Mungar v Legal Practice Board of WA

[2009] WASC 135

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   FULL BENCH

CITATION:   MUNGAR -v- LEGAL PRACTICE BOARD OF WA [2009] WASC 135

CORAM:   MARTIN CJ

LE MIERE J
BEECH J

HEARD:   3 APRIL 2009

DELIVERED          :   3 APRIL 2009

PUBLISHED           :  5 JUNE 2009

FILE NO/S:   LPB 22 of 2009

BETWEEN:   JACQUES PATRICK MUNGAR

Applicant

AND

LEGAL PRACTICE BOARD OF WA
Respondent

Catchwords:

Legal practitioners - Application for readmission - Application of the principles enunciated in Re Stokes; Ex parte Stokes in applications for readmission under the Legal Profession Act 2008 (WA) - Prospect of repetition of misconduct if readmitted

Legislation:

Interpretation Act 1984 (WA), s 36
Legal Practice Act 2003 (WA), s 34
Legal Profession (Admission) Rules 2008 (WA)
Legal Profession Act 2008 (WA), s 31
Legal Profession Regulations 2009 (WA)

Result:

Applicant readmitted

Category:    B

Representation:

Counsel:

Applicant:     Mr J Hedges

Respondent:     Ms M Breisch

Solicitors:

Applicant:     David Rawlinson

Respondent:     Legal Practice Board

Case(s) referred to in judgment(s):

Re Mungar (Unreported, WASC, Library No 940705, 13 December 1994)

Re Stokes; Ex parte Stokes [2008] WASC 269

1. JUDGMENT OF THE COURT:   On 3 April 2009 the court granted the application of Jacques Patrick Mungar to be admitted as a practitioner and his name restored to the roll of practitioners (or the 'local roll' as it is now known) for reasons to be published.  These are those reasons.

2. Mr Mungar was first admitted as a practitioner in December 1985.  However, on 13 December 1994, he was struck off the roll of practitioners.  The reasons for that order are set out in the decision of the Full Court in the matter of Re Mungar (Unreported, WASC, Library No 940705, 13 December 1994). The essential reason was that on or about 15 July 1992, when practising as a partner in a law firm, he stole $12,537.63 from the firm's trust account. Mr Mungar was charged with stealing and ultimately pleaded guilty to that charge in the District Court on 26 September 1994. He was fined $20,000 as a consequence of his conviction.

3. As the Full Court noted in its reasons, Mr Mungar had previously been found to have been guilty of unprofessional conduct.  In August 1990, he admitted unprofessional conduct by failing to pay counsel's fee upon a matter in which he had briefed counsel, and by failing to respond to correspondence sent to him by the WA Bar Association and the Barristers' Board concerning his failure to pay counsel's fees.  In the context of the matters that led to the order striking him off the roll of practitioners, it must be said that the previous findings of unprofessional conduct are minor, and of no particular significance to his application for readmission.

4. The circumstances which caused Mr Mungar to commit the offence of stealing are canvassed in the reasons of the Full Court.  In essence, the funds were stolen from the trust account in order to satisfy a demand from the Australian Taxation Office, which had threatened to commence bankruptcy proceedings against Mr Mungar if its demands were not satisfied.  Mr Mungar was apparently concerned that in the event of bankruptcy, he would be in default under a personal loan secured against his parents' home, which they might lose.

5. On 18 June 2008, Mr Mungar applied to the Legal Practice Board (the Board) for a certificate to the effect that he was a fit and proper person to be readmitted, and that the rules relating to readmission had been complied with, pursuant to s 34 of the Legal Practice Act 2003 (WA) (2003 Act).

6. The Board conducted an inquiry into the matter of Mr Mungar's fitness, and to that end, a hearing was held on 30 January 2009, at which a number of witnesses were called by Mr Mungar in support of his application.

7. For reasons provided to Mr Mungar on 13 February 2009, and later to this court, the Board determined to issue the certificate sought.  In the course of those reasons, the Board noted that the conduct of Mr Mungar which gave rise to his removal from the roll of practitioners was extremely serious.  In its view, which we share, the theft of trust funds struck at the fiduciary core of the obligations of a solicitor.  As the Board noted, in Mr Mungar's case, his misconduct was aggravated by the fact that he lied to his partners about the theft when inquiries were made in relation to it.

8. The Board made a number of findings of fact based upon the evidence given by Mr Mungar, which it accepted 'with some confidence'.  Those findings were as follows.  The Taxation Office obtained judgment against Mr Mungar in March 1991 in an amount of approximately $27,000.  Although some payments were made in reduction of the judgment debt, Mr Mungar's financial circumstances were straitened by payments which he made to his then wife, to provide her with financial security, and by an advance which he made to his brother, to assist in a business venture which failed, which advance was not repaid.  At the time of theft of trust funds, Mr Mungar expected that the proceeds from the settlement of a sale of a property owned by his then wife would provide sufficient funds to repay the moneys stolen within a short while.

9. The Board was significantly influenced by the findings which it made in relation to the connection between Mr Mungar's matrimonial relationship and his theft of the trust funds.  In evidence accepted by the Board, Mr Mungar described his matrimonial relationship as tumultuous and volatile.  The Board noted that Mr Mungar's evidence to the effect that his marriage was in a state of crisis from at or about the time of the theft of trust funds in mid 1992, until 1995 when Mr Mungar assumed sole custody of the children of the marriage, was corroborated by orders made by the Family Court which were placed in evidence.

10. The evidence of Mr Mungar with respect to the effect of his tumultuous marital relationship was corroborated by evidence given to the Board by Mr Christman, a clinical psychologist.  Mr Christman first interviewed Mr Mungar in 1998, as a consequence of his appointment by the Family Court to provide expert evidence in relation to a question which had arisen in relation to access to the children of Mr Mungar's marriage.  Mr Christman interviewed Mr Mungar again more recently, and administered various psychological tests to him.  Mr Christman expressed the view that the theft of trust funds occurred at a time when Mr Mungar was under extreme stress generated by the nature of his relationship with his former wife, financial pressures, work stresses, and his tendency to utilise alcohol as a means of relaxation.  Mr Mungar gave direct evidence to the Board to the same effect.  The Board found that Mr Mungar's perception, for which he had some reasonable basis, was that if he did not accede to his wife's various demands, she would deny him access to his children.

11. In the light of this evidence, the Board concluded that Mr Mungar's misconduct was induced by these various factors, and noted that his theft did not involve systematic dishonesty and that it had been his intention to restore the trust funds within a short time of their removal.

12. In its reasons, the Board paid particular attention to the fact that Mr Mungar maintained a plea of not guilty on the basis of legal advice to the effect that he had a defence of honest claim of right, together with Mr Mungar's appeal to the Court of Criminal Appeal against his conviction, notwithstanding his earlier plea of guilty.  As the Board noted, the obvious significance of those matters was their relevance to the important question of whether Mr Mungar lacked appropriate insight into the seriousness of his misconduct, which would, if found, increase the risk of repetition.  However, based on the evidence given by Mr Mungar, the Board was satisfied that he had appropriate insight into his previous misconduct.  He stated in evidence that his earlier conduct was fundamentally wrong and expressed his shame as a result of that misconduct.  He acknowledged that his conduct struck at the core of the responsibilities and duties of a legal practitioner.  The Board was satisfied that Mr Mungar was genuine in these expressions.  The Board therefore concluded that whatever might have been the state of his insight in 1995, by the time of his application to the Board, Mr Mungar had a proper appreciation of the seriousness of his previous misconduct.

13. The Board's conclusion in respect of Mr Mungar's insight into the seriousness of his previous misconduct was a most material consideration in its assessment of the likelihood of repetition of any form of misconduct if Mr Mungar was readmitted to legal practice.  In addition, the Board took into account the fact that Mr Mungar has had no contact with his former wife since 1995, and consequently is no longer exposed to stress from that source.  The Board also took account of Mr Mungar's evidence to the effect that he no longer misuses alcohol.  That evidence was corroborated by other witnesses.  The Board also took account of the fact that Mr Mungar has had sole custody of his children since 1995 and was clearly devoted to them.  In the Board's view, that fact reduced the risk of repetition of any form of conduct which could threaten that continuing relationship.

14. The Board also took particular account of the work done by Mr Mungar since being struck from the roll of practitioners in 1994.  In about 1996 he commenced employment with a firm carrying on business as a customs broker.  He disclosed his prior conviction and the fact that he had been struck from the roll of practitioners prior to commencing that employment.  He has continued working in that capacity since 1996.

15. A representative of Mr Mungar's employer gave evidence before the Board, which it accepted, to the effect that Mr Mungar was regarded as a trusted, honest and honourable employee.  Her evidence was that confidence has been reposed in Mr Mungar, and has been repaid.

16. The Board also took account of Mr Mungar's evidence to the effect that he wished to rehabilitate himself in the eyes of the community and of the legal profession by being readmitted to practise.

17. Taking all these matters into account, the Board concluded that the risk of recurrence of conduct of the sort which caused Mr Mungar to be struck from the roll of practitioners was 'slight, if present at all'.  As there were no other matters which would suggest that Mr Mungar was not a fit and proper person to be readmitted, the Board concluded that it was appropriate to issue the certificate sought.

18. In reliance upon that certificate, Mr Mungar applied for admission as a practitioner on 3 March 2009.  As it happens, the Legal Practice Act 2003 (WA) was repealed and replaced by the Legal Profession Act 2008 (WA) (2008 Act) with effect from 1 March 2009. Although there are transitional provisions in the Legal Profession Regulations 2009 (WA) which give continuing efficacy to some certificates issued by the Board under the Legal Practice Act 2003 (WA), there is no provision which expressly provides such efficacy to a certificate issued under s 34 of the 2003 Act. The court drew this matter to the attention of the Board, and invited submissions on the topic of the effect of the transitional provisions of the 2008 Act and regulations made under that Act, and on the question of whether s 36 of the Interpretation Act 1984 (WA) might overcome any anomalies arising from those transitional provisions. The Board responded by advising that in lieu of the certificate issued under s 34 of the 2003 Act, the Board would issue a further certificate pursuant to s 31(1) of the Legal Profession Act 2008 (WA). Such a certificate was issued on 1 April 2009, and certifies that Mr Mungar is eligible for admission, is a fit and proper person to be admitted, and has made application in accordance with the Legal Profession (Admission) Rules 2008 (WA).

19. In Re Stokes; Ex parte Stokes [2008] WASC 269, this court held that notwithstanding that an applicant for readmission had satisfied the Board upon inquiry that he or she was a fit and proper person to be readmitted, the court retained a residual power to refuse readmission. Although that decision was made under the 2003 Act, neither Mr Mungar nor the Board submitted that any different approach should be taken under the 2008 Act. We therefore affirm the continuing power of the court to refuse admission, notwithstanding the issue of a certificate by the Board pursuant to s 31 of the 2008 Act.

20. Unlike the 2003 Act, the 2008 Act makes no express provision for readmission.  Rather, an applicant for admission who has previously been struck off is treated, under the 2008 Act, identically with any other applicant for admission to practise.  However, this is not to say that the approach taken by the court to such an application will be identical.  The approach properly taken to such an application was set out in Re Stokes, in the following terms:

    32.An applicant who has been previously struck from the roll must bear a much heavier and distinctly different onus to that borne by an applicant seeking admission for the first time.  In the case of an applicant for readmission, the applicant carries the onus of proving that there is no significant prospect of repetition of the conduct of the kind which resulted in the removal of his or her name from the roll - see Gregory v Queensland Law Society Inc [2002] 2 Qd R 583 at [18]. In this context it is worth repeating that the jurisdiction of the court in respect of the maintenance of the roll of practitioners is not a jurisdiction exercised for the purpose of punishing practitioners, but for the purpose of protecting the community (Clyne v The New South Wales Bar Association (1960) 104 CLR 186 at 201 – 202), which depends upon the provision of legal services by practitioners of appropriate character, honesty and integrity.

    33.However, if the court can have the requisite confidence that there will be no significant risk of repetition of the misconduct which resulted in the removal of the practitioner's name from the roll, there is a public interest in the restoration of the names of such persons to the roll.  That public interest derives in part from the fact that such persons will be in a position to serve the community by providing legal services, but also from the encouragement of rehabilitation and redemption of those whose conduct has, in the past, prevented them from conducting their profession – see Kirby P in Kotowicz v Law Society of New South Wales, unreported; NSWCA; 7 August 1987.

21. There is nothing in the 2008 Act which would preclude the application of those principles to an applicant for admission under that Act who had previously been struck from the roll of practitioners.  We therefore affirm their continuing application, and propose to apply them to this case.

22. The court has carefully considered and reviewed the evidence before the Board, the findings of fact made by the Board based on that evidence, and the conclusions drawn by the Board from those findings.  Obviously the weight given to those conclusions is influenced by the fact that the Board has had the advantage of seeing and hearing the witnesses called to give evidence in the course of its inquiry, including, in particular, Mr Mungar.  Of course, that consideration does not mean that the court is bound to adopt either the findings of fact or conclusions drawn by the Board.  However, in the present case, the findings of fact are amply justified by the evidence that was received by the Board during the course of its inquiry.  There is no reason for this court to make any different findings of fact, and we adopt those made by the Board in this case.

23. Based on those findings, we concluded, like the Board, and essentially for the reasons given by the Board, that the risk of repetition of the misconduct which led to Mr Mungar's removal from the roll of practitioners is so low as to be acceptable.  Having regard to the public interest in the encouragement of rehabilitation and redemption, and in the provision of legal services (to the community to which reference is made in the passage from Re Stokes which we have set out above), we concluded that this was a proper case for the readmission of Mr Mungar, and he was accordingly readmitted.

24. It will be for the Legal Practice Board, upon any application by Mr Mungar for a practice certificate, to consider the imposition of conditions, including whether Mr Mungar be required to update his legal knowledge and skills.