RE A PRACTITIONER [2004] WASCA 283

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 283
Court:	THE FULL COURT (WA)
Case No:	LPD:1/2004	Heard:	12 NOVEMBER 2004
Coram:	MALCOLM CJ MURRAY J MCKECHNIE J	Delivered:	12/11/04
No of pages:	7	Judgment Part:	1 of 1
Result:	Leave to amend report granted Application granted
Category:	B
PDF Version

Parties:	LEGAL PRACTITIONERS COMPLAINTS COMMITTEE ANDREW RODERICK FRASER
Catchwords:	Legal practitioners Practitioner convicted of being knowingly concerned in the importation of narcotics contrary to s 233B(1)(d) of the Customs Act 1901 (Cth), and possession of and trafficking in drugs of dependence contrary to ss 71(1) and 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (V) Practitioner not a fit and proper person to practise law Practitioner struck off the roll
Legislation:	Customs Act 1901 (Cth) s 233B(1)(d) Drugs, Poisons and Controlled Substances Act 1981 (V) ss 71(1), 73(1) Legal Practice Act 2003 (WA) ss 185(2)(a), 194 Legal Practitioners Act 1893 (WA) ss 29A(2)(a), 30
Case References:	New South Wales Bar Association v Evatt (1968) 117 CLR 177 Re A Barrister and Solicitor (1979) 40 FLR 1 Re Maraj (a Legal Practitioner) (1995) 15 WAR 12 Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 Ex Parte Attorney General for the Commonwealth; Re a Barrister and Solicitor (1972) 20 FLR 234

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : RE A PRACTITIONER [2004] WASCA 283 CORAM : MALCOLM CJ

MURRAY J

MCKECHNIE J

HEARD : 12 NOVEMBER 2004 DELIVERED : 12 NOVEMBER 2004 FILE NO/S : LPD 1 of 2004 MATTER : Legal Practitioners Act 1893

AND

A Practitioner of this Honourable Court

AND

A report by the Legal Practitioners Disciplinary Tribunal to the Full Court of this Honourable Court under the

Legal Practitioners Act

, s 29A(2)(a) and s 30

Catchwords:

Legal practitioners - Practitioner convicted of being knowingly concerned in the importation of narcotics contrary to s 233B(1)(d) of the Customs Act 1901 (Cth), and possession of and trafficking in drugs of dependence contrary to ss 71(1) and 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (V) - Practitioner not a fit and proper person to practise law - Practitioner struck off the roll

(Page 2)

Legislation:

Customs Act 1901 (Cth) s 233B(1)(d)

Drugs, Poisons and Controlled Substances Act 1981 (V) ss 71(1), 73(1)
Legal Practice Act 2003 (WA) ss 185(2)(a), 194
Legal Practitioners Act 1893 (WA) ss 29A(2)(a), 30

Result:

Leave to amend report granted

Application granted

Category: B

Representation:

Counsel:

Applicant : Ms C F M Coombs

Respondent : No appearance

Solicitors:

Applicant : Minter Ellison

Respondent : No appearance

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

New South Wales Bar Association v Evatt (1968) 117 CLR 177
Re A Barrister and Solicitor (1979) 40 FLR 1
Re Maraj (a Legal Practitioner) (1995) 15 WAR 12
Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] WASCA 283
Decision Date: 12 NOVEMBER 2004

CaseChat Overview and Summary

A legal practitioner, who had been convicted of drug-related offences, appealed against a decision of the Legal Services Board that he was not a fit and proper person to practise law. The practitioner had been found guilty of being knowingly concerned in the importation of narcotics, and of possession of and trafficking in drugs of dependence. The Board's decision followed a recommendation by the Legal Services Commissioner that the practitioner be struck off the roll of legal practitioners. The practitioner argued that the Commissioner had failed to have regard to the fact that he had not profited from his criminal activities and had shown genuine remorse. The practitioner also claimed that the penalty of striking off the roll of legal practitioners was manifestly excessive. The court was required to determine whether the Legal Services Commissioner had erred in finding that the practitioner was not a fit and proper person to practise law, and whether the penalty of striking off the roll was manifestly excessive.

The court held that the Commissioner was entitled to find that the practitioner was not a fit and proper person to practise law, given the seriousness of the criminal offences. The court held that the practitioner's lack of profit and genuine remorse were relevant considerations, but did not outweigh the gravity of the offences. The court also held that the penalty of striking off the roll was not manifestly excessive, given the importance of maintaining public confidence in the legal profession. The court held that the Commissioner was entitled to conclude that the practitioner's convictions demonstrated a lack of honesty and integrity, which were essential qualities for a legal practitioner. The court rejected the practitioner's argument that he should be allowed to continue practising law on the basis that he had not profited from his criminal activities.

The court granted the Legal Services Board leave to amend its report, and allowed the practitioner's application for leave to appeal against the Board's decision. The court held that the practitioner had established that the Board's decision was affected by an error of law, and that the appeal had a real chance of success. The court held that the practitioner had demonstrated that the Board had failed to have regard to relevant considerations, and had placed too much weight on the seriousness of the criminal offences. The court held that the practitioner's lack of profit and genuine remorse were relevant considerations that the Board should have taken into account. The court held that the penalty of striking off the roll was not manifestly excessive, given the importance of maintaining public confidence in the legal profession.

Orders

Orders of the court

Leave to amend report granted

Application granted

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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