Legal Practitioners Conduct Board v Jones

[2009] SASC 328

Supreme Court of South Australia

(Applications Under Various Acts or Rules)

LEGAL PRACTITIONERS CONDUCT BOARD v JONES

[2009] SASC 328

Reasons for Decision of The Honourable Chief Justice Doyle (ex tempore)

14 October 2009

PROFESSIONS AND TRADES - LAWYERS - PRACTISING CERTIFICATES - CANCELLATION AND SUSPENSION

PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA - APPEALS

Application by Board for order suspending practising certificate of practitioner pending hearing of appeal against decision of Legal Practitioners Disciplinary Tribunal – Tribunal found practitioner guilty of unprofessional conduct, but did not recommend that disciplinary proceedings be commenced in the Supreme Court.

HELD: the public interest is the predominant consideration in deciding whether to suspend the practising certificate of the practitioner pending the hearing of the appeal – in the circumstances, the need of the public for protection did not warrant an order suspending practising certificate of practitioner pending hearing of appeal – application dismissed.

Legal Practitioners Act 1981 (SA) s 89A, referred to.

LEGAL PRACTITIONERS CONDUCT BOARD v JONES
[2009] SASC 328

Applications Under Various Acts or Rules

1. DOYLE CJ (ex tempore): This is an application filed on 23 September 2009 that pursuant to s 89A of the Legal Practitioners Act 1981 (SA) the practising certificate of Mr Jones be suspended until further order.

2. Mr Jones was found guilty of unprofessional conduct by the Legal Practitioners Disciplinary Tribunal (“the Tribunal”). The Tribunal published its reasons for so finding on 4 September 2009. The order of the Tribunal was that a condition be imposed on Mr Jones’ practising certificate, once renewed by him, that he not practise from the time of renewal for a period of 18 months, and during that period that he should only practise as an employed solicitor under the supervision of a practitioner of not less than five years’ standing.

3. The view of the Tribunal was that if Mr Jones was not prepared to submit to that condition, then the appropriate response would be to commence disciplinary proceedings against him in the Supreme Court. Mr Jones submitted to the condition.

4. Before me an issue arose as to the precise meaning of the order. Mr Jones takes the view, and I make no comment on it, that consistently with the order of the Tribunal he can simply not practise for a period of 18 months and then practise free of the condition that the Tribunal imposed. Consistently with that view, he initially sought a practising certificate but the Registry, I understand, has been reluctant to issue one to him.

5. A contrary view may be that it was the intent of the condition that he should, in fact, practise as an employed solicitor for a period of 18 months. Again, I make no comment on the correctness of that submission. That will be a matter for the judge who hears the appeal.

6. The appeal to which I refer is an appeal by the Legal Practitioners Conduct Board (“the Board”) against the decision of the Tribunal. On the appeal, the Board will contend that the order of the Tribunal is insufficient and that a more stringent order should be made against Mr Jones. That appeal will be heard, all being well, in this Court in the first half of November.

7. In deciding whether to suspend Mr Jones’ practising certificate pending the hearing of the appeal, the public interest is a significant matter, and is probably the predominant consideration. It is relevant that Mr Jones has been found guilty of unprofessional conduct. It is also relevant that the Tribunal has found it necessary to impose a condition on his practising certificate, the condition being the one to which I have referred. It is quite clear that the public does need a measure of protection.  On the other hand, the appeal is due to be heard in early November. Just how quickly the appeal will be decided is another matter but in the ordinary course of things one would anticipate a decision before the end of the calendar year.

8. It is relevant that as things stand, if Mr Jones is to practise within the next 18 months he can only practise under supervision. That remains the position for about another 17 months from today. As well, Mr Jones has told me that at the moment he has no practising certificate, having previously surrendered his practising certificate. He is not employed at the moment and consistently with what he has said to me, does not intend at the moment to seek employment as an employed practitioner.  His intention is to wait out the 18-month period and then to resume his practice.

9. It seems to me that the risk of the public suffering as a result of him practising is minimal.  If he were to practice for the time being he could practise only under supervision of a practitioner of at least five years’ standing. I note the point made by Mr Cole that there is no requirement for the Board or any other person to approve the relevant practitioner.  While that is a factor it is not a complete answer to the point that Mr Jones makes. So it seems to me that the public need for protection in the circumstances is quite limited.

10. Although the public interest is the main and perhaps dominant consideration, I should also bear in mind that if I were to prevent Mr Jones from practising at all and the appeal were to fail, there would be no means of compensating him for the loss he suffers. However, that factor in the particular circumstances is of no particular importance having regard to what Mr Jones told me this morning; that he does not intend at the moment to practise for a period of 18 months.

11. It is also relevant to consider the prospect of a successful appeal. I am unable to say that the appeal by the Board will obviously succeed nor am I suggesting that it will obviously fail. It is simply a case where it seems to me that there are arguments either way and that is about all one can say.

12. So I return to the question of the public interest and the need of the public for protection. I am not persuaded that the need of the public for protection in all the circumstances of this case warrants an order suspending his practising certificate pending the hearing of the appeal. Unless Mr Jones were, in fact, to obtain a practising certificate, it seems to me that such an order would be futile. And so bearing in mind that the Board would be able to ascertain if Mr Jones were to obtain a practising certificate and could bring the matter back before the Court pending the hearing of the appeal, I take the view that there is no need for me to make any order in the public interest.

13. Accordingly, I dismiss the interlocutory application made by the Board. I order that there be no order as to the costs of the application and hearing today.