Legal Practitioners Conduct Board v Clisby - [2012] SASCFC 43

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application)
LEGAL PRACTITIONERS CONDUCT BOARD v CLISBY
[2012] SASCFC 43
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice Stanley)
1 May 2012
PROFESSIONS AND TRADES - LAWYERS - PRACTISING CERTIFICATES - CANCELLATION AND SUSPENSION
PROFESSIONS AND TRADES - LAWYERS - DUTIES AND LIABILITIES - DUTIES TO COURT - OTHER MATTERS
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA - PROCEEDINGS IN TRIBUNALS
Application by the Legal Practitioners Conduct Board for an order that the name of the legal practitioner be struck off the roll of legal practitioners - where the defendant had been found by the Legal Practitioners Disciplinary Tribunal to be guilty of unprofessional conduct - the findings of unprofessional conduct related to the defendant's conduct in relation to 12 clients concerning migration law - conduct took place in 2003/2004 - whether the name of the legal practitioner be struck off the roll having regard to his continuation in practice since that time - whether the practitioner should have conditions imposed on his practising certificate - whether any other sanction appropriate.
Held: Application to strike the legal practitioner's name from the roll of legal practitioners is dismissed - suspension for 2 years appropriate sanction in the circumstances.
Legal Practitioners Act (1981) (SA) s 82(6)(a)(v), s 82(6)(v), s 89(2)(c), s 89(2)(d) and s 89A; Migration Act 1958 (Cth) s 474, referred to.
Wentworth v NSW Bar Association (1982) 176 CLR 239; Law Society of South Australia v Murphy (1999) 201 LSJS 456; NSW Bar Association v Evatt (1968) 117 CLR 177; Legal Practitioners Conduct Board v Lind (2011) 110 SASR 531; A Solicitor v Law Society (NSW) (2004) 216 CLR 253; Legal Practitioners Conduct Board v Patterson (2011) 110 SASR 500; Law Society (SA) v Rodda (2002) 83 SASR 541; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; R, In re (a practitioner of the Supreme Court) [1927] SASR 58; Legal Practitioners Conduct Board v Phillips (2002) 83 SASR 467; A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; Legal Practitioners Conduct Board v Boylen (2003) 229 LSJS 32; Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; A Practitioner, Re (1984) 36 SASR 590; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Legal Practitioners Conduct Board v Hay (2001) 83 SASR 454, considered.

LEGAL PRACTITIONERS CONDUCT BOARD v CLISBY
[2012] SASCFC 43
Full Court: Doyle CJ, Anderson and Stanley JJ

DOYLE CJ and STANLEY J: The nature and circumstances of the conduct of the practitioner which has led the Legal Practitioners Conduct Board to seek an order that his name be struck off the Roll of Practitioners is set out in the reasons for judgment of Anderson J. We do not repeat them.
As Anderson J has concluded, the conduct demonstrated in the 12 matters charged, of itself, constitutes serious professional misconduct.
The issue before the Court is whether that unprofessional conduct is of such a character as to require the practitioner’s name to be struck from the Roll. The issue arises because some seven or eight years have passed since the practitioner’s unprofessional conduct occurred and, in that time, he has continued to act as a practitioner of this Court in an apparently competent and professional manner.
When exercising disciplinary powers, either pursuant to the Legal Practitioners Act 1981 (SA) (“the Act”), or pursuant to the Court’s inherent jurisdiction to discipline legal practitioners, the Court acts in the public interest and is primarily concerned with protecting the public, not punishing the practitioner who has done wrong.[1]
[1] Wentworth v NSW Bar Association (1982) 176 CLR 239 at 250 – 251; Law Society of South Australia v Murphy (1999) 201 LSJS 456 at 460 – 461; NSW Bar Association v Evatt (1968) 117 CLR 177 at 183 – 184.
In dealing with a practitioner’s unprofessional conduct, the Court acts to protect the public and the administration of justice. Section 89(2) of the Act confers a range of powers on the Court, from reprimand to striking off. The Court will prevent a person from acting as a legal practitioner by striking him or her off the Roll to protect the public, and in doing so, demonstrating that the person is, by reason of his or her conduct, not fit to remain a member of the profession that plays an important part in the administration of justice, and in which the public is entitled to place great trust.[2]
[2] Law Society of South Australia v Murphy (1999) 201 LSJS 456 at 460 - 461.
It is of the utmost importance that public confidence in the legal profession be maintained. Legal practitioners play an integral part in the administration of justice. The obligations which accompany a practitioner’s position are commensurate with the responsibility involved. The duties of legal practitioners include a duty to uphold the law, a duty to the Court, a duty to clients and a more general duty to members of the public. The Court and the public demand high standards from practitioners. This is reflected in the legislative processes that regulate the admission of practitioners and govern their conduct.[3]
[3] Legal Practitioners Conduct Board v Lind (2011) 110 SASR 531 at 534.
It is important to recognise that, in exercising the powers conferred on the Court in disciplinary proceedings, the issue for the Court is whether the practitioner’s unprofessional conduct demonstrates that he or she is not fit to remain a member of the legal profession. This requires consideration of what the High Court described as “the whole position”.[4] Nevertheless, the primary focus must be on the unprofessional conduct. After all, the very reason the practitioner is subject to disciplinary action is because of his or her unprofessional conduct. As Fullagar J said in Ziems v The Prothonotary of the Supreme Court of NSW,[5] in a different context, in considering whether a practitioner should be disbarred, the ultimate question is to be answered by establishing what the practitioner did and then characterising the conduct in order to determine whether he or she is disqualified from the practise of the profession. The practitioner’s professional conduct, whether it preceded or succeeded the unprofessional conduct, while not an irrelevant consideration, is very much a secondary consideration. The same point can be made in relation to the practitioner’s personal circumstances and any other extenuating circumstances.[6]
[4] A Solicitor v Law Society (NSW) (2004) 216 CLR 253 at 266 [18].
[5] (1957) 97 CLR 279 at 288.
[6] Law Society of South Australia v Murphy (1999) 201 LSJS 456 per Doyle CJ at 461.
In our view, the practitioner’s misconduct represents a gross departure from proper professional standards. The misconduct was not an isolated case. It occurred over a two-year period involving numerous clients, all of whom were particularly vulnerable. The misconduct was serious, demonstrating a fundamental breach of his professional obligations to his clients. The practitioner’s conduct is of such a kind that, if tolerated, would bring the legal profession into disrepute. The conduct amounted to an abuse of the privileges which accompany a practitioner’s admission to this Court. There is a need to protect the public from unprofessional practitioners. The public must be protected from legal practitioners who are ignorant of the basic rules of proper professional practice or indifferent to rudimentary professional requirements.[7]
[7] Legal Practitioners Conduct Board v Patterson (2011) 110 SASR 500 at 502.
While we do not put aside the manner in which the practitioner has conducted himself in practice in the years since his offending conduct occurred and the fact that his fitness to practise is to be decided at the time of the hearing,[8] the Court nevertheless has to consider the maintenance of public confidence in the profession and must ensure that only those who have observed the required standards are permitted to remain members of the legal profession.[9] The practitioner conspicuously failed to do so in respect of the matters to which he pleaded guilty before the Tribunal.
[8] A Solicitor v Law Society (NSW) (2004) 216 CLR 253 at 268 [21].
[9] Law Society of South Australia v Murphy (1999) 201 LSJS 456 per Doyle CJ at 461.
There are different but related public interests involved in the Court’s exercise of its supervisory function. First, there is the protection of the public from practitioners whose past conduct demonstrates that they lack the qualities of character and competence essential to the practise of the profession of the law. Secondly, there is the obligation to maintain public confidence that professional standards are being upheld, and with that, the maintenance of the public’s confidence in the mechanisms for supervising professional conduct. This Court sits at the apex of the structure established by the Parliament for that purpose. Ultimately, this Court must be satisfied that to permit the practitioner to remain in practice in the light of his proven and admitted professional misconduct, would not erode the public’s confidence in those matters to which we have referred.
In Law Society (SA) v Murphy[10] the Chief Justice said:[11]
By allowing a practitioner to remain on the roll of practitioners, the court holds the practitioner out as a fit and proper person to practise. There is a certain incongruity in allowing a practitioner to remain on the roll even though it has been demonstrated that the practitioner is not a fit and proper person to remain a practitioner. However, there are decisions indicating that in some circumstances an order suspending a practitioner’s right to practise will be adequate, even though for the time being the practitioner cannot be held out as a fit and proper person to remain a practitioner: see Ziems v Prothonotary of Supreme Court (NSW) (1957) 97 CLR 279 and Re B [1986] VR 695 at 705.
[10] (1999) 201 LSJS 456.
[11] (1999) 201 LSJS 456 at 461; Law Society (SA) v Rodda (2002) 83 SASR 541 at 545 [21].
As Anderson J has observed, the unprofessional conduct of the practitioner is such that he could be struck off the roll. However, there are the countervailing considerations that flow from his subsequent professional practice which appears to be without blemish over a period of seven or eight years. Nonetheless, it is vitally important that public confidence in the maintenance of professional standards is upheld. Unprofessional conduct of the character which occurred here would ordinarily call for the removal of the practitioner from the roll. If that had occurred soon after the unprofessional conduct came to light, the practitioner would, in all probability, now be in a position where a court would at some time in the not too distant future have to consider whether it would be appropriate to allow his readmission, in the event he made such an application. This consideration raises the question of whether, in the circumstances, the appropriate action to be taken by the Court is to suspend the practitioner’s practicing certificate rather than to remove him from the roll.
In our view, making due allowance for the manner in which the practitioner has conducted himself in the recent past, we consider the appropriate action the Court should take is to suspend the practitioner’s practicing certificate for a period which reflects the seriousness of his unprofessional conduct. We consider a period of suspension of two years is appropriate. We are satisfied this action will adequately meet the need to uphold public confidence in the maintenance of professional standards and in the mechanisms for supervising professional conduct. The Court’s action should be seen not as punitive but directed to this purpose.
In our view, the gravity of the practitioner’s unprofessional conduct necessitates the suspension of his practicing certificate pursuant to s 89(2)(c) for a period of two years from the date of this order. We would order accordingly.
ANDERSON J.
Introduction
In this matter the Legal Practitioners Conduct Board (“the Board”) is seeking an order that the name of the legal practitioner Mark Wallis Clisby (“the practitioner”) be struck off the roll of legal practitioners pursuant to s 89(2)(d) of the Legal Practitioners Act (1981) (SA) (“the Act”).
This application follows the recommendation of the Legal Practitioners Disciplinary Tribunal (“the Tribunal”) which recommended after a hearing that disciplinary proceedings be brought against the practitioner in this Court pursuant to s 82(6)(v) of the Act.
The issue in this matter is whether one count of unprofessional conduct, involving conduct relating to 12 clients, which took place between 18 December 2001 and 13 February 2004, is sufficient conduct to remove the practitioner’s name from the roll because he is not a fit and proper person to continue in legal practice.
The defendant pleaded guilty to the charge of unprofessional conduct and an agreed statement of facts was presented to the Tribunal.
The agreed statement of facts contains extracts from Federal Court transcripts of hearings and notes of the practitioner in relation to the 12 client files. It sets out each complaint, the practitioner’s response, witness statements provided to the Board, the practitioner’s file and the court file.
The charge to which the practitioner pleaded guilty was laid by the Board in December 2006. A second charge was laid in February 2008 and the matters proceeded together before the Tribunal.
The hearing commenced on 4 June 2008. The practitioner pleaded not guilty to the second charge but, during the hearing and after the first charge was amended, he pleaded guilty to that charge on 6 June 2008.
The Tribunal found the practitioner not guilty of the second charge on 3 August 2009 (the first reasons). Submissions were then made on 27 October 2009 as to penalty on the first charge and on 15 October 2010 (the second reasons) the Tribunal handed down its findings and published reasons.
The conduct to which the practitioner pleaded guilty, which is explained more fully later in these reasons, involved the practitioner acting for certain applicants involved in judicial reviews of decisions of the Refugee Review Tribunal and the Migration Review Tribunal under the provisions of the Migration Act 1958 (Cth).
The Tribunal made its findings and its recommendation for the application to this Court on 15 October 2010. The summons initiating the proceedings in this Court was taken out on 25 January 2011. There is no satisfactory explanation for the time which has elapsed from 2006. Whilst it is understood that a lot of time was required for a thorough examination of the files, it is nevertheless a cause for concern that such time has passed. None of the delay has been caused by the practitioner.
As can be seen, there have been a series of delays in the progress of this matter to this stage. I will discuss the significance of those delays in due course insofar as they might be relevant to any order that the name of the legal practitioner be struck off the roll.
Background
The practitioner commenced legal practice in 1987. He commenced practising in the area of migration law in 1989. He received referrals from other solicitors and from migration agents to represent various migrants in their reviews of immigration decisions.
In 2001, legislation was passed amending the Migration Act 1958 (Cth) which limited the scope of the jurisdiction of administrative tribunals in reviewing decisions. The practitioner challenged the validity of the legislation by commencing many judicial review proceedings in the High Court of Australia. The proceedings were in the names of the respective clients claiming judicial review. The proposed legislative change had been announced by the Federal Government in 1997. The practitioner before the amendment had kept a close watch on all reports and debates which took place over the next four years. He says in his affidavit that before the legislation was passed he formed the view that the proposal to introduce a privative clause into the Migration Act was possibly unconstitutional.
The Migration Act was amended. Part 8 was repealed and replaced with a new section 474, which reads:
Part 8—Judicial review
Division 1—Privative clause
474    Decisions under Act are final
(1)     A privative clause decision:
(a)is final and conclusive; and
(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2)     In this section:
“privative clause decision” means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not) …
The practitioner then took the view, after the legislation was passed, that the only way to avoid the effect of the privative clause was by invoking the original jurisdiction of the High Court. The amending legislation had pre-empted the possibility of applications to the High Court and placed a time limit of 35 days in which to appeal against a decision from the Migration Tribunal to the High Court.
The practitioner says he considered that the privative clause was invalid. He then set about drafting a pro forma application for judicial review which could be issued in the High Court on behalf of all of his clients who were appellants. He received numerous referrals from migration agents and other solicitors. The number of these referrals grew rapidly, resulting in approximately 365 applications in the High Court.
The practitioner believed that one of these matters would most likely be used as a test case before the High Court. However, the court decided to proceed with the hearing of another matter, plaintiffS157/2002 v Commonwealth of Australia (2003) 211 CLR 476 who was not one of the practitioner’s clients. At the conclusion of that hearing the High Court remitted all matters to the Federal Court. The Federal Court then set down strict timetables to progress the many applications remitted to it.
The practitioner was unable to control or manage the files or comply with the court’s requests because of their sheer volume. He said that he tried to engage solicitors to help him with the workload. He also sought out the assistance of the Law Society to help him find suitable practitioners to assist. The work was not processed. The practitioner on several occasions was rebuked by the members of the Federal Court sitting in Adelaide when he could not properly advance the applications in a timely fashion. Numerous costs orders were made against him personally and against his clients in favour of the Minister.
The practitioner continued to build a substantial practice, and on gaining clients, via the migration agents, he required and obtained the sum of $2,200 which he deposited into his trust account. That was a standard fee which he charged each client. He later reduced that fee when the volume of work escalated.
The Board investigated some 600 files relating to these migration appeals. It can be seen that with that volume of work it was clearly a lucrative practice for the practitioner. The Board does not suggest that he acted dishonestly.
The Board’s case before the Tribunal

Mr Harris QC, counsel for the Board before the Tribunal and this Court, submitted that the practitioner operated on what he called a “boiler plate system”. The practitioner’s staff produced the standard documents. Mr Harris argued that the “boiler plate” method was necessary because of the sheer volume of cases which the practitioner had accepted. It was also necessary to comply with the strict timetables required by the Federal Court judges once the matters were remitted from the High Court to the Federal Court.
The practitioner was also criticised before the Tribunal for failing to make appropriate submissions to the Federal Court in relation to costs orders made against his clients. The practitioner simply discontinued matters and failed to argue on behalf of his client that they should not have costs ordered against them when matters were discontinued and where there were arguments which could and should have been put by the practitioner. As a result, substantial costs orders were made by the court against his clients in favour of the Minister. Some orders for costs were made against the practitioner personally.
It is not in dispute that the practitioner has been personally responsible for the payment of some $176,000 worth of legal costs awarded against either him or his clients. I understand that he has paid that amount to the Minister.
Another submission made by the Board before the Tribunal was that this was a case of history repeating itself because the practitioner had been involved in a previous charge of unprofessional conduct in which he had been fined and reprimanded.
Those events occurred in 1995 in relation to a trial in the District Court before Judge Wilson. Judge Wilson described the practitioner’s conduct, when he acted as counsel in the matter, as:
Mr Clisby’s conduct had the hallmarks variously of ignorance, inexperience, incompetence, or plain bloody mindedness.
It was submitted before the Tribunal and before this Court that the practitioner has not really modified or altered his conduct and it is a case of history repeating itself because of his lack of understanding of a legal practitioner’s professional obligations. It is submitted that this is especially so in view of the repeated warnings given to him by the judges of the Federal Court.
The Tribunal found that the majority of the practitioner’s clients did not speak English at all or as a first language and had little knowledge or understanding of the Australian legal system and as such were particularly vulnerable. It was in those circumstances that the practitioner acted on their behalf in a manner which the Tribunal held was “seriously lacking in his professional obligation to them”.
The Tribunal found that, when he appeared before von Doussa J on 3 April 2003, and was given a warning, he was issuing applications in the Federal Court at the rate of 10 or more per week. The Tribunal also found that an analysis of his files showed that he had not taken instructions in the traditional way before issuing the applications for review. The Tribunal found that he gave no advice to his clients and that he failed to deal with his clients on an individual basis. The Tribunal found that the practitioner required the clients to sign a notice of acting in person so that if and when the proceedings were finalised, and upon the filing of the notice, the practitioner would no longer have any responsibilities to the court, including any obligations for costs orders.
The conduct of the practitioner continued despite the warnings received from the members of the Federal Court, although only one of the 12 matters the subject of the charge was issued after that time.
Summary of Tribunal findings
The unprofessional conduct
As a summary I quote from the Tribunal’s summary of the conduct of the practitioner in its first reasons at [95]:
[95]The categories of admitted unprofessional conduct were identified for the Tribunal in the opening. The matters of Pemej (count 1), Arachchige (count 2), Virendra Singh (count 3) and Kulaweera (count 4) related to the filing of Notices of Discontinuance without instructions. The matters of Suitela (count 5) and Ripinbir Singh (count 6), Deep Singh (count 7) and Tattla (count 9) related to the failure by the Practitioner to oppose dismissals of applications when he had no instructions. The matter of Marasinghe (count 8) related to the failure to oppose the dismissal of an application where the Practitioner’s instructions had been terminated. The matter of Rajan (count 10) related to the Practitioner’s failure to oppose the dismissal of an application when there was uncertainty as to the instructions to discontinue. Pannilage (count 11) and Selladwai (count 12) related to insufficiency of instructions.
As I have said, matters came to a head when the High Court remitted all of the matters instituted by the practitioner to the Federal Court of Australia. The Federal Court, through a series of judges in that court, made it clear to the practitioner that there were serious doubts about whether he was acting professionally and the judges raised with him questions as to his suitability to manage the volume of work. The strict timetables and regimes to dispose of the matters which were set in place by the judges of the Federal Court were not complied with by the practitioner.
I will deal specifically with the Tribunal’s findings later in these reasons but in essence the Tribunal found that the practitioner failed in his professional obligations to a group of particularly vulnerable clients.
Of the 12 clients only three were specifically advised by the practitioner as to the reason why the High Court proceedings had been instituted on their behalf. This was so in the matters of Suitela, Rajan and Selladwai. The other nine clients were not advised as to any prospects of success or otherwise. As far as I can ascertain none of the 12 were advised of the consequences should their applications be unsuccessful.
In short the practitioner failed to deal with his clients on the basis of specific instructions related to that client’s circumstance. Pro forma documents were lodged regularly by the practitioner including the clients in the 12 matters for which he was charged. The same fee was charged by the practitioner regardless of circumstances, although this fee was reduced in some of the later cases. There was no accounting by the practitioner to his clients for the work carried out.
The practitioner’s files revealed a lack of any analysis of the merits of the particular client’s matter and an absence of statements or notes relating to interviews with any of the individual clients. In short, the practitioner fell far short of the standards required of practitioners in advising and representing clients and all the more so because the clients were vulnerable because of their background and lack of understanding of the legal process.
The Tribunal analysed each of the 12 matters the subject of the charge. There were many similarities, as can be seen from [45] of these reasons.
The Tribunal set out some of the interchanges which occurred between the practitioner and members of the bench of the Federal Court in Adelaide. These interchanges took place within a relatively short period of time in 2003. The judges made it clear to the practitioner that they considered he was not acting in a professional manner.
After dealing with the facts regarding the first four of the 12 matters, the Tribunal said in its second reasons:
[18]The Board’s analysis of the Practitioner’s files in respect of each of these four clients demonstrated that the files contained no notes regarding the circumstances of the clients or their families, nor any details of the clients’ complaints against the Tribunal decisions refusing them migration or refugee status. There was simply no evidence in any of the four matters of any analysis having been undertaken at all. Nor was there any evidence of the obtaining of instructions with respect to relevant histories or circumstances of the individual clients. There was no evidence of any proper advice being given to the clients of their prospects of success or the consequences for them if their matters were unsuccessful. There was no evidence of the clients being advised of why the High Court actions were being instituted. The Practitioner’s opinion as to why the matters should be discontinued was not explained in any way. These 4 matters, and the other 8 matters, are not cases where inadequate advice was given. They are instances of cases where no advice at all was given.
It is apparent from the findings of the Tribunal that the practitioner issued proceedings regularly without any consideration of the respective merits of each matter. It was potentially an abuse of process of the Federal Court about which the practitioner was warned. No consideration was given by the practitioner to any liability for costs which his client might incur should the application be ultimately unsuccessful or if the application was discontinued.
One example of costs against a client was in the matter of Tattla in which Mansfield J ordered that the sum of $1,500 be paid by the client to the respondent department. The practitioner on that occasion simply advised the judge that, “The applicant has not complied with the costs rules and does not wish the matter to proceed to hearing”. He in fact had no instructions to take that course.
The Tribunal was particularly concerned that the practitioner failed to heed any of the warnings that he was given by the various members of the Federal Court. Some of those warnings were given in very strong terms.
The Tribunal said at [66] of its second reasons:
[66]It is of serious concern to this Tribunal that the Practitioner’s inability or unwillingness to modify or alter his conduct in the face of judicial advice, has been repeated despite the numerous judicial warnings and advice with respect to his professional obligations in the matter the subject of the charge to which he has now pleaded guilty. It would seem to this Tribunal that, although the penalty imposed by the earlier Tribunal might tend to suggest that the matter was not at the higher end of the scale, it is a case of history repeating itself. It is the Tribunal’s conclusion that it demonstrates a serious problem for the Practitioner in understanding and accepting his professional obligations, particularly when they are drawn to his attention by Judicial Officers. It indicates that the Practitioner has an innate inability to respond appropriately and to modify his conduct where he has been given the plainest of warnings that to continue to act as he has done offends his professional obligations.
It was in those circumstances that the Tribunal found that the unprofessional conduct admitted by the practitioner was of such seriousness for the Tribunal to recommend pursuant to s 82(6)(a)(v) of the Act that proceedings be commenced in this Court to remove him from the roll of legal practitioners.
Counsel’s submissions to the Court
(a) On behalf of the Board
The Board relies on the findings of the Tribunal. Mr Harris submitted that the practitioner’s conduct was a gross departure from proper professional standards. He relied in R, In re (a practitioner of the Supreme Court) [1927] SASR 58 at 61.
Mr Harris also relied on the previous matter before the Tribunal in 1997. I have referred to that earlier in these reasons. He said that the conduct on this occasion was a case of history repeating itself. I think too much emphasis was placed on that previous disciplinary procedure. The practitioner was acting as counsel at the time and was faced with a very difficult client. He was relatively inexperienced at the Bar and failed to handle a tricky situation in a proper professional manner. Although clearly relevant, I would not see that incident as having as much significance as counsel suggested. I do not think it is a case of history repeating itself, because quite different circumstances were involved.
Mr Harris submitted that the conduct of the practitioner is of a nature that would erode public confidence in the legal profession. He relied on Law Society of South Australia v Murphy (1999) 201 LSJS 456 per Doyle CJ at 460, and also Legal Practitioners Conduct Board v Lind (2011) 110 SASR 531.
Mr Harris submitted that the public must be protected from practitioners who are ignorant of the basic rules of proper professional conduct or indifferent to rudimentary professional requirements and standards: see Legal Practitioners Conduct Board v Phillips (2002) 83 SASR 467 at [42]-[43].
Mr Harris submitted that, despite the practitioner’s competence in the areas of law he now practises, such competence cannot outweigh the earlier departure from professional standards. He submits that this is not a case of immaturity or inexperience. The conduct likewise is not a “one off” slip but a protracted course of conduct. Mr Harris submits that the only appropriate order is that the name of the practitioner be struck from the roll.
(b) On behalf of the practitioner
Ms Nelson QC for the practitioner submitted that much has changed in the eight or nine years since 2003. Ms Nelson points to the following factors in favour of the practitioner:
·       No element of dishonesty was involved.
·       The practitioner’s cessation of all migration work from early 2007.
·       The practitioner entering into new and important areas of legal practice.
·       Testimonies from clients as to the assistance and advice given by the practitioner.
·       Senior counsel endorsing the continuing practice of the practitioner.
·       A realistic view by the practitioner that he needs to be supervised.
·       An arrangement whereby he is now supervised by Mr Gallasch and the fact that he appears to be doing useful work.
As a result of those matters the question is, Ms Nelson submits, whether it is in the public interest to remove the practitioner from the roll at this point in time.
Ms Nelson argued that the court acts in the public interest and not to punish the practitioner. Unprofessional conduct which is found against a practitioner does not inevitably or invariably lead to an order that the practitioner’s name be struck off the roll: A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253 at [15]; Legal Practitioners Conduct Board v Boylen (2003) 229 LSJS 32 at [49]; Legal Practitioners Conduct Board v Lind (2011) 110 SASR 531 at [13].
The question the court must determine is whether the practitioner is a fit and proper person to practise: Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 288.
Ms Nelson argued that suspension would have been the most appropriate action where a practitioner falls below the high standards to be expected of a practitioner: Law Society of South Australia v Murphy (1999) 201 LSJS 456 at 461. She submitted that there is no indication that he lacks quality of character and trustworthiness: A Practitioner, Re (1984) 36 SASR 590 at 593.
Ms Nelson poses the question that if the Board was so concerned with the practitioner’s conduct, why was an interim suspension order pursuant to s 89A of the Act not sought when the conduct arose? Whatever the answer, the fact that no such action was taken during a long period of time is a relevant factor.
The Tribunal expressed its concerns regarding the representation of vulnerable clients. Ms Nelson contends that the practitioner had a genuine concern to assist his clients. Ms Nelson submits that the vulnerability of the clients where the practitioner has shown a lack of judgment should not result in a finding that he is not a fit and proper person. The focus should be on the practitioner’s lack of judgment.
Ms Nelson submitted correctly that whether a practitioner is a fit and proper person to practise is assessed at the date of the disciplinary proceedings: A Solicitor at [21]. The lengthy period of unblemished practice since the date of the charged conduct is relevant to whether the charged conduct represents an “isolated or passing departure from professional standards”: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637.
Ms Nelson submitted that clients who have engaged the practitioner subsequent to the charged conduct have spoken highly of their experience as evidenced by their affidavits. In addition, two solicitors and a senior member of the Bar have given their positive opinions regarding the practitioner’s integrity, competence and responsibilities. Ms Nelson contends that given their understanding of the requirements of the legal profession, their affidavits are of significance and should be given considerable weight.
The affidavits, nine in all, speak highly of Mr Clisby’s legal work and the service and assistance he has provided to his clients in a range of work. The areas of work include establishing small businesses, environmental matters and general commercial matters.
The practitioner also states in his affidavit that over the past eight years he had appeared as counsel in several hundred matters in a variety of jurisdictions, including the Supreme Court, the District Court, the Environment, Resources & Development Court and the Magistrates Court.
The practitioner also states in his affidavit that in the past eight years he has done extensive work on referral from the Law Society Referral Service. For this work he charges $33 for an initial half-hour conference. He also gets referrals from the Eastwood Business Enterprise Centre relating to issues involving small business. For that work he charges only $145per hour.
In his own practice since 2004 the practitioner has sought advice from senior practitioners, until he became a salaried solicitor in the firm Dixon Gallasch Pty Ltd. His old office at Walkerville is now a branch office of that firm. Prior to these events in May 2011 Mr Gallasch did meet regularly with the practitioner after his advice was sought. Mr Gallasch, although not supervising the practitioner, was his sounding board during that time.
Ms Nelson submits that the Board has conceded that the practitioner is currently competent in the areas of law he practises. Ms Nelson says that the practitioner has already committed to not undertake any work now or in the future regarding migration law. He has not undertaken any such work since early 2007.
Ms Nelson also submitted that the Board placed undue emphasis on the number of matters in which the practitioner had acted unprofessionally, even though he was only charged in respect of 12 matters.
Ms Nelson submits that the Board’s submission that what was disclosed in connection with the 12 files is “representative” of what occurred in connection with hundreds of files, is unfair to the practitioner. The Board chose to lay the first charge by reference to 12 individual files only and has not indicated that it was concerned with any files in addition to the 12 matters. She contends that the practitioner should only be judged having regard to the charged acts and omissions alone, and not by reference to uncharged acts or assertions which are unsupported by evidence.
Ms Nelson submits that the practitioner is a fit and proper person at the present time regardless of what the situation might have been in 2003/2004.
The principles to be applied
It is clear that the practitioner’s conduct in 2003 and 2004 was well below the required professional standards of a legal practitioner as defined in A Practitioner, Re.
It seems to me that if the practitioner had been dealt with in 2004 in the Supreme Court, on referral from the Tribunal, it may have found it necessary to remove the practitioner from the roll. His conduct was indicative of a basic lack of understanding of his role as a practitioner in view of the various warnings given to him by the judges of the Federal Court. He clearly lacked the quality of character and trustworthiness which is a necessary requirement for a legal practitioner: see Legal Practitioners Conduct Board v Hay (2001) 83 SASR 454 at [60].

The public are entitled to believe that legal practitioners will act in their interest at all times and with full knowledge and understanding of the case the client wants presented to the court. The practitioner did not meet the required standard by his conduct in 2003-2004.
The public is to be protected from legal practitioners who are ignorant of the basic rules of professional practice or who are indifferent to rudimentary professional requirements and standards: see Legal Practitioners Conduct Board v Phillips (2002) 83 SASR 467 at [42].
In this matter we are not dealing with an immature or inexperienced practitioner. The Board has submitted that this is not a “one off” case because of the course of conduct in relation to many files, although only 12 such files made up the charge in this matter. I have already set out Ms Nelson’s submission on that point.
In my view, although the Board has emphasised a course of conduct over many files in addition to the 12 matters charged, it has done so to give the necessary background to the offending.
The Tribunal said at [83] of its second reasons:
[83]The conduct is rendered more serious by reason of the fact that it continued over a lengthy period of time. It occurred with a very large number of clients. It was repeated conduct of the same kind, despite receiving express warnings from members of the Federal Court about how the Practitioner was in breach of his professional obligations.
It is not strictly correct to say that the practitioner’s conduct is rendered “more serious” because of the extent of the warnings relating to files other than the 12 matters for which he was charged.
As Ms Nelson acknowledged in argument, the practitioner accepts that similar conduct was involved in files other than the 12 charged. The practitioner accepts that he cannot claim that it was conduct which only occurred on 12 matters.
In my view it does not matter in any event. That is because the conduct itemised in the 12 matters charged, is of itself sufficient to amount to serious professional misconduct. The practitioner of course accepts this because he has pleaded guilty.
The question is why should things be viewed differently in 2012 in this application to strike the practitioner’s name from the roll. Put another way, the question is whether the practitioner should be given a second chance because he has shown over seven or eight years that he is capable of doing useful and productive work in his capacity as a legal practitioner.
The Board did not take any interim measures to protect the public by applying to have the practitioner’s practising certificate suspended. Seven or eight years have now passed since the practitioner’s unprofessional conduct and he has remained active and productive in the profession during that time.
Conclusion
In this matter it is not a question of deciding whether the conduct of the practitioner is unprofessional. He has admitted that it is. The question is whether that unprofessional conduct is of such a character as to require the practitioner’s name to be struck from the roll.
This is not an easy question to answer on the facts of this case. That is because at this point in time there is nothing to show that the practitioner is acting other than in a competent and professional manner. He has now been conducting practice in this way for some seven or eight years.
As I have said, the public interest demands that his conduct in 2003-2004 be scrutinised critically. It was certainly conduct for which he could have been struck off the roll. The object of the Act is not to punish the practitioner but to protect the public.
My inclination is that marginally the practitioner should be allowed to continue in practice. Since preparing these reasons I have had the advantage of reading in draft the joint reasons of Doyle CJ and Stanley J. I agree generally with their comments concerning the maintenance of public confidence in the profession. It is an important consideration.
I am aware that the Chief Justice and Stanley J consider that the practitioner should be suspended from practice for a limited period.
Whereas I would have allowed him to continue in practice, albeit under strict conditions of supervision, I can see the merit in imposing a period of suspension to properly recognise the seriousness of his conduct and the need to uphold public confidence in the standards of the profession.
I would therefore join in the order proposed by the other members of the Court.