Legal Practitioner v Council of the Law Society of the Australian Capital Territory - [2011] ACTSC 110

THE LEGAL PRACTITIONER v COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY [2011] ACTSC 110 (1 July 2011)

LEGAL PRACTITIONERS – appeal de novo from decision of the Council of the Law Society of the ACT – refusal to renew practising certificate – whether the practitioner is a fit and proper person to continue to hold restricted practising certificate – fundamental obligation of legal practitioner to act in accordance with, and not contrary to, instructions –proper administration of justice requires courts to be able to rely on integrity of legal practitioners – power to refuse to renew practising certificate is for protection of public – appeal dismissed.

ACT Civil and Administrative TribunalAct 2008 (ACT), ss 79, 86
Legal Profession Act 2006 (ACT), ss 3, 11, 11(1)(a), 11(1)(f), 26, 36(2), 36(2)(f), 44, 44(4)(b), 56, 81, 81(1)(a), 386, 387(1), 387(2), 389(a), 394, 412, 413, 416, 419, 419(1), 419(3), 423A, 425, 425(3), 425(3)(a), 425(3)(b), 431(3), Pts 4.2, 4.4, 4.5, 4.6, 4.7, Dictionary
Legal Profession Act 1970 (ACT), s 129
Legislation Act 2001 (ACT), s 104, Dictionary
Supreme Court Act 1934 (ACT), ss 11, 11(2), 11(3)
Legal Profession (Solicitor) Rules 2007 (ACT), rr 1.1, 1.2, 31.1(b), 39.1

Legal Profession Act 1987 (NSW), s 37(1)

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
Council of the New South Wales Bar Association v Slowgrove [2009] NSWADT 150
New South Wales Bar Association v Murphy (2002) 55 NSWLR 23
Re A Solicitor (1992) 107 FLR 389
The Council of the Law Society of the Australian Capital Territory & The Legal Practitioner (Occupational Discipline) [2010] ACAT 73
Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669

ON APPEAL FROM THE COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 44 of 2009

Judge: Penfold, North JJ and Mathews AJ
Full Court of the Supreme Court of the ACT

Date: 1 July 2011

IN THE FULL COURT OF THE              )          No. SCA 44 of 2009
  )
SUPREME COURT OF THE  )
  )

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE LEGAL
PRACTITIONER
Appellant

AND:COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY
Respondent

ORDER

Judge:  Penfold, North JJ and Mathews AJ
Date:  1 July 2011
Place:  Canberra

THE COURT ORDERED THAT:

The appeal be dismissed.

The appellant pay the respondent’s costs of the appeal.

IN THE FULL COURT OF THE              )          No. SCA 44 of 2009
  )
SUPREME COURT OF THE  )
  )

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE LEGAL
PRACTITIONER
Appellant

AND:COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY
Respondent

Judge:  Penfold, North JJ and Mathews AJ
Date:  1 July 2011
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

Introduction

Before the Court is an appeal instituted by a legal practitioner (the appellant) on 22 June 2010, against a decision made on 3 June 2010 by the respondent, the Council of the Law Society of the ACT (the Law Society Council). The Law Society Council came to the view that the appellant was not a fit and proper person to continue to hold a restricted practising certificate. It therefore determined that the appellant’s restricted practising certificate not be renewed for the 2010-2011 year.

At the conclusion of the hearing of the appeal the Court announced that the appeal would be dismissed and that reasons for judgment would be published later. These are those reasons.

Regulation of the legal profession

Under provisions set out in the Legal Profession Act 2006 (ACT) (the Legal Profession Act), the ACT Civil and Administrative TribunalAct 2008 (ACT) (the ACAT Act) and the Supreme Court Act 1934 (ACT), the responsibility for regulating the legal profession in the ACT is divided among several bodies.

Specific provisions will be dealt with later in this judgment, but the relevant arrangements can be summarised as follows.

Admission

The Supreme Court (generally a Full Court) admits people as lawyers (Legal Profession Act, s 26, and Supreme Court Act, s 11).

Practising certificates

Under the Legal Profession Act, the licensing body (being the Law Society Council) has the power to grant and renew practising certificates and to refuse such grants (s 44). It also has the power to amend, suspend or cancel practising certificates (s 56). Decisions of the licensing body to refuse to grant or renew a practising certificate, or to amend, suspend or cancel a practising certificate, may be appealed to a Full Court of the Supreme Court (Legal Profession Act, s 81 and Supreme Court Act, s 11(2)).

Complaints and disciplinary proceedings

Under the Legal Profession Act, complaints about legal practitioners may be made to the “relevant council” (s 394). The relevant council may dismiss the complaint (s 412), deal with it in a summary way (s 413), or apply to the ACT Civil and Administrative Tribunal established under the ACAT Act (see Legislation Act 2001 (ACT), Dictionary) (the Tribunal) for an order in relation to the complaint (s 419). A decision to dismiss a complaint or deal with it summarily may be appealed to the Tribunal by the complainant or the legal practitioner respectively (s 416). If the Tribunal finds the practitioner guilty of unsatisfactory professional conduct or professional misconduct, it may recommend that the practitioner’s name be removed from the local roll, or suspend, cancel or otherwise restrict the practitioner’s local practising certificate, or reprimand the practitioner (s 425). Tribunal decisions may be appealed internally (ACAT Act, s 79) or to the Supreme Court (ACAT Act, s 86).

Removal from the roll

A recommendation by the Tribunal to remove a practitioner’s name from the roll is dealt with by a Full Court of the Supreme Court (Supreme Court Act, s 11(3)).

Multiple roles in regulation of the legal profession

Thus, in relation to a practitioner, the Law Society Council may be at the same time a party to disciplinary proceedings in the Tribunal, and a decision-maker in relation to the practitioner’s practising certificate. The Supreme Court may have in its lists an appeal against a refusal to renew a practitioner’s practising certificate, appeals against Tribunal decisions in disciplinary proceedings against the practitioner, and a recommendation to remove the practitioner’s name from the roll, all arising out of the same circumstances. That is the situation in this matter.

Proceedings involving the appellant

The current proceedings involve an appeal against a refusal to renew a practising certificate. Some of the other matters in the Supreme Court’s lists are, however, relevant in the current proceedings.

Proceedings concerning the appellant have been running since at least 2008. Some proceedings have arisen out of complaints made to the Law Society about the appellant. Three of those complaints were the subject of Law Society Council applications to the Tribunal, and in three of them the Tribunal has made findings adverse to the appellant. In two of them the Tribunal has imposed sanctions, being an order that the practitioner’s practising certificate be cancelled and a recommendation that the practitioner’s name be removed from the ACT roll of practitioners, and the appellant has appealed to the Supreme Court; in the third matter the Tribunal is apparently awaiting the outcome of those appeals, and this appeal, before deciding on a sanction. Other complaints are still making their way through the Law Society and Tribunal processes.

The matter before this Court arises out of the exercise by the Law Society Council of its power to refuse to renew a practising certificate, which decision has made in reliance on the material that has emerged, and the decisions that have been made, in relation to the complaints mentioned above.

Suppression of names

Section 423A of the Legal Profession Act restricts publication of certain identifying material relating to applications under Pt 4.7 of that Act, which deals with disciplinary proceedings, as follows:

(1)A person must not publish an account or report of an application under this part if the account or report—
(a)discloses the identity of the person who is the subject of the complaint to which the application relates (the person concerned); or

(b) allows the identity of the person concerned to be worked out.
(2)However, the identity of the person concerned may be disclosed in an account or report of the application if—
(a)a final decision has been made that the person concerned is guilty of the conduct complained of; and

(b) either—
(i)the appeal period has ended and no appeal has been made; or
(ii)any appeal has been decided against the person concerned.

(3) In this section:
appeal means an appeal from a decision by the tribunal under the ACT Civil and Administrative Tribunal Act 2008, section 79.
appeal period means the period within which an appeal may be made.
Note See the Court Procedures Rules 2006, r 5052 (Appeals to Supreme Court—general powers) and r 5103 (Appeals to Supreme Court—time for filing notice of appeal).

These reasons refer to a number of disciplinary proceedings against the appellant, some of which have not been finalised or are still subject to outstanding appeals. Publishing the name of the appellant in these reasons may enable the appellant also to be identified, in breach of s 423A, as the subject of the complaint to which an outstanding disciplinary proceeding relates.

There may be room for argument whether this Court, in publishing its reasons, is “a person” subject to s 423A; this question was not argued before us, and in any case would not necessarily address the position of, for instance, public service employees responsible for publishing the reasons via the Supreme Court’s website. Accordingly, these reasons do not refer to the appellant by name.

Our reasons also adopt the Tribunal’s approach in protecting the identities of complainants, witnesses and certain other participants in the various matters.

We have added to these reasons an appendix identifying people whose identities are disguised in these reasons. We order that the appendix is not to be published but is to be made available to the parties only, to be used by them if required for the purposes of these and any subsequent proceedings.

The nature of the appeal

The decision of the Law Society under appeal was made under s 44(4)(b) of the Legal Profession Act, which relevantly provides that:
(4)The licensing body must not renew an unrestricted practising certificate or restricted practising certificate if satisfied that the applicant—
…
(b) is not a fit and proper person to continue to hold the certificate.
The term “licensing body” is defined as the Law Society Council (s 3 and the Dictionary of the Legal Profession Act).
The present appeal is brought under s 81(1)(a) of the Legal Profession Act which provides:
(1) A person may appeal to the Supreme Court against—
(a)a decision of the licensing body to refuse to grant or renew a local practising certificate;
The Law Society Council contended that s 81(1)(a) of the Act provides for an appeal by way of a hearing de novo. The parties are not confined to the evidence which was before the Law Society. The opinion of the Court is substituted for the opinion of the Law Society. In the present appeal the Law Society sought to introduce evidence of events which occurred after the decision of the Law Society was made on 3 June 2010.
Whether the appeal is intended to be by way of hearing de novo or otherwise depends on the statutory intent. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 (Sperway), Mason J said at 621-622:
Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect. … There are, of course, sound reasons for thinking that in many cases an appeal to a court from an administrative authority will necessarily entail a hearing de novo … The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo.
On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed. The authority may be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance.
But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing. (emphasis added) (citations omitted)
The Legal Profession Act does not require or provide for the Law Society Council to conduct a hearing before it refuses to renew a practising certificate. It does not require the Law Society Council to make a record of what takes place or to give reasons for the decision. It does not require the Law Society Council to apply the rules of evidence. In contrast, where the Law Society Council investigates and decides complaints against legal practitioners, it is bound to give notice of the complaint to the legal practitioner and allow the legal practitioner to make submissions and to keep a record of the proceedings, give reasons for the decision and accord procedural fairness (see Legal Profession Act, Pts 4.2, 4.4, 4.5 and 4.6).
In these circumstances, by reference to the reasoning in Sperway, s 81(1)(a) was intended to confer a right of appeal involving a hearing de novo.
That was also the result reached by the application of Sperway by Smart J in Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669 (Veghelyi), in relation to s 37(1) of the Legal Profession Act 1987 (NSW); that section provided for an appeal to the Supreme Court by a solicitor against a refusal of the Law Society of NSW to grant him a practising certificate. Smart J said at 675:
[T]his administrative decision has far-reaching consequences which affect the livelihood and the professional reputation of the solicitor. He is not entitled to know in advance what the Council is considering and the particular reasons which are guiding it nor to be heard. The right of appeal would be of limited use if the appeal were restricted, for example, to the materials before the Society. The solicitor needs to be able to deal fully with the material relied on by the Council.
The judgment in Veghelyi was applied in the ACT by Higgins J to s 129 of the Legal Profession Act 1970 which gave a solicitor a right of appeal to the Supreme Court against a refusal by the Law Society to renew his practising certificate: Re A Solicitor (1992) 107 FLR 389.

Statutory provisions governing the renewal of practising certificates

As the Court stands in the shoes of the Law Society Council when considering this appeal, the statutory provisions governing the renewal of practising certificates which govern the function of the Law Society also apply to the Court. Section 44 of the Legal Profession Act relevantly provides:
44Grant or renewal of unrestricted or restricted practising certificate
(1)The licensing body must consider an application that has been made for the grant or renewal of an unrestricted practising certificate or restricted practising certificate, and may—
(a)       grant or renew the practising certificate; or
(b)       refuse to grant or renew the practising certificate.
NoteWhen granting or renewing a local practising certificate, the licensing body may impose conditions on the certificate under s 47.
(2)       However, the licensing body —
(a)need not consider an application for grant or renewal of an unrestricted practising certificate or restricted practising certificate if—
(i)the application has not been made in accordance with this Act; or
(ii)       the required fees have not been paid; and
(b)may refuse to grant or renew the practising certificate if the applicant has not complied with the criteria prescribed by regulation and the legal profession rules for the grant or renewal.
Note     This Act is defined in the dictionary.
(3)The licensing body must not grant an unrestricted practising certificate or restricted practising certificate unless satisfied that the applicant—
(a)was eligible to apply for the grant when the application was made; and
(b)       is a fit and proper person to hold the certificate.
(4)The licensing body must not renew an unrestricted practising certificate or restricted practising certificate if satisfied that the applicant—
(a)was not eligible to apply for the renewal when the application was made; or
(b)is not a fit and proper person to continue to hold the certificate.
(5)The licensing body must not grant or renew an unrestricted practising certificate or restricted practising certificate if—
(a)it considers the applicant’s circumstances have changed since the application was made; and
(b)the applicant would (having regard to information that has come to the licensing body’s attention) not have been eligible to make the application when the application is being considered.
(6)This section does not affect any other provision of this Act that provides for the refusal to grant or renew an unrestricted practising certificate or restricted practising certificate.
Note 1The licensing body must not grant or renew a practising certificate for an insurable legal practitioner unless satisfied that the practitioner will be covered by an approved indemnity insurance policy (see s 311).
Note 2See also s 62 (Refusal to grant or renew unrestricted or restricted practising certificate—failure to show cause etc).
(7)If the licensing body grants or renews an unrestricted practising certificate or restricted practising certificate, the licensing body must give the applicant—
(a)for the grant of a certificate—the practising certificate granted; or
(b)for the renewal of a certificate—the new practising certificate.
(8)If the licensing body refuses to grant or renew an unrestricted practising certificate or restricted practising certificate, the licensing body must give the applicant an information notice.
Section 36 of the Legal Profession Act designates some of the matters which the Law Society may take into account when determining whether a person is a fit and proper person to hold a practising certificate. Section 36(2) allows the Law Society Council to take into account any suitability matter (defined in s 11), and one suitability matter is whether a person “is currently of good fame and character” (s 11(1)(a)). Section 36(2)(f) allows the Law Society Council to take into account other relevant matters it thinks appropriate.

Statutory provisions governing disciplinary proceedings

Part of the case of the Law Society Council is that the appellant is not a fit and proper person to hold a restricted practising certificate because he has been the subject of disciplinary proceedings brought against him by the Law Society Council.
Under the Legal Profession Act, the Law Society Council is empowered to apply to the Tribunal for an order in relation to a complaint against the practitioner (s 419(1)). The application must include the charge of unsatisfactory professional conduct, professional misconduct or unsatisfactory employment conduct that the Law Society Council considers arises out of the complaint (s 419(3)).
Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner (s 386).
Professional misconduct includes unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and conduct of an Australian legal practitioner whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice: (s 387(1)). For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in s 387(1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under the Legal Profession Act or for the grant or renewal of a local practising certificate (s 387(2)).
Conduct consisting of a contravention of the Legal Profession Act can be unsatisfactory professional conduct or professional misconduct (s 389(a)).
Section 104 of the Legislation Act provides that a reference to an Act includes a reference to any statutory instruments made or in force under the Act. The Legal Profession (Solicitor) Rules 2007 (ACT) (the Rules) is a statutory instrument made under the Legal Profession Act, and consequently a contravention of the Rules may constitute unsatisfactory professional conduct or professional misconduct. The Rules relevant to this case are:
1.1A practitioner should treat his or her client fairly and in good faith, giving due regard to the client’s position of dependence upon the practitioner, his or her special training and experience and the high degree of trust which a client is entitled to place in a practitioner.
1.2A practitioner must act honestly, fairly, and with competence and diligence in the service of a client, and should accept instructions, and a retainer to act for a client, only when the practitioner can reasonably expect to serve the client in that manner and attend to the work required with reasonable promptness.
31.1A practitioner must not, in any communication with another person on behalf of a client:
(a)represent to that person that anything is true which the practitioner knows, or reasonably believes, is untrue; or
(b)make any statement that is calculated to mislead or intimidate the other person, and which grossly exceeds the legitimate assertion of the rights or entitlement of the practitioner's client;
39.1Subject only to his or her duty to the client, a practitioner should be open and frank in his or her dealings with the Law Society.
Section 425 of the Legal Profession Act permits the Tribunal to make a range of orders on an application by the Law Society. Under s 425(3) it may make the following orders in relation to the legal practitioner concerned:
(a)an order recommending that the name of the practitioner be removed from the local roll;
(b)an order that the practitioner’s local practising certificate be suspended for a stated period or cancelled;
(c)an order that a local practising certificate not be granted to the practitioner before the end of a stated period;
(d)an order that—
(i)stated conditions be imposed on the practitioner’s practising certificate granted or to be granted under this Act; and
(ii)the conditions be imposed for a stated period; and
(iii)states the time (if any) after which the practitioner may apply to the ACAT for the conditions to be amended or removed;
(e)an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner.
Under s 425(5) the following orders may be made:
(a)an order that the practitioner pay a fine of a stated amount of not more than the amount mentioned in section 427;
(b)an order that the practitioner undertake and complete a stated course of further legal education;
(c)an order that the practitioner undertake a stated period of practice under stated supervision;
(d)an order that the practitioner do or not do something in relation to the practice of law;
(e)an order that the practitioner cease to accept instructions as a public notary in relation to notarial services;
(f)an order that the practitioner’s practice be managed for a stated period in a stated way or subject to stated conditions;
(g)an order that the practitioner’s practice be subject to periodic inspection by a stated person for a stated period;
(h)an order that the practitioner seek advice in relation to the management of the practitioner’s practice from a stated person;
(i)an order that the practitioner not apply for a local practising certificate before the end of a stated period.

Disciplinary proceedings against the appellant

On the appeal, the Law Society Council argued that there were significant disciplinary matters brought against the appellant which demonstrated that he is not a fit and proper person to hold a practising certificate and that, consequently, the Court should confirm the order of the Law Society Council that his practising certificate for the 2010-2011 year should not be renewed. Those disciplinary matters are now described.

The Client C matter

At the forefront of its case, the Law Society Council relied on the Tribunal’s determination of an application made by the Law Society Council against the appellant in the case of Client C (the Client C matter).
The Law Society Council alleged that the appellant acted in breach of rr 1.1, 1.2 and 39.1 and had thereby engaged in professional misconduct and unsatisfactory professional conduct.
The first ground of the Law Society Council’s application to the Tribunal was that the appellant acted without and contrary to the instructions of Client C in consenting to the setting aside of a protection order. It was said that the appellant thereby failed to treat his client fairly and in good faith and to act honestly and fairly and with competence and diligence in her service, and thereby breached rr 1.1 and 1.2.
The second ground was that the appellant represented to the Law Society that Client C was present in court and gave instructions to agree to the setting aside of the protection order, when Client C was not present and did not give such instructions. It was said that the appellant thus failed to be open and frank with the Law Society and acted in breach of r 39.1.
The third ground alleged that the appellant improperly attempted to intimidate, pressure or dissuade DC, his opponent in the protection order case, from giving evidence in the disciplinary hearing before the Tribunal against the appellant.
As to the first two grounds, Client C had obtained a protection order ex parte against JA, the mother of her estranged de facto husband. In around May 2007 the appellant took over Client C’s protection order case. JA instituted an appeal in this Court. An interlocutory application relating to inspection of documents came on for hearing before Higgins CJ on 14 September 2007. Client C was not able to obtain legal aid for the appeal and the appellant acted for her on a pro bono basis. The appellant agreed in court for the protection order to be set aside and the matter be remitted to the Magistrates Court. In the interim, he agreed with DC to undertakings by JA in the terms of the protection order.
When the matter next came on in the Magistrates Court Client C, through her new legal practitioner, learned for the first time that the protection order had been set aside with the consent of the appellant.
Client C made a complaint to the Law Society. The Law Society investigated the complaint. Client C told the Law Society that she had not instructed the appellant to agree to setting aside the protection order. On the contrary she was frightened of JA and was particularly concerned that the orders stay in place.
The appellant responded to the Law Society in relation to Client C’s complaint. He said that Client C had instructed him to consent, and that she was in court when the protection order was set aside by Higgins CJ. The appellant’s response was elaborate and the circumstances in which the consent was said to have been given were outlined in detail. For instance, the appellant said that Client C was standing next to him and repeatedly interrupted when he was negotiating with DC. He also explained that Client C gave him instructions during “the short adjournment between 11.12am and 11.36am”. The appellant said that he would be happy to obtain an affidavit from DC.
On the basis of the appellant’s explanation that Client C had been in court, the Law Society found, on 30 June 2008, that there had been no improper conduct by the appellant.
When advised by the Law Society of the rejection of her complaint and the reason for that rejection, Client C approached the Law Society and said that she had not been in court when the protection order was set aside by consent. The Law Society’s Complaints Committee regarded Client C’s assertions as sufficiently serious to warrant investigation. The Law Society then asked the appellant to provide the affidavit from DC which he had earlier indicated that he would provide.
The appellant responded that there was no point in providing such an affidavit because DC had no independent recollection of seeing Client C in court that day. However, he said that he would give sworn evidence that she was there.
The Law Society again asked the appellant for material to support his assertion that Client C was present in court. He again offered to give sworn evidence and again gave an elaborate description of the circumstance of Client C’s presence in court. He said that “she sat in the front row on the first seat in that row closest to the entrance”, she was unaccompanied and discussed the matter with the appellant “during the recess between 11.12am and 11.36am”.
At the hearing before the Tribunal Client C was cross-examined on her affidavits and confirmed that she did not attend court on 14 September 2007, and did not give instructions to the appellant to agree to the setting aside of the protection order. Telephone records supported her evidence that she was at home at the time of the hearing. Further, phone records of the appellant’s phone showed that he made a call to her on his mobile phone at 11.13 am on 14 September 2007, one minute after the matter was adjourned for the morning tea break.
DC was called by the Law Society and was cross-examined on his affidavits. He did not recall the appellant being accompanied at the hearing before Higgins CJ, he did not recall the Chief Justice addressing Client C or Client C standing next to the appellant and repeatedly interrupting the conversation between himself and the appellant. The Tribunal said at [195]:
He was cross-examined comprehensively and exhaustively. He was unshaken. In the Tribunal’s view, he was an impressive and a reliable witness of truth.
The appellant did not give evidence.
The Tribunal accepted the evidence of Client C, DC, and the telephone records. Concluding on the first two grounds, the Tribunal said at [201]:
The Tribunal finds that the conduct charged is proven and is serious indeed. It goes to the very heart of the solicitor/client relationship and to those duties owed by a solicitor to his or her client that are fundamental to a legal practitioner’s awareness of professional responsibility. Moreover, a solicitor owes a duty of candour and frankness in his or her dealings with his or her professional body. This duty is fundamental to the ethical duties of a solicitor. Breaches as serious as the ones charged in Grounds 1 and 2 warrant a finding of professional misconduct against the Practitioner and the Tribunal so finds.
The third ground of professional misconduct or unsatisfactory professional conduct alleged by the Law Society Council against the appellant was that he attempted to interfere with a potential witness, namely DC who appeared for JA before the Chief Justice on 14 September 2007. DC gave evidence, and the Tribunal accepted that DC had given the Law Society a statement to the general effect that Client C was not present in court on the day of the hearing. DC said that he was about to prepare an affidavit for the purpose of the Tribunal hearing when the appellant phoned him and told him that he had a statement from JA alleging that DC had appeared in court on that day without instructions from JA. DC further said that the appellant told him that the appellant was considering lodging the statement with the Law Society and that he wanted to pre-warn DC about JA’s complaint because the matter would come out at the hearing. The Tribunal found that the appellant attempted through this conversation to intimidate, pressure and dissuade DC from giving evidence against the appellant before the Tribunal.
The Tribunal also had evidence from Mr Phelps, the solicitor for the Law Society in the application before the Tribunal, that the appellant had improperly attempted to have Mr Phelps cease to act for the Law Society shortly before the hearing which had been listed for five days. In an affidavit on which the appellant did not rely in the Tribunal, but which he sent to Mr Phelps, he alleged that he had had a phone conversation with Mr Phelps in which he had asked Mr Phelps whether it was proper for him, the appellant, to phone DC; Mr Phelps said that the conversation did not happen. The appellant did not give evidence. His phone records did not disclose any call to Mr Phelps made on or near the relevant date. The Tribunal found at [210] that:
Again, the Practitioner offered no explanation in relation to having sworn to something in an affidavit that was manifestly false, with the obvious purpose of trying to have Mr Phelps removed as the Society’s solicitor shortly before the matter was listed for hearing for five days. The Tribunal was persuaded by Mr Beaumont’s submissions in this respect that, not only does this conduct demonstrate consciousness of guilt, but of itself discloses a proclivity to disrupt the proper course of justice by improper means.
The Tribunal further found that there was unanswered evidence that the appellant made threats to claim damages and costs against Mr Phelps, and against the Law Society, if the application were not discontinued. The Tribunal also found that there was evidence that the appellant threatened to produce files which could land Client C’s nephew in jail if his mother Client N did not withdraw the complaint which she had made against the appellant. Client N’s complaint will be referred to shortly.
On 1 February 2010, the Tribunal found that the appellant was guilty of professional misconduct in relation to the Client C matter. It adjourned the proceeding for later consideration of any sanction which should be imposed.

The Client N matter

In the same decision, the Tribunal dealt with a complaint relating to Client N, who is the sister of Client C (the Client N matter). The Law Society Council alleged that the appellant had failed to be open and frank in his dealings with the Law Society and had thereby acted in breach of r 39.1.
The appellant acted for Client N in a family law case relating to custody of a child. The appellant and Client N formed a personal and sexual relationship. The relationship ended in October 2007, and Client N made a complaint to the Law Society. She said that the relationship began in July 2007, after she had retained the appellant to act for her in May 2007.
In response to the Law Society, the appellant said that the relationship had begun in April 2007 before he was retained to act.
The first ground of the complaint made by the Law Society Council was not that the relationship had existed, but that the appellant had misrepresented that it had started before the retainer and by so doing the appellant had sought to diminish the perception of undue influence which the personal relationship might have had on the solicitor/client relationship. At the hearing before the Tribunal Client N and her sister, Client C, gave evidence. Phone records were also relied upon by the Law Society Council to demonstrate that the relationship did not commence in April 2007 because no calls at all were made between the appellant and Client N at that time, whilst many calls were made during the later currency of the relationship.
The appellant did not give evidence. Three legal practitioners who are friends of the appellant gave evidence of meeting Client N as the appellant’s girlfriend. The Tribunal found the evidence of two of these witnesses as to the timing of the meeting unreliable, and the evidence of the third witness on the issue of little weight. The Tribunal found that the appellant had been untruthful to the Law Society on two occasions during the investigation when he asserted that the relationship with Client N predated the retainer.
The second ground of the complaint in the Client N matter was that the appellant represented to the Law Society that he was acting for Client N in a pro bono capacity when he knew that the matter was legally aided. The appellant conceded that he made the representation and that it was false. Again, he did not give evidence. The Tribunal found that he had lied to support his argument that there was never a solicitor/client relationship with Client N.
The Tribunal noted that the second ground of complaint was conceded by the appellant. It determined that the first ground involved personal conduct which was tawdry, and whilst lying about it was dishonest, the circumstances did not have the level of seriousness which constituted professional misconduct. The Tribunal found that the conduct amounted to unsatisfactory professional conduct.

The sanctions decision in the Client C and Client N matters

On 27 May 2010, the Tribunal heard submissions on the orders which should be made following the finding of professional misconduct in relation to the Client C matter and the finding of unsatisfactory professional conduct in relation to the Client N matter.
On 4 August 2010, the Tribunal published its reasons on the sanctions aspect of the Client C and Client N matters. It noted that the appellant did not give evidence at the hearing and said in relation to that issue at [8]:
The Practitioner rejected all of the Tribunals’ findings in relation to his very serious conduct, which constituted the charges and findings (LP 6 of 2008 – unsatisfactory professional conduct and LP 1 of 2009 – professional misconduct). This evidence and indeed the tenor of the submissions both oral and in writing put on behalf of the Practitioner, to which the Tribunal shall turn in due course, demonstrate to the Tribunal that first, the Practitioner is not only not remorseful about the conduct that the Tribunal found proven, but secondly, that he, in choosing in the face of the findings, to deny them, shows no insight into the serious nature of the conduct which goes to the very heart of the duties and obligations of legal practitioners. Thirdly, his stance in this regard gives this Tribunal no confidence that he has undergone any radical change that would be necessary to displace a finding of unfitness in relation to the charges.

Then, in relation to the first two grounds in the Client C matter, the Tribunal said at [18]:
… that the professional misconduct found by this Tribunal in relation to grounds 1 and 2 of LP 1 of 2009, even taken in isolation, but, more particularly, when viewed with ground 3 of LP 1 of 2009 demonstrates comfortably that the Practitioner cannot be trusted by his clients or the public; by his professional association; by the Courts or Tribunals before whom he appears; by his fellow practitioners; and that the presence on the roll of someone who cannot be trusted even at this most basic level by his own peers, the Society, the Courts or clients is contrary to the interests of the administration of justice as well as the public interest.
In response to the appellant’s contention that the third ground in the Client C matter was conduct at the lower end of the scale of professional misconduct because it did not involve criminal conduct, the Tribunal said:
22.… the Tribunal’s findings disclose fundamental flaws in the Practitioner’s character namely, dishonesty, disloyalty and a manifold contempt for his ethical duties to the Society, his clients and the administration of justice.
23.Moreover, there was no evidence that these undesirable flaws in the Practitioner’s character have changed since being identified. Of major concern to the Tribunal was the evidence given by the Practitioner, which demonstrated that he plainly has no insight into the serious nature of his conduct. All of these factors indicate to the Tribunal the fundamental unfitness of this Practitioner to remain on the roll.
The Tribunal then acknowledged that a finding that a person was unfit to practise did not necessarily mean that the person’s name should be removed from the roll of practitioners. But the Tribunal accepted on the authority of Council of the New South Wales Bar Association v Slowgrove [2009] NSWADT 150, that where the basis for the unfitness is still operative that possibility should be considered. The Tribunal then concluded that considering all the charges and findings it was appropriate to cancel the appellant’s practising certificate forthwith under s 425(3)(b) of the Legal Profession Act, and recommend to the Supreme Court that his name be removed from the roll of practitioners under s 425(3)(a).

The application for removal from the Roll of Practitioners

On 18 August 2010, the Law Society applied to this Court under s 431(3) of the Legal Profession Act for an order that the appellant’s name be removed from the roll of practitioners. The ground relied upon is the making by the Tribunal of the recommendation that the appellant’s name be removed from the roll of practitioners. On 2 September 2010, Higgins CJ adjourned that application until after the determination of the appeal from the decision of the Tribunal.

The appellant’s application for a “stay”

On 1 July 2010, the appellant applied to the Court in the present appeal for an order that the Law Society issue a restricted practising certificate to him for the year commencing 1 July 2010.
The appellant relied on a judgment of Gray J on 29 June 2010 to set aside a decision of the Council of the Law Society to refuse to renew another practitioner’s unrestricted practising certificate. In that case the Law Society had indicated that there were special circumstances as a result of which it would not oppose the issue of a restricted practising certificate to the practitioner. Consequently, Gray J set aside the decision of the Law Society to allow that to happen.
Gray J, who also heard the application in the present appeal, regarded the circumstances of the present case as quite different. He refused the application to direct the issue of any practising certificate to the appellant, or otherwise to stay the decision of the Law Society Council, on the ground that the prospects of success in this appeal were minimal and it was against the public interest to allow a practitioner against whom such serious findings were made to continue to practice during the pendency of the appeal.

The Magistrates Court matter

On 26 March 2009, the Law Society Council filed an application in the Tribunal which alleged that the appellant acted in a way which constituted professional misconduct or unsatisfactory professional conduct in relation to a proceeding in the Magistrates Court (the Magistrates Court matter).
On 19 October 2010, the Tribunal determined that the appellant had engaged in professional misconduct by misleading a Magistrate, and further misleading the Law Society in its investigation of the complaint (The Council of the Law Society of the Australian Capital Territory & The Legal Practitioner (Occupational Discipline) [2010] ACAT 73). The Tribunal stood over the issue of the appropriate sanction to be imposed and when the Court gave its decision on this appeal the sanction question was still outstanding.
The circumstances which gave rise to the application before the Tribunal concern a hearing before the Magistrate on 28 July 2009. The defendant before the court was charged with assault of her partner and applied for bail. When the case was called the defendant told the Magistrate that she was not legally represented. There was a short discussion before the appellant entered the court. He then told the Magistrate that he had been instructed to appear for the defendant. He said that his instructions came from the defendant’s partner who was the victim of the assault. The Magistrate refused to accept his appearance, having been told by the defendant that she was not legally represented. The Magistrate later wrote to the Law Society to report that the appellant had claimed to have instructions to appear for the defendant when he did not have those instructions.
The Law Society commenced an investigation and sought the appellant’s response. The appellant first responded on 5 September 2008 enclosing a transcript of the bail application and drawing attention to his statement to the Court that he was instructed by the defendant’s partner. Then, on 18 October 2009, he again wrote to the Law Society, but this time stating that he was instructed by the defendant herself in the cells and that when he appeared he had a signed legal aid application form nominating his firm to act for the defendant. He enclosed statements from the defendant and her partner which said that the defendant had instructed the appellant in the cells.
The Tribunal observed that the failure to enclose the statements or make any reference to the instructions from the defendant in the appellant’s first response called for some explanation from the appellant. The appellant did not give evidence. The Tribunal declined to place any weight on the statements of the defendant and her partner, and did not accept that the legal aid form was signed on the day of the hearing.
The Tribunal referred at [103] to the notation on the legal aid form which read:
I appeared today for an opposed bail app Bail was granted.
As to this the Tribunal said at [105]-[106]:
105.The statement is untrue and misleading. The transcript makes it clear that the practitioner did not appear and that he played no role in the application for bail. The practitioner can have been in no doubt that his attempt to appear was rejected by the Magistrate. His response of 5 September 2008 … contains an acknowledgement to that effect. His own counsel’s submissions quite properly emphasized that the practitioner had not, in fact, acted for anyone on the bail application.
106.… the fact that the respondent made this untrue and misleading statement about the bail application, on a document allegedly completed on the day of the bail application, when the refusal of the Magistrate to accept his appearance must have been fresh in his mind, raises a serious doubt about the respondent’s truthfulness generally, and about the credibility of the respondent’s representations to the applicant about the application for aid in particular. It is a serious inconsistency that at least, calls for explanation as to how and why the notation came to be made. That is a matter wholly within the knowledge of the respondent.
The Tribunal found that the appellant deliberately misled the court. It said:
123.The Tribunal acknowledges that the court was not misled to any significant extent and that the court did not act on the respondent’s misleading actions but, misleading a court is a serious matter that is properly regarded as disgraceful.
124.The Tribunal is satisfied that the respondent’s actions should therefore be characterized as professional misconduct.
The Tribunal also found that the appellant misled the Law Society when he said that he was instructed by the defendant in the cells and that he held a completed legal aid form signed by her on 28 July 2008. The Tribunal concluded at [157]:
… The misleading representations involved a significant degree of deception and are properly characterized as professional misconduct.
The Tribunal determined that several other grounds of complaint made by the Law Society had not been made out.

The KB matter

On 19 May 2010, the Law Society Council filed a further application in the Tribunal alleging professional misconduct or unsatisfactory professional conduct by the appellant in relation to a complaint made by KB (the KB matter). This matter was listed for hearing in the Tribunal on 10 and 11 February 2011.
The appellant acted for a firm, PHS, which was indebted to a company, FNT Pty Ltd (FNT). PH failed to pay and as a result an adverse credit listing was made by a credit reporting agency, VA Pty Ltd (VA). The Law Society Council alleges that the appellant phoned KB, an employee of FNT, on 17 June 2009 and asked her to contact VA to have the listing removed on the basis that it had been placed in error. In return, he said his client would pay FNT $500. The appellant confirmed the request in writing. Later that day he increased the offer to $2,000. He also threatened legal proceedings if FNT did not contact VA, and threatened to contact VA to have FNT restrained from any further placements.
The Law Society Council contends that the appellant deliberately represented that the VA listing was erroneous, which he ought reasonably to have believed was not the case, and thereby acted in breach of r 31.1(a). It also contends that the threat in the letter, to have FNT restrained from any further placements, was calculated to intimidate FNT into accepting an offer which grossly exceeded the legitimate assertion of the rights of PHS which were, in truth, non-existent, and thereby acted in breach of r 31.1(b). Finally, the Law Society Council alleges that the appellant, deliberately or knowingly, on behalf of PHS, offered a financial inducement to FNT in return for that entity falsely representing to VA that FNT’s credit listing of PHS was placed in error in circumstances where the appellant knew or ought to have known that this was not the case.

The KM matter

In June 2009, KM made a complaint to the Law Society about the conduct of the appellant. The Law Society is currently investigating the complaint, which alleges that the appellant failed to handle trust money appropriately and that he engaged in threatening behaviour. In response to KM’s further complaint concerning the appellant’s costs, he refunded her fees of $1,200.

The BH matter

And finally, on 7 July 2010, the appellant gave evidence in an application which followed the appointment of a manager to his employer’s legal practice (the BH matter). The transcript of that evidence was tendered at the appeal. Following the appointment of the manager, BH, the appellant met BH in the appellant’s office on 1 July 2010. BH asked the appellant not to touch anything in the office. Despite this request the appellant took one of his 2010 diaries from the premises and threw it into a bin at the back of the Reserve Bank building in Canberra. He also removed his computer. On the following day BH brought a successful application in the Supreme Court for production of various items including business diaries and computers. In relation to the application the appellant told BH that he would need to go to Goulburn to retrieve the items. The application was adjourned to allow this to happen. The appellant did not disclose to BH or to the Court that he had disposed of the diary the night before. The appellant agreed in his evidence that he was told by BH that he, BH, had been appointed manager of the practice. The following exchange in cross examination on 7 July is representative of the appellant’s unacceptable approach to the situation:
You knew you’re not allowed to throw that in the bin, did you? --- No,[sic] doubt at all.
Did you have some doubt about it? --- No.
None at all? --- None at all.
Notwithstanding that, you’d been told a manager had been appointed to your practice? --- If I’d have been served the notice of appointment I would’ve had more knowledge of what was going on but I hadn’t been served the notice of appointment.
All right, let’s say you had been served the notice of appointment, what then Mr xxx? Would you still have thrown it into the bin? --- No.
I see, so it’s failure to serve the notice of appointment? --- That’s correct.

The Law Society’s submissions

The Law Society Council relied principally on the orders and the reasons of the Tribunal in the Client C and Client N matters. In those matters the Tribunal ordered that the appellant’s restricted practising certificate be cancelled forthwith and recommended that his name be removed from the roll of practitioners.
The Law Society Council argued that the cancellation of the appellant’s practising certificate (which cancellation, curiously, was ordered after the Law Society had already refused to renew the practising certificate) is virtually fatal to the appeal.
The fact that the appellant’s right to practice has been suspended is a matter which the Act expressly allows to be taken into account in relation to an application to renew a practising certificate: Legal Profession Act, ss 36(2) and 11(1)(f).
The Law Society Council then pointed to the seriousness of the misconduct in the Client C matter, which involved acting without instructions, misleading the Law Society in its investigation, and attempting to interfere with a potential witness in the disciplinary hearing. The Law Society Council also referred to the Tribunal’s finding that the appellant had falsely represented to the Law Society that he was acting pro bono for Client N in order to minimise the seriousness of the personal relationship with her, the finding that the appellant fabricated the conversation with Mr Phelps, and the observation that there was unanswered evidence that the appellant had threatened others connected with the proceeding. The conduct showed a disposition to disrupt the course of justice by improper means.
The Law Society Council placed emphasis on three passages in the Tribunal’s sanctions decision (at [67] above). First, the Council noted:
In its reasons for so concluding, the Tribunal found that [the appellant] “is not only not remorseful about the conduct that the Tribunal found proven, but secondly, that in choosing to deny the findings, shows no insight into the serious nature of the conduct which goes to the very heart of the duties and obligations of a legal practitioner”, and “the Tribunal has no confidence that he has undergone any radical change that would be necessary to displace a finding of unfitness in relation to the charges”.
In respect of the finding that the appellant consented to the setting aside of the protection order without instructions and then misled the Law Society about the circumstances, the Tribunal said at [18] that this conduct:
… demonstrates comfortably that the Practitioner cannot be trusted by his clients or the public; by his professional association; by the Courts or Tribunals before whom he appears; by his fellow practitioners; and that presence on the roll of someone who cannot be trusted even at this most basic level … is contrary to the interests of the administration of justice as well as the public interest.
And then in relation to the finding that the appellant attempted to interfere with DC giving evidence, the Tribunal said at [22] that this discloses:
… fundamental flaws in the Practitioner’s character, namely, dishonesty, disloyalty and a manifold contempt for his ethical duties to the Society, his clients and the administration of justice.
The Law Society Council then explained the seriousness of the finding in the Magistrate matter involving, as it did, misleading the Magistrates Court.
The Law Society Council particularly focused on the criticism of the appellant’s credit in relation to the false claim made on the legal aid form asserting that the appellant had appeared for the defendant. The Law Society Council relied on the Tribunal’s view at [106] as follows:
However, the fact that the respondent made this untrue and misleading statement about the bail application, on a document allegedly completed on the day of the bail application, when the refusal of the Magistrate to accept his appearance must have been fresh in his mind, raises a serious doubt about the respondent’s truthfulness generally, and about the credibility of the respondent’s representations to the applicant about the application for aid in particular.
The Law Society Council drew attention to the Tribunal’s description of the appellant’s conduct in misleading the Law Society Council about his instructions to appear for the defendant as involving “a significant degree of deception”.
Finally, the Law Society Council submitted that the Court should take into account the pending application before the Tribunal in the KB matter, the investigation in the KM matter, and the appellant’s conduct in the BH matter. The Court was expressly empowered to take into account the pending application and the investigation: Legal Profession Act, ss 36(2) and 11(1)(f).
Mr Beaumont, who appeared as counsel for the Law Society Council, highlighted the distinction between a finding that a person is unfit to hold a practising certificate and a finding that a person is unfit to remain on the roll of practitioners. Whilst the Law Society Council or the Tribunal may determine whether a person is unfit to hold a practising certificate, only the Court can remove a person’s name from the roll of practitioners. Removal from the roll of practitioners is usually appropriate where the Court forms the view that the practitioner is probably permanently unfit to practice (New South Wales Bar Association v Murphy (2002) 55 NSWLR 23 (Murphy) per Spigelman CJ at [25]-[26] and Giles JA at [108]-[113]). Cancellation or refusal to renew a certificate, on the other hand, relates to the limited period of the duration of a certificate, normally one year. Mr Beaumont used this distinction to argue that because the Tribunal not only cancelled the appellant’s practising certificate as a result of the Client C and Client N matters, but also recommended that the appellant’s name be removed from the roll of practitioners, the appellant could hardly contend now, in view of such a finding, that he is a fit and proper person to hold a practising certificate. If the appellant is not a fit and proper person to be on the roll of practitioners he can hardly be a fit and proper person to hold a practising certificate.

The appellant’s submissions

The appellant appeared for himself on the appeal.
He submitted that his restricted practising certificate should be renewed. His principal argument was that he has instituted an appeal in the Client C and Client N matters. In a submission which lacked nothing in boldness, he asserted that he would be exonerated in due course. He also intended to lodge an appeal in the Magistrates Court matter once it was finalised in the Tribunal.

The appellant said that he had not given evidence in those cases on the advice of counsel. He said that he realises now that he should have given evidence.
The appellant contended that the complaints in the Client C and Client N matters and the Magistrates Court matter dated back to October and December 2007 and August 2008 respectively. He said that he had been practising in the meantime and should be allowed to continue in the 2010-2011 year until the disciplinary matters were finally resolved in the Tribunal and the Court.
The appellant relied on an order made in the Supreme Court on 9 June 2009 with consent of the Law Society. The appellant had applied for an unrestricted practising certificate in December 2008. The Law Society refused that application. The appellant appealed to the Supreme Court. The appeal was compromised and a consent order made in the following terms:
2.The respondent shall renew the applicant’s restricted practising certificate for the year commencing 1 July 2009 on the applicant’s undertaking not to apply for the issue of an unrestricted practising certificate until the three disciplinary matters currently before ACT Civil and Administrative Tribunal have been disposed of.
The appellant says that the intent of the order was to permit him to practise until the Client C and Client N matters and the Magistrate matter had been finally resolved. As they have not been finally resolved, he argued, the restricted practising certificate should be renewed.
Then, the appellant explained the background to the conduct in question. He said that he came to the law late, in his 50s, and was now 57. He was admitted on 6 March 2007. The Client C and Client N matters arose in the first eight months and the Magistrate matter within the first 18 months of practice. The appellant said that he was not adequately supervised. He said he took on too many matters and worked 18 to 20 hours a day and six or seven days a week. In his written submission the appellant said that the ratio of his complaints to his volume of work compared with his colleagues was low.
In relation to the specific cases, the appellant said that the Client N matter was a personal mistake. In his written submission he expressed embarrassment and remorse for his lack of judgment. Nonetheless, he said in his submissions that Client C and Client N were sisters and hence had a motive to lodge the complaints (although without explaining the nature of the asserted motive or why that relationship provided any such motive). In those submissions he stated that the grounds of appeal in these matters are that the Tribunal erred in the way it relied upon the failure of the appellant to give evidence to the Tribunal. He said that the same ground of appeal will be relied upon in the Magistrates Court matter. In relation to the BH matter, the appellant said that the conduct was not reprehensible because BH did not serve him with a notice of appointment. In oral submissions he said “I don’t see that I did anything wrong”. In relation to the KB matter, in written submissions, the appellant said that he was acting on his client’s instructions.

Consideration

The findings made by the Tribunal in the Client C matter amply justified its conclusion that the appellant’s practising certificate should be cancelled. It is fundamental to the obligation of a legal practitioner to act in accordance with, and not contrary to, the instructions of the client. The appellant’s failure to do so was particularly serious because it involved a family violence case in which Client C was concerned about her personal safety. The appellant’s misconduct was seriously compounded by his dishonesty in dealing with the Law Society in its investigation. The false story which he told was a detailed deception which was elaborated over several responses to the Law Society. The circumstances were further seriously aggravated by the appellant’s attempt to threaten DC, Mr Phelps and the Law Society.
We agree with Mr Beaumont that on its own the decision of the Tribunal to cancel the appellant’s practising certificate in these circumstances is sufficient to establish that the appellant is not a fit and proper person to hold a practising certificate and the appellant’s practising certificate should not be renewed. But there are other features of the case which leave no room for doubt about that conclusion.
A particularly noticeable aspect is that the appellant did not give evidence before the Tribunal in either of the proceedings. It was open to him to give evidence to support his responses to the Law Society, or alternatively, to give evidence of the circumstances which led him to deceive the Law Society. The present appeal was a further opportunity for the appellant to give evidence about these matters. Despite his comments mentioned at [104] above, he again chose not to do so. The result is that the Court has no evidence of the events which contradicts the findings of the Tribunal.
The appellant’s central contention on this appeal was that he should be permitted to continue to practise until the appeals against the Tribunal decisions have been disposed of. There is, he argued, a proper process for dealing with applications brought by the Law Society Council to the Tribunal. The process includes the right of appeal to this Court. Until the process is exhausted, the matters are not finally determined, and the appellant’s ability to practise should not be curtailed.
The appellant did not argue that the Court was bound to await the outcome of the appeals against the Tribunal decisions. Such an argument would not be available. Whether a person’s right to practice has been suspended or cancelled is a matter which the Legal Profession Act expressly allows to be taken into account (s 11(1)(f)), but it is not a matter in respect of which the Act requires the Court to accept automatically and without question the decision of the Tribunal and the opinions expressed in its reasons. It is a matter for the Court to assess the cogency of the decision and the reasons.
The decision of the Tribunal in the Client C matter is comprehensive and careful. The Tribunal’s views as to the seriousness of the conduct are justified. Indeed, without any evidence from the appellant on the issues, it is hard to see what other outcome was possible.
It is a mark of the appellant’s lack of insight into the seriousness of his conduct in the Client C matter that he expressed an unwarranted confidence in the success of his appeal against the Tribunal’s decision. He expressed a certainty that he would be exonerated, notwithstanding that Gray J in the unsuccessful stay application brought by the appellant described the chances of success as minimal. Further, there was little basis for confidence in the grounds of appeal outlined by the appellant in his written submissions. He intends to argue that the Tribunal erred in the use it made of the fact that he did not give evidence before the Tribunal. But in the Client C matter, the Tribunal did not rely on the failure of the appellant to give evidence. Rather, the Tribunal found that the grounds were made out on the positive evidence given by the witnesses who did give evidence.
The appellant’s reliance on the order made by consent on 9 June 2009 is misplaced. The plain reading of the order obliged the Law Society to renew the appellant’s restricted practising certificate for the year commencing 1 July 2009. The order said nothing about any renewal thereafter. The appellant did not provide any evidence of any particular context in which the order was made which would cause the Court to construe the order other than in accordance with its plain meaning. Further, since the order was agreed, the Tribunal has made very damaging findings in the Client C matter. The consent order did not prevent the Law Society from determining that the appellant’s practising certificate should not be renewed for the 2010-2011 year, and certainly does not prevent the Court from so doing.
In view of the opinion expressed by the Tribunal that the appellant showed no remorse over the Client C matter, it may have been expected that on this appeal he would respond to that opinion. But, far from showing any remorse about the Client C matter, the appellant in submissions cast the responsibility for any failing on others. Thus, he said that he had not been given adequate supervision. He suggested that Client C was motivated to complain because of the appellant’s failed relationship with her sister, Client N. He said that he did not give evidence before the Tribunal because he was advised by counsel to adopt that course.
The Magistrates Court matter provides further support for the view that the appellant is not a fit and proper person to hold a practising certificate. It is fundamental to the proper administration of justice that the courts can rely on the integrity of practitioners. The deception of the Magistrate by the appellant was a serious breach of his obligation. The wrongdoing was significantly exacerbated by his lying to the Law Society in the course of its investigation, his procuring of statements from the defendant and her partner that the Tribunal declined to rely on, and the submission to the Law Society of the false legal aid application form. Again, it is noteworthy that the appellant did not give evidence to the Tribunal about his actions, nor did he give evidence on this appeal. Whilst no sanction has yet been imposed by the Tribunal in relation to the Magistrates Court matter, the findings of the Tribunal in that matter disclose dishonesty of the appellant at such a high level that those findings alone would justify the conclusion that the appellant’s practising certificate should not be renewed for the current year.
The Client N matter is another example not only of a failure of the appellant to deal properly with his client, but of his untruthfulness in dealing with the Law Society’s investigation.
Further, the Court is entitled to take into account the investigation being conducted in the KM matter and the unresolved complaint in the KB matter (s 11(1)(f) of the Legal Profession Act). No findings have yet been made in either case, but their existence adds to the picture of the appellant as a person unfit to hold a practising certificate.
The BH matter provides yet further insight into the failure of the appellant to recognise his responsibility as a legal practitioner. He disposed of his diary after a request by BH not to do so. He failed to disclose that fact to BH or to the Court in the application for production of the diary. The appellant knew that BH had been appointed manager of the practice. His reliance on the technicality that he was not served with the notice of appointment shows a disregard for frank dealing with BH, and disregard of his obligation of full disclosure to the Court. Furthermore, his brazen submission on the appeal that he did nothing wrong in the BH matter shows both a lack of insight into his duties as a practitioner, and a lack of remorse for his behaviour.
The power to refuse, or to refuse to renew, a practising certificate is for the purpose of the protection of the public: Murphy per Giles JA at [113]. The power is not designed as a punishment of the practitioner. In view of the serious findings of professional misconduct in the Magistrates Court matter (which we have already noted would of itself be sufficient to justify a refusal to renew), the Client C matter and the Client N matter, and supported by the unresolved complaint and investigation in the KM and KB matters respectively, and his failure to act in accordance with his obligation in the BH matter (established by his own evidence), we found that the appellant was not a fit and proper person to hold a practising certificate.

Orders

At the end of the hearing the Court dismissed the appeal and made the usual order as to costs. The effect of dismissing the appeal was that the Law Society Council’s decision to refuse to renew the appellant’s practising certificate was confirmed.
I certify that the preceding one-hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 1 July 2011

Counsel for the appellant:  Self-represented
Counsel for the respondent:  Mr N Beaumont
Solicitor for the respondent:  Phelps Reid Lawyers
Date of hearing:  12 November 2010
Date of judgment:  1 July 2011