Legal Practitioners Conduct Board v Jones - [2009] SASC 347

SUPREME COURT OF SOUTH AUSTRALIA
(Miscellaneous Appeal: Civil)
LEGAL PRACTITIONERS CONDUCT BOARD v JONES
[2009] SASC 347
Reasons for Decision of The Honourable Justice Layton
13 November 2009
PROFESSIONS AND TRADES - LAWYERS - PRACTISING CERTIFICATES - CANCELLATION AND SUSPENSION
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA - APPEALS
Appeal by Board against decision of Legal Practitioners Disciplinary Tribunal to place a condition on the practising certificate of respondent to be under supervision for 18 months – respondent pleaded guilty to the charge of unprofessional conduct as particularised before the Tribunal – the Tribunal did not recommend disciplinary proceedings before the Supreme Court.
Held: The order of the Tribunal should be set aside and instead this Court recommends that proceedings be commenced against the respondent in the Supreme Court – the Tribunal erred in finding that the respondent’s conduct was not dishonest in the ordinary sense of the word – the Tribunal erred in the weight it placed on the respondent's stress and sad and unusual circumstances – the Tribunal failed to take into account the respondent’s past disciplinary history – the Tribunal's order was inadequate and inappropriate.
Legal Practitioners Act 1981 (SA) s 82(6)(a)(iii), s 82(6)(a)(v), s 82(2), s 82(6), s 89A, s 41(1), s 5, s 86(3)(a), referred to.
Papps v Medical Board of South Australia [2006] SASC 234; House v R (1936) 55 CLR 499, applied.
T v Medical Board (1992) 58 SASR 382; Mac Audio v Eddy [1999] SASC 443; Harle v Legal Practitioners Liability Committee [2003] VSCA 133; (2004) ANZ Insurance Cases 51-605; Legal Practitioners Conduct Board v Kerin [2006] SASC 393; Law Society (SA) v Murphy (1999) 201 LSJS 456; Wentworth v NSW Bar Assciation (1992) 176 CLR 239; Wigg v Architects Board of South Australia (1984) 36 SASR 111, considered.

LEGAL PRACTITIONERS CONDUCT BOARD v JONES
[2009] SASC 347

LAYTON J: This is an appeal by the Legal Practitioners Conduct Board (“the Board”) against the penalty imposed by the Legal Practitioners Disciplinary Tribunal (“the Tribunal”) on the respondent, a legal practitioner, who pleaded guilty to a charge of unprofessional conduct. The penalty, handed down by the Tribunal on September 4 2009, imposed a restrictive condition on the respondent’s practising certificate pursuant to s 82(6)(a)(iii) of the Legal Practitioners Act 1981 (SA) (“the Act”), albeit that the respondent had surrendered his practising certificate in August 2008. The intended effect of the condition was that, upon renewal of his practising certificate, the respondent would be required to practise under the supervision of a practitioner of not less than five years standing for eighteen months. There remained some controversy as to the precise effect of the condition as ordered by the Tribunal which I will deal with later in these reasons.
The Board appeals pursuant to s 86 of the Act, arguing that the conduct of the respondent was so serious that merely imposing a condition on his practising certificate was too lenient a penalty and that the Tribunal ought to have exercised its power to recommend disciplinary proceedings against the respondent in the Supreme Court pursuant to s 82(6)(a)(v) of the Act.
The Charges:
The charge of unprofessional conduct, pursuant to s 82(2) of the Act was brought against the respondent on 23 March 2009. The conduct in question occurred over a period of two years between about June 2006 to June 2008. The respondent was unrepresented at the hearing and pleaded guilty to the charge and admitted all of the particulars save one, which is not salient to the appeal. The Tribunal found all 18 allegations proved. The conduct concerned the respondent’s dealings with some 14 clients. The conduct comprised:
·eight instances of misappropriation which encompassed 30 instances where the respondent’s pattern of conduct was to receive monies from clients for payment of legal fees and then to “misappropriate” the money on account of fees in breach of s 41 of the Act, rather than deposit the money into the trust account as required;
·four instances of failing to cooperate and be fully frank with the Board as it investigated complaints against him;
·one instance of failing to disclose to the Legal Services Commission that he had received payment on account of legal fees from the client when submitting the client’s application for legal funding;
·two instances of lying, one to the Board and another to the SA police; and
·three instances of producing bills of costs to clients that were false and misleading.
At the hearing, the respondent did not give evidence but made submissions about the conduct. This is invariably a matter of concern as it is always important to identify evidence by a party as distinct from submissions and to clarify this situation, particularly where a person is unrepresented.
The respondent submitted that his psychological state at or around the time of the complaints was relevant so he was given leave by the Tribunal to submit a medical report and subsequently filed a psychologist’s report dated 19 June 2009. On 28 August, the Tribunal reconvened so that submissions could be made in relation to the psychologist’s report.
Findings of the Tribunal
The Tribunal in its reasons noted that pursuant to s 82(6) of the Act, the Tribunal had power to deal with such offending in the following ways: by reprimand; by imposing conditions on or suspending practising certificates; by fine; and by the bringing of disciplinary proceedings in the Supreme Court. The Tribunal found that the public had already been protected by the appointment of a manager to the respondent’s practice and that the respondent had voluntarily suspended his practising certificate effective from 14 August 2008. The Tribunal accepted the report of the psychologist and stated that the report gave “some insight into the effect of stress and other matters had upon the practitioner’s behaviour” the main cause of which was his sons serving duty in the armed forces overseas. However, the Tribunal also noted that the impugned conduct of the respondent occurred “either side” of that stress.[1]
[1] In The Matter of Jeffrey Evan Jones [2009] The Legal Practitioners Disciplinary Tribunal, No. 6 of 2009 (unreported SJ Maharaj QC, J Clarke, M Montgomery, 4 September 2009) at [59].
The Tribunal found that the respondent’s offending was “most serious”. It accepted that the respondent was remorseful and apologetic, that he had insight into his conduct and that he wanted to get on with the next stage of his life. Importantly, the Tribunal also found that there was a “lack of any element of dishonesty when the breaches occurred”. Further, that his personal circumstances were “sad and unusual circumstances … at or around the time of the offences were committed.” It then indicated that the objectives of the Act would be achieved and the public interest adequately protected if conditions were attached to his practising certificate. In so concluding, it rejected the submissions made by counsel on behalf of the Board that the Tribunal should recommend that disciplinary proceedings be commenced against the practitioner in the Supreme Court.[2]
[2] In The Matter of Jeffrey Evan Jones [2009] The Legal Practitioners Disciplinary Tribunal, No. 6 of 2009 (unreported SJ Maharaj QC, J Clarke, M Montgomery, 4 September 2009) at [59-61].
Application to suspend practising certificate
For completeness, I mention that pending this appeal, the Board applied for a suspension of the respondent’s practising certificate, pursuant to s 89A of the Act until further order. That application was dismissed by the Chief Justice in an ex tempore judgment on 14 October 2009. The Chief Justice noted the respondent’s stated intention was to “wait out the 18-month period and then to resume his practice”. In these circumstances and given the conditions imposed if the respondent did practise, his Honour found that in the interim period, the “risk of the public suffering harm as a result of him practising is minimal.”
Grounds of Appeal
The Board asserts that in imposing the penalty that it did, the Tribunal erred in the following ways:
(1)... in failing to recommend that disciplinary proceedings be commenced against the   practitioner in the Supreme Court.
(2)... in only imposing a condition on the practitioner’s practising certificate;
(3)... in failing to provide adequate reasons for only imposing a condition on the practitioner’s practising certificate and for not recommending that disciplinary proceedings be commenced against the practitioner in the Supreme Court;
(4)... in failing to give sufficient weight to:
a.     protecting the public interest,
b.     the need to maintain proper professional standards,
c.     the need to maintain the public’s confidence in the legal profession,
d.     the need to not tolerate conduct which would bring the legal profession into disrepute;
e.     the practitioner’s failure to appreciate what professional standards require or an inability to adhere to those standards;
f.     the practitioner’s indifference to rudimentary professional requirements; and
g.     the practitioner’s substantial and recurring failure to meet the standard of conduct observed by competent legal practitioners of good repute.
(5)... in failing to give sufficient weight to the range and seriousness of the practitioner’s misconduct.
(6)... in finding that the practitioner’s “lack of any element of dishonesty when the alleged breaches occurred” when the practitioner admitted lying to the Board, lying to the South Australian Police, and having created bills which were false and misleading.
(7)... in finding sad and unusual circumstances in which the practitioner found himself at or around the time the offences were committed, when much of the misconduct occurred before and after the said circumstances.
(8)... in failing to find that the practitioner’s explanation for his misconduct did not explain all of his misconduct, and in any event did not excuse his misconduct.
(9)... in failing to have any or sufficient regard to the practitioner’s admitted disciplinary history, wherein the practitioner had twice previously been reprimanded by the Board.
These nine grounds of appeal were directed to the exercise of the discretion of the Tribunal in making its orders. There was no challenge to the Tribunal’s findings, which although not explicitly stated to be findings, appeared to be an acceptance of the allegations made by the Board as to the Unprofessional Conduct and then summarised in paragraphs 3 to 29 of the reasons for decision. There was no challenge to the legal principles stated by the Tribunal as being relevant as stated in paragraphs 51 and 52. The focus of the appeal was on the reasoning of the Tribunal, notably in paragraphs 60 and 61.
Those paragraphs were as follows:
The Tribunal is of the view that the practitioner’s conduct is most serious. We accept however that the practitioner is remorseful and apologetic for his conduct has insight into his conduct that has led to the complaints and wants to get on with the “next stage of his life”.
The Tribunal is of the view that in the present case the powers of the Tribunal under section 82(6) (a) (i) (ib) and (ii) of the Act are not appropriate. However, given the practitioner’s remorse, insight into his conduct, lack of any element of dishonesty when the alleged breaches occurred and the rather sad and unusual circumstances in which he found himself regarding his sons at or around the time the offences were committed, the Tribunal is of the view that the objectives of the Act would be achieved and the public interest adequately protected if conditions were attached to his practising certificate.
The principles to be applied on appeal
Rule 6SCR292(1) governs the hearing of this appeal. This rule provides that any appeal to the Supreme Court from any lower court or tribunal “is to be by way of rehearing (unless the law under which the appeal is brought provides to the contrary)”. No such contrary provision exists in the Act,[3] however the Act does not expressly stipulate whether the rehearing should be de novo or otherwise. I have taken into account that on occasions an appeal by rehearing against an administrative decision may well be a hearing de novo. On this point, Cox J noted in Wigg v Architects Board of South Australia,[4] that “the use of the word ‘rehearing’ will not be decisive” and that in order to determine the type of rehearing intended by particular legislation, a close examination of that act is required.[5] His Honour recognised three different categories of statutory appeal procedure, the latter two of which may be subject to the label “rehearing”: the first is “an appeal strictly so-called” where there is no fresh evidence before the appeal court and where the only decision is whether the lower court or tribunal made the right decision on the evidence before it; the second is by way of rehearing on the documents, but where the appeal court may also hear fresh evidence so that its decision to affirm or overturn the decision of the lower court is based on the material before it at the time of the appeal; the third is an appeal de novo where the matter is heard afresh and the complainant must call witnesses and make out its case again. In a de novo appeal, the appeal court may only make a decision based on the material before it and should not be limited in any way by the lower court or tribunal’s findings.[6]
[3] See s 86 where the parties rights of appeal from a decision of the Tribunal are set out.
[4] (1984) 36 SASR 111.
[5] (1984) 36 SASR 111, 113.
[6] (1984) 36 SASR 111, 112-113.
In determining whether an appeal should be heard de novo, Gray J (with whom Nyland and Vanstone JJ agreed) in Papps v Medical Board of South Australia[7] accepted Cox J’s three categories of appeal procedure in the context of an appeal to the Full Court from a decision of the Medical Practitioners Professional Conduct Board.[8] His Honour went on to examine the relevant provisions of the Medical Practitioners Act, in accordance with the requirement set down by Cox J, to determine the type of appeal intended by that Act. In doing so, his Honour noted that s 63(3)(c) of the Medical Practitioners Act gave the appeal court the power to “remit the subject matter of the appeal to the Board or the Tribunal (as the case may be) for further hearing or consideration or for rehearing”. Gray J reasoned that this power to remit a matter to the tribunal would have no purpose if the intent of the legislation was to hear appeals de novo. On this basis, his Honour held that the intention of the legislature was for “a rehearing on the documents, but with the power to receive further evidence on the appeal”,[9] which corresponds with Cox J’s second category. The Legal Practitioners Act at s 86 (1)(b), contains an almost identical provision to s 63(3)(c) of the Medical Practitioners Act within a very similar legislative scheme. Therefore on the same reasoning as Gray J’s in Papps, the rehearing in the present case falls into the same category.
[7] [2006] SASC 234.
[8] [2006] SASC 234 at [29].
[9] [2006] SASC 234 at [34].
In any such appeal, the Court is required to make a review of the evidence and make a critical and thorough scrutiny of the findings.[10] As the appeal involves the exercise of discretion, the relevant principles are governed by the well‑known principles in House v the King.[11]
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[10] T v Medical Board (1992) 58 SASR 382.
[11] (1936) 55 CLR 499, 504-505.
Thus an appellate court is not entitled to substitute its own discretion in lieu of that of the court below unless an error in the exercise of that discretion can be detected.[12]
[12] Mac Audio v Eddy [1999] SASC 443.
The Board’s main contentions
In summary, counsel for the Board contended that the Tribunal erred fundamentally in five respects:
First, the Tribunal erred when it found “lack of any element of dishonesty when the breaches occurred”;
Second, the Tribunal erred when it concluded that the respondent had “insight into his conduct”;
Third, the Tribunal erred in relation to the relevance and use made of stress suffered by the respondent and the weight placed on the “sad and unusual circumstances” of the respondent in relation to the offending conduct;
Fourth, the Tribunal did not have any or sufficient regard to the past disciplinary history of the respondent;
Fifth, the Tribunal erred in relation to the order made in that it was an inappropriate and inadequate response to the conduct.
It was submitted that the Tribunal failed to recognise the range and seriousness of the respondent’s conduct, particularly in relation to the counts of misappropriation of funds, the back dating of bills of costs and lying to the Board and to the SA Police.
Dishonesty
In relation to the first of the errors, the Tribunal early in its reasons noted that in respect of the alleged “misappropriations”, the Board was asserting a breach of s 41(1) and was not asserting that the respondent had misappropriated in a “fraudulent sense”. The Tribunal was correct in noting that the Board had not asserted that the practitioner had failed to do work of the order of the amounts misappropriated. However, I am concerned that in so excluding “fraudulent” behaviour, the Tribunal had then drawn the inference that the behaviour of the respondent should not be characterised as “dishonest”.
On its own findings, there was a pattern of conduct in which the respondent accepted monies paid by his clients on account of costs. He did not deposit the monies in any bank, let alone a trust account as he was required under the Act. On most occasions the monies were paid by his clients in advance of costs. Referring to the allegations set out in the charge, paragraphs 1, 5 and 6, give instances of where monies were received and appropriated without bills being issued. Similarly in paragraph 9, in the associated transactions numbered 2, 7, 9, 13, 14, 16, 17, 18 and 19, monies were appropriated without bills of accounts being issued.

In relation to paragraph 9, there were six transactions namely transactions 1, 8, 10, 11, 12 and 15 in which bills were issued after the monies had been appropriated.
Even more disturbingly, there were six instances namely paragraphs 10, 11, 12, 13, 14 and 15 which involved the respondent receiving monies from clients when the money was not deposited in any account, but more importantly bills of costs were created and backdated “falsely and misleadingly”[13] to establish entitlement to the monies received when the respondent had not performed all of the work.
[13] See paragraphs 10, 11, 12, 13, 14 and 15 of the Charge against the Respondent.
Looking at this conduct of misappropriation and creating bills of cost which were false and misleading, the issue which arises on this appeal is whether such conduct could be characterised as “lack(ing) any element of dishonesty”.
When considering this issue, it is first necessary to look at whether the Tribunal was referring to dishonesty in any special statutory sense or dishonesty in its ordinary meaning. In the Act, dishonesty is not expressly defined, however, it is mentioned as one of the constituents of one species of unprofessional conduct, as defined in s 5 of the Act:
Unprofessional conduct in relation to a legal practitioner means –
(a)an offence of a dishonest (emphasis added) or infamous nature committed by the legal practitioner in respect of which punishment by imprisonment is prescribed or authorised by law; or
(b)any conduct in the course of, or in connection with, practice by the legal practitioner that involves substantial or recurrent failure to meet the standard of conduct observed by competent legal practitioners of good repute.
The manner of the presentation of the case by the Board indicates that it was not contending that the conduct of the respondent amounted to an offence of dishonesty for which imprisonment was prescribed or authorised. Both the Board and the Tribunal, without explicitly indicating it, were proceeding under the second species of unprofessional conduct under s 5(b) of the definition. The Tribunal’s use of the word “dishonesty”, particularly given the context of the whole sentence, was referring to dishonesty in a non-statutory sense.
The ordinary meaning of dishonesty was the subject of judicial consideration by the Victorian Court of Appeal by Chernov JA (with whom Calloway and Buchanan JJA agreed) in Harle v Legal Practitioners Liability Committee[14] where it was a term used in one of the conditions of a professional indemnity insurance policy. The condition provided:
that the insurer would “not indemnify the [appellant] against any liability … [a]rising in whole or in part, directly or indirectly from, or brought about by –
(a)The dishonesty or fraudulent act or omission of any Insured on or before 31 December 1997 …”.
[14] [2003] VSCA 133.
Chernov JA concluded that dishonesty was not a term of art and within the policy under consideration it should be given its ordinary meaning, as opposed to any “special sense in relation to statutory offences”. Chernov JA continued:[15]
It embraces deliberate conduct which is considered to be dishonest by the standard of ordinary decent people, or, put another way, the ordinary standards of reasonable and honest people.
Whether particular conduct amounts to dishonesty involves the consideration of the mental state - the knowledge, belief or intention - of the person whose conduct is impugned. But, as has been made clear in (Peters v R),[16] this does not involve consideration whether, subjectively, the person realised that his or her conduct was dishonest by the above standard.
(Footnote added)
Applying this approach, it seems to me that the findings of the Tribunal as to the conduct of the respondent would be regarded as being dishonest according to the ordinary standards of people. Moreover, the requisite elements of falsity and intent in the specific circumstances of the conduct are obvious in the fact that as a practitioner of long standing, the respondent was well aware of his obligations, and deliberately chose to ignore them. In his own admissions to the Tribunal and to this Court and in the findings of the Tribunal, there was no suggestion of inadvertence or oversight in his conduct. On the contrary, his conduct, particularly in relation to the backdated bills of cost for work, was clearly intended to cover up his failure to meet his obligations under the Act and to create false entitlement to monies paid to him. By his own admission, he deliberately used the money which was not paid into trust to pay for overheads in running his legal practice such as stationery, petrol and rent.[17] By this conduct alone, I consider that there was an error made by the Tribunal in the characterisation of the respondent’s conduct as lacking any element of dishonesty.
[15] [2003] VSCA 133 at [29-30].
[16] (1998) 192 CLR 493.
[17] Transcript of Proceedings, In the Matter of Jeffrey Evan Jones (Legal Practitioners Disciplinary Tribunal, 16 June 2009), p50, 37-38; p51, 32 – p52, 5; p54, 31-35; p55, 22-28.
This is further reinforced in relation to the lack of frankness and lack of cooperation with the Board as found by the Tribunal in paragraph 4 of its reasons. Other instances of his lack of frankness are in paragraph 7 of the charge, referred to in paragraphs 6 and 7 of the Tribunal’s reasons, where he failed to disclose to the Legal Services Commission his receipt of money on account of legal fees from a client who at the time had submitted her application for legal aid funding. Further, paragraph 8 of the charge as set out in paragraphs 9 to 17 of the reasons, refers to two instances of lying to the Board and the SA Police. Again, I consider that this conduct of the respondent could be characterised as being dishonest in the manner indicated.
The conclusion of the Tribunal that there was a “lack of any element of dishonesty when the alleged breaches occurred”, is all the more puzzling in view of the admissions which the respondent made to the Tribunal at the hearing. I repeat at this point my concern at the potential blurring of the lines between the respondent’s submissions and his evidence. Having said that, at page 45 of the transcript he indicated that:[18]
I mean, there’s only one efficiency in the law and that’s honesty; and if you’re honest everything is possible. As soon as you’re dishonest everything collapses; I understand that. And I was dishonest. I had the advantage of that money before I should have.
Further, at pages 45 to 46 the practitioner stated:[19]
I’ve tried to be as co-operative and honest as I can be with the board since this matter came to a head but there’s no getting away from the fact that my performance was – was unprofessional. It was dishonest in a number of critical areas, which goes to the very core of how lawyers operate.
[18] Transcript of Proceedings, In the Matter of Jeffrey Evan Jones (Legal Practitioners Disciplinary Tribunal, 16 June 2009) p 45.10-14.
[19] Transcript of Proceedings, In the Matter of Jeffrey Evan Jones (Legal Practitioners Disciplinary Tribunal, 16 June 2009) p 45.38 -46.05.
By the combination of these admissions made by the respondent as to his conduct and the Tribunal’s findings as to the conduct, and taking into account the ordinary meaning of dishonesty according to the standards of ordinary decent people, I find the Tribunal was in error in finding that there was a lack of any element of dishonesty in relation to the instances of misappropriation of money.
The finding of the Tribunal was also contrary to the acknowledgement by the practitioner as to the allegations of him lying. The allegations were put to him by the Tribunal at page 50 of the transcript whereupon the practitioner, at lines 26 to 32, admitted that lying. This cannot be categorised in any way other than deliberate conduct which is dishonest by the standard of ordinary decent people.
In conclusion as to the first alleged error, I find that there was error by the Tribunal when it found “lack of any element of dishonesty when the breaches occurred”.
Insight
I turn now to consider the second alleged error namely the finding by the Tribunal that the respondent had “insight into his conduct”. Counsel for the Board at the hearing of the appeal argued that this finding of the Tribunal was completely at odds with the affidavits of the respondent dated 10 October 2009, paragraph 4(v) and that of 22 October 2009, paragraph 7(b).
These affidavits post date the Tribunal hearing and decision and the affidavits themselves reflect the approach which the respondent says should be taken by this Court on appeal in relation to the Tribunal findings. Counsel for the Board essentially argued that the respondent by not being prepared to admit his dishonesty before this Court and instead relying on the findings made by the Tribunal, was showing a clear lack of insight into the seriousness of his behaviour. I am not persuaded by that argument.
More relevantly, the Tribunal had before it the submissions of Mr Jones acknowledging his behaviour. The practitioner, at page 45, expressed:[20]
[20] Transcript of Proceedings, In the Matter of Jeffrey Evan Jones (Legal Practitioners Disciplinary Tribunal, 16 June 2009) p 45.03-09.
My personal view is that I’ve learned a lesson. I understand a second chance. I believe that I’ve done damage to the profession rather more than to clients and that is a great regret for me because the profession has given me a lot – a great deal – but I’ve got no complaints if it goes further and – and if the profession washes its hands of me.
Further, he continued:[21]
[21] Transcript of Proceedings, In the Matter of Jeffrey Evan Jones (Legal Practitioners Disciplinary Tribunal, 16 June 2009) p 45.15-21.
It’s my submission that if I’m given a second chance there could be conditions put on my practising certificate which keep me at a distance from accounting procedures; I could work as an employee. Again, I know the damage has been to the profession rather than to clients but I understand there has been damage to clients as well and I regret that.
Further, at page 45:[22]
I understand the damage is severe…It was dishonest in a number of critical areas which goes to the very core of how lawyers operate.
Also, at page 47, he stated:[23]
There’s been serious allegations of misappropriation of funds, and I acknowledge that I had advantage of monies before I should have.
Accepting these admissions at their face value, as the Tribunal was entitled to do, they would appear to demonstrate an insight as to the seriousness of the charges and the effect that that has in relation to the legal profession and public confidence. I therefore consider on the basis of the material before the Tribunal that its conclusion that the respondent indicated an insight into his behaviour did not amount to error. I observe, however, that on the basis of the submissions made before me on appeal I would have some doubt about his insight. The respondent appeared to minimise his behaviour, and in particular the effect of his conduct on public confidence. He appeared to focus on the lack of “loss and damage” caused to clients, that his professional skills in providing good advice had always been good and that it was merely his administrative practice that had fallen down. One of his numerous submissions reflecting this focus was as follows:[24]
If there’s not going to be any loss or damage to the public interest that is a fundamental plank of protecting the public interest. I understand that not processing paperwork and failing to administer the office properly requires education, it requires some sort of action. I accept all that. But at the same time I think what should be - I should get some credit for is that even though I was under considerable stress, I made sure no one got hurt.
This would cause me some concern as to whether the respondent at this point truly has insight, but this issue may be left for later in the light of my conclusion as to the orders which should be made.
[22] Transcript of Proceedings, In the Matter of Jeffrey Evan Jones (Legal Practitioners Disciplinary Tribunal, 16 June 2009) p 45.37-46.03.
[23] Transcript of Proceedings, In the Matter of Jeffrey Evan Jones (Legal Practitioners Disciplinary Tribunal, 16 June 2009) p 47.05-08.
[24] Transcript of Proceedings, Legal Practitioners Conduct Board v Jones (South Australian Supreme Court, Layton J 10 November 2009), p49, 23-31.
I am therefore not satisfied that the Tribunal erred in its conclusion that the respondent has insight; I can only express some disquiet about this aspect.
Sad, unusual circumstances and stress
The third error relied upon by the Board is the approach taken by the Tribunal in relation to the breaches having occurred by reason of the respondent’s stress and the “sad and unusual personal circumstances” as referred to in paragraphs 59 and 61 of its reasons.
Counsel for the Board drew attention to the decision of the Full Court in the matter of Legal Practitioners Conduct Board v Kerin.[25] In particular White J, in dealing with the submission made by counsel for the practitioner in that case about stress due to a breakdown of a marriage, indicated this:[26]
One can accept, however, that the practitioner’s matrimonial situation may have affected his judgment. I agree that this circumstance does extenuate the practitioner’s conduct to some extent. However, I do not regard it as being appropriate to attach much weight to this factor in this case. Practitioners are expected to maintain high standards of conduct even in times of personal stress. Again the fact that the conduct occurred over such a long period is relevant. It is not a case in which a single error of judgment can be attributed to a moment of stress.
[25] [2006] SASC 393.
[26] [2006] SASC 393 at [44].
In this case, there was a pattern of behaviour over a period of two years. It was not an isolated incident and, importantly, the stress claimed by him did not cover the whole period of the conduct. Whilst there was confusing evidence as to precisely when the respondent’s sons were on overseas service, that period appears to have covered from October 2006 through to about June 2008 with some short remission. This was the particular cause of stress, therefore the alleged conduct occurred at least in part in a period prior to the alleged stressor.
In any event, in my view, the Tribunal attached too great a weight to the circumstances of stress. It is also to be noted that during this whole period of stress, the respondent appeared to be able to conduct his other legal functions and duties as part of his legal practice. Further, it is one thing for the respondent to say he fell down on his administrative duties, it is another to say that the stress could account for or even properly explain the use which he made of monies for business and personal expenses when he knew that he was not entitled to use that money. Stress may explain technical non-compliance matters, but it does not explain or excuse the use of monies to which the respondent knew he was not entitled. He did not for example simply keep the monies in a drawer. He did not put the monies into any bank account, but used it for his personal needs as well as business needs.
This brings me to the psychological report of Mr Upsdell, which was not noted as being an exhibit but was clearly before the Board. Mr Upsdell saw the respondent on one occasion on 18 June 2009. The psychologist recorded:
I understand that he has been charged with unprofessional conduct relating to financial irregularities associated with his practice as a legal practitioner.
If this is the manner in which the respondent reported his conduct to the psychologist, then this demonstrates a significant understatement of his conduct. If this was simply a shorthand way of the psychologist describing the conduct of the practitioner, then the report is of somewhat limited assistance when the psychologist observes that:
He chose to cope through the denial which led to his neglect of financial duties, a task that he had always found less pleasant than client and courtroom interaction.
In conclusion I consider that the Tribunal erred in placing too much weight on the aspects of stress and personal circumstances of the respondent in its assessment as to the order which should be made and in particular its conclusion that it exercise its powers under s 82(6)(a)(iii) of the Act.
Past disciplinary action
The Tribunal made no mention or reference to past disciplinary action despite having had before it three exhibits which disclosed past disciplinary action taken by the Board in relation to the respondent. The first disciplinary conduct was in August 1999 when the respondent was reprimanded for practising the profession of law between 1 January 1999 and 4 April 1999 when he was not holding a current practising certificate. The respondent gave an explanation that this lapse occurred unknowingly. The Board decided to reprimand him.
The second disciplinary action occurred in October 1999 and concerned the respondent's lack of co-operation with the Trust Account Inspector when dealing with queries and concerns about partnership accounts. The Board resolved that there was evidence of unprofessional conduct on the part of the respondent, but that it was relatively minor and could be dealt with by way of a reprimand. The respondent was required to attend an appropriate trust accounting seminar.
Finally, in November 2005 a complaint was made in respect of accounts in which the respondent was in error as to the GST charged. A letter was written by the Board to the respondent indicating that there was insufficient evidence to warrant a finding of unprofessional conduct or unsatisfactory conduct but certain matters were drawn to his attention in respect of the need for accuracy when charging for GST and also reminded the respondent of the requirements to advise a client as to estimated costs and disbursements.
Of these three matters, only the second is relevant when considering the seriousness of the current charge. The relevance of the second reprimand is that it involved a trust account and he was required to go to a trust seminar which would have reinforced all of the obligations of a practitioner in respect of trust accounts. This was a matter to which the Tribunal should have had some regard in reaching its conclusion about the seriousness of the respondent’s conduct and the order to be made.
The Tribunal’s order
Having found errors, the next consideration is what effect do those errors have in relation to the overall decision by the Board to make the order as set out in paragraph 63 namely:
The Tribunal imposes a condition (with the practitioner’s consent), on the practitioner’s practising certificate, once renewed by him, that he not practise from the time of renewal for a period of 18 months (“the period”) and during the period he only practise as an employed solicitor under the supervision of a legal practitioner of not less than 5 years standing.
Overall, the reasoning of the Tribunal does not adequately appear to address the seriousness and significance of the unprofessional conduct of the respondent. The starting point is that indicated by Doyle CJ in Law Society (SA) v Murphy:[27]
In dealing with a charge of unprofessional conduct, the Court acts in the public interest, and not with a view to punishment. The Court is concerned to protect the public, not to punish a practitioner who has done wrong,…
[27] (1999) 201 LSJS 456, 460.
This has previously been reinforced in a number of authorities which include Wentworth v NSW Bar Association (1992) 176 CLR 239 at 250‑251. In my view, the respondent’s conduct as found by the Tribunal is a gross departure from professional standards and is of such a nature that it would erode the public’s confidence in the legal profession. As was indicated in Legal Practitioners Conduct Board v Kerin: [28]
The public must be protected from legal practitioners who are ignorant of the basic rules of proper professional practice and who are indifferent to rudimentary professional requirements.
[28] [2006] SASC 393 at [31].

Not only was there the element of misappropriation of monies, creating false and misleading bills of costs, but also lying to the Board and to the police. As White J indicated in Legal Practitioners Conduct Board v Kerin:[29]
Conduct which involves the misleading of the Board is unprofessional conduct of a serious kind. This Court has emphasised on many occasions the obligation of practitioners to be co-operative with the Board and to answer its questions properly and honestly.
[29] [2006] SASC 393 at [45]. Similarly in Law Society of South Australia v Jordan (1998) 198 LSJS 434 at 476.
A further submission of the Board was that the order made by the Tribunal was ambiguous in that the order omitted the words which I have emphasised below:
The Tribunal imposes a condition (with the practitioner’s consent), on the practitioner’s practising certificate, once renewed by him, that he not practise as a sole practitioner from the time of renewal for a period of 18 months (“the period”) and during the period he only practise as an employed solicitor under the supervision of a legal practitioner of not less than 5 years standing.
The absence of such wording led the respondent to interpret the order as meaning that he can comply with it by waiting out the 18 month period and then resuming practice as a sole practitioner. This approach by the respondent seems to be an opportunistic interpretation by him and would avoid the need for him to be under any supervision at all. Such an interpretation appears to be contrary to what appeared to be the intention of the Tribunal when questions were raised about the operation of those terms.[30] There are also other issues raised by the Board about the absence of controls and supervisory requirements in the expression of the order, but there is no need for me to discuss these in the light of my overall conclusion.
[30] Transcript of Proceedings, In the Matter of Jeffrey Evan Jones (Legal Practitioners Disciplinary Tribunal, 16 June 2009), 1-4.
In my view the order made by the Tribunal does not adequately address the seriousness of the conduct and the approach which should be taken to that conduct. I consider that the Tribunal on its own findings of fact should have exercised its discretion pursuant to s 82(6)(a)(v) to recommend that disciplinary proceedings be commenced against the practitioner in the Supreme Court.
The protection of the public is not just limited to situations where clients have suffered loss and or damage in a financial or personal sense, as appears to be the respondent’s approach. Protection of the public interest includes ensuring that professional standards of legal practice are maintained and are seen to be maintained. The simple order for supervision of the respondent for 18 months of practice, does not appropriately ensure protection of the public in relation to the future practise of the respondent, or that the Tribunal is treating the conduct as seriously as the respondent’s conduct warrants.
Conclusion
For the above reasons, I would therefore make the following orders:
1I allow the appeal.
2Pursuant to s 86(3)(a) of the Act, I quash the decision made by the Tribunal.
3In lieu of the decision made by the Tribunal and pursuant to s 82(6)(a)(v), I recommend that disciplinary proceedings be commenced against the legal practitioner in the Supreme Court.