Milder v Law Society of Qld Inc

[2002] QCA 35

[2002] QCA 35

COURT OF APPEAL

McMURDO P
THOMAS JA
BYRNE J

Appeal No 10201 of 2001

MORRIS LESLIE MILDER  Applicant

and

LAW SOCIETY OF QUEENSLAND INC                  Respondent

BRISBANE

..DATE 18/02/2002

JUDGMENT

THE PRESIDENT:  This is an application brought by Mr Milder to have his name removed on his own application from the roll of solicitors kept by the Supreme Court of Queensland.

Mr Milder was admitted as a barrister and solicitor of the Supreme Court of Victoria in 1974 and has remained on the roll of practitioners in that State since, although for reasons I will shortly state, his record as a solicitor is not without incident.

On 11 April 2001, Mr Milder was admitted as a solicitor of the Supreme Court of Queensland under the Mutual Recognition Act 1992 (Qld).  In support of his application for admission, Mr Milder produced a certificate from the Law Institute of Victoria confirming that he had held a certificate to practise in Victoria and that he was considered a fit and proper person to practise as a solicitor.  He did not disclose matters relevant to his fitness to practise as he was required under Section 19(2)(g) Schedule of the Mutual Recognition Act 1992 (Qld).

Mr Milder suffers from bipolar affective disorder and is under the care of psychiatrist Dr Zimmerman.  He is a bankrupt, the subject of a sequestration order made in the Federal Court of Australia on 23 February 1999.  His practising certificate in Victoria is restricted in that he is allowed to practise but not to hold trust moneys on behalf of clients.  He was the subject of disciplinary proceedings before the Legal Profession Tribunal of Victoria in 1999. 

That Tribunal made a finding of unsatisfactory conduct against him in relation to a complaint of a former client and found on 6 October 1999, upon Mr Milder's undertaking to continue taking prescribed medication and remain under medical supervision and to immediately read the Trust Account Practice Rules, to take no further action against him other than to order that he pay the costs of the proceedings fixed at $1225 within 30 days.  This lenient outcome suggests the unsatisfactory conduct was not a serious example of such conduct.

Mr Milder has been the subject of three claims to the Fidelity Fund of the Legal Practice Board of Victoria, two of which were settled on confidential terms with a denial of liability with no payment as to the claim.  One unresolved matter is presently proceeding to a hearing in the County Court of Victoria with liability denied by the Legal Practice Board.

Mr Milder's psychiatrist, Dr Zimmerman, has written that it is likely that Mr Milder's thyroid gland was underactive in April 2001 when he applied for admission in Queensland; an underactive thyroid is a side effect of his Lithium treatment and could have caused some impairment of concentration and thinking in April 2001; it has now been corrected. 

Dr Zimmerman has more recently sworn that Mr Milder has been taking his medication for bipolar disorder regularly and opines that it is "quite possible that Mr Milder's judgment and objectivity was impaired in April 2001".

On 25 July 2001, Mr Milder having been contacted by an officer of the Law Society of Queensland in respect of possible non-disclosure of material matter for his application for admission in Queensland, wrote to the Law Society of Queensland making full disclosure of the matters I have outlined.

Mr Milder has apologised to the Law Society for failing to mention matters which could be considered and plainly are material to his status as a practitioner in Queensland and pleads poor judgment because of his medical condition, coupled with severe stress and anxiety.  He has through his counsel repeated that remorse and that plea before this Court today.

It is unnecessary for this Court to make any factual findings in respect of these matters.  It is sufficient to merely outline them as I have done.

The respondent, the Queensland Law Society Inc, supports the application and informs the Court that it is unaware of any possible disadvantage to be suffered by any person or entity through the orders sought by the applicant today.

Mr Peter Byrnes of the Solicitors' Board has attended at short notice at the request of the Court.  The Solicitors' Board unfortunately was not served with the application and supporting material.  Mr Byrnes has consulted with the Chairman of the Solicitors' Board although a full meeting of the Board has not, of course, been able to be arranged.  Mr Byrnes has not indicated any opposition to the orders sought by the applicant.

In the circumstances, it is appropriate in my view to make the following orders:

1. The applicant's name be removed at his request from the roll of solicitors of the Supreme Court of Queensland.

1. The applicant pay to the respondent the respondent's costs of and incidental to this application on the standard basis to be assessed if not earlier agreed.

1. On any application for readmission of the legal practitioner in Queensland, the applicant is to deliver to the registration authority a copy of the applicant's affidavit filed 8 November 2001 in these proceedings.

1. A copy of this order and the reasons for judgment is to be served upon the proper notary of the Supreme Court of Victoria within seven days of them becoming available.

THOMAS JA:  I would emphasise that in acceding to the present application, we are making no finding as to the circumstances or motivation attending the lack of disclosure.

It simply seems appropriate to permit the applicant on his own application to have his name removed from the roll in circumstances where he concedes error on his part in obtaining the admission.

I agree with the reasons that have just been given by the President and with the order that she proposes.

BYRNE J:  I agree with the reasons of the President and those of Justice Thomas and with the orders they propose.

THE PRESIDENT:  The orders are as I have outlined.

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