Patrick Joseph Cummings (No 2) No. Scgrg-81-3450 Judgment No. S79

[1999] SASC 79

In the matter of JOSEPH PATRICK CUMMINGS
and
In the matter of The Legal Practitioners Act 1981
[1999] SASC 79

Civil

1. PERRY J.          The applicant, a legal practitioner, applies for the issue to him of a practising certificate.  He previously held a practising certificate between January 1982 and December 1993.

2. A sequestration order in bankruptcy was made against his estate on 21 May 1993.  He was discharged from bankruptcy on 21 May 1996.

3. Although he had the right under s49 of the Legal Practitioners Act 1981 (“the Act”) to apply for authority to practise the profession of the law, he did not choose to do so. Furthermore, applications by him for the issue of a practising certificate in the years 1994 and 1995 were refused by the Registrar, who took the view that it was inappropriate to issue practising certificates in the absence of any application to the court pursuant to s49(2) of the Act.

4. After discharge from bankruptcy, he made a further application for the issue of a practising certificate, that application being dated 12 July 1996.

5. The determination of that application became complicated by reason of the fact that earlier in 1996 the applicant had been acquitted by a jury of a charge under the Companies (WA) Code 1981 and that five additional counts under that Code had been stayed by order of a District Court judge sitting in Western Australia, made in June 1995.

6. While the application made in July 1996 for the issue of a practising certificate was still under consideration, in August 1997, on appeal to the Court of Criminal Appeal, an order was made staying further proceedings brought in this State under the Companies (SA) Code 1981 and other charges brought under the Criminal Law Consolidation Act 1936.

7. Eventually the question of the issue of a practising certificate was referred to me from a Master. I heard written submissions, following which, in reasons for ruling dated 14 October 1997, and for the reasons there given, I indicated that I would stand the application over for the issue of a practising certificate to Monday 31 March 1998. I intimated that I would then favourably entertain the application, unless in the meantime any of the criminal charges had been pursued or disciplinary proceedings had been commenced under the Act.

8. When I called the matter on again on 31 March 1998, I was informed that disciplinary charges, based at least in part upon adverse findings made by von Doussa J sitting in the Federal Court in the case of Beach Petroleum NL and Anor v Johnson and Ors[1] would shortly be drawn up.  With some hesitation, and for the reasons which appear in the transcript relating to that occasion, I stood the matter over again until it came before me on 10 June 1998.

   [1] 115 ALR 411.

9. On the latter occasion, I heard Ms Vanstone QC of counsel for the Legal Practitioners Conduct Board, Ms Watkins on behalf of the Law Society of South Australia, and Mr Edwardson of counsel on behalf of the applicant.  I was then given a copy of charges particularised in a document dated 4 June 1998 which had been brought by the Legal Practitioners Conduct Board against the applicant.  As previously foreshadowed, they relate to the transactions the subject of the judgment of von Doussa J to which I have just referred.

10. After hearing the submissions of counsel, and notwithstanding the laying of the charge, I made an order directing that the practising certificate issue on the request of the applicant, and that any other procedural aspect attendant upon the issue of the practising certificate be referred to the Registrar.  At the same time I reserved the right to give reasons for the decision if called upon by an interested party.

11. Subsequently, I was called upon by Mr Cummings to give reasons.

12. These reasons are published out of my chambers in response to that request.  They are intended to be read together with the reasons for ruling published on 14 October 1997.  For that reason, I will not traverse any further the matters referred to in that earlier ruling.

13. In determining the application for the issue of a practising certificate, it seemed to me that I was in a position of having to balance the competing considerations on the one hand arising by reason of the practitioner’s desire to practise, and on the other, by reference to the public interest in ensuring that he did not practise if the court was satisfied that he was not a fit and proper person to do so.

14. Ordinarily, a decision that a person is not a fit and proper person to practise would only be made by the court following the completion of disciplinary proceedings against the practitioner as a result of which an adverse finding as to his or her fitness to practise was made.  However, in situations where, for example, there might have been a conviction recorded against a practitioner on criminal charges the nature of which, if proved, would properly lead to the view that the practitioner was not a fit and proper person to practise, no doubt the court could, in the exercise of its inherent jurisdiction, take away the practitioner’s right to practise.

15. Here, it seems to me that the pending criminal charges in Western Australia and in this State, having been stayed for so long, ought to be regarded as a dead letter.

16. While I must have regard to the disciplinary proceedings the subject of the charge brought against the practitioner in June last year, at the time of the hearing on 10 June 1998, Ms Vanstone QC was unable to indicate to me when the charge might be heard.

17. By then, of course, a very considerable time had elapsed since the application for the issue of a practising certificate was filed by the applicant in July 1996.  In all the circumstances, I considered that in the exercise of my discretion, I should make the order to which I have referred, permitting the issue of a practising certificate to the applicant.

18. In doing so, I pointed out at the time of the hearing that it is not always the case that a practitioner’s right to practise will be suspended pending the hearing of disciplinary charges.  More often than not, there is no interference with a practitioner’s right to practise until disciplinary proceedings have been heard and determined.

In all the circumstances, I felt it fit to make the order to which I have referred.

JUDGMENT CITATION

1. 115 ALR 411.