Re A Practitioner - [2004] WASCA 115

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: RE A PRACTITIONER; EX PARTE LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL [2004] WASCA 115

CORAM: MALCOLM CJ
TEMPLEMAN J
WHEELER J

HEARD: 2 APRIL 2004

DELIVERED : 31 MAY 2004

FILE NO/S: LPD 1 of 2003

MATTER :The Legal Practitioners Act 1893 (WA)
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 - Disbarring and removal from roll - Report to the Full Court by Legal Practitioners Disciplinary Tribunal - Practitioner convicted of four counts of perjury - Whether a person convicted of perjury is a fit and proper person to remain a member of the legal profession - Legal Practitioners Act 1893 (WA) ss 29 and 30.

Legislation:

Criminal Code (WA), s 124

Legal Practitioners Act 1893 (WA), s 29A(2)(a), s 30

Result:

Order that the Practitioner be struck off the Roll of Practitioners of the Supreme Court

Category: B

Representation:

Counsel:

Applicant: Mr B J H Goetze
Respondent: Mr R H B Pringle QC

Solicitors:

Applicant: Minter Ellison
Respondent: Galic & Co

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

Nil

Case(s) also cited:

Coe v New South Wales Bar Association [2000] NSWCA 13
In Re Davis (1947) 75 CLR 409
New South Wales Bar Association v Evatt (1968) 117 CLR 177
Re a Barrister and Solicitor (1979) 40 FLR 1
Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279

MALCOLM CJ: This matter comes before the Court by way of a Report by the Legal Practitioners Disciplinary Tribunal to the Full Court under the Legal Practitioners Act 1893 (WA), s 29A(2)(a) and s 30, concerning a Legal Practitioner of this Court dated 21 February 2003. The Report follows proceedings instituted against the Practitioner by the Legal Practitioners Complaints Committee before the Legal Practitioners Disciplinary Tribunal, in which it was alleged that the Practitioner was guilty of four counts of illegal conduct. On 4 October 2001 the Practitioner was convicted after trial on four counts of perjury in affidavits sworn by him in proceedings in the Local Court at Perth in February 1998, in his capacity as a solicitor for a party engaged in litigation in that Court. The offence of perjury is provided for in s 124 of the Criminal Code which provides that:
"Any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then depending in that proceeding, or intended to be raised in that proceeding, is guilty of a crime which is called perjury."
The indictment dated 5 September 2000 alleged:
(a)three counts that on 6 February 1998, having been sworn, the Practitioner made an affidavit for the purpose of instituting a judicial proceeding in the Local…

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.

Continue reading Re A Practitioner

Details

AGLC: Re A Practitioner [2004] WASCA 115
Case: [2004] WASCA 115
Decision Date: 31 MAY 2004

CaseChat Overview and Summary

The Legal Practitioners Disciplinary Tribunal was asked to review the fitness of a legal practitioner to remain a member of the profession following a conviction for perjury. The practitioner was convicted of four counts of perjury in relation to evidence given in the Supreme Court of Western Australia. The tribunal was required to determine whether the practitioner was a fit and proper person to remain a member of the legal profession, under sections 29 and 30 of the Legal Practitioners Act 1893 (WA).

The tribunal had to consider the nature and seriousness of the offence, the circumstances in which it was committed, the practitioner's character and conduct, and the impact of the conviction on the administration of justice and public confidence in the legal profession. The tribunal also had to consider the practitioner's remorse, any mitigating or aggravating factors, and the practitioner's prospects of rehabilitation and reintegration into the legal profession.

The tribunal found that the practitioner's conviction for perjury was a serious offence that undermined the integrity of the legal system and the public's confidence in the legal profession. The tribunal considered that the practitioner's conduct was deliberate and calculated, and that the practitioner had shown no remorse or insight into the gravity of the offence. The tribunal also found that the practitioner's conviction had a significant impact on the administration of justice and that the practitioner's prospects of rehabilitation were uncertain. The tribunal concluded that the practitioner was not a fit and proper person to remain a member of the legal profession and recommended that the practitioner be disbarred.

The Full Court of the Supreme Court of Western Australia upheld the tribunal's decision and ordered that the practitioner be disbarred from the legal profession. The court found that the practitioner's conviction for perjury was a serious offence that undermined the integrity of the legal system and the public's confidence in the legal profession. The court also found that the practitioner's conduct was deliberate and calculated, and that the practitioner had shown no remorse or insight into the gravity of the offence. The court concluded that the practitioner was not a fit and proper person to remain a member of the legal profession and ordered that the practitioner be disbarred.

Orders