be held out by the court as a member of a profession in whom confidence could be placed, or on the other hand, although a lapse from propriety was not consistent with general professional fitness and habitual adherence to moral standards, was to be reached by a general survey of the whole transaction."
In Legal Practitioners Complaints Committee v Pepe [2009] WASC 39, the court considered an application to strike off the roll in respect of a legal practitioner who had attempted to pervert the course of justice. The court made that order but considered the role of the court in such matters. Em Heenan J at [41] referred to the decision of Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 and accepted that a conviction for a criminal offence, and even imprisonment following that conviction, was not of itself determinative of the issue of whether a legal practitioner was a fit and proper person to remain on the roll. In Ziems, a practitioner was convicted of manslaughter arising from careless driving. Em Heenan J said at [46]:
"This distinction between the stigma of the criminal conviction itself, on the one hand, and the character or fitness of a practitioner to remain on the roll, is very seldom as apparent or distinct as it was in Ziems. That was a case of manslaughter arising from careless driving, under very extenuating circumstances which reflected very little, if at all, upon the reputation and good character of the barrister. More often, as in this case, the stigma of a conviction does connote some defect in character of the offender, and the circumstances of its commission also frequently reveal that there are serious shortcomings of character. But the imperative in Ziems still requires this court to view the ultimate question of fitness to remain a practitioner, or some future prospect of re-establishing such fitness, in the perspective of all the circumstances of the particular case."
Counsel for the respondent referred to the remarks of their Honours Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ in A Solicitor and Council of the Law Society of New South Wales (2003) 216 CLR 253 at 267 where they said, also considering the matter of Ziems:
"The dividing line between personal misconduct and professional misconduct is often unclear. Professional misconduct does not simply mean conduct by a professional person. At the same time, even though conduct is not engaged in directly in the course of professional practice, it may be so connected to such practice as to amount to professional misconduct. Furthermore, even where it does not involve professional misconduct, a person's behaviour may demonstrate qualities of a kind that require a conclusion that a person is not a fit and proper person to practice."
Their Honours said further at 268:
"Professional misconduct may not necessarily require a conclusion of unfitness to practice, and removal from the roll. In that regard, it is to be remembered that fitness is to be decided at the time of the hearing. The misconduct, whether or not it amounts to professional misconduct, may have occurred years earlier. At the same time, personal misconduct, even if it does not amount to professional misconduct, may demonstrate unfitness, and require an order of removal"
Counsel for the respondent also referred to a recent decision in New South Wales, The Council of the Law Society of NSW v Doherty [2010] NSWCA 177. The practitioner in that case misappropriated some $35,000 in the course of his practice. Young JA, with whom the other members of the court agreed, said at [58] - [60]:
"58 The authorities make it clear that the mandate of the Tribunal and this Court is to protect the public and that any idea of punishment is at least secondary.
59 There are a variety of orders which can be made if a solicitor is found guilty of professional misconduct ranging from a reprimand to striking off the roll.
60 The authorities justify the proposition that an order for striking off is made when the court considers that the Law Society has established that the solicitor is 'permanently unfit to practice,' or as this Court more precisely held in Stanoevski v The Council of the Law Society of NSW [2008] NSWCA 93, he or she is likely to be unfit to practice for the indefinite future."
Counsel submitted that the respondent's conduct was isolated in nature, and formed part of a "single enduring circumstance". The evidence he submitted did not support a conclusion that the respondent was permanently unfit to practice. With respect, as to the respondent's conduct being a single enduring circumstance, I do not accept that characterization. While the two false statutory declarations were made in the course of a single conveyancing transaction, they were independent of each other, published to different people and were signed by the respondent in different capacities, that is one as the spouse of an applicant and the other as a joint applicant.
I am satisfied that the dishonesty of the respondent amounted to professional misconduct. I accept her conduct did not occur in the course of practice, in the sense that it was not conduct arising when she was dealing with clients' matters. However, even though the conduct occurred in the course of the respondent dealing with a personal matter, it was conduct clearly relevant to her role as a legal practitioner. She demonstrated a willingness to, on two separate occasions, make false declarations, with the only possible reason for them being to obtain a financial benefit for herself and her husband to which she was not entitled. If she was prepared to flout the law to that degree, how can it be said she is otherwise a person this Court can hold out as a fit and proper person to practise.
What is the appropriate order?
What in the end was the difference in approach between counsel for the Society and counsel for the respondent was that counsel for the Society urged striking off the roll while counsel for the respondent urged the Court to suspend the respondent.
The making of the false declarations occurred just over five years ago. The respondent unsuccessfully defended criminal proceedings brought against her arising from the making of the false August declaration. She was convicted and penalised in respect of one offence in November 2007, the other to which she pleaded guilty being dismissed. The respondent, while those proceedings were pending, notified the Society that she proposed to practise as a barrister from 1 July 2007. There was no evidence as to whether she had or had not practised since then as a barrister. She has not had a barrister's practicing certificate. She is an undischarged bankrupt and would therefore at the moment not be able to practice as a barrister and solicitor as a principal. An undertaking not to practice was given shortly before the hearing of this matter.
Counsel for the respondent made submissions as to orders he suggested might be appropriate. In effect, they provided for suspension until November 2012, and that the respondent undertake certain courses prior to any application for a further practicing certificate. What courses could be undertaken which were relevant to the respondent's conduct was not apparent. The proposed orders also provided for what was, in effect, an automatic entitlement to a practicing certificate, provided the period of suspension had expired and the appropriate courses were completed. Counsel submitted that the impact of such orders would be that the respondent would not be practising for a period of over seven years after her conduct, and the Society would have some control over her being able to practise even then in the form of having her complete appropriate courses. To a degree, the proposed orders would remove the capacity of the Society and this Court to determine whether the respondent was at some date in the future a fit and proper person to practise.
Counsel for the Society submitted that this was not appropriate. He submitted that there should be an obligation upon the respondent to, at any time she sought to be able to practise again, satisfy the Society and/or this Court that she was a fit and proper person in the same way that any applicant for admission or applicant for a practicing certificate, must.
In determining what order would be the most suitable for the protection of the public, the nature of the misconduct is the determinative factor. This case, in my view, can be distinguished from others where there may have been an isolated lapse in behaviour completely unrelated to a practitioner's professional role or indeed an isolated lapse in the course of professional work where an explanation for the conduct is provided which ameliorates its impact on the issue of fitness to practise. In this case, there was deliberate dishonesty on two occasions for the purpose of potential personal gain. The protection of the public requires in such circumstances that the respondent's name be removed from the roll.
The order of the Court is that the name of the respondent Joanne Frances Matthews be removed from the roll.
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