LEGAL PROFESSION COMPLAINTS COMMITTEE and GANDINI
[2011] WASAT 86 (S)
•8 JUNE 2011
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : VOCATIONAL REGULATION | ||
| ACT |
| ||
| CITATION | : LEGAL PROFESSION COMPLAINTS |
COMMITTEE and GANDINI [2011] WASAT 86 (S)
| MEMBER | : | JUDGE T SHARP (DEPUTY PRESIDENT) MR M ODES QC (SENIOR SESSIONAL MEMBER) MS F CHILD (MEMBER) |
| HEARD | : 14-16 MARCH 2011 |
WRITTEN SUBMISSIONS
29 JUNE 2011
29 JULY 2011
9 AUGUST 201125 AUGUST 2011
| DELIVERED | : | 8 JUNE 2011 |
| SUPPLEMENTARY | ||
| DECISION | : | 24 NOVEMBER 2011 |
| FILE NO/S | : | VR 107 of 2010 |
| BETWEEN | : LEGAL PROFESSION COMPLAINTS |
COMMITTEE
Applicant
AND
LEONARD GANDINI
Respondent
[2011] WASAT 86 (S)
Catchwords:
Legal practice - Legal practitioner - Disciplinary proceedings - Practitioner guilty of unsatisfactory professional conduct and professional misconduct - Penalty
Legislation:
Legal Practice Act 2003 (WA), s 230(1)
Legal Profession Act 2008 (WA), s 621, s 621(1), s 622(1), s 622(2), Pt 13,
s 402, s 403, s 403(1), s 438(2), s 439(b)
State Administrative Tribunal Act 2004 (WA), s 87(1)
Result:
Practitioner suspended and ordered to pay costs
Category: B
Representation:
Counsel:
| Applicant | : | Ms P Cahill SC and Ms P Le Miere |
| Respondent | : | Mr T Percy QC and Mr L Tsaknis |
Solicitors:
| Applicant | : | Legal Profession Complaints Committee |
| Respondent | : | Self-represented |
Case(s) referred to in decision(s):
A Solicitor v Council of the Law Society of New South Wales (2004)
216 CLR 253
| Council of New South Wales Bar Association v Sahade [2007] NSWCA 145 In Re Davis (1947) 75 CLR 409 Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56 Law Society (NSW) v Foreman (1994) 34 NSWLR 408 Legal Practitioners Complaints Committee and Benari [2005] WASAT 213(S) Legal Practitioners Complaints Committee and Segler [2010] WASAT 135 Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119 Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 Legal Profession Complaints Committee and Gandini [2011] WASAT 86 The Council of the Queensland Law Society Inc v Wright [2001] QCA 58 The Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211 Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 | [2011] WASAT 86 (S) |
| [2011] WASAT 86 (S) |
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
1 Under the Legal Profession Act 2008 (WA) the applicant (Committee) alleged that the respondent (Practitioner) had engaged in professional misconduct, based on three grounds. In a decision delivered on 8 June 2011 (Legal Profession Complaints Committee and Gandini [2011] WASAT 86) the Tribunal made findings that the Practitioner was guilty of:
(i) unsatisfactory professional misconduct in relation to an
interlocutory application on 9 August 2004 (para [43] - [66] of the reasons for decision of the
Tribunal (Reasons));(ii) professional misconduct in deliberately misleading the Supreme Court on 17 November 2004 (para [67] - [96] of the Reasons); and
(iii) professional misconduct by deliberately misleading Jackson McDonald in letters dated 17 November 2004 and 2 December 2004 (para [97] - [115] of the Reasons).
We do not intend to burden these reasons unduly by repeating our detailed findings referred to above.
3 Pursuant to the order of the Tribunal that the parties file submissions
on penalty and that the question of penalty be dealt with on the papers, Senior Counsel representing both parties filed detailed submissions which have proved most useful.
The parties' submissions
4 The Committee seeks an order that a report be submitted to the
Supreme Court recommending that the Practitioner be struck off the Roll of Practitioners, contending that he is not a fit and proper person to remain a legal practitioner. It has referred to a number of authorities outlining well-known principles to be followed in recommending a striking off. None of those principles were disputed or contested by the Practitioner, and we summarise those principles below.
5 The jurisdiction of the Court to remove a practitioner from the Roll is
exercised, not for the purpose of punishing the practitioner concerned, but for the protection of the public and the reputation and standards of the
[2011] WASAT 86 (S)
legal profession; see Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 at [43].
6 Where an order for removal from the Roll is contemplated, the
ultimate question is whether the material demonstrates that the Practitioner is not a fit and proper person to remain a legal practitioner; see A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253 at [15] (A Solicitor).
7 Fitness to practise is to be decided as at the time of the hearing, not
as at the time that the relevant conduct was engaged in; see (A Solicitor)
at [21].8 Honesty, fairness and integrity are essential prerequisites to the right
to practice law. A willingness to engage in dishonest behaviour is of central relevance to an assessment of a practitioner's fitness to practise; see Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119 at [8] and Council of New South Wales Bar Association v Sahade [2007] NSWCA 145 at [58].
9 Further, fitness to practise requires that a practitioner must command
the personal confidence of his or her clients, fellow practitioners and
judges; see In Re Davis (1947) 75 CLR 409 at [420].10 Accordingly, account must also be taken by the Court of the effect
which its order will have on the understanding, in the profession and the public, of the standard of behaviour required of solicitors; see Law Society (NSW) v Foreman (1994) 34 NSWLR 408 at [444F].
11 A practitioner's failure to understand the impropriety of his or her
conduct may be a factor of great importance in determining whether they should be permitted to stay on the Roll; see The Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211 at [35].
12 We have also been referred to a number of authorities dealing with
practitioners who have deliberately misled a court. The Committee has G E Dal Pont (4th ed, 2010) at 554, [25.10] where the learned author cited the well known work Lawyers' Professional Responsibility, by
expresses the view that in such a situation, a practitioner is 'usually struck off'. However, we agree with the Practitioner's contention that, while a departure from the duty of honesty to the Court must attract a substantial penalty, such misconduct does not compel a removal from the Roll; see Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 (Vogt).
[2011] WASAT 86 (S)
The Tribunal's findings
13 When re-examining the duty of a practitioner to the Court and to
his/her legal colleagues, we can do no better than quote from The Council of the Queensland Law Society Inc v Wright [2001] QCA 58 (Wright) in which the Queensland Court of Appeal, confronted with a case of a solicitor who had intentionally misled a Court in an affidavit resisting a summary judgment application, expressed itself as follows:
A practitioner's duty to the court arises out of the practitioner's special relationship with the court; it overrides the duties owned by a practitioner to clients or others (citation omitted). The lawyer's duty to the court includes candour, honesty and fairness. The appellant abused her role as an officer of the court in relying on material she knew to be false and in deliberately and recklessly misleading the court in an attempt to further the interests of her clients and family. Her conduct was made more serious by its repetition. The effective administration of the justice system and public confidence in it substantially depends on the honesty and reliability of practitioners' submissions to the court. This duty of candour and fairness is quintessential to the lawyer's role as officer of the court; the court and the public expect and rely upon it, no matter how new or inexperienced the practitioner. Breaches such as this are hard to detect and once established to the requisite standard are deserving of condign punishment, not only as a deterrent but also to reassure the public that such conduct on the part of lawyers will not be tolerated; at [67].
This dictum was specifically adopted by the Court of Appeal in Vogt
at [61].
15 It should be mentioned that Wright was found guilty of six complaints of professional misconduct which included a repetition of a deception of the Court and an attempt to suborn a witness to make an affidavit to deceive the Law Society. She was struck off the Roll on a set of facts substantially different to those presently before us.
16 In resisting the Committee's contention for removal from the Roll,
the Practitioner relied on three cases decided in Western Australia. In Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56 the deception of the Court consisted of a statement by the practitioner in his opening at a trial to the effect that his client had signed a deed when he knew that he had not done so. The Disciplinary Tribunal in that case found that that statement was made by the practitioner in the expectation that the true position would emerge in the course of the trial. The effect of that finding therefore was that he did not ultimately intend to deceive the Court.
[2011] WASAT 86 (S)
17 The Practitioner also relied upon Vogt in order to demonstrate that the making of a misleading affidavit and misleading submissions to the Court did not result in an order for removal. The Court of Appeal upheld a suspension of three months.
Finally, reliance was also placed upon the decision in Legal Practitioners Complaints Committee and Segler [2010] WASAT 135 (Segler) in which the practitioner was suspended for two months for misleading a Magistrate in an application for a restraining order by asserting that the respondent had a criminal record when that was not so.
19 A cogent factor taken into account by the Tribunal in that case in
imposing that penalty was that the practitioner harboured a genuine fear for his own physical safety and had been subjected to abusive and threatening messages from the respondent.
20 The facts and findings of the Tribunal in Kyle and Segler are very different to those in the present case and little assistance can be derived from them.
21 The mitigatory factors in Vogt included the fact that the misconduct was a once-off, that there were numerous characters references in his support and that he did a great deal of voluntary pro bono work which would be adversely affected if he were suspended. By contrast, none of these factors are present in this case. Not only did the Practitioner fail to rectify his deception before the Master when he had an ample opportunity to do so, (and we reject the Practitioner's submission to the contrary) but he repeated his deception over a period of two weeks in two letters by deliberately misleading his opposing colleague when she requested details as to what had occurred at the hearing.
22 Counsel for the Committee in turn referred us to a number of cases
decided in other jurisdictions in Australia in which the intentional misleading of the Court by practitioners was visited with striking off. However, as stated above, the circumstances of each case differ and reference to this case law may be unhelpful. What one does derive from these cases is an uncompromising and justifiably severe approach to any conduct involving intentionally misleading a Court, to be mitigated only by extenuating circumstances of varying degrees.
23 The Practitioner resists an order for striking off, contending that his
unsatisfactory professional conduct referred to in para [(i)] of the introduction to these reasons warrants a reprimand or a fine of $1,500 - $2,000. It is urged on his behalf that the finding of
[2011] WASAT 86 (S)
unprofessional conduct in deliberately misleading the Supreme Court referred to in para [(ii)] warrants a fine of $10,000 or, if considered inadequate, a suspension from practise of three months from 1 June 2011. In relation to the finding of professional misconduct in misleading Jackson McDonald, referred to in para [(iii)], the Practitioner contends that a fine of $7,500 to $10,000 is appropriate and, if that is considered by the Tribunal as inadequate, a suspension from practice of an additional month should be imposed.
24 The circumstances relied upon by the Practitioner include the fact
that there has been no previous transgression by him. Certainly, there have been no previous adverse findings against him which, in our opinion, must be taken into account. Further, it is argued that at the time of his misconduct in 2004, which was six and a half years prior to the hearing, he had only been in practice for six years, at a time when he was less experienced.
25 The Practitioner also submits, in mitigation, that in misleading the
Court, he 'was not seeking to obtain a personal advantage'. The Committee on the other hand submits that there was such an advantage in that he was attempting 'to ameliorate the difficulties he could expect would arise between him and his client' in failing to lodge the application for leave to appeal timeously.
26 Whether or not there was a personal advantage carries little weight
and, in our view, is not to the point. The gravity of the misconduct lies in deliberately misleading the Court for whatever reason. Every practitioner has an unconditional duty, as an officer of the Court, enshrined in the oath or affidavit taken by every practitioner on admission to the Roll, to uphold the law of the State which necessarily involves the demonstration of the utmost good faith to the Court and to fellow practitioners. The administration of justice would be seriously compromised without that axiomatic principle of our legal system.
27 The Practitioner further states that he ceased to practise from
1 July 2011 and that in considering a period of suspension, that period to the date of this order should be taken into account. However, the decision to cease practise was the Practitioner's own and was not made pursuant to any obligation to or requirement of the regulatory body or the Tribunal and will therefore carry little weight.
[2011] WASAT 86 (S)
Disciplinary outcome
We propose to deal with the three complaints together for the purpose of imposing a penalty.
29 Although we have concentrated our remarks on the two complaints
relating to professional misconduct as they are clearly far more serious, we have not lost sight of the practitioner's conduct in relation to the first complaint in which we have found him guilty of unsatisfactory professional conduct. Our failure to deal specifically with that complaint should not be seen as in any way minimising the seriousness of his conduct dealt with fully in the Reasons. We have however ascribed his conduct in relation to that complaint to incompetence on his part which, though serious and which has duly been taken into account, does not in our view merit the attention given by us to the far more serious complaints involving the deliberate misleading of the Supreme Court and his opposing colleague. In assessing an appropriate penalty, we have based our decision on the cumulative effect of our findings in relation to all the complaints.
30 Taking all the arguments into consideration, we are of the view that
the imposition of a fine, even a heavy one, would be inadequate. On the other hand, we believe that a report to the Supreme Court is not justified in this case, bearing in mind particularly the Practitioner's record and his relative inexperience at the relevant time. It is our view that a period of suspension of 18 months is appropriate, the period to commence from the date of the orders below.
| Costs | |
| 31 | Notwithstanding the general position espoused in s 87(1) of the State Administrative Tribunal Act 2004 (WA), where disciplinary proceedings have been commenced in the public interest by a vocational regulatory body and the vocational regulatory body has been successful in the prosecution of those proceedings, the affected person should be ordered to contribute to the cost of the proceedings incurred by the vocational regulatory body; see Legal Practitioners Complaints Committee and Benari [2005] WASAT 213(S) at [25] (Benari). |
| 32 | The contribution the affected person should be required to make lies |
| in the discretion of the Tribunal, having regard to all of the circumstances of the case. Special matters can be taken into account to determine what is a fair and reasonable costs order; see Benari at [26] - [27]. |
[2011] WASAT 86 (S)
33 The Practitioner accepts that a costs order against him is appropriate,
but he contends that the Committee should not have briefed
Senior Counsel.34 However, the Tribunal is of the view that the briefing of
Senior Counsel was fully justified and there appears to be no reason for refusing to waive the amounts claimed. The complaints were serious and at the higher end of the range. It is significant that the Practitioner himself specified Senior Counsel to draft the submissions on penalty.
35 The Practitioner has not raised any argument to the quantum of costs
which has been fully documented and substantiated. The only objection related to the briefing of Senior Counsel. We see no reason why the full costs claimed should not be awarded.
We accordingly order costs in the sum of $23,832.50 to be paid within 30 days of the date of this order.
| Orders |
1. The Practitioner is not to be granted a local practising certificate for a period of 18 months to commence from the date of this order.
2. The Practitioner is to pay the Committee's costs fixed at $23,832.50 to be paid within 30 days of the date of these orders.
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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