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Legal Services Board v McGrath

Legal Services Board v McGrath

Case [2010] VSC 266 17 June 2010

Standing

Admissibility of Evidence

Compensatory Damages

Legal Profession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

S CI 2010 02244

LEGAL SERVICES BOARD (ABN 82 518 945 610)	Plaintiff
v
FRANCIS MCGRATH	Defendant

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JUDGE:	WARREN CJ
WHERE HELD:	Melbourne
DATE OF HEARING:	14 May 2010
DATE OF JUDGMENT:	17 June 2010
CASE MAY BE CITED AS:	Legal Services Board v Francis McGrath
MEDIUM NEUTRAL CITATION:	[2010] VSC 266

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LEGAL PRACTITIONERS – Application to have defendant struck off Roll of Practitioners – Legal Profession Act 2004, s 2.4.42 – power to strike off – broader purpose than public protection - defendant convicted of child pornography offences – whether fit and proper person at time of hearing – failure to adduce sufficient evidence in admissible form – application refused.

EVIDENCE – Admissibility – hearsay evidence - evidence of criminal convictions in civil proceeding – evidence of criminal convictions subject of appeal at time of civil proceedings – Evidence Act 2008, ss 59(1), 91, 92(2)(a), 178.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S. R. Senathirajah	Legal Services Board
For the Defendant	No appearance

HER HONOUR:

The plaintiff seeks the removal of the defendant’s name from the roll kept by this Court of persons admitted to the legal profession (the ‘Roll’).

This application has been brought pursuant to s 2.4.42(5) of the Legal Profession Act2004 (the ‘Act’). Sections 2.4.42(2)-(4) of the Act outline a series of necessary preconditions to the making of an application pursuant to s 2.4.42(5). This procedure is enlivened when the plaintiff becomes aware that a Victorian practitioner has been convicted of an offence and forms the view that that practitioner is no longer a fit and proper person to remain on the Roll.

The defendant was served with the necessary documents and had notice of the hearing. He did not attend the hearing or otherwise inform the court of his attitude to the application to remove him from the Roll. Therefore, the matter proceeded unopposed leaving the plaintiff to be put to its formal proofs.

Whilst, s 2.4.42(5) allows the plaintiff to apply to this Court to have a practitioner’s name removed from the Roll, the Court may, at its own discretion, make such orders as it sees fit. Section 2.4.42(5) is supplementary to the Supreme Court’s inherent jurisdiction to discipline lawyers under its supervision.[1] The legislative procedure outlined in ss 2.4.42.(2)-(4) does no more than bring the fact that a Victorian practitioner has been convicted of an offence to the notice of the Court and provide the plaintiff with standing to address the court on the individual’s fitness to remain on the Roll. As to the further steps which are to be taken, they are decided by the Court.

The facts of the present application

[1]Clause 20 Legal Profession Amendment (Education) Bill 2007 (Explanatory Memorandum).

The defendant was admitted to practice on 1 April 1981. Until the events giving rise to this application occurred, the defendant had never been the subject of any complaint, been suspended from practice,…

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.

Continue reading Legal Services Board v McGrath

Details

AGLC: Legal Services Board v McGrath [2010] VSC 266
Case: [2010] VSC 266
Decision Date: 17 June 2010

CaseChat Overview and Summary

In the case of Legal Services Board v McGrath, the Legal Services Board applied to the Supreme Court to have Mr. McGrath, a legal practitioner, struck off the Roll of Practitioners. The Board's application arose from Mr. McGrath's conviction of child pornography offences. The central legal issue was whether the Board had demonstrated that Mr. McGrath was not a fit and proper person to remain on the Roll of Practitioners at the time of the hearing. This determination was influenced by the admissibility of the evidence of Mr. McGrath's criminal convictions, which were the subject of an ongoing appeal at the time of the Board's proceedings.

The court had to assess whether the evidence of the criminal convictions was admissible under the Evidence Act 2008, specifically considering sections 59(1), 91, 92(2)(a), and 178. Section 59(1) generally prohibits the introduction of evidence of a criminal conviction, while sections 91 and 92(2)(a) provide exceptions, particularly when the evidence is not being adduced to prove the character of a person. Section 178 allows for the admission of evidence despite an appeal against conviction, subject to certain conditions. The court had to balance these provisions to determine whether the evidence was admissible and sufficient to support the Board's application.

The court found that the Board had not adduced sufficient evidence in admissible form to establish that Mr. McGrath was not a fit and proper person to remain on the Roll of Practitioners at the time of the hearing. The court held that the hearsay nature of the evidence and its unavailability due to the ongoing appeal rendered it inadmissible. Consequently, the court refused the Board's application to have Mr. McGrath struck off the Roll of Practitioners. The court's decision was based on the statutory framework governing the admissibility of evidence of criminal convictions in civil proceedings and the specific circumstances of this case.

Orders