Legal Profession Complaints Committee v Chin
[2012] WASC 467
•12 DECEMBER 2012
LEGAL PROFESSION COMPLAINTS COMMITTEE -v- CHIN [2012] WASC 467
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 467 | |
| FULL BENCH | |||
| Case No: | LPD:2/2012 | 23 NOVEMBER 2012 | |
| Coram: | McKECHNIE J BEECH J HALL J | 12/12/12 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Order that the name of Ni Kok Chin be removed from the roll of persons admitted to the legal profession | ||
| B | |||
| PDF Version |
| Parties: | LEGAL PROFESSION COMPLAINTS COMMITTEE NI KOK CHIN |
Catchwords: | Legal practitioners Findings of professional misconduct and unsatisfactory professional conduct Whether an order for striking off warranted Lack of competence, understanding and insight Protection of community No new principles |
Legislation: | Legal Profession Act 2008 (WA), s 444, s 622 |
Case References: | A Solicitor v Council of The Law Society of New South Wales (2004) 216 CLR 253 Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431 Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 439 Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 Chin v Thies [2010] WASCA 230 Council of The Law Society of NSW v Isaac [2012] NSWADT 203 Council of The Law Society of NSW v Mee Ling [2012] NSWADT 146 Dupal v Law Society of New South Wales [1990] NSWCA 56 Harvey v Law Society of New South Wales (1975) 49 ALJR 364 Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 Law Society of New South Wales v Moulton (1981) 2 NSWLR 736 Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211 Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119 Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 Legal Practitioners Conduct Board v Wharff [2012] SASCFC 116 Legal Profession Complaints Committee and Chin [2012] WASAT 77 Legal Profession Complaints Committee and Chin [2012] WASAT 77(S) Legal Services Board v Gillespie-Jones [2012] VSCA 68 McKenzie v McKenzie [1971] P 33, (1970) 3 All ER 1034 New South Wales Bar Association v Evatt (1968) 117 CLR 177 Principal Registrar of the Supreme Court v Chin [2012] WASC 7 Re A Barrister and Solicitor (1979) 40 FLR 1 Re Davis (1947) 75 CLR 409 Re Maraj (A Legal Practitioner) (1995) 15 WAR 12 Re Nicholas Ni Kok Chin; Ex parte Chin [2012] WASC 219 Re Nicholas Ni Kok Chin; Ex parte Chin [2012] WASC 220 Southern Law Society v Westbrook (1910) 10 CLR 609 The Council of The New South Wales Bar Association v Sahade [2007] NSWCA 145 Wentworth v New South Wales Bar Association (1992) 176 CLR 239 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : FULL BENCH CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE -v- CHIN [2012] WASC 467 CORAM : McKECHNIE J
- BEECH J
HALL J
- Applicant
AND
NI KOK CHIN
Respondent
Catchwords:
Legal practitioners - Findings of professional misconduct and unsatisfactory professional conduct - Whether an order for striking off warranted - Lack of competence, understanding and insight - Protection of community - No new principles
Legislation:
Legal Profession Act 2008 (WA), s 444, s 622
(Page 2)
Result:
Order that the name of Ni Kok Chin be removed from the roll of persons admitted to the legal profession
Category: B
Representation:
Counsel:
Applicant : Ms P E Le Miere
Respondent : In person
Solicitors:
Applicant : Legal Profession Complaints Committee
Respondent : In person
Case(s) referred to in judgment(s):
A Solicitor v Council of The Law Society of New South Wales (2004) 216 CLR 253
Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431
Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 439
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246
Chin v Thies [2010] WASCA 230
Council of The Law Society of NSW v Isaac [2012] NSWADT 203
Council of The Law Society of NSW v Mee Ling [2012] NSWADT 146
Dupal v Law Society of New South Wales [1990] NSWCA 56
Harvey v Law Society of New South Wales (1975) 49 ALJR 364
Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655
Law Society of New South Wales v Moulton (1981) 2 NSWLR 736
Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211
Legal Practitioners Complaints Committee v McKerlie [2007] WASC 119
Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9
Legal Practitioners Conduct Board v Wharff [2012] SASCFC 116
Legal Profession Complaints Committee and Chin [2012] WASAT 77
Legal Profession Complaints Committee and Chin [2012] WASAT 77(S)
Legal Services Board v Gillespie-Jones [2012] VSCA 68
(Page 3)
McKenzie v McKenzie [1971] P 33, (1970) 3 All ER 1034
New South Wales Bar Association v Evatt (1968) 117 CLR 177
Principal Registrar of the Supreme Court v Chin [2012] WASC 7
Re A Barrister and Solicitor (1979) 40 FLR 1
Re Davis (1947) 75 CLR 409
Re Maraj (A Legal Practitioner) (1995) 15 WAR 12
Re Nicholas Ni Kok Chin; Ex parte Chin [2012] WASC 219
Re Nicholas Ni Kok Chin; Ex parte Chin [2012] WASC 220
Southern Law Society v Westbrook (1910) 10 CLR 609
The Council of The New South Wales Bar Association v Sahade [2007] NSWCA 145
Wentworth v New South Wales Bar Association (1992) 176 CLR 239
(Page 4)
1 JUDGMENT OF THE COURT: Consequent upon a report and recommendation from the State Administrative Tribunal, the Legal Profession Complaints Committee moves for orders that Ni Kok Chin (the practitioner) be struck off the roll of practitioners. The motion is granted and the court directs that Ni Kok Chin's name be removed from the roll of practitioners. These are our reasons for making that order.
Preliminary issue: Application for recusal
2 The day before the hearing the respondent wrote to the Chief Justice seeking that the presiding judge recuse himself on the basis of bias and prejudice in two judgments: Re Nicholas Ni Kok Chin; Ex parte Chin [2012] WASC 219 and Re Nicholas Ni Kok Chin; Ex parte Chin [2012] WASC 220.
3 The applicant asserts bias and prejudice in the presiding judge in respect of these decisions in circumstances where:
2.1 His Honour did shut his mind to the single issue of the past decisions of the various courts that has never been litigated thereby implicating that I am a Vexatious Litigant when in factual fact I could never be one if my explanations were examined and read carefully by His Honour (the Non-Res Judicata Issue).
2.2 The Non-Res Judicata Issue confuses His Honour Justice Murray's mind thereby causing His Honour to believe falsely that I was a Vexatious Litigant (Mr Chin's Status as a Vexatious Litigant).
2.3 The Non-Res Judicata Issue relates to an Error of Law that is in turn related to fact and the law that there can never be a Caveatable Interests for a Caveator if he simply does not have proprietary interests in the subject property that he had wrongfully lodged his caveat against (The Undecided Error of Law).
4 Paragraphs 2.4 and 2.6 assert as facts matters which have been resolved in other courts. A history is set out in Chin v Thies [2010] WASCA 230.
5 In the Principal Registrar of the Supreme Court v Chin [2012] WASC 7 Murray J ordered that the practitioner is prohibited for instituting any proceeding in any Western Australian court or tribunal without the leave of that court or tribunal.
6 Re Nicholas Ni Kok Chin; Ex parte Chin [2012] WASC 219 was an attempt by the practitioner to re-litigate matters which had been determined by the Court of Appeal. He did not seek leave to commence
(Page 5)
- the proceedings as required by the order of Murray J. The application was dismissed. This is a procedural decision.
7 Re Nicholas Chin; Ex parte Chin [2012] WASC 220 was an application for judicial review in respect of Murray J's order. The applicant did not lodge a notice of appeal in the Court of Appeal. This is the only competent way to challenge the order. The application was dismissed. Again the decision was procedural.
8 A decision on recusal is a matter for an individual judge. Thus the following two paragraphs are the presiding judge's reasons for dismissing the application for recusal.
9 Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431 provides a recent statement of principle:
19 In Johnson v Johnson (No 3) [2000] HCA 48; (2000) 201 CLR 488 the High Court said:
It has been established by a series of decisions of this court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias ... is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide [11].
20 There are two steps in the application of the principles relating to apprehension of bias. First, there must be an identification of what it is that might lead a judicial officer to decide a case other than on its legal and factual merits. Secondly, there must be a logical connection between that matter and the risk of a judicial officer deciding the case otherwise than on its merits: Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 345.
21 It must be remembered that in applying the test the observer is taken to be reasonable and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial': Vakauta v Kelly (1988) 13 NSWLR 502, 527. This test has been recently affirmed by the High Court in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 [78] - [84], [132], [139].
...
(Page 6)
- 24 Whilst it is important that justice be seen to be done, a judicial officer should not disqualify himself or herself on the grounds of bias or reasonable apprehension of bias unless substantial grounds are established: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352 and Bienstein v Bienstein [2003] HCA 7 [36]. The reasons for this are obvious; if judicial officers were to excuse themselves whenever an application was made then parties would be able to effectively control who sits in judgment of their cases and effective management of the lists would be impossible.
25 As regards concerns arising from a judicial officer having presided in respect of other matters involving the same litigant, the High Court in Livesay v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 said:
It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact. The consideration that the relevant question of fact may be conceded or that the relevant person may not be called as a witness if the particular judge sits would not, of course, avoid the appearance of bias. To the contrary, it would underline the need for the judge to refrain from sitting (300).
26 In Chin v The Legal Practice Board of Western Australia [2011] WASCA 110 Newnes JA considered the principle applicable where a judicial officer is asked to disqualify him or herself on the ground that because they have made previous decisions adverse to the person. His Honour said:
In Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352, Mason J said that there may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he or she is likely to decide issues in a particular case adversely to one of the parties. But Mason J pointed out that this did not mean either that the judge will approach the issues in the case otherwise than with an impartial or unprejudiced mind in the sense in which that expression is used in the authorities, or that the judge's previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that the judge will
- approach the issues in that way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be firmly established. Those comments were indorsed in Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 31; (1991) 173 CLR 78, 86, by Brennan, Gaudron and McHugh JJ [4].
10 Applying those principles to the practitioner's application, the presiding judge decided that no case of apprehended or actual bias arose and declined to step aside from the hearing. No fair-minded and reasonable person who had read the many decisions of this court in respect of the practitioner, and knowing that he had been declared a vexatious litigant, would apprehend bias or prejudice on the part of the presiding judge in the two procedural decisions delivered by the presiding judge.
The application for removal
11 We turn to the application for removal.
12 Complaints and discipline form part of the Legal Profession Act 2008 (WA) pt 13. 'Professional misconduct' is defined:
Professional misconduct
(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 (s 403).
Unsatisfactory professional conduct
For the purposes of this Act -
(Page 8)
- 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 (s 402).
14 The State Administrative Tribunal (SAT) made findings of professional misconduct and unsatisfactory professional conduct by the practitioner: Legal Profession Complaints Committee and Chin [2012] WASAT 77:
1. There is a finding that Mr Ni Kok Chin, between about July 2004 and March 2005, is guilty of professional misconduct contrary to the Legal Profession Act 2008 (WA) by:
(i) acting for his son and for the vendor in the purchase and sale of a business when the interests of all parties, including his own interests, would be in conflict and when he was a likely witness in relation to a dispute relating to that purchase and sale; and
(ii) making a proposal to another practitioner that he avail himself of costs in relation to work that that practitioner did not perform, at the expense of the defendant in the case.
2. There is a finding that Mr Ni Kok Chin, on or before January 2005, is guilty of professional misconduct contrary to the Legal Profession Act 2008 (WA) by failing to treat a professional colleague with the utmost fairness and courtesy and by making allegations of improper conduct against fellow practitioners without a reasonable or proper basis for doing so.
3. There is a finding that Mr Ni Kok Chin, between May 2006 and August 2006, is guilty of professional misconduct contrary to the Legal Profession Act 2008 (WA) by making allegations that another practitioner had resorted to underhand tactics in falsifying a court document and by accusing that practitioner of deliberately misleading an officer of the court.
4. There is a finding that Mr Ni Kok Chin, between about July 2004 and August 2004, is guilty of professional misconduct contrary to the Legal Profession Act 2008 (WA) by:
(i) failing in a substantial way to reach or maintain a reasonable standard of competence and diligence in drafting a will and a trust deed on behalf of a client;
(ii) inserting additional provisions into a costs agreement with his client without his client's consent;
- (iii) charging his client fees for work which were excessive;
(iv) using intemperate and offensive language in a letter to his client; and
(v) attempting to subvert the jurisdiction of the Legal Profession Complaints Committee.
The Tribunal found that a further allegation of professional misconduct made against Mr Chin for failing to carry out his client's instructions in the preparation of a will and a trust deed was not made out.
- 5. There is a finding that Mr Ni Kok Chin, on or about 13 February 2006, is guilty of professional misconduct contrary to the Legal Profession Act 2008 (WA) by writing to a judicial officer seeking legal advice in relation to proceedings in which he was retained and in which the judicial officer concerned had delivered a judgment and, in any event, communicating directly with a judicial officer in relation to proceedings in which he was retained without first advising or notifying the solicitors for the other party.
6. There is a finding that Mr Ni Kok Chin, in February 2005 and thereafter, is guilty of unsatisfactory professional conduct contrary to the Legal Profession Act 2008 (WA) by seeking to receive remuneration from a client which varies in accordance with the amount that may be recovered, in addition to costs obtained from the opposing party.
7. There is a finding that Mr Ni Kok Chin is guilty of:
(i) professional misconduct contrary to the Legal Profession Act 2008 (WA) by giving legal advice to and representing two parties, between 14 March 2005 and 31 August 2005, in relation to criminal charges against each of them in circumstances where the interests of each accused were, or were potentially, in conflict; and
(ii) unsatisfactory professional conduct contrary to the Legal Profession Act 2008 (WA) by providing to the Legal Profession Complaints Committee, on 12 June 2006, an inaccurate and misleading response to the Committee in relation to this matter.
8. There is a finding that Mr Ni Kok Chin, on or about 19 April 2006, is guilty of professional misconduct contrary to the Legal Profession Act 2008 (WA) by making allegations of improper conduct against a third party, Mr Ross Merrick, without a reasonable or proper basis for doing so.
(Page 10)
- 9. There is a finding that Mr Ni Kok Chin, between February 2005 and February 2006, is guilty of professional misconduct contrary to the Legal Profession Act 2008 (WA) by:
(i) not maintaining a trust account within the meaning of s 137 of the Legal Practice Act 2003 (WA) and failing to deposit trust monies to the credit of a trust account as required; and
(ii) failing to render an account in respect of legal services and failing to provide notices in accordance with s 231 and s 232 of the Legal Practice Act 2003 (WA).
10. The Legal Profession Complaints Committee is to file and serve any submissions on penalty within 21 days of publication of these reasons.
11. Mr Chin is to file and serve any submissions on penalty within 21 days of the service of the Legal Profession Complaints Committee's submissions.
12. Subject to any further order of the Tribunal, the question of penalty is to be dealt with on the papers.
15 SAT subsequently considered the appropriate course of action: Legal Profession Complaints Committee and Chin [2012] WASAT 77(S).
16 The jurisdiction of SAT to transmit a report and recommendation arises under the Legal Profession Act s 438.
17 Consequently, SAT made orders:
1. Pursuant to s 438(2)(a) of the Legal Profession Act 2008 (WA), the Tribunal makes and transmits a report to the Supreme Court (full bench) in the form of its reasons published on 24 April 2012, these reasons and the Practitioner's submissions on penalty and costs, with a recommendation that the Practitioner be struck off the Roll of Practitioners.
2. The Practitioner is to pay the Legal Profession Complaints Committee's costs fixed at $16,721.42 within 30 days of the date of these orders.
18 The power of the court arises under the Legal Profession Act s 444:
Court may punish
(1) If the State Administrative Tribunal under section 438(2)(a) makes and transmits a report in respect of an Australian legal practitioner
- to the Supreme Court (full bench), the report is to be taken to be conclusive as to all facts and findings mentioned or contained in the report.
- (2) The Supreme Court (full bench) may, upon motion and upon reading the report, and without any further evidence do either or both of the following -
(a) make any order that the State Administrative Tribunal may make under sections 439, 440 and 441;
(b) order the removal from the roll of the name of an Australian legal practitioner who is a local lawyer.
(3) The Supreme Court (full bench) may make such order as to the payment of costs by the legal practitioner as the Court thinks fit.
A jurisdictional issue
19 While the facts and findings by SAT are conclusive, the recommendation is not. It is for this court to evaluate the facts and findings to make the appropriate order.
20 In written submissions, the practitioner submitted that SAT, as constituted, had no jurisdiction to make a recommendation. He submitted that as the conduct complained about occurred when the Legal Practice Act 2003 (WA) was in force, only the President could act. This submission was correctly rejected by SAT:
The conduct complained about by the Committee occurred between 2004 and 2006, when the Legal Practice Act 2003 (WA) (LP Act 2003) was in force. The LP Act 2003 was repealed by the Legal Profession Act 2008 (WA) (LP Act) which commenced operation on 1 March 2009, before the disciplinary proceedings were commenced. Under s 622(2) of the LP Act, the LP Act applies to conduct consisting of a contravention of the LP Act 2003 as if the conduct consisted of a contravention of the LP Act. Accordingly, the LP Act applies to the alleged conduct complained about [18].
21 The submission overlooks the Legal Profession Act 2008 s 622:
Discipline
(1) Part 13 applies in relation to conduct of Australian lawyers, former Australian lawyers, Australian legal practitioners and former Australian legal practitioners whether the conduct occurred before or after the commencement day.
(Page 12)
- (2) Part 13 applies to conduct consisting of a contravention of the 1893 Act or the 2003 Act or the rules in force under those Acts before the commencement of this section as if the conduct consisted of a contravention of this Act or the legal profession rules
22 Despite the fact that SAT had expressly referred to this section, the practitioner was unaware of it when making his submissions before the court. He provided no satisfactory explanation for his ignorance. In supplementary submissions for which he did not seek leave, the practitioner conceded that SAT had jurisdiction.
Summary of findings
23 The Legal Profession Complaints Committee's submissions provided a summary of the detailed findings which led to SAT's findings of professional misconduct and unsatisfactory professional conduct set out earlier in these reasons. We are satisfied that the summary is accurate:
Conflict of interest findings (2)
Conflict 1
Between about July 2004 and March 2005 the practitioner acted for the vendor and purchaser (his son) in relation to the sale of a business. The practitioner not only acted for both parties, but was also the father of the purchaser and the financier of the purchaser, the conflict of his personal, financial and professional interest become untenable. The conflicting interests and the potential for a conflict of interests therefore was obvious.
Conflict 2
On 11 March 2005 a Mr T, Mr F and Mr P were charged with drug related offenses. The practitioner:
• on or about 14 March 2005 wrote to the Perth Court of Petty Sessions (Court) and Perth Police Prosecutions on behalf of all three accused;
• on 30 March 2005 represented both Mr T and Mr F in Court where Mr T pleaded guilty to possession of methyl amphetamine and cannabis and indicated a willingness to plead guilty to possession with intent to sell or supply 486 grams of cannabis (with which he had not been charged). On the same day, Mr F pleaded not guilty to the charge of being in possession of the 486 grams of cannabis with intent to sell or supply;
• on 1 April 2005 wrote to the investigating officer on behalf of Mr T and Mr F;
(Page 13)
- • on 12 April 2005 provided detailed joint written advice to Mr T and Mr F;
• on 31 August wrote to the Court and Perth Police Prosecutions on behalf of Mr F.
In acting or continuing to act in the circumstances set out above, the practitioner displayed a complete lack of understanding of his obligations and the legal principles relating to a solicitor's duties in a situation where there was a conflict of interest between his interests and his clients or between his various clients interests or where there was a potential for there to be a conflict. He displayed, in his evidence and submissions to the Tribunal a complete lack of understanding as to what a conflict of interest is and a lack of knowledge or appreciation as to how to assess a conflict of interest.
Writing and sending Inappropriate Letters
Letter 1
On or about 4 January 2005 by letter to a fellow practitioner, the practitioner made allegations of improper conduct against the practitioner ranging from acting in a 'predatory nature', that she obtained money from his client 'illegitimately' and that she [was] 'defrauding her of large sums of money' without a reasonable and proper basis to do so.
The allegations of improper conduct made against the practitioner were baseless and there was no evidence produced by the practitioner that justified the practitioner making the allegations contained in his letter.
Letter 2
On 31 July 2006 the practitioner made allegations in a facsimile to another practitioner Mr T, to the effect that Mr T had used 'underhand tactics' in relation to the filing of a writ, implying he had improperly altered the filing date of the writ. Further the practitioner filed a Summary of Facts Relevant to the Defence in the Magistrates Court in which he stated that Mr T or his agent had misled the Court. On 9 August 2006, the practitioner swore an affidavit in the Magistrates Court action, referring to the facsimile and stating that Mr T had deliberately misled Registrar Powell of the Supreme Court on 16 May 2006.
There was no basis for the practitioner making the serious allegations that Mr T was guilty of underhand tactics or that Mr T had falsified court documents by improperly altering the filing date of the writ. Further there was no basis for the practitioner stating that Mr T had deliberately misled Registrar Powell.
The practitioner's continued repetition of the allegations in correspondence to the applicant only serve to accentuate the practitioner's improper
(Page 14)
- conduct and total inability to comprehend or abide by normal professional standards.
Letter 3
The practitioner wrote to client M after she had terminated his services alleging, among other things that she had 'purpose to defraud us of our professional fees'. The intemperate and offensive nature of the language used by the practitioner in his letter to the client, is yet further evidence of his inability to abide by normal standards of courtesy and professionalism and displays his unfitness to practice.
Letter 4
The practitioner failed to provide any evidence to justify the allegations which he made in a letter to the husband of his client in Family Law proceedings accusing the husband of 'contact with prostitutes', engaging 'in a sexual relationship with female shipmates'; 'using steroids while on duty during his employment with the Royal Australian Navy'; and 'was physically violent towards Ms C during their relationship'. The practitioner wrote the letter on the sole basis of assertions from his client.
The impropriety of writing such a letter is accentuated by the fact that the practitioner sent it as an attachment to an email sent to the husband's commanding officer at Stirling Naval Base.
The practitioner sought to justify the sending of the letter containing the outrageous allegations on the basis that his client had instructed him to do so and that he believed they were true. The practitioner did not provide any evidence to justify the allegations. The practitioner failed to understand that he had a duty as a legal practitioner not to simply repeat the word or words of his client without having taken a great deal of care to inform himself that a proper basis for such an allegation had been made.
Letter to Justice Jenkins
The practitioner acted for Ms H who was an unsuccessful party to Supreme Court proceedings. On 20 January 2006 her Honour Justice Jenkins published her reasons. On 13 February 2006 the practitioner wrote to her Honour seeking her advice as to what further action his client may take.
Whatever the practitioner's reasons for writing to Her Honour were, the practitioner failed to abide by the fundamental principle that there should be no communication between a judge and one of the legal advisers of a party, otherwise than in the presence of, or with the previous knowledge and consent of, the other party.
The practitioner's attempts to justify his conduct manifest yet again a complete failure to understand the ethics and workings of the Australian legal systemand emphasise his unfitness to practice.
(Page 15)
- Altering Costs Agreement
On 12 July 2004, the practitioner had drafted a cost agreement in his own handwriting in which client M appointed him to prepare a will and trust deed for the sum of $400 payable upon the execution of the deed and the will. At the end of the document, the following words are added: 'Extra five hours at $175 for written legal advice' (Insertion).
The practitioner added the Insertion without the client's consent. Such dishonest conduct and lack of integrity is totally unacceptable and in itself is evidence of the practitioner's unfitness to practice.
Overcharging
Ten days after M instructed the practitioner to draw the will and trust deed she instructed him to prepare a letter to be sent on her behalf to Mondial Insurers in respect of a travel insurance claim for lost luggage (Insurance Claim).
The Bill of costs rendered to the client on 23 August 2004 of $1,732 purported to charge M for work performed and attendances in relation to the preparation of the will and trust deed at an hourly rate of $175, making a total (excluding GST) of $1,225. The bill of costs represented a fee that is not only grossly excessive but outrageous.
In relation to the fees rendered for the Insurance Claim, the fee charged to the client of two hours at $175 per hour, on any basis was excessive. He agreed to work on the Insurance Claim for $300. No hourly fee had ever been agreed upon and a charge of $350 for the work, was excessive.
The conduct of the practitioner in charging M the amount and in the manner that he did was dishonest.
Proposal of Party and Party Costs
Litigation arose out of the dispute in relation to the sale of the business referred to in relation to the transaction referred to as Conflict 1. The practitioner instructed a fellow practitioner, Mr Th to act on behalf of his son. On 25 October 2004 he made a proposal to Mr Th that Mr Th avail himself of party and party costs in relation to work carried out by the him (Mr Th), rather than for the work actually performed by Mr Th. The proposed arrangement was one whereby the practitioner would pay Mr Th for work Mr Th did not do at the expense of the defendant in the case.
Such a proposal is highly improper and such conduct is a further example of the practitioner's general lack of honesty.
Contingency Fee
Section 285 of the Legal Profession Act 2008 prohibits charging an amount calculated in reference to an amount of any award or settlement in
(Page 16)
- any proceedings. In giving evidence in the proceedings the practitioner denied that he sought to charge a contingency fee but his explanation as to how he charged the client M & J supported the allegation that he had sought payment from M & J contingent upon the outcome. The practitioner sought to charge a fee which varied in accordance with the amount that might be recovered, in addition to costs obtained by the opposing party. The practitioner's argument at hearing in justifying such a structure reflected a poor understanding of the concept of contingency fees.
Competence in drafting Will
The documentation prepared by the practitioner in the drafting of M's will and trust deed were convoluted and often difficult to follow. The draft will purported to permit the testator to alter its terms in a manner that any law student should know would not have been valid.
The practitioner's conduct in preparing the will disclosed a substantial failure to understand basic principles involved in preparing and executing a will and lacked to a substantial degree a reasonable standard of competence.
Subverting the Jurisdiction of the Committee
The sending of the bill of costs to the client M gave rise to a dispute between her and the practitioner. The dispute was settled and in a letter setting out the terms of settlement (Settlement Letter) the practitioner sought to make the withdrawal of a 'complaint made or to be made' to the applicant a term of the settlement agreement with M. The Tribunal rejected the practitioner's evidence that he was unaware of any complaint made by the client to the applicant when he drafted the Settlement Letter and found such evidence demonstrably false.
The practitioner's intention in drafting the last sentence of the Settlement Letter was an attempt to subvert the jurisdiction of the Committee.
The seriousness of a finding that the evidence given by the practitioner in disciplinary proceedings was demonstrably false and that he attempted to interfere with and undermine the work and proceedings of the regulatory body is yet a further example of the practitioner's unfitness to practice.
Misleading the Committee
At the hearing the practitioner admitted that he had misled the applicant when he wrote to it denying he had acted for Mr T, Mr F and Mr P. A solicitor is under a duty of candour when dealing with courts and regulatory or disciplinary authorities investigating a complaint against him or her and a breach of that duty by a practitioner should be treated very seriously.
(Page 17)
- Trust Account Matters
The practitioner's failure as found by the Tribunal to maintain a trust account, repeated failure to deposit trust monies to the credit of a trust account, failure to render accounts and failure to give the appropriate notice for legal fees in respect of the clients, demonstrate a complete lack of insight and knowledge in relation to a solicitor's duties in trust accounting.
24 SAT's findings as to why the matter is transmitted to this court are set out in Legal Profession Complaints Committee and Chin [2012] WASAT 77(S):
28 The Tribunal has made some 13 findings of professional misconduct and 2 findings of unsatisfactory professional conduct against the Practitioner relating to his conduct between July 2004 and April 2006. The Tribunal finds that the multiplicity of findings within that relatively short period of time is in itself a cause for concern.
29 The Tribunal has formed the view that the Practitioner is not a fit and proper person to remain on the Roll of Practitioners. We have reached this conclusion for a number of reasons.
30 First, the findings against the Practitioner included findings that the Practitioner engaged in conduct that a practitioner of good repute and competence would regard as disgraceful and dishonourable (Chin at [52]) or dishonest (Chin at [126]). We also found that the Practitioner attempted to subvert the jurisdiction of the Committee (Chin at [146]) and misled the Committee (Chin at [196]). This kind of conduct is not acceptable.
31 Second, the Tribunal also made findings against the Practitioner for acting in situations where a conflict of interest could arise (Chin at [44] and [189]), with no appreciation of the legal principles involved (Chin at [45] and [187]). This, coupled with the Tribunal's findings elsewhere in the decision in Chin of the Practitioner failing to understand the basic requirements of a valid codicil to a will (Chin at [114]), the fundamental principle that there should be no communication between a judge and one of the legal advisors of a party to a proceeding, otherwise than in the presence of, or with the previous knowledge and consent of, the other party (Chin at [162]), the concept of contingency fees (Chin at [175]) and the proper treatment of trust moneys (Chin at [275]), leads us to the conclusion that the Practitioner's level of competence is well below what is required of him to continue to practise. We are not persuaded that this situation could be remedied by the Practitioner undergoing further legal education.
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- 32 Third, the Practitioner's manner and approach when writing to fellow practitioners, his own clients and to third parties (Chin at [68], [90], [102], [137] and [214]) does not give us any confidence that the Practitioner commands the respect of his fellow practitioners and the public generally.
33 Finally, the Practitioner's palpable lack of insight into his shortcomings as a practitioner is quite extraordinary. His submissions referred to earlier in these reasons demonstrate that this lack of insight is an ongoing issue. He expressly refutes any suggestion of dishonesty on his part, he persists in denying any wrongdoing and the contents of his submissions, which we will include with our report to the Supreme Court (full bench), continue to demonstrate in our view a lack of understanding of even basic legal principles. His contention that he was only 'a trainee lawyer under supervision' is rejected.
34 The cumulative effect of these findings leads us inexorably to the conclusion that the Practitioner is not a fit and proper person to remain on the Roll of Practitioners.
Whether the practitioner is a fit and proper person
25 Despite the heading to the Legal Profession Act s 444 Court may punish the issue is not punishment. The heading is not part of the Legal Profession Act: Interpretation Act s 32.
26 The approach of the court has been long settled. The question that arises is not one of punishment but whether the court is justified in holding out the practitioner as a fit and proper person to be entrusted with the duties and responsibilities of a solicitor: Southern Law Society v Westbrook (1910) 10 CLR 609, 612 (Griffith CJ); Re Davis (1947) 75 CLR 409, 416 (Latham CJ); Re A Barrister and Solicitor (1979) 40 FLR 1, 24 - 25 (Blackburn CJ); and is exercised for the protection of the public and the reputation and standards of the legal profession: Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 [43].
27 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: A Solicitor v Council of The Law Society of New South Wales (2004) 216 CLR 253 [15]; Re Maraj (A Legal Practitioner) (1995) 15 WAR 12.
28 Honesty, fairness and integrity are essential prerequisites to the right to practise law. A willingness to engage in dishonest behaviour is of central relevance to an assessment of a practitioner's fitness to practise: Legal Practitioners Complaints Committee v McKerlie [2007] WASC
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- 119 [8]; The Council of The New South Wales Bar Association v Sahade [2007] NSWCA 145 [58].
29 Further, fitness to practise requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and judges: Re Davis.
30 The difference between an order for striking off and an order for suspension is summarised in Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 439:
Striking off is of course reserved for the very serious cases where the character and conduct of the practitioner is seen to be inconsistent with the privileges of further practice. Suspension is a less serious result, firstly because a limited period is specified and secondly because the right to resume practise is then preserved without any further onus upon the practitioner to prove that he or she is now a fit and proper person to practise:
'The proper use of suspension is, in my opinion, for those cases in which a legal practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner. (In Re A Practitioner (1984) 36 SASR 590 at 593 per King CJ)' [38].
31 As set out earlier, SAT found that the practitioner suffered an extraordinary lack of insight. The practitioner's lack of insight into his behaviour and his lack of appreciation as to both the standards expected of a practitioner and his failure to adhere to those standards is disturbing.
32 The degree to which a practitioner appreciates the seriousness of the misconduct is a relevant factor in the extent to which the court, exercising a protective jurisdiction, might choose between the alternatives of suspension or striking off. A practitioner who fails to understand the consequences of misconduct is a great risk to the community: Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211 [35]; New South Wales Bar Association v Evatt (1968) 117 CLR 177, 184; Law Society of New South Wales v Moulton (1981) 2 NSWLR 736, 741, 743 (Hope JA).
33 The lack of insight or understanding is demonstrated in the extensive written submissions filed by the practitioner in his words 'to ward off the
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- recommendation of SAT to have the respondent struck off the roll as a legal practitioner'. The written submissions are extensively footnoted and make irrelevant comment such as footnote 1:
It must be noted that except for His Honour Judge Sharp, the other two Honourable Members of the Panel of Judges of SAT have already been involved in decisions against the Respondent in making the many varied findings in the past that the Respondent have only been guilty of 'deficiency in his professional knowledge'. Therefore these two members are more likely to be biased against the Respondent. As for His Honour Judge Sharp, all the Respondent can surmise say is that His Honour Judge Sharp hands are tied. This is clear because the conduct of a person is the index of his state of mind.
35 The respondent asserts that SAT failed to distinguish the particular circumstances of the respondent which might have warranted a suspension and not a removal from the roll. However, SAT clearly set out its reasons why it considered removal the only appropriate recommendation to this court: Legal Profession Complaints Committee and Chin [2012] WASAT 77(S) [28] - [34].
36 The practitioner contends that to determine the issue of fitness the court must have regard to the statutory provisions in the following terms. It is argued that SAT did not look at the suitability factor as provided by s 38 and s 45 of the Legal Profession Act. However, the functions of the Legal Practice Board in determining admission have no bearing on matters relating to the removal of practitioners from the roll which is a function of the court not the Board: Re Davis (415) (Latham CJ). In any event the power to consider whether a person is a fit and proper person to hold a local practising certificate under s 38 arises at the time of admission and does not take into account conduct while in practice.
37 The practitioner asserts that SAT did not look at professional misconduct under the Legal Profession Act s 403 or the purpose of
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- admission of local lawyers. The former is incorrect as can be seen from SAT's reasons. The latter is irrelevant.
38 In any event, as we have said, this application is not an occasion for review of SAT's findings.
39 The practitioner asserts that SAT did not look at the 'omission factor on ground of the malicious persecution of the applicant before it'. It is further asserted (page 11):
6.7 In the premises, SAT therefore harbours the improper purpose for making the recommendation for the respondent to be struck off the roll (through the omission factor) to make/request for Orders as per subs s 438(2)(a) pursuant to subs 438(4) of the Act for the presentment to the Full Bench of the Supreme Court of:
(a) a record of the evidence taken at the hearing before SAT;
(b) a recommendation that the name of the practitioner be removed from the local roll.
7. The unique situation as described in the Respondent's case in the First Judgment and the Final Judgment as the justification to strike the Respondent off the Roll as a legal practitioner contrasts starkly with cases in the common law. There is NOT an iota of a criminal offence let alone a dishonest intention of the Respondent that meets the common law test of misappropriation of property by deception either through fraud or through a conspiracy to defraud. In this context, I quote what His Honour MACAULAY J said at para 6 of his judgment in the case of: Legal Services Baod v Andre Di Cioccio [2012] VSC 41:
The circumstances of each of the offences are set out in my Reasons for Sentence made 7 February 2012: R v Andre Vincent Di Cioccio [2012] VSC 28. As I said in my sentencing remarks, it appeared that Mr Di Cioccio chose the course of offending for the benefits it could bring him, with his eyes well open to the nature of his conduct. He engaged in significant and sustained dishonest offending in a fashion that bespoke a cynical rejection of the honest path.
41 The practitioner refers to a number of authorities and contends that none of them apply to his case: Legal Practitioners Conduct Board v
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- Wharff [2012] SASCFC 116; Dupal v Law Society of New South Wales [1990] NSWCA 56; Wentworth v New South Wales Bar Association (1992) 176 CLR 239; Harvey v Law Society of New South Wales (1975) 49 ALJR 364; Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655; Council of The Law Society of NSW v Mee Ling [2012] NSWADT 146; Council of The Law Society of NSW v Isaac [2012] NSWADT 203; Legal Services Board v Gillespie-Jones [2012] VSCA 68.
42 With respect, the practitioner misunderstands both the allegations against him and the findings of SAT. The cases which he cites involved moral turpitude or fraud which of course may give rise to disbarment. But an order to remove a practitioner's name from the roll is not limited to such cases. Behaviour as found by SAT is clearly capable of giving rise to an order for strike off.
43 This misunderstanding is carried through the practitioner's submissions, for example:
11. Sad to say, in the Respondent's case, there is not even one cent that was misappropriated by the Respondent from his clients. He spent his own monies for his clients and paid his client Mr Chang Ming Tang of J M Metals Pty Ltd, monies which he the Respondent did not owe Mr Chang and gave Notice to him that he intended to recover it but is not impassioned enough to do so but is impassioned enough to right the injustice that had been unjustifiably meted out to him by the reckless judgments or is it something else? Adopting Hansen J's observations in the above case the Respondent conduct: 'does not strike at the very heart of the essential standards required of a legal practitioner' cited at paragraph 19 of MACAULAY's J judgment.
44 The practitioner contends that the judgment of SAT is fallacious. However, this court is bound by those findings. The practitioner submits:
19. There is no legal explanation that a different yard stick should not be used by the Committee to measure the different levels of culpability of the Respondent at the different stages of his professional life. If this argument is not accepted, why do we have trainee lawyers when other system in other countries does not make this distinction between a trainee lawyer and a full-fledged lawyer? Is it not true that a trainee lawyer do not have full-autonomy to perform his duties as a lawyer and works under compulsion and advice of his mentor?
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45 Before this court the practitioner relied in part on the detailed submissions he had made to SAT on 29 May 2012 as to penalty. SAT considered those submissions:
17 The Practitioner's more formal submissions of 29 May 2012 are lengthy, extensively footnoted and extremely difficult to understand. The first 13 pages of the submissions are set out as a table of 'jurisdictional errors' contained in the decision in Chin. The Practitioner then proceeds to maintain his original contention (Chin at [4]) that the Committee, in pursuing the complaints against him, is acting in a vexatious manner.
18 The detailed challenge to the findings of the Tribunal in his email and in parts of his submissions is entirely inappropriate and serves to underline the contention of the Committee that the Practitioner has little or no appreciation of correct legal procedures.
19 The substance of the remainder of his submissions seems to be that from July 2004 to February 2005, the Practitioner was 'a trainee lawyer under supervision of his mentor' and that therefore in respect of his conduct during that period, he is 'not culpable or at the lower end of culpability'.
20 He states that he is 'culpable in the commission of the remaining EIGHT ALLEGED CULPABLE OFFENCES' but he argues that the penalty should 'depend on the Degree of Culpability or the Blameworthiness of [the Practitioner]'.
21 He also says that '[t]here is no justification for the removal [from the Roll] of [the Practitioner]' as he is 'a fit and proper person to practise law and is not a public danger nor does he destroy or tarnish the image of the legal profession.'
22 He then closes by providing his assessment of the Tribunal's findings in Chin and of the Committee's submission that a report should be made under s 438 of the LP Act.
46 With respect we entirely agree with [18].
The hearing before this court
47 Regrettably the hearing itself provided further evidence as to the practitioner's unsuitability, lack of insight and lack of understanding of basic procedures.
48 The practitioner displayed a complete misunderstanding of law and practice when on 13 September 2012 he wrote to the Chief Justice requesting a trial by jury and for the empanelling of five Supreme Court judges for the pending matter. The Chief Justice declined.
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49 At the commencement of the hearing, when asked for his appearance:
CHIN, MR: Yes, sir. I appear. I'm representing myself and I believe that order 58 of the Rules of the Supreme Court makes this court the trustee and I'm the beneficiary of the trust and I represent the sovereign people of Australia in flesh and blood.
McKECHNIE J: I think you represent yourself in this application, as I understand it.
50 The practitioner immediately sought the assistance of a McKenzie friend:
CHIN, MR: Yes, your Honour. I have my friend, Mr Rogerio Cristovao. He is my McKenzie friend and he knows about my case and just in case he needs to stand up for me and tell the court what he believes to be true and I ask for this honourable court's permission to grant him that right to be my McKenzie friend (ts 2).
51 The rule in McKenzie v McKenzie [1971] P 33, (1970) 3 All ER 1034 is to assist unqualified litigants, not practitioners. Nevertheless, we permitted Mr Cristovao to remain at the bar table and take notes.
52 The practitioner was incapable of providing reasoned assistance to the court. Despite first accepting that the SAT findings were incontrovertible, he continued to try to controvert them. The practitioner was ignorant as to the Legal Profession Act s 444 - the section that founds the court's power in this proceeding.
53 When confronted with the difficulty, the practitioner's response was remarkable:
BEECH J: This is not an appeal against the tribunal's decision. This is an exercise of power by the court under section 444 of the Legal Profession Act.
CHIN, MR: To exercise that power this honourable court will have to look at (indistinct) of that facts finding decision of SAT.
HALL J: That's exactly what we can't do. It says that the report is to be taken as conclusive. It's not open to us to question it.
CHIN, MR: If that is the case, I will have to appeal the SAT decision and I want to appeal, and I want this current proceeding to be adjourned.
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- BEECH J: Mr Chin, is there any reason why you have not taken any step to appeal the tribunal's decision until 40 minutes into this hearing? Given that the tribunal's decision was made more than three months ago.
CHIN, MR: Because I believe that if SAT in the second judgment dated 20 August 2012 is not able to refute every point that I have made against the decision, then its decision is null and void. It has not done that and, therefore, its decision is null and void and, therefore - - -
McKECHNIE J: Mr Chin, that is not an answer to Beech J's question.
CHIN, MR: Your Honour, this matter is of most importance to me. Although I'm in the sunset years of my life, I am - contributed to the common good of Australians, that I help them in their matters in court, that I help them even pro bono.
McKECHNIE J: Mr Chin, that is still not answering Beech J's question.
CHIN, MR: The reason for the delay, your Honour, in not appealing that decision is that I have not fully comprehended the import of the law with regard to persuasion of this - with regard to the rights and duties of and obligations of this full bench. I thought that the full bench has got a duty to overturn the decision of SAT (ts 11).
54 The court declined to adjourn the proceedings.
55 After the hearing concluded, the practitioner filed supplementary submissions by email. Leave is required: Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246, 258. He did not seek leave to do so.
56 The proposed submissions are legally incomprehensible and nothing is gained by setting them out in full. They provide further evidence of the practitioner's unfitness for practise.
Conclusion
57 We agree with the reasons and conclusion of the Tribunal [28] - [34] (set out above) that the nature and degree of professional misconduct and unsatisfactory professional conduct considered in combination require an order striking the practitioner from the roll. Such an order is not lightly made. However, it is inevitable. Public confidence in the legal profession would be greatly undermined if the practitioner's name remained upon the roll. Any member of the community who went to the practitioner for advice or representation would be at serious risk. The practitioner demonstrates no understanding of the extent of his misconduct and his submissions before this court display a dangerous lack of knowledge of
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- elementary law and procedure. Regrettably, the practitioner's complete lack of insight means there is no basis to expect, or even hope, that things might improve through further training or education.
3
40
1