Legal Profession Board of Tasmania v Haque
[2015] TASSC 5
•19 February 2015
[2015] TASSC 5
COURT: SUPREME COURT OF TASMANIA
CITATION: Legal Profession Board of Tasmania v Haque [2015] TASSC 5
PARTIES: LEGAL PROFESSION BOARD OF TASMANIA
v
HAQUE, Mohammed Sirajul
FILE NO: 1135/2012
DELIVERED ON: 19 February 2015
DELIVERED AT: Launceston
HEARING DATE: 15, 16 September 2014
JUDGMENT OF: Blow CJ
CATCHWORDS:
Professions and Trades – Lawyers – Complaints and discipline – Professional misconduct and unsatisfactory professional conduct – Other matters – Barrister providing false information to law society when applying to renew practising certificate.
Legal Profession Act 2007 (Tas), ss 486, 489.
Aust Dig Professions and Trades [1250]
REPRESENTATION:
Counsel:
Applicant: K A M Pitt QC
Respondent: R S Hollo SC and T Cox
Solicitors:
Applicant: Gunson Williams
Respondent: Moray & Agnew
Judgment Number: [2014] TASSC 5
Number of paragraphs: 38
Serial No 5/2015
File No 1135/2012
LEGAL PROFESSION BOARD OF TASMANIA v MOHAMMED SIRAJUL HAQUE
REASONS FOR JUDGMENT BLOW J
19 February 2015
The respondent, Mohammed Sirajul Haque, lives in Sydney and works there as a migration agent. He was admitted as a legal practitioner of the Supreme Court of New South Wales in May 2004. On 7 June 2005 he was admitted as a legal practitioner in Tasmania under the Mutual Recognition (Tasmania) Act 1993. From 2007 to 2011 inclusive he applied to the Law Society of Tasmania for practising certificates, entitling him to practise as a barrister in Tasmania. His last application was refused, but the earlier ones were successful.
In August 2011 the executive director of the Society made a formal complaint to the Legal Profession Board of Tasmania, the applicant in the current proceedings, asserting that Mr Haque may have misled the Society in relation to his eligibility to hold a Tasmanian practising certificate. The Board has applied to this Court for an order that Mr Haque's name be removed from the roll of practitioners on the ground that he is not a fit and proper person to engage in legal practice because he provided the Society with false information, on four occasions when he applied to renew his practising certificate – on or about 27 February 2009, 29 May 2009, 24 June 2010, and 27 June 2011. In respect of the first of the four applications, the Board contends that he falsely stated, "I declare that I will be engaged in legal Practice principally in Tasmania up to and including 30 June 2009." In respect of the other three applications it contends that he falsely stated that he reasonably expected to be engaged in legal practice solely or principally in Tasmania during the currency of the certificate being applied for. In respect of each application, it contends that Mr Haque provided false residential and practice addresses.
Mr Haque accepts that he provided false addresses as alleged, but contends that he was under a misapprehension as to what was required of him. There is no dispute as to what was said about his intentions and expectations concerning practice in Tasmania, but Mr Haque denies that anything he said as to those subjects was false or dishonest. He accepts that he was unduly optimistic about practising in Tasmania. He contends that his conduct was not so bad as to call for an order for his name to be removed from the roll.
Legislative background
The provisions of the Legal Profession Act 2007 relating to practising certificates commenced on 31 December 2008: SR 2008, No 147. Before then, under the Legal Profession Act 1993, there was no legislative requirement for an applicant for a practising certificate to live or practise in Tasmania, or to expect or intend to practise in Tasmania. However such requirements were introduced by s 48(2) of the 2007 Act. At all material times that subsection read as follows:
"(2) An Australian lawyer is eligible to apply for the grant or renewal of a local practising certificate if the lawyer complies with any regulations and legal professional rules relating to eligibility for the practising certificate and if —
(a)in the case of a lawyer who is not an Australian legal practitioner at the time of making the application —
(i) the lawyer reasonably expects to be engaged in legal practice solely or principally in this jurisdiction during the currency of the certificate or renewal applied for; or
(ii) is subparagraph (i) does not apply to the lawyer or it is not reasonably practicable to determine whether subparagraph (i) applies to the lawyer, the lawyer's place of residence in Australia is this jurisdiction or the lawyer does not have a place of residence in Australia; or
(b)in the case of a lawyer who is an Australian legal practitioner at the time of making the application —
(i) the jurisdiction in which the lawyer engages in legal practice solely or principally is this jurisdiction; or
(ii) the lawyer holds a current local practising certificate and engages in legal practice in another jurisdiction under an arrangement that is of a temporary nature; or
(iii) the lawyer reasonably expects to be engaged in legal practice solely or principally in this jurisdiction during the currency of the certificate or renewal applied for; or
(iv) if subparagraph (i), (ii) or (iii) does not apply to the lawyer or it is not reasonably practicable to determine whether subparagraph (i), (ii) or (iii) applies to the lawyer, the lawyer's place of residence in Australia is this jurisdiction or the lawyer does not have a place of residence in Australia."
By virtue of s 6(a) of the 2007 Act, an "Australian legal practitioner" is "an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate". When Mr Haque applied to renew his practising certificate on 27 February 2009, his previous practising certificate had expired, and he was therefore not "an Australian legal practitioner". On each of the three subsequent occasions when he applied for renewal, he held a practising certificate that had not expired.
If the Board's contentions are correct, Mr Haque was not eligible for a practising certificate under the 2007 Act because he was not practising in Tasmania, did not reasonably expect to be engaged in legal practice in Tasmania, and did not reside in Tasmania. That is to say, the Board's case is that he provided the Society with misleading information relevant to his eligibility for practising certificates.
Expectations as to practice in Tasmania
Mr Haque has never lived or practised in Tasmania. At all material times he lived in Sydney. He has never practised as a barrister. He practised as a solicitor in Sydney after his admission in May 2004, but surrendered his New South Wales practising certificate on 4 December 2007. Since then he has practised in Sydney as a migration agent, but not as a solicitor. He is a prominent and respected member of Sydney's Bangladeshi community.
Mr Haque visited Tasmania for the first time in early 2005. He came here for a holiday. He liked the beauty of the State, particularly Bruny Island. It was as a result of that visit that he arranged to be admitted here as a legal practitioner in June 2005. He made a second visit to Tasmania in July 2007. During that visit he went to the office of the Law Society and spoke with its then executive director, Mr Hagan, about applying for a barrister's practising certificate. In October 2008 he made a two-day trip to Tasmania, visited a member of the Bangladeshi community named Mustafa Ali in Launceston, made enquiries about living and practising there, and concluded that he should explore the prospect of practising in Hobart rather than Launceston.
Mr Haque made a fourth visit to Tasmania on 7 and 8 May 2009. He made enquiries about the cost of renting a three-bedroom house in Hobart, with a view to practising from home. He walked into the office of a legal firm and asked to speak to the managing partner, but the managing partner was too busy to see him.
In about November or December 2010 Mr Haque telephoned a Tasmanian legal practice named Glade-Wright & Mahindroo, and spoke to the husband of the principal of that practice about commencing work in Hobart. In early 2011 or thereabouts he telephoned the practice again and spoke to its principal, Mrs Mahindroo. According to his affidavit, she said that she might be able to accommodate him in her offices if he wanted to practise there. In or about June 2011 Mr Haque made a fifth trip to Tasmania. During that trip he looked for suitable premises for a legal practice with the assistance of a Bangladeshi Hobart resident, Mr Sabbir, without success.
From 2007 to 2011 Mr Haque made arrangements with a number of Tasmanian residents for his mail to be sent to their addresses. But, apart from making the enquiries that I have referred to, he had taken no other steps with a view to living or practising in Tasmania by the end of June 2011.
Mr Haque has never had any clients in Tasmania, either as a legal practitioner or as a migration agent. He has never had any friends or family in Tasmania. He has never conducted a hearing in Tasmania. He ceased to practise law in December 2007. He has had no legal contacts in Tasmania apart from Mrs Mahindroo. There is no suggestion that he has ever applied for employment in Tasmania. According to his evidence, he hoped to attract immigrants to Tasmania because of its attractions as a migration destination, but there is no evidence that he ever attempted to persuade anyone to move to Tasmania. In his affidavit, Mr Haque said that his financial circumstances were poor throughout the period from July 2010 to June 2011, and that he did not have the funds to move to Tasmania and/or establish a practice in Tasmania without employment or assistance through a local firm.
In the light of these facts, it is clear that at all material times Mr Haque was a very long way away from commencing to practise as a barrister in Tasmania. I accept that, at all material times, he hoped that he would do so one day. I doubt that, at the time of making each of the four applications for renewal of his practising certificate, he really expected to be practising as a barrister in Tasmania by the end of the period to which the renewal related. If he did, there was no reasonable basis for any such expectation. That is to say, I am satisfied that, at the time of each of the four applications, Mr Haque did not reasonably expect to be engaged in legal practice solely or principally in Tasmania during the currency of the renewal applied for, within the meaning of s 48(2)(a)(i) or s 48(2)(b)(iii).
Addresses supplied to the Law Society
In his renewal applications of 27 February 2009 and 29 May 2009, Mr Haque gave 17 Burrows Street, Prospect Vale as his residential address and practice address. Prospect Vale is a suburb of Launceston. The address in Burrows Street was the home of Mr Ali, whom I have mentioned. According to Mr Haque's evidence, he asked Mr Ali if he could use his address as a postal and contact address for the Law Society of Tasmania, Mr Ali agreed, and he provided Mr Ali with his work address in Castlereagh Street, Sydney, so that mail could be forwarded. He did not ever intend to live at Mr Ali's address or practise from there.
In his application of 24 June 2010, Mr Haque gave 1 Cartela Street, Sandy Bay, as his residential address and practice address. Sandy Bay is a suburb of Hobart. The address given was the home of an academic, Dr Asim Roy. Once again, Mr Haque did not ever intend to live at Dr Roy's home or practise from it. It appears from the evidence that he and Dr Roy have never met. He telephoned Dr Roy in May or June of 2010, and asked if he could use Dr Roy's address until he came to Hobart. Dr Roy agreed. He gave Dr Roy his address and telephone number in Sydney, but Dr Roy lost his note of those contact details. Mail from the Law Society was sent to Dr Roy's home, and eventually returned.
In June 2011 Mr Haque phoned Dr Roy and enquired whether he had received any mail for him. The conversation did not go well. Mr Haque then asked members of the Bangladeshi community in Sydney if they knew any members of the Bangladeshi community living in Hobart. It was as a result of those enquiries that he was given the name and phone number of Mr Sabbir. Mr Sabbir lived at 2/5 York Street, Sandy Bay. He agreed to Mr Haque using that address as a contact address. Mr Haque gave that address as his residential address and practice address in his application of 27 June 2011. He did not intend to live at that address, or to practise from it.
The degree of seriousness of the false statements
Mr Haque's false statements did not prejudice the interests of any client or any member of the public. They resulted in him holding a practising certificate when he was not eligible to do so from 23 March 2009 to 30 June 2011, and they caused inconvenience to the Law Society.
Mr Haque gave evidence to the effect that, for the purpose of practising as a lawyer in Dhaka, the capital of Bangladesh, it was necessary for lawyers to provide the Dhaka Bar Association with a contact address in Dhaka, but that it was not necessary for a lawyer to live or practise at the address provided. He gave an explanation to the effect that he therefore considered it appropriate to provide the Law Society of Tasmania with contact addresses in Tasmania at which he neither resided nor practised. When cross-examined about the situation in 2008, he asserted that the Society knew at that time that he was living in Sydney all along. However an analysis of the correspondence between him and the Society from July 2007 onwards reveals that there came a time when he ceased to give the Society any indication that he was continuing to live and work in Sydney, in such circumstances that any sensible person would have realised that the Society required information as to where he was really living and working.
On 9 July 2007 Mr Haque submitted to the Society an application for a barrister practising certificate, in which he stated his residential address to be 2/351A Liverpool Street, Hobart. He also gave that address as his intended practice address. He gave the postal address of his intended practice as GPO Box 443, Hobart. The address in Liverpool Street was the home of a Bangladeshi waiter whom Mr Haque met when he dined at a restaurant in Hobart in July 2007. During that visit he went to the General Post Office in Hobart and rented GPO Box 443 for a period of months. The Society was aware at that stage that Mr Haque was still in Sydney. Its executive director wrote to him at an address in Castlereagh Street, Sydney, in November 2007, and also communicated with him by fax to a Sydney fax number. Mr Haque wrote to the executive director on 20 November 2007, from the Castlereagh Street address. In his letter he said, "I like to advise you that my principal place of practise [sic] will be Tasmania." The Society issued him with a practising certificate for the period 24 November 2007 to 31 December 2007.
He subsequently applied to renew his practising certificate for the year 2008, and was issued with a practising certificate for that calendar year.
Subsequently the Society sent mail to the Hobart GPO box, and that mail was all returned, with some envelopes endorsed "GPO Box cancelled". On 19 May 2008 the executive director wrote to Mr Haque at the Castlereagh Street address saying, "The Society understands your principle [sic] place or practice to be in Tasmania. Would you kindly provide that practice address at the earliest opportunity?" On 29 July 2008 Mr Haque wrote back, with the Castlereagh Street address on his letterhead, asking the executive director to "forward all correspondence to my address at 72 Burrows St, Prospect Vale, Launceston, Tas 7250". He got the street number wrong. He meant to give the address of Mr Ali, who lived at 17 Burrows Street.
On 1 August 2008 the executive director sent a letter to Mr Haque to both 72 Burrows Street, Prospect Vale and to the address in Castlereagh Street, Sydney. In that letter the executive director wrote, "Again I ask you to advise your principal place of practice in Tasmania as a matter of urgency." On 18 August 2008 Mr Haque faxed a letter to the executive director. Its letterhead showed his address as 17 Burrows Street, Prospect Vale. In that letter he wrote "My principal place of practice address will be at 17 Burrows St, Prospect Vale, Launceston, Tasmania 7250." Thereafter Mr Haque used Tasmanian addresses in all of his dealings with the Society.
In or about the second half of December 2008, when Mr Haque was on a trip to Bangladesh, a friend of his sent the Law Society a money order to pay for his next practising certificate, and apparently attached one of Mr Haque's business cards which bore his address in Castlereagh Street, Sydney.
On 9 January 2009 Mr Haque wrote to the Society seeking a form for him to apply to renew his practising certificate. His letterhead on that occasion showed his address as 17 Burrows Street, Prospect Vale. The executive director wrote to him at that address on 20 January 2009 forwarding an application form. His covering letter included the following:
"As I understand it, because you do not hold a local practising certificate, your status under the 2007 Act is therefore one of an 'Australian lawyer' not an 'Australian legal practitioner'.
Your application should be accompanied by a declaration which establishes the basis upon which you are eligible to obtain a Tasmanian practising certificate.
To that end, would you kindly provide a written declaration pursuant to s48(2) of the 2007 Act as to whether you are eligible to apply for a practising certificate under that Act because:
1You reasonably expect to be engaged in legal practice solely or principally in Tasmania between 31 December 2008 and 30 June 2009; or
2Your place of residence in Australia is in Tasmania."
In February 2009, when Mr Haque submitted the first of the applications to which these proceedings relate, he sent with it a statutory declaration dated 23 February 2009 in which he gave his address as "17 Burrosows [sic] St, Prospect Vale, Lunceston [sic]". In that statutory declaration he said, "In accordance with section 48(2) of the Legal Profession Act 2007 ('the 2007 Act'). I declare that I will be engaged in legal Practice principally in Tasmania up to and including 30 June 2009." That declaration was witnessed by a solicitor who provided an address in Castlereagh Street, Sydney.
In each of his May 2009, June 2010 and June 2011 applications for the renewal of his practising certificate, Mr Haque ticked boxes to indicate that he reasonably expected to be engaged in legal practice solely or principally in Tasmania during the currency of the certificate being applied for, and that his place of residence was in Tasmania.
Mr Haque is a person of reasonable intelligence. He holds the degree of Master of Laws from the University of New South Wales. He hopes to obtain a PhD. He has held high office in a number of Bangladeshi political organisations in Australia. As a migration agent he has taken part in many hearings for clients before statutory tribunals. In my view, by no later than 23 February 2009, a person of his intelligence could not fail to have appreciated that the Law Society of Tasmania required accurate information as to where he was living and practising, and that it was likely to be prejudicial to his applications to renew his practising certificate if the Society were told that he lived in Sydney and was not practising law in Tasmania. I think he must have realised that he was providing false information, and that, at best, he was recklessly indifferent to the consequences.
Appropriate orders
This Court has powers to make orders in disciplinary proceedings relating to legal practitioners both pursuant to the Charter of Justice and pursuant to the 2007 Act. That Act draws a distinction between "professional misconduct" and "unsatisfactory professional conduct". The meaning of "professional misconduct" is governed by s 421(1), which reads as follows:
"(1) For the purposes of this Act —
professional misconduct includes —
(a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice."
Unsatisfactory professional conduct is defined in s 420 as follows:
"For the purposes of this Act —
unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner."
In Law Society of Tasmania v Turner (2001) 11 Tas R 1, Crawford J (as he then was) considered the statutory definitions of "professional misconduct" and "unprofessional conduct" in the Legal Profession Act 1993, and said the following at [45]:
"Apart from the statute's inclusionary meanings, professional misconduct consists in behaviour on the part of a legal practitioner which would reasonably be regarded as disgraceful or dishonourable by legal practitioners of good repute and competency. In re a Solicitor [1912] 1 KB 302 at 311, 312; Grahame v Attorney-General of Fiji [1936] 2 All ER 992 at 1002; Myers v Elman [1940] AC 282 at 288, 289; Re Thom; ex parte the Prothonotary (1962) 80 WN (NSW) 968 at 969; Re Veron; ex parte Law Society of New South Wales (1966) 84 WN (Pt1) (NSW) 136 at 143; In re Three Solicitors [1949] VLR 72 at 73; Re a Solicitor [1960] VR 617 at 620. That definition or test has been accepted in unreported decisions of this Court which concerned complaints made under the Legal Practitioners Act 1959. See, for example, In re a Legal Practitioner Serial No 105/1982 at 9; Law Society of Tasmania v Walker Serial No 56/1988, per Cox J at 22. It is derived from a case which concerned a member of the medical profession. Allinson v General Medical Council [1894] 1 QB 750. It is not an exhaustive definition. See Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 at 207. Counsel for the Society accepted that to be so, adding that it is his essential submission that professional misconduct is, simply speaking, grave conduct which in the Court's judgment would warrant reprobation and condemnation from reasonable legal practitioners of good repute and competency. I think there is some danger involved in searching for words to further define the term and I will not do so."
This is far from being a case involving appalling dishonesty. Nobody suffered a loss. Nobody's interests were placed at risk. However Mr Haque persisted over some years in a course of conduct, in connection with the practice of law, that fell short of the standard of diligence to be expected of a reasonably competent Australian legal practitioner in the sense that practitioners must be expected to be diligent in providing accurate information, as distinct from misleading information, to the bodies that issue practising certificates. I am therefore satisfied that Mr Haque's conduct, in providing the false information on which the Board's application is based, amounted to "unsatisfactory professional conduct" as defined in s 420.
The powers given to courts and tribunals to discipline legal practitioners "are entirely protective in character and no element of punishment is involved": Dickens v Law Society (Unreported 42/1981, Cosgrove J) at 15.
If a practitioner is not found to be permanently unfit to practise, then an order striking the practitioner from the roll is ordinarily inappropriate: Law Society of Tasmania v Schouten [2003] TASSC 143 at [22] (Cox CJ); Prothonotary of the Supreme Court of New South Wales v Ritchard (Unreported, NSW Court of Appeal, 31 July 1987, Butterworths BC 8701242) at 21 (McHugh JA); Dupal v Law Society of New South Wales (Unreported, NSW Court of Appeal, 26 April 1990, Butterworths BC 9002508) at 6 (Kirby P).
One factor that weighs against Mr Haque is his apparent failure to appreciate the seriousness of his misconduct. However I am not satisfied that his course of conduct, and his failure to appreciate its seriousness, are so grave as to warrant the conclusion that he is permanently unfit to practise law.
His counsel submitted to me that the following orders would be appropriate:
(a)That the practitioner be reprimanded.
(b)That until further order of the Court, a local practising certificate not be granted to the practitioner.
(c)An order recommending that an interstate practising certificate not be granted without a Court order.
(d)That the practitioner pay the applicant's costs of the application.
At first glance, the proposed order (c) might seem a strange one for this Court to be asked to make. However such an order would be consistent with the scheme of the 2007 Act. Under s 487 this Court, in deciding an application made in disciplinary proceedings under Pt 4.8 of the Act, may make any order it thinks appropriate. In proceedings before the Disciplinary Tribunal, an order can be made "recommending that an interstate practising certificate not be granted or renewed to the practitioner before the end of a specified period": s 472(c). It therefore seems that this Court can and should make such an order in an appropriate case.
From one perspective, the orders proposed would be sufficient to protect members of the public from the risk of unsatisfactory professional conduct on the part of Mr Haque. But it is not as simple as that. Disciplinary orders also have the role of deterring practitioners from misconduct and unsatisfactory conduct. Orders denying a practising certificate to someone who has ceased to practise law would not send much of a message. By contrast, an order suspending that person from practice would send a powerful message.
In the circumstances, I think the most appropriate course is to make an order suspending Mr Haque from practice. I think the suspension should be for a period of two years. There will be an order accordingly. I will also make an order recommending that an interstate practising certificate not be granted to him within the next two years.
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