Legal Services Board v Neil James Williams

[2009] VSC 561

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

No. 10010 of 2009

LEGAL SERVICES BOARD	Plaintiff
v
NEIL JAMES WILLIAMS	Defendant

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JUDGE:	Pagone J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 November 2009
DATE OF JUDGMENT:	25 November 2009
CASE MAY BE CITED AS:	Legal Services Board v Neil James Williams
MEDIUM NEUTRAL CITATION:	[2009] VSC 561

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LEGAL PRACTITIONERS – Removal of name from local roll of practitioners – Fit and proper person – s 2.4.42 Legal Profession Act 2004 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S. R. Senathirajah	Legal Services Board
For the Defendant	No appearance
Friend of the Court	Mr A. Hargreaves

HIS HONOUR:

1. This application is brought under s 2.4.42(5) of the Legal Profession Act 2004 (Vic) for the removal from the local roll of Neil James Williams QC who has been a member of the legal profession in this State for many years.

1. The basis upon which the application is made is the satisfaction of the Legal Services Board of the matters that it is required to be satisfied about in s 2.4.42. The matter for my consideration is whether Mr Williams is, as events and facts are now known, not a fit and proper person to be on the roll.

1. The test can be seen from the three cases to which I have been referred: the Law Society of South Australia v Rodda;[1] the decision of Hansen J in Law Institute of Victoria v Gough;[2] and the more recent decision of Forrest J in Legal Services Board v Bourozikas.[3]

   [1](2002) 83 SASR 541.

   [2](Unreported, Supreme Court of Victoria, Hansen J, 10 February 1995).

   [3][2009] VSC 382 (Unreported, Forrest J, 3 September 2009).

1. The basis upon which I am asked to conclude that Mr Williams is no longer a fit and proper person within the meaning of the authorities is the criminal conduct which has been proved against him, and has led to a sentence of imprisonment which he is currently serving.  It may be that arguments could be made in favour of Mr Williams' continued presence on the roll, but he does not contend that he should remain on the roll and, significantly, he has consented to the orders I am asked to make.

1. The basis of the application is that Mr Williams, on the offences found against him and the conviction that had been imposed upon him, is no longer a fit and proper person to be a member of the legal profession.

1. The conduct of Mr Williams for which he has been found guilty was not conduct committed in the performance of his practice as a lawyer.  Many lawyers engage in conduct which is wrongful but does not justify them being struck off the roll.  The circumstances in which a lawyer, having committed an offence and has been found guilty of having committed an offence, other than in their conduct in legal practice, which justifies being struck off, is in part a reflection of community standards.  However, it is not enough that an offence has been committed.  Otherwise, the mere incurring of traffic fines would probably find few lawyers practicing anywhere. 

1. The power I am asked to exercise must be exercised cautiously.  It is important that lawyers be removed from the roll only when their conduct so reflects upon them adversely in their professional capacity that it is appropriate that they be removed.  It is also important that each case be considered on its own facts.  The offences for which Mr Williams has been convicted reveal a public policy against certain conduct, but it does not follow that in his particular circumstances they inevitably reflect so adversely upon his ability to practice that he must be removed from the roll.[4]

   [4]Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, 285-286 (Dixon CJ), 288 (Fullagar J).

1. The offences are serious by modern community standards.  Whether they are sufficient in all circumstances to justify striking from the roll a lawyer I do not need to consider.  He has been sentenced for those offences and is being punished for them; the removal of a person from the roll would add to the punishment and is not necessarily always appropriate.  For present purposes it is sufficient to say that they are serious, that Mr Williams has been found guilty of them, that he has been sentenced to imprisonment, and that he consents to the orders I am asked to make.

1. I have read in some detail the remarks of his Honour Judge Gullaci on 23 April 2009, and there are many facts and circumstances which might tend against my making the orders sought today.  I also note from the materials filed the circumstances and helpfulness with which Mr Williams dealt with the charges when first put to him when the police officers arrived to search his premises.

1. However, he does not want to be heard against the application.  He knows about it and, in the face of serious charges, and a conviction, Mr Williams has informed the court by writing to the solicitor for the Board, Ms Rivalland, that he does not want to be heard against the orders that I should make.

1. In those circumstances, and with Mr Williams having signed proposed consent orders, I will make the orders sought, although, in light of the submissions made by Mr Hargreaves, I shall defer their effect for a period of two weeks from today to give Mr Hargreaves sufficient time to speak to Mr Williams in case his current course of action has been made without adequate consideration of legal advice that could have been given to him.