Legal Profession Conduct Commissioner v Thompson - [2018] SASCFC 102

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
LEGAL PROFESSION CONDUCT COMMISSIONER v THOMPSON
[2018] SASCFC 102
Judgment of The Full Court
(The Honourable Justice Kelly, The Honourable Justice Nicholson and The Honourable Justice Hinton)
4 October 2018
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT - FALSIFICATION OF DOCUMENTS AND TRANSACTIONS
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA - PROCEEDINGS IN TRIBUNALS
The Legal Profession Conduct Commissioner (“Commissioner”) brought five charges against the practitioner in the Legal Practitioners Disciplinary Tribunal (“Tribunal”), alleging that the practitioner had engaged in unprofessional conduct. The conduct occurred between October 2010 and March 2011. All charges related to the practitioner’s client K. The charges included that the practitioner had misled Masters of the District Court, prepared and executed affidavits knowing them to contain false and misleading information and that he had fabricated the contents of K’s file.
At a hearing in the Tribunal, the practitioner admitted to engaging in the five separate instances of unprofessional conduct. The Tribunal found each of the charges proven and recommended that disciplinary proceedings be commenced in the Supreme Court.
The practitioner appeals the decision of the Tribunal that disciplinary proceedings be commenced in the Supreme Court on a number of grounds. By a separate originating application, the Commissioner applied to the Supreme Court for orders that the name of the practitioner be struck from the roll of practitioners.
Held per Kelly J (Nicholson and Hinton JJ agreeing) dismissing the appeal:
1) The Tribunal made sufficient findings about the workplace environment in which the practitioner was working;
2) The Tribunal did not misconstrue the nature and intent of the practitioner’s self-report letter;
3) The Tribunal did not unfairly take into account the uncharged act of the practitioner that he permitted his client K to swear an affidavit without using a Bible;
4) The Tribunal took into account the mitigating factors which the practitioner complains were not taken into account, gave adequate reasons and did not err in concluding after taking these factors into account that the appropriate course was to recommend disciplinary proceedings in the Supreme Court ;
5) The Tribunal gave due weight to the medical evidence before the Tribunal;
6) The Tribunal did not err in finding that the practitioner did not hold a genuine belief as to the assertion contained in the paragraph the subject of the disputed facts hearing in the Tribunal relevant to the fourth charge.
Held per Kelly J (Nicholson J and Hinton J agreeing) adjourning the Commissioner’s application:
1) On the material provided the Court cannot be satisfied that the practitioner is a fit and proper person to practise as a legal practitioner.
2) The practitioner should be permitted an opportunity to address the deficiencies in his case and particularly to provide further satisfactory character references focussing on his present capacity to operate appropriately when under stress in the workplace and on his present reputation for honesty and integrity in the workplace and in the wider environment.
Legal Practitioners Act 1981 Sections 5 and 86; Legal Practitioners (Miscellaneous) Amendment Act 2013 Section 82, referred to.
Legal Practitioners Disciplinary Board v Lind [2001] SASCFC 104; The Legal Practitioners Complaints Committee v Scott Malcolm Trueman [1996] SASC 5910; Legal Practitioners Conduct Board v Clisby (2012) 280 LSJS 241; Legal Practitioners Conduct Board v Rowe [2012] SASCFC 144; Legal Practitioners Conduct Board v Morel (2004) 88 SASR 401; Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; Legal Practitioners Conduct Board v Boylen [2003] SASC 241; The New South Wales Bar Association v Kalaf [1988] NSWCA 101; A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253; In Re Vadasz (1988) 146 LSJS 455; Legal Profession Conduct Commissioner v Semaan [2017] SASCFC 19; Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320; The Law Society of South Australia v Murphy (1999) 201 LSJS 456, considered.

LEGAL PROFESSION CONDUCT COMMISSIONER v THOMPSON
[2018] SASCFC 102
Full Court: Kelly, Nicholson and Hinton JJ
KELLY J:
Introduction

The practitioner appeals a decision of the Legal Practitioners Disciplinary Tribunal (“the Tribunal”) that disciplinary proceedings be commenced against him in the Supreme Court. The appeal is brought pursuant to s 86(1) of the Legal Practitioners Act 1981 (“the Act”).
By a separate originating application the Legal Profession Conduct Commissioner (“LPCC”) applies to this Court for orders, pursuant to its inherent jurisdiction or s 89(2) of the Act that the name of the practitioner be struck from the roll of legal practitioners. In support of the application the LPCC relies upon the findings of the Tribunal.
At a hearing in the Tribunal in March 2017 the practitioner admitted engaging in five separate instances of unprofessional conduct within the meaning of s 5 of the Act as it applied at the time of the alleged conduct which occurred between 14 October 2010 and 15 March 2011.
In brief, the practitioner admitted to:
·misleading a District Court Master on 14 October 2010 (the first charge);
·misleading a Master of the District Court on 25 January 2011 (the second charge);
·preparing and executing an affidavit knowing it to contain false and misleading information in February 2011 (the third charge);
·preparing and taking an affidavit of a client, who I shall hereafter refer to as “K”, knowing it to contain false and misleading information, also in February 2011 (the fourth charge);
·Over the long weekend in March 2011 fabricating some of the contents of K’s file by re-creating a letter he said he had sent on 30 June 2010, creating other pieces of correspondence and preparing two handwritten file notes recording events which had not occurred (the fifth charge).
The practitioner admitted most of the factual allegations contained in the charges against him, with the exception of one factual matter in the affidavit relevant to the fourth charge. The practitioner asserted that at the time of preparing the affidavit the subject of count 4 he genuinely believed that an assertion contained within one of the paragraphs deposed to by K, namely “I … have essentially ignored these proceedings” to be true. The Commissioner did not accept that assertion and a disputed facts hearing took place in the Tribunal. At the conclusion of that hearing the Tribunal did not accept the practitioner’s assertion that he did have such a genuine belief in relation to that assertion.
The practitioner submitted before the Tribunal that the Tribunal had the power to deal with the matter and resisted the Commissioner’s application that the Tribunal recommend disciplinary proceedings be commenced against the practitioner in the Supreme Court.
By order dated 12 October 2017 the Tribunal found each of the charges proved and recommended that disciplinary proceedings be commenced in the Supreme Court.
Before this Court the Commissioner submits that the practitioner’s appeal should be dismissed and that the practitioner’s name should be struck off the roll of legal practitioners.
The appeal grounds
The practitioner relies on seven grounds of appeal, one of which (ground 6) was amended by consent upon the hearing of the appeal.
The practitioner submits that the Tribunal made a number of errors of law and fact in its characterisation of the nature of the conduct admitted by the practitioner. Specific errors which were said to have been made by the Tribunal were particularised as follows:
1failing to make any or any sufficient findings about the workplace environment in which the practitioner was working;
2misconstruing the nature and intent of the practitioner’s self-report letter to the Legal Practice Conduct Commissioner;
3unfairly taking into account an uncharged act of the practitioner, namely the fact that he permitted his client, K, to swear an affidavit without using the Bible;
4failing to take into account factors relevant to the Tribunal inquiry and failing to provide adequate reasons for not considering those factors;
5failing to accord due weight to the medical evidence before the Tribunal;
6finding that the practitioner did not hold a genuine belief as to the assertion contained in the paragraph the subject of the disputed facts hearing in the Tribunal relevant to count 4, and
7concluding that the appropriate course was to recommend disciplinary proceedings in the Supreme Court.
Before turning to discuss the grounds of appeal it is necessary to set out some of the procedural and factual history of this matter.
Factual background
The practitioner was admitted to practise in December 2007 having completed legal studies in 2006. In January 2007 he began a placement with a law firm, Lawson Smith, where he worked as a paralegal and subsequent to his admission as a lawyer. He resigned in November 2008 as he and his wife intended to travel. When those plans fell through, he successfully applied for a position as a junior lawyer at Westside Community Lawyers (“WCL”). He commenced there in July 2009 on a two-year contract. WCL is a State and Federally funded community legal practice. His supervising lawyer at the practice was the managing lawyer, Mr Bullock.
In November 2009 K went to WCL seeking advice in relation to a motor vehicle claim against him commenced by the Motor Accident Commission (“MAC”). The file was assigned to the practitioner.
All of the charges against the practitioner arise out of his conduct in relation to the K matter.
After a period of negotiations in early 2010, a Master in the District Court eventually made an order on 30 June 2010 that the defendant, K, file and serve a defence by 21 July 2010. The practitioner did not file a defence on behalf of K by that date.
On 22 July 2010 and again on 4 August 2010 Minter Ellison, solicitors for MAC, wrote to the practitioner and requested that the practitioner file and serve a defence within seven days. In their second letter, MAC advised that they would seek their client’s instructions to apply for default judgment if a defence was not filed and served by the close of business on 11 August 2010.
On 16 August 2010, MAC obtained default judgment against K in the sum of approximately $800,000 plus costs by reason of the defendant’s failure to file a defence. The solicitors for MAC served the order for default judgment on the practitioner in a letter dated 17 August 2010 which was emailed to the practitioner.
On 26 August 2010 Minter Ellison issued a summons for examination of K and he was personally served with the examination summons on 8 September 2010. The date for the hearing of the examination summons was scheduled for 14 October 2010 before a Master of the District Court.
On 12 October 2010 K telephoned the practitioner during which the practitioner explained that the examination summons had been issued because of a default judgment. K was shocked to learn that a default judgment had been entered against him and instructed the practitioner to apply to set aside the default judgment.
On 14 October 2010 the practitioner appeared before the Master and applied for permission to bring an application to set aside the default judgment. On that occasion, the practitioner proffered to the Master as a basis for permitting an application to be made, that K had not received correspondence from himself, when the practitioner knew that he had not sent any correspondence to K after 30 June 2010. The practitioner failed to tell the Court on that date that it was his fault and not K’s fault that the default judgment had been obtained in the proceedings. That was the basis for count 1 in the charge laid before the LPDT.
Notwithstanding the instructions he received from K on 12 October 2010 the practitioner did nothing further in the matter until about 15 February 2011, at which time he drafted an affidavit in which K deposed to the fact that “he had essentially ignored these proceedings”.
The matter next came before the same Master on 25 January 2011. The practitioner attended and sought an extension of time within which to comply with orders made by the Master on 14 October 2010. On that occasion, he also provided false and misleading information to the Court. He told the Court that as of that date K had not been able to provide instructions or arrange for an affidavit in support of such an application to be drafted. The practitioner had actually made no attempt to obtain instructions from K. In fact he had not had any contact with him between 12 October 2010 and 25 January 2011. That conduct at the Court on 25 January 2011 is the basis of count 2.
The Master granted the application for an extension of time and made an order that the defendant comply with the previous order made on 14 October 2010 by 15 February 2011.
On 15 February 2011, the practitioner affirmed and caused to be filed an affidavit in which he deposed, amongst other things, to having sought instructions from K but that he had been unable to contact him, when he knew that he had never attempted to contact K to seek those instructions. He also deposed that he was “now instructed to make the within application” when, as at that date, he had not contacted K. In the same affidavit he also deposed to having received a letter from MAC’s solicitors advising that on 4 August 2010 they would seek a default judgment if a defence was not filed by 11 August 2010. However, he did not refer to the earlier receipt of the warning letter sent by those solicitors on 22 July 2010 reminding the practitioner that the defence was now late and requesting a defence be filed within a further seven days. The contents of that affidavit were the basis of the third count.
On 15 February 2011 the practitioner prepared and caused to be sworn and filed an affidavit from K in which K deposed to the following facts:
I was informed by my solicitor that a defence was to be filed on 21 July 2010.
-    when the practitioner knew that he had not at that time informed the defendant of the requirement to file the defence by that date.
I did not provide my solicitor with instructions in relation to the preparation and filing of a defence … I failed to provide and default judgment was signed on 16 August 2010.
-    when the practitioner knew that he had not, prior to the signing of the judgment, communicated with K to seek such instructions.
I received notice in September 2010 that I was required to attend an examination summons on 14 October 2010.    I informed my solicitor of same but did not attend nor provide instructions in relation to the preparation of any application.
-    when the practitioner knew that he had never sought those instructions prior to 14 October 2010.
The delay in time is due to my own oversight and lack of understanding and failure to respond to my solicitor’s correspondence.
-    when the practitioner knew that he had not sent any correspondence to the defendant between 30 June 2010 and 15 February 2011.
I am intimidated by the legal process and have essentially ignored these proceedings.
-    when as at 15 February 2011 the practitioner knew that the defendant had not ignored the proceedings and was not at fault.
I now … am in a position to provide prompt instructions to my solicitors to ensure these proceedings will go smoothly.
-    when the practitioner knew that he had not previously failed to provide prompt instructions.
Those matters deposed to by K were the basis of the fourth charge before the Tribunal.
On the Friday prior to the long weekend in March 2011 the practitioner reported to Mr Bullock that default judgment had been obtained in the K matter and that he had filed an application to have it set aside. At that time, his employer informed the practitioner that another solicitor would run the application. Over that long weekend the practitioner went into his office at WCL and fabricated and/or recreated documents on that file.
On the Tuesday after the long weekend he handed the file over to the solicitor. The solicitor’s examination of the file and other records maintained by WCL caused him to query whether some of the documents on the file were genuine or whether they had been recently created. That solicitor reported his belief to Mr Bullock, who then spoke to the practitioner about the perceived fabrication. Initially, the practitioner prevaricated but then quickly admitted that there were documents on the file that were not contemporaneous or genuine. Ultimately the practitioner admitted that he had fabricated or recreated a number of documents on that file. The practitioner’s conduct over the long weekend in fabricating documents on the K file was the basis of the fifth count in the Tribunal.
Mr Bullock reported the matter to the Chair of WCL, Mr David Myer, who then met with the practitioner and Mr Bullock. Mr Myer urged the practitioner to self-report and then arrange for him to consult with lawyers.
Under cover of a letter dated 8 July 2011 the practitioner self-reported to the Law Society.
The practitioner left the employment of WCL in April 2011 and did not renew his practising certificate that year. He has not worked as a lawyer since then.
Meanwhile, by letter dated 18 October 2011, the Law Society referred the matter to the now defunct Legal Practitioners Conduct Board pursuant to s 76(1) of the previous Act with a direction that the Board investigate the conduct of the practitioner.
That investigation was not completed until the end of 2013. That investigation consisted of a number of interviews and the exchange of numerous correspondence between the practitioner and his lawyers, Minter Ellison, and the Board.
Charges had still not been laid by 1 July 2014 when provisions of the Legal Practitioners (Miscellaneous) Amendment Act 2013 took effect. Ultimately, as a consequence of those amendments it was necessary for the Legal Professional Conduct Commissioner to seek an extension of time within which to bring the charges which were finally laid in August 2015.
In the practitioner’s response to the charges, he admitted each of the five charges and almost all of the particulars alleged against him with one exception which the Commissioner did not accept. That exception related to the swearing of the affidavit on 15 February 2011 by K, who deposed to the fact that he “had essentially ignored these proceedings”.
A hearing therefore proceeded before the Tribunal regarding that particular factual dispute between the practitioner and the Commissioner. That is, as to whether the practitioner did hold a genuine belief at the time of swearing the affidavit of K on 15 February 2011 that K had essentially ignored the proceedings.
Although the disputed facts hearing was about one factual issue only, the evidence was at large. The practitioner maintained in his oral evidence that he did hold such a belief at the time he prepared the affidavit and identified a number of factors which he said caused him to now realise that his belief was mistaken. He identified those factors as being discussions with senior counsel and with his solicitor and reading an affidavit filed later by K on 29 March 2011 in which he deposed to certain aspects of the earlier affidavit prepared on 15 February 2011 which were not true.
The Tribunal’s decision and reasons

On 12 October 2017 the Tribunal delivered its decision formally finding the charge of unprofessional conduct proven. The Tribunal gave extensive reasons for its decision and finally concluded by recommending that disciplinary proceedings be commenced against the practitioner in the Supreme Court in accordance with s 82(6)(v) of the Act. Further aspects of the Tribunal’s reasons will be discussed in the context of discussing each ground of appeal.
Ground 1 – Complaint about sufficiency of findings as to practitioner’s work environment
I turn now to the first ground of appeal, which is a complaint that the Tribunal failed to make any or any sufficient findings about the uncontested evidence as to the nature and extent of the workplace environment at WCL, where the practitioner was practising at the time of the offending, including the additional workload and the pressures and effect of that environment upon him.
This complaint can be dealt with quite briefly. In my view, it is misconceived. The Tribunal specifically referred to all of the relevant features of the workplace environment. These features include the fact that the practitioner was asked to take on the role of finance officer as an incentive to obtain permanent employment as opposed to contract employment only and that he found his supervisor blunt and intimidating to such an extent that he preferred not to trouble him.
The Tribunal also specifically referred to the stressful environment in which the practitioner was required to work without adequate support from senior colleagues. None of the facts concerning the practitioner’s employment were in dispute and in the circumstances I do not consider it was necessary for the Tribunal to have made any more specific findings than it did about them. The salient features of the practitioner’s employment were clearly accepted by the Tribunal.
Ground 2 – The Tribunal misconstrued the nature and intent of the self-reporting letter
The practitioner’s counsel submitted that the Tribunal unfairly diminished the significance of the practitioner’s decision to self-report. He complains that the Tribunal discounted its significance because the practitioner would inevitably have been reported, even if he had not self-reported. It was unfair as well for the Tribunal to criticise the practitioner for failing to report conduct which became the subject of the first four counts when that conduct was already out in the open and the purpose of the self-report was to disclose matters not already known, to which only the practitioner was privy. Those matters included the state of mind of the practitioner at the time, which led him to being unable to take the necessary and proper steps on the file, and to bury his head in the sand around the looming crisis.
In support of this ground of appeal the practitioner’s counsel tendered without objection an affidavit from the solicitor for the practitioner sworn on 10 August 2018. That affidavit set out the circumstances in which the practitioner came to make the self-report, including the fact that the practitioner was then in a fragile mental state. The affidavit deposes that both the practitioner and his solicitor expected that the matter would have to be investigated and the practitioner would then be required to provide further information.
While it can be accepted that the self-report letter was completed early on in the investigation in circumstances where the practitioner was still suffering from depression and anxiety, nevertheless the complaint that the Tribunal unfairly diminished the significance of the self-report letter must be evaluated in the light of what was then known to the practitioner’s employers and in the light of the practitioner’s obligations under the Act.
As this Court has frequently observed, a practitioner whose conduct is the subject of an inquiry by the LPCC has a duty to assist the Commissioner in his inquiries. As Stanley J observed in Legal Practitioners Disciplinary Board v Lind:[1]
Personal integrity is an essential attribute for a legal practitioner. Practitioners must act honestly at all times. There is an obligation of candour and frankness in dealing with clients. A practitioner whose conduct is the subject of an enquiry by the LPCC or the Tribunal must uphold the obligations of candour and frankness to the LPCC and the Tribunal. A practitioner has a duty to assist any such inquiry. Attendance to these obligations is an essential part of proper professional conduct.
[1] [2001] SASCFC 104 at [15].
On the date when the self-report letter was sent, it is correct that the extent of the practitioner’s failures regarding the K file had already surfaced and another solicitor had been asked to take over the file. On one view of the matter, the practitioner might be seen to have self-reported as something of a pre-emptive move ahead of the investigation which he must have known would inevitably commence in the near future. It is not to say that he should not receive some credit for going beyond the requirements to answer questions and volunteering further information to put the whole of his actions during the relevant period in some sort of context. Nevertheless, the letter was less than complete in some respects and it was only after considerable correspondence between the LPCC, Minter Ellison, WCL and the practitioner that the full extent of the practitioner’s fabrication on the K file was realised. Inconsistencies and anomalies in the information originally provided by the practitioner were later identified by the LPCC and further investigations with Minter Ellison, WCL and the practitioner then revealed the full extent of the unprofessional conduct.
In these circumstances, I do not consider that the Tribunal’s scepticism about the extent of the practitioner’s candour and honesty at the self-reporting letter was unjustified.
Furthermore, I have read the whole of the transcript of the evidence given by the practitioner. In my view, it was open to the Tribunal to make the finding it did at paragraph 98 of the judgment that it:
… received the distinct impression that the practitioner continues to ascribe some blame to the client for his failure to contact the practitioner.
For these reasons I do not consider there is any substance in this ground of appeal and I would dismiss it.
Ground 3 – The Tribunal erroneously took into account an uncharged act
This ground of appeal arises out of the observations of the Tribunal at paragraph 115 of its reasons:
The practitioner admits the affidavit was sworn without a Bible, however there is no charge relating to that fact. The Tribunal considers the failure to swear on a Bible to be significant. [K] could have affirmed the affidavit but did not. The taking of an oath is a fundamental and important part of a legal practitioner’s obligations. It cannot be merely ignored as incidental to other unprofessional conduct and the Tribunal considers that failure, of itself, to constitute unprofessional conduct. Although the practitioner has not been charged with unprofessional conduct arising out of that failure, and whilst not conclusive in the Tribunal’s decision to recommend the commencement of disciplinary proceedings in the Supreme Court, it is one of the many factors that the Tribunal takes into account in reaching its decision in this matter.
[Footnotes omitted]
In support of this ground of appeal counsel for the practitioner relied on the decision in The Legal Practitioners Complaints Committee v Trueman[2]where the Court observed that in exercising its powers under the Act the Tribunal is always under an obligation to ensure that the practitioner is afforded procedural fairness in accordance with the rules of natural justice. That proposition is uncontroversial. However, instructive and useful though the discussion in Trueman is as to the true nature of proceedings in the Tribunal, the remarks of the Court as to the requirements of procedural fairness in the context of a tribunal inquiry are not apposite to the facts here.
[2] [1996] SASC 5910 at [89] per Lander J.
There was no dispute as to the circumstances surrounding the swearing of the affidavit without a Bible on 15 February 2011. It was part of a course of conduct admitted by the practitioner about which there was no dispute. In my view, the Tribunal was entitled to take that circumstance into account in its consideration of the whole of the subjective and objective circumstances surrounding the practitioner’s unprofessional conduct. Even if the Tribunal erred on this point, it is plain from the whole of its reasons that the failure to use a Bible when swearing the affidavit of K was not a significant factor in the Tribunal’s approach to penalty. It was one of many factors which the Tribunal took into account and it is plain from the whole of the reasons that the decision to recommend the commencement of disciplinary proceedings was based substantially on the Tribunal’s assessment of the gravity and seriousness of the conduct charged.
In these circumstances, I consider that the practitioner’s complaint that he was denied natural justice is misplaced.
Ground 4 – Failure to take into account factors relevant to the Tribunal inquiry and failure to provide adequate reasons for not considering those factors; and
Ground 7 – Failure to properly give effect to relevant considerations and failure to exercise the Tribunal’s own powers of disciplinary sanction
These two grounds of appeal can be conveniently dealt together. The complaints made under these grounds are, in essence, that the Tribunal wrongly rejected the notion of a so-called “two-fold inquiry” and in deciding to recommend that disciplinary proceedings be commenced, failed to take into account a list of factors, all of which may be summarised as mitigating factors relevant to the practitioner. Mr Wells QC submitted that had the Tribunal taken all of these factors into account, the conclusion would have been that the circumstances did not require a recommendation that disciplinary proceedings be commenced in the Supreme Court.
The first aspect of this complaint arises out of the Tribunal’s reasons at paragraph 37:
As to Mr Wells QC’S submission, to the extent it is directed at two separate and distinct stages, the Tribunal does not accept the independence of those two stages. Doyle CJ noted in Murphy, that the role of the Tribunal is to protect the public and not punish the practitioner who has done wrong. If, as a result of its inquiry into the circumstances charged, the Tribunal finds a practitioner’s conduct coming within the definition of unprofessional conduct, that immediately raises the question of whether the conduct is such that the practitioner is not a fit and proper person to practise and if fit to practise, under what conditions (if any). It is at that stage that the Tribunal considers what powers it has to deal with the matter, given the seriousness of the Charge. It may be, for example, that the facts of the Charge are such that the Tribunal considers the particular circumstances and the extent of the matters such as the practitioner’s insight into the consequences of his or her conduct that the Tribunal can deal with the matter in a way that protects the public. Alternatively, it may be that the facts are such that irrespective of the extent of the practitioner’s insight, remorse or other ameliorating factors, nonetheless the facts demonstrate a lack of fitness to practise either at all or only under strict conditions which are beyond the power of the Tribunal.
[Footnotes omitted]
The practitioner also complained of the Tribunal’s finding at paragraph 252 that the conduct of the practitioner the subject of counts 1, 2, 3, 4 and 5 was:
… such as to reveal that the practitioner is not a fit and proper person to practise and is sufficient to warrant a recommendation that disciplinary proceedings be commenced in the Supreme Court.
In my view, the remarks of the Tribunal in the impugned paragraphs do not disclose any error in its approach to the disposition of the matter. As Doyle CJ said in Legal Practitioners Conduct Board v Clisby[3] in another context:
It is important to recognise that in exercising the powers conferred on the court in disciplinary proceedings, the issue for the Court is whether the practitioner’s unprofessional conduct demonstrates that he or she is not fit to remain a member of the legal profession.
[3] (2012) 280 LSJS 241 at [7].
After acknowledging that this required consideration of the whole position, Doyle CJ then said:[4]
Nevertheless, the primary focus must be on the unprofessional conduct. After all, the very reason the practitioner is subject to disciplinary action is because of his or her unprofessional conduct
…
The practitioner’s professional conduct, whether it preceded or succeeded the unprofessional conduct, while not an irrelevant consideration, is very much a secondary consideration. The same point can be made in relation to the practitioner’s personal circumstances and any other extenuating circumstances.
[4] (2012) 280 LSJS 241 at [7].
This Court has long since recognised that there is some conduct which demonstrates beyond question that a practitioner was at the time it was committed unfit to be a legal practitioner. See for example Legal Practitioners Conduct Board v Rowe:[5]
A practitioner may engage in a single act of unprofessional conduct which is of such gravity that it demonstrates in itself that the practitioner is not fit and proper to remain on the Roll of legal practitioners.
[5] [2012] SASCFC 144 at [71].
In Legal Practitioners Conduct Board v Morel,[6] Bleby and Gray JJ in the context of discussing the test of whether a practitioner is unfit to be a legal practitioner said:
The test suggested by King CJ was whether the practitioner lacked the qualities of “character and trustworthiness” as being the necessary attributes of a legal practitioner. Lack of trustworthiness will be amply proved by offences involving dishonesty in relation to a client’s affairs.
[6] (2004) 88 SASR 401 at [57].
See also, for example, Ziems v The Prothonotary of the Supreme Court of New South Wales[7]:
It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self-respecting profession …
[7] (1957) 97 CLR 279 at [298] per Kitto J.
Here the conduct proven against the practitioner was sufficiently serious to warrant a conclusion on the part of the Tribunal that the only appropriate order was to recommend disciplinary proceedings be commenced in the Supreme Court. That proven conduct included conduct of the practitioner in relation to the K file over a period of several months between October 2010 and March 2011 when he:
·failed to accept responsibility for his own failings in managing the file which caused a default judgment to be made against K;
·blamed his client and dishonestly suggested to him that he had not answered correspondence from him when he knew that he had never written to K;
·was less than frank with the solicitor acting for the Motor Accident Commission as to what had occurred;
·set in train a series of actions intended to conceal the truth of what had in fact occurred (which was very little);
·on two occasions attended court and was untruthful to a Master when putting oral submissions to the Court;
·prepared two affidavits, both of which were false and misleading and which he knew to be false and misleading;
·fabricated over nine documents on a file in an endeavour to conceal his failing in relation to the management of that file.
In my view, the Tribunal was correct to categorise that conduct as at the extreme end of unprofessional conduct.
For these reasons I consider the second aspect of the complaint made under Ground 4 to be misconceived. The Tribunal undertook an exhaustive consideration of the facts and made clear findings in respect of disputed matters. The Tribunal analysed in detail the medical evidence and took into account that the practitioner’s conduct was complicated because of the fact of his depression. The Tribunal specifically referred to the practitioner’s youth and inexperience, the stressful work environment, lack of support and the fact that he had been out of the profession for over six years. Nevertheless, all of the factors complained of in Ground 4 are matters which properly go to the question now as to whether the practitioner is unfit to remain a member of the legal profession.
Ground 5 – Failure to accord the medical evidence due weight
This is a complaint that the Tribunal failed to accord the weight due to the uncontested medical evidence of Drs Maxwell and Clarke. In particular, counsel for the practitioner complained that the Tribunal failed to accord any proper significance to the unique advantage which Dr Maxwell had as his treating general practitioner. In addition, there was a complaint that the Tribunal misconstrued the reports of both those doctors in that although the Tribunal summarised the evidence given by them, it made only selective findings on the basis of that evidence.
At the Tribunal hearing, six medical reports were tendered by consent, three from Dr Maxwell, a general medical practitioner who has a particular specialty in providing mental health counselling service to lawyers in South Australia since 2011, one from a psychiatrist, Dr Michael Clarke, one from a psychologist, Megan Jones, and one from the practitioner’s general practitioner, Dr Rammal.
None of the practitioners were called to give oral evidence and their reports were tendered by consent.
The Tribunal dealt at length with each of the reports tendered and accurately summarised the salient features of each of the reports, in particular those of Dr Maxwell and Dr Clarke.
The salient features of Dr Maxwell’s report, which the Tribunal accepted, were that in March/April of 2011 the practitioner was suffering from severe clinical depression consistent with having been present for some time and likely to have reduced his capacity to undertake work. In her first report of 15 December 2015, Dr Maxwell opined:
5.Nathan told me that he had suffered depression whilst studying law at university and also when he first began working as a lawyer (my notes record that he graduated in 2007). I am not aware of any other relevant past conditions.
6.I would anticipate that Nathan’s depression will only surface under very stressful conditions. With minimal stress I would think he would be unlikely to need ongoing medication. I make this assumption based only on my consultations with him in 2011 and 2012 and realise that his situation may have changed since then.
In her second report dated 14 September 2016, Dr Maxwell reviewed that position to some extent. She said:
Nathan has depression requiring lifelong medication. He is currently well-controlled and does not require any medication changes or any psychological intervention. He has very good insight into his depression, is aware of the signs of increasing depression and knows when and how to seek help. I consider his current state of mental health to be excellent and in my opinion there is nothing that would prevent him from discharging his duties as a legal practitioner.
…
In my opinion he needs to continue medication probably for life. If he has significant life stressors, he may benefit from some counselling. However, as he has developed very good coping strategies and has responded extremely well to medication, I would expect him to manage any stressors with minimal outside help.
In her final report dated 31 May 2017, Dr Maxwell said:
My subsequent assessments of Nathan (on 26 July 2016 and 2 May 2017) convince me that his experiences, combined with his psychotherapeutic management and appropriate use of medication, have led him to a much better understanding of his illness and inability to deal with stress. His handling of his brother’s death without displaying any signs of relapse, and the fact that he has not relapsed during the protracted time that this matter has been without resolution, convince me that he is now able to deal with even major stress without any recurrence of the depression and anxiety that crippled him in 2010/2011.

Dr Clarke’s report was in similar vein. He expressed the following opinion after interviewing the practitioner for a medico-legal report dated 11 May 2017:
I consider that Mr Thompson would remain vulnerable to particularly stressful work situations in the future. He remains guarded about the events of 2010 and 2011 which suggests that he has strong emotions about those events and is avoiding and distancing himself from them at an emotional level. Therefore, he is likely to find similarly stressful and difficult work situations could cause a deterioration of his mental state in the future. However, I also consider it likely that Mr Thompson through the insight he has gained, would be far more aware of the possible consequences of him not appropriately dealing with situations that may arise. His ongoing treatment is likely to reduce the emotional impact that such situation could have on him and would be more likely to seek help as well as address the situation in the workplace. I therefore consider that there is little chance of similar problems occurring. Appropriate supervision in the workplace would be an additional safeguard to ensure that further problems do not arise.
In response to a specific question Dr Clarke explained the reason for expressing a more cautious opinion than Dr Maxwell in her report of September 2016. The reason being that in the intervening period the practitioner had faced the challenges of the proceedings against him which he found stressful and he was not as stable as when he was seen by Dr Maxwell in 2016. Dr Clarke concluded by observing that the practitioner was likely to better manage stress in the future than he had in the past.
The Tribunal dealt with all of these matters and explained why it held some concerns on the basis of Dr Clarke’s evidence. All of the medical reports were before the Tribunal and the Tribunal was entitled to assess and have regard to those reports as it saw fit.
I do not consider any of the criticisms of the Tribunal’s reasons and findings with regard to the medical evidence are justified. In particular, the Tribunal’s finding that the plaintiff’s depressive condition did not wholly explain or excuse his conduct between October 2010 and March 2011 was plainly open on all of the evidence before it. For these reasons I consider the complaints made under this ground of appeal to be wholly unjustified.
Ground 6 – The disputed facts hearing regarding whether the practitioner held a genuine belief at the time of the swearing of the affidavit on 15 February 2011
This ground of appeal is a complaint about the Tribunal’s findings that the practitioner did not hold a genuine belief at the time of the swearing of K’s affidavit on 15 February 2011 that he (K) had “essentially ignored these proceedings”. The complaint under this ground is twofold. First, counsel for the practitioner submitted that the Tribunal in fact made no positive finding. Second, if this Court finds that the Tribunal did make a positive finding, then the complaint is that the Tribunal should not have been satisfied on the evidence that the practitioner did not hold such a belief.
The first aspect of the practitioner’s complaint can be dealt with briefly. The Tribunal made it clear at paragraphs 138 and 169 that it did not accept the evidence of the practitioner on this topic. At paragraph 138 the Tribunal said:
In all the circumstances, the Tribunal does not accept that the practitioner genuinely held the belief he says he held as at 15 February 2011.
Later, at paragraph 169 in its reasons the Tribunal referred to its earlier finding:
As at 15 February 2011, he did not think he was doing his job properly yet he says he formed the genuine belief that it was the client’s problem as well as his. The Tribunal has found that the practitioner did not have that genuine belief at the time.
[Footnote omitted]
In my view, it is plain that the Tribunal has made an express finding about the matter. Furthermore, I consider that on the basis of the evidence before it, that finding was open to be made.
At the outset, the practitioner admitted the conduct alleged in each charge against him was unprofessional in the relevant sense. From the Commissioner’s point of view, there was only one matter of a factual nature the subject of any dispute in the Tribunal hearing. That issue was whether the practitioner did hold a genuine belief as at 15 February 2011 that the client K had “essentially ignored these proceedings”.
After hearing the evidence, including the evidence given by the practitioner on that topic, the Tribunal specifically rejected his evidence and found that he did not have such a belief.
The practitioner now complains that the evidence was insufficient to make that finding. The practitioner’s counsel submitted that because K had the affidavit read over to him and agreed with the contents, that fact in itself was powerful confirmation that the practitioner at that time did have a genuine belief that he had ignored the proceedings. Counsel for the practitioner also complained that the Tribunal was wrong to use the fact that K was shocked on being told that a default judgment had been entered as some evidence inconsistent with him ignoring the proceedings. He complains that too much weight was given by the Tribunal to the fact that in October 2010 K had instructed the practitioner to take steps to set aside the judgment. In my view, these criticisms of the Tribunal’s reasoning are not justified.
It was undisputed that the only contact between the practitioner and K from 30 June 2010 to 15 February 2011 was on 12 October 2010. On that date, K telephoned the practitioner after receiving an examination summons and correspondence from MAC’s lawyers. The practitioner asked him to come into the office and within two hours K did attend at the practitioner’s office. There he learned for the first time of the existence of the default judgment against him. K was shocked. He gave the practitioner instructions to do what he could to have the default judgment set aside.
That evidence was to be assessed in light of all of the practitioner’s admitted actions in the period both before and after 15 February 2011. In this respect, the practitioner admitted that at the hearing before Master Blumberg on 14 October 2010 and again on 25 January 2011 that he had sought to deflect the blame for the non-filing of the defence on to K.
On 25 January 2011, the practitioner again sought to deflect blame on to the client by conveying the impression that he had not been able to provide the necessary instructions.
In light of the undisputed deliberate and misleading conduct of the practitioner to the Court on 14 October 2010 and again on 25 January 2011, I consider that it was open to the Tribunal to find that on 15 February 2011 the practitioner had also been deliberately deceitful.
In summary, there was no contact between the practitioner and K between 30 June 2010 and 15 February 2011, except when K contacted him in October 2010 with the examination summons. He did not communicate again with K until 15 February 2011 when he sought to have the affidavit sworn as a matter of urgency. There was not a shred of evidence, objectively speaking, for any conclusion that the client had ignored the proceedings.
In the circumstances, I consider the Tribunal’s finding was open and entirely justified.
CONCLUSION
In conclusion, I do not consider there is any substance in any of the practitioner’s complaints concerning the approach taken by the Tribunal. The Tribunal correctly acknowledged that there are circumstances which may permit the Tribunal to deal with the matter without it going to the Supreme Court. However, the circumstances before the Tribunal were such that it was open to the Tribunal for it to be of the opinion that the facts demonstrated a lack of fitness to practise and that the disciplinary powers available to the Tribunal would not meet the case. Ultimately, any question of fitness to practise either at all or only under strict conditions beyond the power of the Tribunal to impose is for the Supreme Court to determine.
In the circumstances the Tribunal was correct to recommend that disciplinary proceedings be commenced in this Court.
I would dismiss the appeal.
I turn now to consider the Commissioner’s application to strike off the practitioner’s name.
Legal Profession Conduct Commission application to strike the name of the practitioner from the Roll of Practitioners
In support of its application to strike the practitioner’s name from the Roll, the LPCC relies on the findings of the Tribunal.
The issue before this Court is whether the unprofessional conduct of the practitioner is of such character as to require that his name be struck from the Roll.
This requires a detailed consideration of all of the circumstances of the practitioner’s conduct. A succinct statement of the principle is to be found in Legal Practitioners Conduct Board v Boylen:[8]
The Court must, therefore, carefully consider the nature and circumstances of the unprofessional conduct. The question which the Court has to determine is whether it has been shown that the practitioner is not a fit and proper person to practise and the question cannot be stated more precisely than that: Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 297 – 298; Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 189; Law Society of New South Wales v Foreman (supra); Law Society of South Australia v Rodda (2002) 83 SASR 541 at 545. The orders to be made by the Court are directed to ensuring that, to the extent that the practitioner is not fit to practise, the entitlement to practise is either restricted or denied: Foreman’s Case (supra) per Mahoney JA at 441.
When considering the conduct of the practitioner, it is necessary to examine every fact which may throw light on the ultimate issue whether he or she is a fit and proper person to practise: Ziems’ Case (supra) per Fullagar J at 288. There are many kinds of conduct deserving of disapproval which do not necessarily spell unfitness to practise and to draw the dividing line is by no means always an easy task: Ziems’ Case per Kitto J at 298. In some instances, the only question may be whether the practitioner should remain on the roll and there may be no question of punishment as the practitioner may have already been punished elsewhere. An example is Ziems’ Case.
If a solicitor is permitted to remain on the roll, the Court is holding out to the public that he is a fit and proper person to be entrusted by the public with those difficult and delicate duties and that absolute confidence which the public must repose in persons who fulfil the duties of solicitors: The Southern Law Society v Westbrook (1910) 10 CLR 609 per O’Connor J at 619.
[8] [2003] SASC 241 per Debelle J at [50] to [52] inclusive.
Another useful elucidation of the principles to be applied in determining this question is to be found in the decision of NSW Court of Appeal in Prothonotary of the Supreme Court of New South Wales v P.[9] In that matter the Court considered an application by the Prothonotary of the Supreme Court of New South Wales to have the name of the practitioner removed from the Roll of Legal Practitioners on the ground that the practitioner was not a fit and proper person to remain on that Roll, having been found guilty of a drug offence.
[9] [2003] NSWCA 320.
In P the Court found that the solicitor had been drug-free for almost five years and that the factual matrix of the case was such that the solicitor was not a risk to the public. The Court found that the practitioner had fully rehabilitated and was no longer addicted to drugs. In light of a period of self-imposed suspension of over four years and evidence of rehabilitation the Court found that it was not necessary to accede to the application to strike his name off the Roll. After a survey of the relevant authorities the Court identified ten factors which were relevant to the application.[10] It is useful to set them out:
[10] [2003] NSWCA 320 at [24].
·absence of any prior disciplinary or criminal record;
·absence of motive for personal enrichment;
·honesty and co-operation;
·whether the offending conduct related to the practice of the law;
·the ignominy of a criminal conviction as an appropriate deterrent;
·an absence of premeditation;
·evidence of good character;
·any voluntary self-imposed or court-imposed temporary suspension from practice;
·delay in commencing disciplinary proceedings, and
·clear and convincing evidence of rehabilitation.
To remove the name of a practitioner from the Roll of Practitioners it is necessary to conclude that the practitioner is permanently or indefinitely unfit to be a member of the legal profession.[11] The time for assessing the fitness to practise is to be decided at the time of the hearing.[12]
[11] The New South Wales Bar Association v Kalaf [1988] NSWCA 101 at page 4, [40].
[12] A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253 at page 268, [21] per King CJ.
In In Re Vadasz[13] this Court re-admitted a practitioner to the Roll after his name had been struck off in 1981 after he had pleaded guilty to drug trafficking offences for which he received a prison sentence. The Court in granting the application explained, notwithstanding the objective seriousness of the practitioner’s offending, as follows:[14]
…
The seriousness of importing a trafficable quantity of heroin cannot be over-emphasised and there is some history of offending, albeit less serious. On the other hand the applicant has shown considerable strength of character not only in the difficult circumstances in which he gained the qualifications to be admitted to legal practice in the first place, but also in his success in overcoming the heroin habit. I am greatly impressed by the strength of evidence by members of the legal profession and other reputable acquaintances as to his rehabilitation and character.
Drug addiction cannot be regarded as an excuse for crime, nevertheless there is a reason in the present case to that the applicant’s lapses from law-abiding behaviour do not represent his true innate character and disposition but rather the distorted character and disposition which he bore in consequence of the influence of the narcotic drug and his addiction to it. There is reason in the evidence to believe that the addiction having been removed his true character has re-asserted itself that he is now a fit and proper person to be held out as a legal practitioner.
[13] (1988) 146 LSJS 455.
[14] (1988) 146 LSJS 455 at [457] per King CJ.
The Court found the circumstances in that case to be exceptional and re-admitted the practitioner. That decision can be contrasted with the Court’s decision in Re A Practitioner[15] where the Court (King CJ, Zelling and Jacobs JJ agreeing) ordered that the name of a senior practitioner be struck from the Roll of Practitioners. That practitioner was an experienced one and employed in a substantial and reputable firm. He had misappropriated money (approximately $25,000) over a period of three years. King CJ explained as follows:[16]
I cannot regard suspension as an adequate response to the type of unprofessional conduct in which this practitioner engaged. 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. Whilst it is true that the practitioner succumbed to temptations produced by his difficult personal and financial position at a time when his judgment might have been somewhat impaired by the emotional stress to which he was subject, there is no escape from the fact that he engaged in a course of fraudulent conduct extending over three and a half years and involving trust monies.
[15] (1984) 36 SASR 590.
[16] (1984) 36 SASR 590 at [593].
In a more recent authority of Legal Profession Conduct Commissioner v Semaan,[17] this Court considered an application to remove the name of a practitioner from the Roll of Practitioners after he was found guilty of unprofessional conduct by forging aspects of his academic record and work experience on his curriculum vitae in applications for employment.
[17] [2017] SASCFC 19.
Although the practitioner produced medical evidence which suggested he was suffering from a depressive disorder triggered by lifestyle stressors at the relevant time, this Court (Kourakis CJ, Lovell and Doyle JJ agreeing) held that there was nothing in the evidence to suggest that any of his underlying psychological issues were the cause of the offending conduct and accordingly the name of the practitioner was struck from the Roll. Relevantly, the Court observed:[18]
The Practitioner’s inexperience and youth do not ameliorate his misconduct because the failing from which it arose is, fundamentally, a moral one. Nor is his moral failing a product of his depression.
The Practitioner chose to engage in fraudulent dealings to advance his employment prospects. The public can have no confidence that, if allowed to practice as a lawyer, he would not act fraudulently to advance his clients’ causes and thereby his own interests
[18] [2017] SASCFC 19 at [19]–[20].
In Legal Practitioners Conduct Board v Clisby[19] this Court had to grapple with the same complicating factor which is present here, namely that it is now a period of some seven years since the practitioner voluntarily ceased practising and he has not applied for a practising certificate since. In Clisby the practitioner had been found guilty of unprofessional conduct involving 12 clients for which he was acting in relation to judicial review of decisions made under the Refugee Tribunal and the Migration Review Tribunal. The conduct occurred over a period of approximately two years.
[19] (2012) 280 LSJS 241.
It was accepted that if the practitioner had been dealt with shortly after the conduct in 2004 that the Court may have found it necessary to remove the practitioner from the Roll. The Court recognised that although the conduct at the time was serious and raised the issue of whether the practitioner was fit to remain on the Roll, the complicating factor which arose was because in the seven or eight years since the practitioner’s conduct commenced, he had continued to act as a practitioner of the Court in a competent and professional manner without blemish.
In the circumstances of that case the Court characterised the practitioner’s conduct as a gross departure from proper professional standards, which was not an isolated case occurring over a two-year period and involving numerous clients, all of whom were particularly vulnerable. Doyle CJ and Stanley J observed that unprofessional conduct of the character which occurred in Clisby’s case would ordinarily call for the removal of the practitioner from the Roll and then went on to say[20]:
If that had occurred, soon after the unprofessional conduct came to light the practitioner would, in all probability, now be in a position where a court would at some time in the not too distant future have to consider whether it would be appropriate to allow his re-admission, in the event he made such an application.
This consideration raises the question of whether in the circumstances, the appropriate action to be taken by the court is to suspend the practitioner’s practising certificate rather than to remove him from the Roll.
[20] (2012) 280 LSJS 241 at [243].
In the end, applying the reasoning of the Court in Ziems v Prothonotary of the Supreme Court of New South Wales,[21] the Court considered that a period of suspension of two years without striking the practitioner off the Roll was appropriate.
[21] (1957) 97 CLR 279.

In reaching its decision, the Court in Clisby also relied on The Law Society of South Australia v Murphy[22] where Doyle CJ said:
By allowing a practitioner to remain on the Roll of Practitioners, the Court holds the practitioner out as a fit and proper person to practise. There is a certain incongruity in allowing a practitioner to remain on the Roll even though it has been demonstrated that the practitioner is not a fit and proper person to remain a practitioner. However, there are decisions indicating that in some circumstances an order suspending a practitioner’s right to practise will be adequate, even though for the time being the practitioner cannot be held out as a fit and proper person to remain a practitioner.
[22] (1999) 201 LSJS 456 at [461].
In the end, the Court found that the lapse of time and the significance of the unexplained lengthy delay between the commencement of the investigation and the conclusion of proceedings, together with the practitioner’s unblemished conduct in the intervening period were sufficient reasons to refrain from striking him off the Roll.
I turn now to the difficult question of the characterisation of the practitioner’s admitted conduct. The question is whether the proven conduct against the practitioner demonstrates that he is not fit to remain a member of the legal profession. I have considered Mr Wells’ submission that although the offending conduct took place over several months and involved five separate instances of deceitful conduct, nevertheless when the conduct is viewed against the background of the practitioner’s circumstances at the time, it should be seen as one isolated episode at a time when the practitioner was overborne by the stressful work environment in which he was required to work and he was trying to dig himself out of the hole he had got into by failing to attend to K’s court proceedings in a timely and efficient manner.
It is correct that the proven conduct all relates to the practitioner’s conduct of one file. However, I cannot view it as either unpremeditated or isolated conduct. The conduct involved misleading the Court on two different occasions, in October 2010 and again in January 2011. It involved the swearing of affidavits which were false and which the practitioner knew to be false and misleading, not just on behalf of the practitioner but on behalf of his client, K as well. Finally, it involved the fabrication of numerous documents on the client’s file in an endeavour to conceal the practitioner’s lack of action on the file. In these circumstances it is difficult to understand the submission that the conduct was neither premeditated nor extensive. I think it was. In my view the Tribunal was correct to characterise that conduct as so serious as to warrant the recommendation that disciplinary proceedings be commenced. The question is whether that conduct can be said to demonstrate permanent features of untrustworthiness in the appellant’s character. I have previously referred to the case of Semaan where it is apparent that this Court concluded the practitioner’s dishonest conduct in itself demonstrated a moral failing which was permanent.
There are however some aspects of the practitioner’s circumstances which give me cause to think that the practitioner may be deserving of a second chance.
The first feature is that at least one medical practitioner is of the opinion that the cause of the conduct can be attributed to the medical situation of the practitioner at the time, namely his depressive condition and the stress he was working under at that time. That medical practitioner is of the opinion that with appropriate medication he is not likely to repeat the conduct. A second feature of this matter which is in some respects similar to the facts in Clisby is that a period of now more than seven years has elapsed since the offending conduct. In that time, the practitioner has voluntarily ceased practice and has in fact obtained positions of some responsibility in alternative employment.
An additional feature which I regard as relevant is that even though I have found the practitioner’s conduct not to be isolated or unpremeditated in the sense contended for by Mr Wells QC, nevertheless the fact is that the practitioner’s conduct did relate to only one client in respect of one particular matter. In this regard, I note an affidavit tendered before the Tribunal from the practitioner’s managing solicitor, at the time of the relevant conduct. The affidavit confirms that the management of K’s file on the practitioner’s part appears to be an isolated matter and that he (the manager) was unaware of any other like matter.
On the other hand, however, unlike the position in respect of the practitioner in Clisby, the practitioner has not been practising the law for the past seven years. It is notable that there was, and is, no evidence before this Court as to the practitioner’s management of any other files for which he had responsibility, or indeed from any work colleague with whom or for whom he has ever worked in any legal practice other than the affidavit of the managing solicitor. It can be accepted of course that the practitioner was relatively junior and inexperienced at the relevant time. However, he had previously held a position for well over a year at another firm in Adelaide.
There is no report from anyone at that other firm or from WCL as to the practitioner’s management of other files for which he had responsibility. While that is perhaps understandable in the circumstances in which the practitioner finds himself, however, the upshot of that is that this Court has not heard from any independent person with or for whom the practitioner has ever worked.
Also relevant as to the important question of assessing whether this conduct does demonstrate permanent features of the appellant’s character is that although it can be accepted that he has held down stable employment now for a period of some years, again, this Court has not heard from any independent person about his performance and functioning in the workplace during that time. I accept that the practitioner has produced references from two of his friends and from his wife. However, the friends are people he worked with as a student at Big W in the year 2000 or thereabouts. Notably absent is any reference from anybody with whom the practitioner has or is currently working or with whom he proposes to work.
Taking everything into consideration I am of the view that on the present state of the evidence, and after giving due consideration to the seriousness of the proven conduct, this Court cannot be satisfied that the practitioner is a fit and proper person to practise as a legal practitioner. Ordinarily, this would lead to an order striking the practitioner’s name from the Roll of Practitioners.
However, in the exceptional circumstances of this case, including the practitioner’s voluntary relinquishment of his practising certificate for a period of seven years and his level of rehabilitation, I would not make a striking off order at this stage. The practitioner should be allowed an opportunity to address the deficiencies in his case that have been identified. In particular, he should be allowed an opportunity to provide further satisfactory character references focussing on his present capacity to operate appropriately when under stress in the workplace and his present reputation for honesty and integrity in the workplace and in the wider environment. I would adjourn the LPCC’s application for six months or such other period of time as may be appropriate to enable this to occur upon the practitioner undertaking to the Court not to apply for a practising certificate in the meantime. In the event that the LPCC’s application were to be dismissed (and this is by no means assured) the Court would make consequential orders to ensure that any practising certificate that did issue, in the first instance, would be subject to strict conditions including as to supervision.
NICHOLSON J:
I agree that the appeal should be dismissed for the reasons given by Kelly J. In relation to the Commissioner’s application for the practitioner’s name to be struck off the roll, I agree that the application should be adjourned for six months for the reasons given by Kelly J.
HINTON J:
I agree that the appeal should be dismissed for the reasons given by Kelly J. In relation to the Commissioner’s application for the practitioner’s name to be struck off the roll, I agree that the application should be adjourned for six months for the reasons given by Kelly J.