Legal Practitioner v Council of the Law Society of the ACT
[2017] ACTCA 6
•2 March 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Legal Practitioner v Council of the Law Society of the ACT |
Citation: | [2017] ACTCA 6 |
Hearing Date: | 17 February 2017 |
DecisionDate: | 2 March 2017 |
Before: | Murrell CJ, Elkaim and Mossop JJ |
Decision: | 1. The appeal is dismissed. 2. The appellant is to pay the respondent’s costs of the appeal. |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – legal practitioner – misleading and deceptive conduct – appeal from an appeal against a finding of professional misconduct – whether the appellant had deliberately or recklessly misled the Magistrates Court. |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT) s 85 Legal Profession Act 2006 (ACT) s 419 Legal Profession (Solicitors) Rules 2007 (ACT) r 39.1 |
Cases Cited: | Kyle v Legal Practitioners’ Complaints Committee (1999) 21 WAR 56; [1999] WASCA 115 The Council of the Law Society of the ACT v The Legal Practitioner ‘S’ [2012] ACAT 29 The Legal Practitioner v Council of the Law Society of the ACT [2014] ACTSC 50 |
Parties: | The Legal Practitioner (Appellant) Council of the Law Society of the ACT (Respondent) |
Representation: | Counsel Mr C Erskine SC (Appellant) Mr N Beaumont SC with Ms T Power (Respondent) |
| Solicitors John O'Keefe (Appellant) Phelps Reid Lawyers (Respondent) | |
File Number: | ACTCA 12 of 2014 |
Decision under appeal: | Court: Supreme Court of the ACT Before: Refshauge J Date of Decision: 21 February 2014 Case Title: Legal Practitioner v Council of the Law Society of the ACT Citation: [2014] ACTSC 13 |
THE COURT:
The appellant was admitted as a legal practitioner of the Supreme Court of the ACT on 10 November 2006. On 16 November 2006 he was issued with a restricted practising certificate.
This appeal arises from an incident that occurred on 28 July 2008 in the Magistrates Court of the ACT. A bail application was being heard by Magistrate Doogan. A Ms V had allegedly assaulted her partner, Mr G, and had been charged accordingly. She was in custody and was seeking bail.
In the course of the bail application the appellant came into the courtroom and announced to the court that he had instructions in the matter. He did not. This caused some concern to the Magistrate who later referred the appellant’s conduct to the Law Society of the ACT which carried out an investigation.
Upon completion of the investigation, the Law Society made a complaint to the ACT Civil and Administrative Tribunal (ACAT) under s 419 of the Legal Profession Act 2006 (ACT).
In essence, the complaint was that the appellant, in suggesting to the Magistrate that he acted for Ms V, had misled the Magistrates Court and engaged in conduct that placed him in a conflict of interest position. It was further alleged that the appellant had failed to comply with r 39.1 of the Legal Profession (Solicitors) Rules 2007 (ACT). This failure was said to amount to misleading and deceptive conduct.
In addition, it was alleged that the appellant had been dishonest in the course of the investigation of the events in the Magistrates Court.
On 19 June 2009 the complaint was heard by ACAT. On 19 October 2010 the Tribunal found that the appellant had engaged in conduct that was misleading and deceptive and had breached r 39.1. Consequently, it found that he had been guilty of professional misconduct. It is noted that the Tribunal did not find every complaint established.
On 23 August 2011, ACAT recommended that the name of the appellant be removed from the ‘local roll’.
On 20 September 2011, the appellant commenced an appeal from the ACAT decision. On 22 September 2011, the President of the ACAT ordered that the appeal be removed to the Supreme Court pursuant to s 85 of the ACT Civil and Administrative Tribunal Act 2008 (ACT).
On 26 April 2012, the appeal was heard by Refshauge J. His Honour delivered judgment on 21 February 2014. He dismissed the appeal with costs. The Notice of Appeal bringing the matter to this court was filed on 20 March 2014.
The delay since the filing of the Notice of Appeal has been caused by a series of adjournments relating to the appellant’s health or proceedings in the Guardianship Tribunal.
Although the orders are not precise, it seems that this appeal was to be heard together with, or at the same time as, an appeal from a decision of Penfold J relating to a separate disciplinary issue (ACTCA 21 of 2014).
By an Application dated 14 February 2017, and supported by an affidavit of Mr John O’Keefe (solicitor), of the same date, the appellant informed the Court that the appeal in matter number ACTCA 21 of 2014 would not be pursued and that leave would be sought to amend the Notice of Appeal in this matter so as to substantially limit its scope.
Not surprisingly, the respondent did not object either to the withdrawal of the appeal from the decision of Penfold J or to the amendment of the Notice of Appeal.
A Notice of Discontinuance of ACTCA 21 of 2014 was accordingly filed on 15 February 2017 as well as a General Form of Consent Order signed by the respective solicitors for each party.
Leave was granted at the commencement of the hearing for the amendment to the Notice of Appeal.
As stated in the affidavit of Mr O’Keefe, the above changes came about following the appellant taking advice from Senior Counsel, who now appears on his behalf. This advice was clearly well taken. Even a brief perusal of the original Notice of Appeal and the Summary of Argument, filed 4 February 2015, demonstrate both a misunderstanding of the appeal process and a series of grounds of appeal doomed to failure.
As a general statement, the Court observes that where an appeal is in essence an appeal from an appeal (in this case an appeal from the decision of Refshauge J who heard an appeal from a decision of ACAT) the appellant is confined to identifying error in the decision in the court below, and is not permitted to mount a fresh attack on the decision of the original tribunal (ACAT). This is not to say of course that errors in the court below dealing with the earlier decision cannot be the subject of complaint. The errors however must be errors of the court below and not be the subject of a renewed assault on the decision of the original court or tribunal.
The Amended Notice of Appeal relates only to Ground 1 of the original complaint made against the appellant. At the commencement of his submissions, Senior Counsel for the appellant further refined the first ground of appeal so that it reads:
(a)The first ground of the complaint should have been dismissed, because there was no evidence that the Magistrates Court was misled into thinking that he had those instructions.
Assuming success on the above ground of appeal, the appellant also sought consequential orders relating to penalty and costs.
The complaint by the Law Society was:
The Society contends that the Respondent has, whilst purporting to act for Ms [V] on or about 28 July 2009, engaged in conduct which was misleading to the court, would have potentially placed the Respondent in a conflict of interest position, and, subsequently, the Respondent engaged in conduct in breach of Rule 39 of the Legal Profession (Solicitors) Rules 2007 as well as misleading and deceptive conduct.
The Society further contends that such conduct amounts to professional misconduct or unsatisfactory professional conduct, justifying an order by the Tribunal.
The particulars of Ground 1 were:
The Respondent, deliberately or recklessly, misled the court when he appeared before Magistrate Doogan on 28 July 2009 purporting to act for Ms [V] on a bail application in circumstances where he had no actual instructions from Ms [V] at the time of his appearance.
The Tribunal dealt with Ground 1 from paragraph [68] of its reasons. The Tribunal began by noting that ‘the respondent conceded that he had purported to act for V on the bail application’. The Tribunal referred to a letter written by the appellant on 18 October 2008. In this letter he states:
I note the gravamen of the matter is her Honour’s concern that I had no instructions from Ms [V]. This is incorrect I was instructed by Ms [V] in the cells prior to her appearing before Her Honour. At the time I appeared I had a signed legal aid application in my firms favour nominating me to act in the matter. I have received a grant of aid from the application of 28/07/08.
The Tribunal then noted:
The only issue in dispute was whether the respondent had been instructed by V in the court cells before the bail application.
The Tribunal then examined the evidence relevant to this issue. There is a detailed analysis of the evidence commencing at paragraph [71]. It is apparent, therefore, that the point now being taken by the appellant was not taken in the Tribunal.
The Tribunal’s analysis included the setting out of the transcript of what occurred in the Magistrates Court. Plainly the transcript is inconsistent with the above quoted portion of the letter written by the appellant. In the former he says that he has been instructed outside the court by Mr G. In the letter he says that Ms V had instructed him in the cells before the bail application. In addition, in the transcript, Ms V states that she does not have anyone representing her.
If the issue before this Court was whether or not the appellant had asserted that he had been instructed by Ms V the result would be straightforward; his letter says that he had been.
The new ground of appeal, however, raises a more subtle issue. It effectively ignores the misleading concessions made by the appellant in the above letter, and at the Tribunal, and says that if the question of the court being misled is confined to what was said in the Magistrates Court then there is no evidence that there was any misleading conduct. In other words, and somewhat unusually, the appellant asks this Court to ignore his apparent admission and to look only at what occurred before the Magistrate.
It is necessary, to understand the appellant’s argument, to look at the transcript of the Magistrates Court hearing, commencing with the appellant’s arrival in court:
[THE LEGAL PRACTITIONER]: Your Honour, I apologise.
HER HONOUR: [THE LEGAL PRACTITIONER]
[THE LEGAL PRACTITIONER]: I’ve just been instructed in regard to this matter.
HER HONOUR: What, just this instant? Because Ms ---
[THE LEGAL PRACTITIONER]: I’ve just been instructed by ---
HER HONOUR: Ms [V] said she didn’t have anyone appearing for her.
[THE LEGAL PRACTITIONER]: I’ve just been instructed outside the court by Ms [V’s] partner---
HER HONOUR: Who’s that, Mr [G]?
[THE LEGAL PRACTITIONER]: ---who is the victim of the assault.
HER HONOUR: Mr [G]. I’m not accepting instructions from somebody who comes and stands before me and says that they are instructed by the victim of an alleged assault representing the defendant.
[THE LEGAL PRACTITIONER]: No. My only instruction was to speak to the defendant.
HER HONOUR: Say no more, [THE LEGAL PRACTITIONER]. I’m proposing to grant her bail so---
MS [V]: Thanks, thanks, because I’m not a bad person.
HER HONOUR: I’ll put conditions on it. And it’s bizarre, [THE LEGAL PRACTITIONER], that you would – is that what you’re saying to me, that you’ve been instructed by – just sit for a moment.
[THE LEGAL PRACTITIONER]: Your Honour, I was ---
MS [V]: Sorry, I was ---
[THE LEGAL PRACTITIONER]: Your Honour, I was approached outside the court by the victim in the matter----
HER HONOUR: By Mr [G].
[THE LEGAL PRACTITIONER]: --- and asked if I could go downstairs and see the defendant. They were my instructions, your Honour. And it is bizarre, your Honour.
HER HONOUR: I think that’s ---
MS [V]: Yes, he needs to go to the ---
HER HONOUR: It’s unbelievable, [THE LEGAL PRACTITIONER], that you would purport to act on behalf – that you are instructed by a victim to go and speak to a defendant in a matter.
[THE LEGAL PRACTITIONER]: Your Honour.
HER HONOUR: If that’s not a serious conflict of interest ---
[THE LEGAL PRACTITIONER]: Yes, your Honour.
HER HONOUR: --- what on earth in this court is? This is a family violence matter.
[THE LEGAL PRACTITIONER]: Yes, your Honour.
MS [V]: It’s a mental case, it is.
HER HONOUR: I’ll just pretend that you didn’t even appear, [THE LEGAL PRACTITIONER].
[THE LEGAL PRACTITIONER]: Thank you, your Honour.
MS [V]: Thanks anyway for coming, but he’s very manipulative, I know that. I thought you were Legal Aid. Thanks anyway.
HER HONOUR: You’re excused, [THE LEGAL PRACTITIONER], thank you.
[THE LEGAL PRACTITIONER]: Thank you, your Honour.
The appellant initially says ‘I’ve just been instructed in regard to this matter’. The Magistrate then observes that Ms V had previously said that she was not represented. This prompts the appellant to tell the Magistrate that his instructions have come from Mr G, the victim of the alleged assault by Ms V. This information naturally concerns the Magistrate, leading the appellant to say: ‘No. My only instruction was to speak to the defendant.’
Thus far the initial statement by the appellant suggested he had been instructed by Ms V but this is later qualified by him telling the Magistrate that his instructions came from Mr G and were limited to speaking to Ms V. The qualification, says the appellant, is such that the court could not have been misled.
Further, says the appellant, the transcript is consistent with this observation by the Tribunal at paragraph [89] of its decision:
The transcript shows that the respondent did not assert, and made no attempt to assert, that he was appearing for, acted for, had instructions to act for, had spoken to or seen, V.
In a similar vein, but now in the context of a legal aid application purportedly made by the appellant in respect of Ms V, the Tribunal stated:
The transcript makes it clear that the practitioner did not appear and that he played no role in the application for bail.
The Tribunal’s findings on Ground 1 commence at paragraph [114]. The Tribunal was obviously influenced by the appellant’s failure to give evidence. The effect of the single ground of appeal is that the appellant is suggesting that the Tribunal misunderstood its task and should not have been satisfied that there was evidence indicating, or from which it could be inferred, that the Magistrate had been misled.
Thus, according to the appellant, if as a matter of fact there was no evidence that the court had been misled then Ground 1 should not have been upheld.
The appellant says that the relevant evidence is the transcript of what occurred in the Magistrates Court. It was not relevant, says the appellant, that he may have been dishonest in his responses to the Law Society during the inquiry into his conduct. What was relevant, as already noted, is what actually occurred before the Magistrate. Further, says the appellant, the Magistrate was clearly not misled. Within moments she took a view about the appellant’s presence and did not permit him to appear.
Refshauge J commenced his analysis in respect of Ground 1 at paragraph [83] of his judgment. His Honour noted that the Tribunal had seen the main issue on Ground 1 as being whether or not Ms V had instructed the appellant in the cells before the bail hearing. On this basis, His Honour could find no error in the Tribunal’s decision.
The point currently being agitated by the appellant is of course not the point dealt with by the Tribunal. This point, namely the factual question of whether the Magistrate was misled, was later dealt with by Refshauge J commencing at paragraph [155]. His Honour noted the submission by the respondent that the appellant:
... did mislead the Court, although ultimately it was not misled, as found by the ACAT.
The basis for the submission was that when the appellant initially interrupted the proceedings the Magistrate thought that the appellant was announcing his appearance. The impressions of the prosecutor, and subsequent correspondence from the appellant, were used in aid of this conclusion.
Accordingly, there was a period of time, albeit brief, when the court was misled. This court agrees with that assessment. The arrival of the solicitor in court stating: ‘I’ve just been instructed in regard to this matter’ would have immediately said to the court that the solicitor now appeared in the matter. The Magistrate, no doubt sceptical as a result of what she had been told by Ms V, embarked on an investigation of the solicitor’s assertion. The investigation was swift and incisive and soon led to the Magistrate’s conclusion that the initial assertion was without foundation. Nevertheless, until that conclusion was reached, the Magistrate, and indeed the court, had been misled.
Notably Refshauge J reached this conclusion:
172. The original announcement was misleading. It was inescapable that the court was to think that he was acting for Ms V. It was only when challenged as to the oddity of this that he changes direction and reduced it to being instructed by Mr G “only.... to speak to the defendant”. It was misleading for the ACAT found he had not been instructed by Ms V.
173. That the misleading was for a short period and, indeed, would inevitably be discovered, is not an answer to a complaint of misleading the court. See Kyle.
The reference to ‘Kyle’ is a reference to Kyle v Legal Practitioners’ Complaints Committee (1999) 21 WAR 56; [1999] WASCA 115. This decision was relied upon to make a finding of misleading conduct in the absence of an explanation by the legal practitioner.
The conclusion that the Court was misled as a matter of fact is enough to defeat the appeal. There are, however, other reasons for reaching the same conclusion.
The appellant’s approach was to give Ground 1 a limited and technical interpretation. This approach ignores the nature of the complaint that was before the Tribunal. The starting point is the recital that precedes the particulars of the complaint. This includes this paragraph:
4. Her Honour refused to accept the Respondent’s appearance on behalf of Ms [V] because of her concerns about whether the Respondent had actual instructions from the accused and, if so, whether this placed him in a conflict situation.
It is apparent from this recital, and moreover from the manner in which the whole proceedings were run before the Tribunal, that the focus of the complaint was on the conduct of the appellant. It was not on the factual issue of whether or not the Magistrates Court had actually been misled. As already observed, the Tribunal acted on the basis that: ‘The only issue in dispute was whether the respondent had been instructed by V in the court cells before the bail application’.
The present argument only arose before Refshauge J and although his Honour dealt with it, there is considerable merit in the respondent’s submission that it was not now open to the appellant to agitate this argument, it not having been run before the Tribunal.
Senior Counsel for the appellant conceded in argument that, if the point had been taken before the Tribunal, no argument of unfair prejudice could have been put by the appellant had the respondent applied to amend Ground 1 to read, for example: ‘The Respondent, deliberately or recklessly, misled the court, or attempted to mislead the court ... ’ (Underlining added to illustrate a possible amendment).
Thus, even if this Court had been satisfied that the Magistrate had not actually been misled, the appeal would have in any event faced significant difficulties in overcoming the hurdles of the true nature of the complaint and the failure of the appellant to have run the argument before the Tribunal.
There are yet other reasons why, if the appellant’s factual assertion had been found to be correct, the appeal would not have been allowed. The respondent submitted that, even if it were found that the Magistrates Court had not been misled, it nevertheless could not be said that there had been a miscarriage of justice.
The conclusion reached by the Tribunal, that the Magistrates Court ‘was not misled to any significant degree’, illustrates that the balance of the findings against the appellant were viewed as playing a substantial part in the Tribunal’s conclusions on penalty. In other words, the dishonest conduct of the appellant in his dealings with the Law Society during its investigation of the incident would have in any event led, without more, to the same finding on penalty.
To return the matter to ACAT, or to Refshauge J, would amount to a significant waste of time and costs when the same result on penalty was effectively inevitable. Further, the respondent submitted that other disciplinary matters faced by the appellant either current, or likely to soon arise, were such that the appellant has no realistic prospect of being permitted to remain on the roll of practitioners.
The appellant submitted that even if such a conclusion was reached the appellant would have been entitled to the benefit of the matter being further dealt with as an indication of the limits of the findings affecting his reputation. That is a fair point but not one that would have justified the matter being referred for further consideration where any such consideration would have produced the same penalty. The ‘adjustment’ to his reputation would have been achieved by the finding, which this court does not make, that the Magistrates Court had not been misled.
For the above reasons the following orders are made:
1. The appeal is dismissed.
2. The appellant is to pay the respondent’s costs of the appeal.
| I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Murrell CJ, Elkaim and Mossop JJ. Associate: Date: 2 March 2017 |
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