Qld Law Society Inc v Taylor

[1997] HCATrans 86

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B41 of 1996

B e t w e e n -

QUEENSLAND LAW SOCIETY INCORPORATED

Applicant

and

JOHN BERTRAM TAYLOR

Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 APRIL 1997, AT 9.30 AM

Copyright in the High Court of Australia

MR P.A. KEANE, QC:   May it please the Court, I appear with MR .D. BATES, for the applicant.  (instructed by McCullough Robertson)

MR J.E. GALLAGHER, QC:   May it please the Court, I appear with my learned friend, MR E.J. MORZONE, for the respondent.  (instructed by Peter Chappel)

MR KEANE:   Your Honours, in this case the respondent was readmitted to practise as a solicitor notwithstanding, firstly, that he had been struck off the roll for having, as the joint judgment put it, repeatedly over a period of years taken money from his trust account in circumstances in which he knew himself not to be entitled to do so, and secondly, in the absence of a finding by the court that the court was satisfied that the respondent was a fit and proper person to be admitted as a solicitor.  As to this, if we may take the Court briefly to the judgment, firstly at page 7 of the record, commencing at about line 50 where the court notes that it was submitted by counsel on behalf of the Society:

that it is inappropriate to establish different grades of fitness and propriety, that an applicant is either fit and proper or he is not, and that admission subject to the condition suggested would place this applicant in a suspect category.

These submissions have some attraction, but in our opinion they over-simplify the problem.  There are plainly degrees of fitness:  it is not as if there is a sharp gulf between the least fit solicitors on the roll and all of those who, like the applicant, have been judged unfit to practise.

Then if we can take your Honours over to what follows at page 10 of the record where, at line 40, their Honours say:

The present is not a case in which it would be an appropriate course simply to admit the applicant to practise, unconditionally; nor would the problem be properly dealt with by attaching such a condition operative for a defined period, for example 12 months. 

If one then goes over to page 11, commencing at line 50:

But we accept that, as was contended on behalf of the applicant, he acted as he did, although over a long period of time, because of the enormous financial pressure to which he was subjected, only some adverse results of which have been mentioned above.  Practitioners who for one reason or another find themselves unable to cope with the (sometimes enormous) pressure of practice on their own account, experience shows, react in various ways, including it is said attempts at self-destruction.  It appears to us on the evidence that the applicant is a fundamentally decent man who found himself in a situation from which he could see no escape and this led him to take the unwise and dishonest course of “borrowing” against his trust account in the hope his position would improve.

In the upshot, their Honours admitted the applicant to practise but, as they said, “proceeding with caution” they imposed a condition, the condition being that the applicant:

not practise on his own account or in partnership, but reserving to the applicant the right to apply in due course to have that condition expunged.

In our submission, your Honours, these reasons show the court, firstly, was not affirmatively satisfied of the respondent’s fitness to practise in terms of his character and reliability.  It is submitted that these reasons show the acceptance of different categories of fitness, rather than an insistence on an irreducible minimum.  There is an absence of a conclusion of the respondent’s favour which contrasts with the earlier decision to which their Honours referred in Bell’s Case where the court was affirmatively satisfied that the applicant was now a fit and proper person for admission.  The imposition of the condition reflects a reservation as to the respondent’s ability to cope with the responsibilities of practice.

DAWSON J:   Now, is that really so, Mr Keane?  You say it shows that there are different categories of fitness, but rather it shows that there are different categories of practice and that he is fit to practise in one of those categories, namely practise under a certain amount of supervision.  It may be practise as an employee, practise as a partner, practise in various ways - and there are categories of practice, and it is that rather than categories of fitness.

MR KEANE:   We say “categories of fitness” because that is the language the court itself used.

DAWSON J:   Yes, but the court has found that he is fit to practise, but to practise in a particular manner.

MR KEANE:   Your Honour, one of the points we have made is that there is no such finding.  What there is is a determination that subject to certain supervision, the court is prepared to hold the applicant out as an officer of the court.  There is no protection, for example, against a lapse, having regard to the pressure of practice, from requirements of honesty, viz-a-viz other solicitors, viz-a-viz the court or, indeed, viz-a-viz the respondent’s clients in relation to matters of their own finances.

DAWSON J:   But what is decided, in effect, is that he is fit to practise, but to practise not in partnership but as an employee.  Now, what is wrong with that?

MR KEANE:   Your Honour, in our respectful submission, that is wrong because the principles recognised by the courts exercising the jurisdiction, the control of admission to practise, have consistently not recognised the possibility of gradations of fitness ‑ ‑ ‑

DAWSON J:   It is not gradations of fitness.  That is what I am putting to you:  it is not gradations of fitness.  It is recognising that there are different categories of practice.

MR KEANE:   Your Honour, with respect, in our respectful submission, it is to recognise different degrees of fitness if one is to say that he may be fit to practise as an employed solicitor indefinitely but is not sufficiently fit to be recognised as someone the court is prepared to hold out as fit to practise, having all the responsibilities of a solicitor, on his own.

BRENNAN CJ:   One can put it another way, of course, Mr Solicitor, can you not, and that is to say that he is found by the court to be fit to practise as a solicitor but, having regard to the events of the past, there is a limitation placed upon his practice.  In other words, the qualification of fitness is satisfied but, for reasons of prudence nonetheless limitation is placed on what he can do.

MR KEANE:   Your Honour, once again, with respect, we come back to the point that there is not an affirmative finding of fitness, rather there is the imposition of a condition which reflects a reservation about the respondent’s ability to cope with the responsibilities of practice which do involve dealings with other solicitors, with the court, and with his own clients.

BRENNAN CJ:   I do not understand how there can be no finding of fitness ‑ ‑ ‑

MR KEANE:   There is no finding of fitness, with respect.  What there is ‑ ‑ ‑

BRENNAN CJ:   How was he readmitted?

MR KEANE:   Your Honour, in our respectful submission, he should not have been.

BRENNAN CJ:   Perhaps he should not have been, but certainly he was readmitted and he could only have been readmitted on the footing that he was fit to be readmitted.  So there must have been, at least implicitly, a finding of fitness to be readmitted.

MR KEANE:   Your Honour, in our respectful submission, there may be an implicit finding, but based upon the reasoning we have taken the Court to at page 8 of the record, the reasoning being that there are plainly degrees of fitness, where there is not a sharp gulf between the least fit solicitors on the roll and those who have been judged unfit to practise, and if we can refer your Honours in this regard to the decision of the Supreme Court of New South Wales sitting in banc in Ex parte Munro (1969) 71 SR(NSW) 448, one of the cases on our list in our bundle. The relevant passage we take the Court to is at page 453F, where the point is made that:

A solicitor who applies for reinstatement is in a more disadvantageous position that an original applicant because he must displace the decision as to probable permanent unfitness which was the basis of his removal.

If one goes over the page one reads to the end of the paragraph:

But as Starke J. remarked in Ex parte Lenehan -

a decision of this Court -

the statement was subject to the qualification that the position was very different when a solicitor had been struck off the roll for having fraudulently misappropriated money entrusted to him by or on behalf of a client.

If one looks down to C to D:

The onus on the applicant is a heavy one.  In our opinion it has not been discharged.  He has not been shown that there has been such a change in him as to convert him from an unfit person to a fit person in the relatively short space of time which has elapsed.

We submit that any implicit view about fitness is tainted by the process of reasoning which starts from the position that there is not a sharp gulf between someone who has been struck off for persistent misappropriation, persistent dishonest over a number of years, and someone who applies without such a history.  There is a heavy onus.  What has not happened here is a finding that that onus has been discharged, in contrast with earlier cases such as Re Bell where the court held that it was satisfied that the applicant was rehabilitated and was someone fit to be allowed to go and practise as a solicitor, subject to a condition as to getting up to date in terms of practice.

BRENNAN CJ:   It may be that you can point to some error, either in the process of reasoning of the court or in its expression, but why is it a matter on which this Court should be asked to intervene when it is the Court of Appeal in Queensland which must assume the primary, and indeed one would think, almost a universal obligation of supervising the fitness of practitioners in that State?

MR KEANE:   Because, your Honour, the basis on which the decision has proceeded is one as to the appropriateness of exercising the discretion to control the admission to practise as solicitors by reference to a condition intended to meet a want of present fitness to practise.  That type of consideration is a consideration which, in our respectful submission, if relevant and if appropriate, would affect the decision of any appellate court, when a Full Court, invited to determine the appropriateness of an applicant for readmission after having been struck off on the ground of unfitness.

BRENNAN CJ:   Under the Queensland Rules, is it possible for a solicitor on first admission to have a practising certificate qualified so as to require practise under the supervision of a master solicitor?

MR KEANE:   It is, your Honour, but those conditions reflect a concern in relation to experience in practice and experience in practice in Queensland.  They are not apt to, nor in our respectful submission designed to, meet a case where there is a want of fitness or a reservation as to fitness.  Bear in mind, with the greatest of respect, that these conditions attach to a practising certificate issued on the assumption that the court has been satisfied as to fitness for practise.

BRENNAN CJ:   Then if the court has been satisfied as to fitness for practise in the case that I have just put to you, then it must be fitness to practise but subject to a qualification.  Is that not the very argument you are wanting to put forward here?

MR KEANE:   No, your Honour, because the qualification addresses a concern as to experience or as to experience in Queensland, as opposed to what we submit is an anterior and more fundamental consideration which is fitness of the person in terms of his character.

Your Honours, there is one further thing we would wish to urge in terms of the significance of the case and that is that it is unusual for a professional society to be in the position as it is here, an applicant to this Court.  It is usually a disappointed applicant for admission who comes to this Court.  This situation, firstly, reflects the importance of the issue in terms of the regulation of the profession and regulation of admission to the profession.  Secondly, your Honours, that circumstance is a matter which, in Ex parte Munro, was recognised as a matter which the Court should take into account, at 452 C to D. We mention that simply going to the importance of the case.

BRENNAN CJ:   I can remember an earlier case in Queensland where the same problem arose, where this Court refused special leave, and I do not know that that argument carries a great deal of weight, Mr Solicitor.

MR KEANE:   Your Honour, we raise it for what weight it deserves.  Those are our submissions.

BRENNAN CJ:   We need not trouble you, Mr Gallagher.

The standard of fitness that justifies admission or re-admission to practise as a solicitor is, under present arrangements, primarily a matter for the admitting authority of a State or Territory.  The ultimate appellate Court of a State or Territory is, in some States and Territories, the admitting authority and, in others, the court exercising supervisory jurisdiction over the admitting authority.  This Court will not ordinarily grant special leave to appeal against what is essentially an assessment by that court of a candidate’s fitness, for that question depends on the unique circumstances of each case.  For these reasons special leave will be refused in this case.

MR GALLAGHER:   If the Court pleases, could I ask for costs on behalf on the respondent?

BRENNAN CJ:   What do you say to that, Mr Solicitor?

MR KEANE:   We have nothing to say to that, your Honour.

BRENNAN CJ:   It will be refused with costs.

AT 9.45 AM THE MATTER WAS CONCLUDED