Legal Profession Conduct Commissioner v Morcom - [2016] SASCFC 121

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
LEGAL PROFESSION CONDUCT COMMISSIONER v MORCOM
[2016] SASCFC 121
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Doyle)
4 November 2016
PROFESSIONS AND TRADES - LAWYERS - MISCONDUCT, UNFITNESS AND DISCIPLINE - DISCIPLINARY ORDERS - STRIKING OFF AND ANCILLARY ORDERS
PROFESSIONS AND TRADES - LAWYERS - MISCONDUCT, UNFITNESS AND DISCIPLINE - GROUNDS FOR DISCIPLINARY ORDERS - CRIMINAL OFFENCE
The Legal Profession Conduct Commissioner brings an application pursuant to s 89(1a) of the Legal Practitioners Act 1981 (SA) seeking an order striking the name of Gregory Donovan Gwynfor Morcom (the Practitioner) from the roll of practitioners.
The Commissioner relies upon the Practitioner’s convictions for six counts of possession of child pornography (including three aggravated counts) and possession of a prescribed firearm without a licence. The Commissioner also relies upon the conduct of the Practitioner in breaching a suspended sentence bond, a supervised bail agreement and an undertaking not to practise.
Held by the Court:
1. In determining whether to exercise the Court’s power to strike a practitioner’s name from the roll, the ultimate issue is whether it has been demonstrated that the practitioner is not a fit and proper person to remain a legal practitioner (at [6]).
2. It is necessary and appropriate to make an order striking the Practitioner’s name from the roll of legal practitioners (at [109]).
Legal Practitioners Act 1981 (SA) ss 5, 88A, 89(1a), 89(2), referred to.
Law Society of South Australia v Rodda (2002) 83 SASR 541, discussed.
Law Society of South Australia v Le Poidevin [1998] SASC 7014; The Law Society of South Australia v Templeton [2007] SASC 372; R v Morcom (2015) 122 SASR 154; Cornall v Nagle [1995] 2 VR 188; Mericka v Rathbone [2016] SASCFC 95; Briginshaw v Briginshaw (1938) 60 CLR 336, considered.

LEGAL PROFESSION CONDUCT COMMISSIONER v MORCOM
[2016] SASCFC 121
Full Court: Kourakis CJ, Blue and Doyle JJ
THE COURT:

This is an application by the Legal Profession Conduct Commissioner (the Commissioner) for an order striking the name of Gregory Donovan Gwynfor Morcom (the Practitioner) from the roll of practitioners maintained under the Legal Practitioners Act 1981 (SA) (the Act).
The application is brought pursuant to s 89(1a) of the Act, or in the alternative in the inherent jurisdiction of the Court. The Commissioner relies upon the Practitioner’s convictions for various offences, together with breaches by him of a suspended sentence bond, a supervised bail agreement and an undertaking not to practise. It is said that various of these matters involved unprofessional conduct by the Practitioner.
The Court’s power to strike off practitioners
Under s 89(1a) of the Act, the Commissioner may institute disciplinary proceedings in the Supreme Court against a practitioner, without laying a charge before the Disciplinary Tribunal, if he is of the opinion that the name of the practitioner should be struck off the roll of legal practitioners “because the practitioner has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] SASCFC 121
Decision Date: 4 November 2016

CaseChat Overview and Summary

The Legal Profession Conduct Commissioner applied to the Supreme Court of South Australia to have the practitioner's name struck off the roll of legal practitioners. The Commissioner relied on nine heads of conduct, including convictions for child pornography and firearm offences, and breaches of an undertaking given to a judge, a suspended sentence bond, and a supervised bail agreement. The court comprised Kourakis CJ, Blue and Doyle JJ.

The central legal issue before the court was whether the practitioner was a fit and proper person to remain a member of the legal profession, which required an assessment of the totality of his proven conduct and character. The court considered whether the nature of the offences and breaches demonstrated defects of character that undermined the practitioner's ability to command respect and risked damaging the reputation of the legal profession. It also examined whether the practitioner's disregard for authority, as evidenced by the breaches of court orders and undertakings, was compatible with the character required of a legal practitioner.

The court reasoned that the child pornography and firearm offences were of a sufficiently shameful and disgraceful nature to constitute unprofessional conduct, tending to undermine the practitioner's standing and public confidence in the profession. The breaches of the undertaking, suspended sentence bond, and bail agreement were also considered serious, demonstrating a disregard for authority. While these breaches could be explained by the practitioner's drug addiction and personality disorder, the court was not satisfied that these underlying issues had been adequately addressed. The court concluded that the practitioner's history and the opinion of a reporting psychiatrist indicated a significant risk of resuming his troubled behaviour without ongoing counselling or therapy.

Consequently, the court found that the practitioner was not a fit and proper person to remain on the roll of legal practitioners. The court ordered that the practitioner's name be struck off the roll.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The above suggests some level of insight on the part of the Practitioner into his difficulties, and some willingness to confront those difficulties. However, there remains a level of naivety in the Practitioner’s understanding of, and approach to, his addiction, personality disorder and psychological impairments. While he may well have these matters under control for the time being, his history, Dr Lim’s report and common experience compel the conclusion that he remains at significant risk of resuming his troubled ways if he does not undergo the type of counselling or therapy contemplated by Dr Lim. Conclusion The Commissioner has established a factual foundation for each of the nine heads of conduct upon which he relies in support of his application to have the Practitioner’s name struck off the roll of practitioners. Some of these individually constitute unprofessional conduct. For example, the child pornography and firearm offences are of a sufficiently shameful or disgraceful, and hence infamous, nature to constitute unprofessional conduct. The breach of the undertaking given to Parker J committed by the Practitioner also warrants the label of unprofessional conduct. However, we do not need to reach a final view about which conduct constituted unprofessional conduct because in determining whether it is appropriate to make an order striking the Practitioner’s name from the name of legal practitioners, the issue is whether the Practitioner is a fit and proper person to remain a member of the legal profession. This requires a focus on the totality of the proven conduct and character of the Practitioner. The child pornography and firearm charges are both offences of a nature that carry such a stigma, and reveal such defects of character, that they tend to undermine the ability of the Practitioner to command the necessary respect of clients and other members of the legal profession. Allowing practitioners with convictions of this nature to continue to practise also carries a risk of damaging the reputation and standing of the legal profession in the public eye. As observed earlier, maintenance of public confidence and trust in the legal profession is important to the effective functioning of the profession. The breach by the Practitioner of his undertaking not to practise, and the breaches of his suspended sentence bond and supervised bail agreement are of a different, but equally serious and significant, character. Their significance lies in their demonstration of the Practitioner’s disregard for authority, including the authority of the Court. The number of these breaches, and the extended period over which they occurred, reveal a serious and concerning character flaw on the part of the Practitioner that is incompatible with the character required of a legal practitioner. That character flaw is explained by Dr Lim in her report as a personality disorder. While the breaches of bond and bail may be explained by the Practitioner’s drug addiction and personality disorder, that does little to reduce the significance of those breaches unless and until this Court can be satisfied that the Practitioner has addressed and overcome, or learnt to manage and compensate for, his addiction and personality disorder. Although he appears to have taken some recent steps in the right direction, we are not satisfied that his drug addiction and personality disorder have been, or are being, adequately addressed. Given the long standing and serious nature of the Practitioner’s drug addiction and personality disorder, the Practitioner would need to demonstrate a lengthy period (measured in years) in which he has been crime and drug free, and that he has learnt to manage his personality disorder, before he could be considered a fit and proper person to remain a legal practitioner.

Ratio Decidendi

Legal Principle Established

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