Prothonotary of the Supreme Court of New South Wales v Tatar - [2005] NSWCA 104

NEW SOUTH WALES COURT OF APPEAL

CITATION: Prothonotary of the Supreme Court of New South Wales v Tatar [2005] NSWCA 104

FILE NUMBER(S):
40954/04

HEARING DATE(S): 24 March 2005

JUDGMENT DATE: 24/03/2005

PARTIES:
Prothonotary of the Supreme Court of New South Wales - Claimant
Andrew Tatar - Opponent

JUDGMENT OF: Spigelman CJ Beazley JA Giles JA

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
L Cowley - Claimant
N/A - Opponent

SOLICITORS:
I V Knight, Crown Solicitor - Claimant
Ford Criminal Lawyers - Opponent

CATCHWORDS:
Solicitor - offences of dishonesty in 1997 - not disclosed when applied for admission - further offences of dishonesty thereafter - offences described - findings of professional misconduct and that not of good fame and character and not a fit and proper person to remain on Roll - declarations and removal from Roll.

LEGISLATION CITED:

DECISION:
Make declarations and orders 1-5 of the Summons. Make declaration in para 2 omitting sub-para (iii) in relation to deliberate misleading of the Board.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40954/04
SPIGELMAN CJ
BEAZLEY JA
GILES JA
Thursday 24 March 2005

PROTHONOTORY OF THE SUPREME COURT OF NEW SOUTH WALES
v
TATAR

Judgment

GILES JA: By a summons filed on 2 November 2004 the claimant sought a declaration that the opponent is guilty of professional misconduct, a declaration that the opponent is not a person of good fame and character, a declaration that the opponent is not a fit and proper person to remain on the Roll of legal practitioners for this State, an order that the name of the opponent be removed from the Roll and an order that the opponent pay the claimant’s costs. The first declaration specified professional misconduct in engaging in conduct in 1999 and 2000 for which the opponent was convicted on criminal charges. The second and third declarations specified engaging in the same conduct plus conduct in 1997 for which the opponent was earlier convicted on a criminal charge and deliberate misleading of, or failure to make full and frank disclosure to, the Legal Practitioners Admission Board when applying in 1999 for admission as a legal practitioner.
The opponent did not oppose the making of the declarations and orders. He joined in a statement of agreed facts which, together with an affidavit of the claimant, constituted the evidence on which the claimant relied in support of the relief sought.
In February 1997 the opponent applied for and was issued with a Citibank Gold Card, using a forged drivers licence and a forged group certificate and a birth certificate he had obtained fraudulently. On 27 May 1997 he pleaded guilty to a charge of making a false or misleading statement with intent to obtain a valuable thing, contrary to s 178BB of the Crimes Act 1900. He was convicted and placed on a two year good behaviour bond.
The opponent was also charged that on 26 February 1997 he made a false or misleading statement with intent to obtain a financial advantage, contrary to s 178BB, in that he submitted a fraudulent application for the issue of a Colonial State Bank Visa Card. He pleaded not guilty. On 11 September 1998 he was convicted, and he was ordered to perform 50 hours of community service work. He appealed against the conviction. On 12 January 1999 the appeal was upheld and the conviction was quashed.
On or about 23 July 1999 the opponent applied for admission as a legal practitioner. He was required to disclose to the Board whether he had done anything likely to affect adversely his good fame and character and whether he was aware of any circumstance that might affect his fitness to be admitted as a legal practitioner. He disclosed some facts and circumstances in a document annexure B, and in a statutory declaration declared to the effect that there was nothing else to disclose.
The document annexure B read -
“In the interests of full disclosure, I inform the Board that in 1996-1997 I was the managing director of an investment company. In February 1997 a co-director embezzled certain funds, and caused the company to become insolvent. Investors suffered loss and disadvantage as did our bank.
Consequently, I was charged with aiding and abetting certain offences under the Corporations Law and aiding and abetting offences under s 178BB of the Crimes Act.
There were no allegations of malice on my part but carelessness and recklessness in not making proper enquiries and signing authorities in blank.
The charges under Corporations Law were dismissed, and under the Crimes Act charges, I received a s 556A discharge and a 558 bond.
I successfully appealed to the District Court, before Blanch CJ and all convictions were quashed in January this year.
In mitigation of my apparent recklessness, I say that I was out of NSW during this period and that the co-director responsible I had considered a close friend of over 10 years’ standing. I had considered him trustworthy of taking care of the business whilst I was away. Further, I say that I was seriously ill at the time in question, and as such my judgment and capacity were impaired to an extent.
I say that my lapse in good judgment was temporary and that no further such lapses shall occur.”
The Tribunal before whom the opponent appeared for sentencing on the charges later mentioned expressed surprise that the opponent was admitted as a solicitor in 1999, referring to at least one of the matters disclosed in the document annexure B. It is a matter of concern that given the disclosure in annexure B, the opponent was admitted. We do not have information indicating the investigations made in light of the disclosure, and are unable to take that matter further.
The evidence does not permit a finding that the aiding and abetting annexure B offences were not correctly disclosed, with a positive misrepresentation of the true position in relation to those offences. But there was -
(a)failure to disclose the conviction of 27 May 1997 involving a fraudulent application for a Citibank Gold Card; and
(b)failure to disclose the conviction of 11 September 1998 involving a fraudulent application for a Colonial State Bank Visa Card and the subsequent quashing of the conviction.
This could be described as misleading the Board, because of the declaration to the effect that there was nothing else to disclose. It was not full and frank disclosure. The facts being set out, it is sufficient to give it this latter description.
The opponent knew that the facts and circumstances of his convictions in relation to obtaining the Citibank Gold Card and the Colonial State Bank Visa Card would be relevant to the determination of his character and fitness and of his admission as a legal practitioner. The comparison with excusing of his disclosed conduct is marked, and his failure to provide full and frank disclosure must have been deliberate.
The opponent was admitted as a legal practitioner on 27 August 1999. He practised as a solicitor until 16 January 2003, when his practising certificate was cancelled.
Between 16 August 1999 and 6 July 2000 the opponent engaged in conduct for which he was eventually charged with seven criminal offences involving fraud, namely -
(i)three counts of using a false instrument, contrary to s 300(2) of the Crimes Act;
(ii)two counts of fraudulently giving a birth certificate, contrary to s 296 of the Crimes Act;
(iii)one count of obtaining a benefit by deception, contrary to s 178BA of the Crimes Act; and
(iv)one count of attempting to obtain a benefit by deception, contrary to ss 178BA and 344 of the Crimes Act.
The offences involved, amongst other things, the opponent forging a number of birth certificates and drivers licences in the names of other real persons who already held accounts with Commonwealth Securities, a section of the Commonwealth Bank of Australia. The opponent then used the forged documents to open fictitious bank accounts at other banks and caused, or attempted to cause, funds to be transferred from the Commonwealth Securities accounts of the real persons to the fictitious accounts at the other banks.
The opponent pleaded not guilty to the charges. He was found guilty, and on 27 September 2002 was convicted and sentenced to an effective sentence of four years imprisonment commencing on 18 September 2002 with a non-parole period of two and a half years expiring on 17 March 2005. The opponent filed a notice of intention to appeal in respect of his convictions, but did not pursue the appeal.
The opponent’s criminal conduct was thoroughly dishonest, and his failure in disclosure to the Board deserves no less a description. The pre-sentence report and a psychiatric assessment presented on his sentencing for the seven offences were before us, but nothing in them detracts from the obvious professional misconduct, lack of good fame and character and unfitness to remain on the Roll.
For the professional misconduct, the claimant relied on the conduct in 1999 and 2000, while the opponent was a legal practitioner, for which the opponent was convicted in 2002. It was plainly conduct which would be regarded as disgraceful and dishonourable by the opponent’s professional brethren of good repute and competency (see Allinson v General Council of Medical Education and Examination (1894) 1 QB 750). For lack of good fame and character and unfitness to remain on the Roll, which are to be judged as at the present time, the claimant relied on that conduct plus the conduct in 1997 for which the opponent was convicted in that year and the failure in disclosure to the Board. In my opinion, the lack of good fame and character and the unfitness have been made out, and elaboration is unnecessary. Whether or not misleading of the Board has been established, the alternative of failure to make full and frank disclosure has clearly been established.
In my opinion, the declarations and orders in paras 1 to 5 of the summons should be made, in the case of the declaration in para 2 omitting subpara (iii) in relation to deliberate misleading of the Board.

SPIGELMAN, CJ: I agree.

BEAZLEY JA: I agree.

SPIGELMAN, CJ: The orders of the Court are as indicated by Giles JA.
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LAST UPDATED: 06/04/2005