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 121Full 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…
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- Case
- [2016] SASCFC 121
- Decision Date
CaseChat Overview and Summary
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.
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