Pepe v Legal Practice Board of Western Australia
[2016] WASC 54
•18 FEBRUARY 2016
PEPE -v- LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA [2016] WASC 54
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 54 | |
| FULL BENCH | |||
| Case No: | LPB:445/2014 | 12 FEBRUARY 2016 | |
| Coram: | MARTIN CJ LE MIERE J BEECH J | 18/02/16 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Applicant admitted | ||
| B | |||
| PDF Version |
| Parties: | JOSEPHINE PEPE LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA |
Catchwords: | Legal practitioners Application for readmission when applicant had been struck off Whether applicant a fit and proper person Turns on own facts |
Legislation: | Legal Practice Act 2008 (WA), s 26, s 31 |
Case References: | Dixon v Legal Practice Board of WA [2012] WASC 79 Ex parte Leneham (1948) 77 CLR 403 Legal Practitioners Complaints Committee v Pepe [2009] WASC 39 Mungar v Legal Practice Board of WA [2009] WASC 135 Re Harrison [2002] SASC 335; (2002) 84 SASR 120 Re Stokes; Ex Parte Stokes [2008] WASC 269 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- LE MIERE J
BEECH J
- Applicant
AND
LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA
Respondent
Catchwords:
Legal practitioners - Application for readmission when applicant had been struck off - Whether applicant a fit and proper person - Turns on own facts
Legislation:
Legal Practice Act 2008 (WA), s 26, s 31
Result:
Applicant admitted
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr A T Macknay
Solicitors:
Applicant : In person
Respondent : Legal Practice Board
Case(s) referred to in judgment(s):
Dixon v Legal Practice Board of WA [2012] WASC 79
Ex parte Leneham (1948) 77 CLR 403
Legal Practitioners Complaints Committee v Pepe [2009] WASC 39
Mungar v Legal Practice Board of WA [2009] WASC 135
Re Harrison [2002] SASC 335; (2002) 84 SASR 120
Re Stokes; Ex Parte Stokes [2008] WASC 269
1 JUDGMENT OF THE COURT: On 25 February 2009 Ms Pepe was struck off the Roll of Practitioners.1
2 On 12 February 2016 we ordered that Ms Pepe be readmitted, for reasons to be published later. These are our reasons.
The Full Bench decision
3 The reasons Ms Pepe was struck off were explained by the Full Bench in Legal Practitioners Complaints Committee v Pepe.2 In essence, Ms Pepe was struck off because in August 2006 she had engaged in criminal conduct in counselling a person not to give evidence at a District Court trial, thereby attempting to pervert the course of justice. She was convicted of the offence of attempting to pervert the course of justice in August 2008. A term of suspended imprisonment was imposed.
4 The conduct giving rise to the offence of attempting to pervert the course of justice occurred during August 2006. The detailed circumstances are set out in the reasons of the Full Bench, and are not repeated here. In brief, Ms Pepe was in an abusive relationship with a man for whom she acted in relation to a criminal charge. A former client of Ms Pepe made a statement to the police, implicating the accused with whom Ms Pepe was in a relationship. Fearing that the accused would somehow blame her for the evidence of Ms Pepe's former client, she telephoned the former client and sought to persuade him not to give evidence.
5 The Full Bench accepted expert evidence of Dr Wu that, at the time of her offence, Ms Pepe had exhibited symptoms of depression and anxiety and was alcohol dependent, but that, by the time of the hearing in February 2009, she was in a stable situation and was well.3 The Full Bench concluded that the nature and seriousness of Ms Pepe's conduct meant that protection of the public and of the reputation of the legal profession required that her name be removed from the Roll. The Full Bench alluded to the possibility that, at a later time, Ms Pepe might apply to be readmitted.4
Application for early consideration of suitability
6 In 2012, Ms Pepe applied under s 23 of the Legal Profession Act 2008 (WA) for a declaration that certain matters would not, without more, adversely affect an assessment by the Legal Practice Board as to whether she is a fit and proper person to be admitted. The application raised four matters. It is only necessary to refer to three of them, namely:
1. the applicant's conduct on the day of the offence, and her subsequent conviction;
2. the applicant's conduct on the day of the offence in instructing senior counsel regarding a material conversation; and
3. the applicant's diagnosed health conditions.
7 By reasons published in March 2013 a quorum of the Admissions & Registration Committee (the Committee) of the Board determined that it was not satisfied the declarations in relation to these matters should be made. It is not necessary to canvass all of what was said in the reasons given. The Committee referred to what it described as the comparatively short period of time between the commission of the offence, the applicant's striking off and the application for readmission. As to the third matter, the Committee accepted that Ms Pepe had abstained from alcohol, but expressed the view that further time might be needed to elapse before the Board could be comfortably satisfied that the applicant's previous ill health would not return.
Application to be (re)admitted
8 In December 2014 Ms Pepe applied to the Board for a compliance certificate in support of an application to be admitted. In June 2015 the Committee wrote to the applicant asking her to undergo a psychiatric assessment so that the consultant psychiatrist could provide the Board with a report on her mental health. The Board retained a consultant psychiatrist, Dr Danny Shub, to provide a report.
The psychiatrist's report
9 Dr Shub's report:
(a) reviewed and summarised a number of previous psychiatric reports prepared by other psychiatrists in 2007, 2009 and 2012;
(b) said that Ms Pepe had a history of significant emotional disturbance, including involving mood disturbance and fluctuating levels of anxiety;
(c) observed that Ms Pepe had a history of depression, insomnia, alcohol abuse and cognitive impairment;
(d) expressed the opinion that, at its height, Ms Pepe's condition met the diagnostic criteria for major depressive disorder;
(e) stated that the conduct which gave rise to the striking off occurred while she was suffering from the major depressive order;
(f) stated that when he assessed the applicant her mood appeared to be essentially normal, she did not exhibit any anxiety based phenomena and she said she had abstained from alcohol since being struck off;
(g) expressed the view that her psychiatric state had significantly stabilised and that her mood disorder had been in remission since November 2012;
(h) stated that her prognosis was generally favourable, but suggested she should undergo psychotherapy and continue to take antidepressant medication; and
(i) recommended that there be monthly sessions with a psychotherapist for about six months with a view to determining any ongoing treatment requirements.
The Board's advice
10 By reasons dated 15 December 2015, the Committee provided its advice to the court under s 30 of the Legal Profession Act, and gave a compliance certificate under s 31. The Committee published detailed reasons for its conclusion that it was satisfied that the applicant was a fit and proper person to be admitted. The considerations referred to by the Committee included the following:
(a) the extreme seriousness of the applicant's conduct, going as it did to the heart of the administration of justice;
(b) the abusive and violent relationship in which the applicant was involved. This played a significant part in her offending, but her conduct could not be excused on that basis;
(c) the opinion of Dr Raymond Wu, consultant psychiatrist, in July 2007 that the applicant was suffering from adjustment disorder with depressed mood, panic disorder and alcohol dependence;
(d) the opinion of Professor Paul Skerritt, psychiatrist, in August 2012 that he was unable to find any evidence of disturbance of personality or character, and categorised her offending conduct as resulting from a short but very serious lack of judgment generated by a serious illness superimposed on an otherwise good character, that illness being in remission;
(e) the opinion of Dr Danny Shub, psychiatrist, in September 2015 that the applicant's offending conduct had occurred when she was suffering from a Major Depressive Disorder. He also concluded that the applicant's prognosis was favourable; and
(f) the Full Bench had left open the possibility of the applicant's readmission, after a suitable time and a sufficient change in personal circumstances.
11 In coming to its conclusions the Committee:
(a) observed that it was by then more than nine years since the commission of the offence and almost seven years since Ms Pepe first gained a full appreciation of the seriousness of her conduct, concluding that a suitable period of time had now elapsed, so that the readmission of the applicant would not diminish the reputation or standing of the legal profession;
(b) referred to the report of Dr Shub and concluded that sufficient time had passed for it to be satisfied that the risk of the recurrence of the previous illnesses was acceptably low, particularly if Ms Pepe undertakes the psychotherapy as she has agreed to do; and
(c) referred to Ms Pepe's conduct since the refusal in 2012, including her employment from time to time and commencement of studies in a Masters of Law.
Readmission - legal principles
12 The principles applicable to an application to be readmitted following having been struck off are well established.
13 The question of whether a practitioner should be readmitted is a matter to be determined by the court, which is not bound by the view of the Board reflected in the compliance certificate.5
14 Proceedings in respect of readmission of practitioners are appropriately conducted in public.6
15 The approach to be taken on application for readmission was outlined in Re Stokes, as follows:7
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.
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.
The legal profession appears to be unusually vulnerable to mental illness. A number of reports have suggested that the rate of mental illness within the legal profession is rather higher than that within the community generally. Obviously, the community must have confidence in the capacity of those who are admitted to practise law. The authorities responsible for regulation of the profession, and the court, must be vigilant to ensure that the public is protected from those who lack that capacity for whatever reason, including mental illness. However, where the court can be satisfied by evidence that the incapacity, which resulted in appropriate steps being taken to protect the community, is no longer present, it will equally be in the interests of the community to take steps to enable the practitioner to resume the delivery of services.
16 The power to readmit should be exercised with caution and only upon solid and substantial grounds.8
17 Among the relevant considerations is the need to maintain appropriate standards and preserve the reputation and standing of the legal profession, and whether that would be eroded if the applicant were readmitted.9
18 The question for the court is whether the applicant is a fit and proper person to be readmitted to the legal profession. That question is to be determined without regard to whether any conditions should or might be imposed upon a practice certificate issued to the applicant.10
The disposition of the application
19 The court has reviewed all of the material that was put before the Committee.
20 The offence of attempting to pervert the course of justice is, by its nature, antithetical to the role of a lawyer. The need to maintain appropriate standards and to preserve the reputation and standing of the legal profession was a significant part of the reasons why Ms Pepe's conduct required her removal from the Roll.
21 Notwithstanding the profoundly serious nature of her conduct and offence, we are persuaded that, in all the circumstances, Ms Pepe is a fit and proper person to be admitted as a lawyer. It is almost 10 years since the offence occurred. Her conduct and offence occurred while she was suffering from a major depressive illness, and was abusing alcohol. She now refrains from consuming alcohol and has done so for many years. Dr Shub's report and the earlier reports satisfy us that her depressive illness has been in remission since at least 2012, and that her mental health has stabilised. We are satisfied that there is no significant risk of repetition of conduct of the kind that led to Ms Pepe being struck off. In those circumstances there is a public interest in the encouraging of rehabilitation and redemption, and in the provision of legal services to the community.
22 For these reasons, we are satisfied that Ms Pepe is a fit and proper person to be admitted as a lawyer.
23 Although not germane to our decision, we would observe in passing that, when the question of whether conditions should be imposed on Ms Pepe's practising certificate arises before the Board, given the length of time Ms Pepe has been out of practice, and given the circumstances of her conviction in 2007, there would seem to be merit in the Board considering whether a period of restricted practice should be made a condition of her practising certificate.
1Legal Practitioners Complaints Committee v Pepe [2009] WASC 39.
2Legal Practitioners Complaints Committee v Pepe [2009] WASC 39.
3Legal Practitioners Complaints Committee v Pepe [29] - [30], [35], [51].
4Legal Practitioners Complaints Committee v Pepe [39], [52].
5Re Stokes; Ex Parte Stokes [2008] WASC 269 [29] - [30]; Mungar v Legal Practice Board of WA [2009] WASC 135 [19]; Dixon v Legal Practice Board of WA [2012] WASC 79 [11] - [12].
6Re Stokes [31].
7Re Stokes [32] - [34]. These principles apply under the Legal Profession Act 2008 (WA): Mungar v Legal Practice Board [20].
8Ex parte Leneham (1948) 77 CLR 403, 422.
9Re Harrison [2002] SASC 335; (2002) 84 SASR 120 [61]; Dixon [38].
10Re Stokes [28].
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