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 Court in which he wilfully swore falsely as to three matters in three separate paragraphs of such affidavit; and
(b)one count that on 10 February 1998, having been duly sworn, he made a further affidavit in the same judicial proceeding referred to above and wilfully swore falsely as to certain matters therein.
Each of the four false statements was material to the application then before the Local Court, namely an application to stay a warrant of execution. The false matters sworn to by the Practitioner were to the effect that:
(a)on 30 December 1997, the Practitioner's client had advised the Practitioner that he should inform the Court that he was then instructed to act on behalf of the client (count 1); and
(b)on 31 December 1997, the Practitioner had informed the Local Court that he had received formal instructions from his client to act as his solicitor (counts 2, 3 and 4)."
The Practitioner was charged with four counts of perjury and after trial before the District Court, was convicted on each count and fined $2500 on each count. The Practitioner appealed against his conviction to the Court of Criminal Appeal which dismissed the appeal on 13 March 2002.
The facts were that on 25 September 1995 a Mr David Taylor was involved in a motor vehicle accident when another vehicle ran into the back of his vehicle. Nearly 2 years later, in June 1997, he received a solicitor's letter of demand for payment of the costs of repairs to the other vehicle. He wished to resist this claim and his companion, a Mr Cross, telephoned the law firm of D'Angelo & Partners and spoke to a law clerk, as a result of which, on 4 August 1997, the firm was retained to act for Mr Taylor on payment of a retainer of $500, for which a receipt was issued. D'Angelo & Partners promptly wrote to the other solicitors denying liability and intimated that a counter‑claim would be made. However, it seems they did nothing more and on 16 September 1997, Mr Taylor received a visit from the Local Court Bailiff who served a Local Court summons upon him claiming to recover damages in the form of repair costs amounting to $2597.63. Mr Taylor telephoned D'Angelo & Partners and there was a conversation, following which Mr Taylor drove to the offices of D'Angelo & Partners, and gave the summons to the same law clerk. It was, of course, the duty of the firm to enter an appearance on behalf of Mr Taylor and take the necessary steps to ensure that a defence and counterclaim was filed in good time. The firm did not do so, and Mr Taylor subsequently received notification from the Local Court of an appointment fixed for 16 December 1997 to have damages assessed. He delivered this notification to D'Angelo & Partners.
The assessment of damages came on for hearing before Ms Barbara Lane SM on 16 December 1997. The Practitioner, who was a solicitor employed by D'Angelo & Partners, appeared and informed her Worship that he had been instructed in the matter only the day before, and had not had time to prepare the appropriate documents or obtain detailed instructions, but that Mr Taylor wished to defend the claim. The Magistrate pointed out that the time within which a defence should have been filed had long expired. She adjourned the matter until 31 December 1997 and informed the Practitioner, in effect, that if Mr Taylor wished to apply for leave to defend the claim out of time, affidavits should be filed explaining the delay.
The matter came before Magistrate Lane again on 31 December 1997, as arranged. There was still no entry of an appearance and no affidavits had been filed. The appellant appeared and informed the Magistrate that he was "not in a much better position than last time that I appeared I'm afraid" and that "we haven't been given any instructions". The Magistrate told the appellant that, as he had not been instructed in the matter, he had no right to be heard and she proceeded to assess damages at $2593.67, and ordered that judgment be entered against Mr Taylor with costs to be taxed.
Mr Taylor had heard nothing since he had delivered the notification of the appointment for assessment of damages to D'Angelo & Partners and he was not informed of the outcome of the proceedings on 31 December. The next he knew of the matter was on 2 February 1998, when the Bailiff again attended, this time to levy execution by warrant of execution. Mr Taylor telephoned D'Angelo & Partners in the Bailiff's presence and there was discussion between the firm and Mr Taylor and between the firm and the Bailiff. The Bailiff agreed to postpone the levy of execution for a short time.
D'Angelo & Partners then took steps to attempt to remedy their dereliction of duty. They filed an application for an order that the assessment of damages be set aside (it should have been an application to set aside default judgment), and for an order that Mr Taylor be granted unconditional leave to defend and counterclaim and for an order that the warrant of execution be stayed. The form of application was not put in evidence, but it seems that it was made returnable on 24 February 1998. As well, D'Angelo & Partners made an urgent application for an interim order for a stay of the warrant of execution returnable before the Deputy Chief Stipendiary Magistrate, Ms Elizabeth Woods SM, on 11 February 1998. In order to support the interim application for a stay of the warrant of execution, the appellant swore two affidavits, one on 6 February 1998 and a supplementary affidavit on 10 February 1998. In the principal affidavit of 6 February 1998, the appellant made three false statements, or, more accurately, two false statements, the second of which was made twice. He deposed in par 11 of the affidavit to the effect that Mr Taylor had given him formal instructions on 30 December 1997 to act as his solicitor in the matter. In truth, the appellant had not spoken to Mr Taylor on 30 December 1997. The firm had received instructions to act for Mr Taylor many weeks before. In par 13, the Practitioner deposed to the effect that on 31 December 1997, when he had appeared before Ms Lane SM, he had informed her that he had received formal instructions from Mr Taylor to act as his solicitor, but the Magistrate did not accept that he had been properly instructed. In truth, he had told Ms Lane SM that he had not been given instructions and was appearing without instructions. This false statement was repeated in par 14 of the same affidavit.
It was these three falsely sworn statements in the affidavit which were the subject of the first three counts of perjury on the indictment. The fourth count of perjury arose from the supplementary affidavit sworn on 10 February 1998 in which by par 8 the appellant purported to refer to and repeat "pars 13, 14 and 15 of my original affidavit" and by that statement repeated the false statement made in pars 13 and 14 of that affidavit.
The application for an interim order staying the warrant of execution was refused by Ms Woods SM on 11 February 1998. The substantive application to set aside the assessment of damages (in effect to set aside the default judgment) and for leave to defend, and for a permanent stay on the warrant of execution came on before Ms Lane SM on 24 February 1998 and was dismissed.
The Report of the Tribunal stated, at p 4:
"This is a case where the Practitioner has not acted as he should in protecting his client's interest, and has committed perjury in an endeavour to hide that fact.
It is a basic tenet of our system of justice that it only operates properly with Practitioners acting honestly and without attempting to mislead and deceive the Courts.
Senior Counsel submitted that we could reasonably infer that the Practitioner 'in a panic' thought of what could help the client and essentially told two fibs. One was that he had spoken to Mr Taylor, the client, on 30 December and he repeated that in a different form by saying that he had instructions at the hearing on 31 December. There are four charges, but those are somewhat repetitious. Those are the two things that he said which weren't true.
Senior Counsel claimed that the Magistrate was not likely to be misled in the circumstances and this was simply an inept performance made under pressure with the Practitioner being under stress in his practice and personal life. There is a suggestion that in the past, the Practitioner suffered from depression, but we find it difficult to understand that there is any medical suggestion which would justify the present attempt to mislead the Court."
The Tribunal went on to comment that:
"Notwithstanding personal circumstances, it must be, at best, an exceptional case that a Practitioner who is prepared to commit perjury in an attempt to mislead a Court can be considered 'a fit and proper person to remain a member of the legal profession'. This is the overall test: see the discussion of the cases by Malcolm CJ in Re Maraj(A Legal Practitioner) (1995) 15 WAR 12 at 24‑25; and more recently in the NSW Court of Appeal in Coe v New South Wales Bar Association [2000] NSWCA 13 per Mason P at par [10]:
'If (which I doubt) there are exceptional cases where a Practitioner who knowingly swears a false affidavit that is filed in Court could be regarded as fit to practise, this is not one of them.'
We would apply that comment to this case. In Coe the perjury was entirely self‑seeking. In this case the Practitioner might be thought to be helping the client but the perjury was also self‑seeking in the sense that he was trying to avoid the almost inevitable repercussions that would follow due to his failure to act in a timely manner.
The Tribunal has resolved to submit a Report to the Full Court with a recommendation that the Practitioner be struck off the Roll. We order that the Practitioner pay the Law Complaints Committee costs, agreed at $1000. We also direct publication and direct that pending the determination by the Full Court, the Practitioner be suspended from practice."
At the time the Practitioner was sentenced he was 31 years of age and residing with his parents. He was single. His family were supportive of him. After the offences had been committed the Practitioner did not work for a period of some 2 years, but more recently he had obtained a position. In passing sentence Williams DCJ said, on 5 October 2001:
"I accept your counsel's submission that the perjury in the affidavits was done in circumstances where your judgment was impaired by stresses both at work and in your personal life. It's the submission on behalf of Mr Pallaras that convictions for perjury are serious convictions, the punishment in relation to the offence is 14 years' imprisonment, and I clearly accept that to be the case, and I also accept the proposition that sentences of imprisonment are nearly always imposed with respect to offences of this nature.
Mr Pallaras's submission is that there are two aggravating features: firstly, that it involved a practising solicitor and that the administration of justice could not operate without honest practitioners; and that perjury strikes at the heart of the justice system and that it's an attempt to deceive the court. I, of course, accept that submission. He further submitted that there is no remorse shown at all on your part and that there are attempts made to shift responsibility to others. I accept that to be the position but I also accept the proposition that others in the firm with more experience than you, at least Mr Foo on 2 December, have purported to take responsibility for the matter but appeared not to have done so.
The crown accepts that you are of previous good character and accepts that on one view of the matter … you found yourself in a position that was difficult for yourself. I accept that to be the position but it's largely of your own making. You wouldn't be the first solicitor to have judgment entered in default of defence but that of course does not excuse perjury. The crown says in relation to custodial disposition that this is a borderline case and on the balance the crown doesn't submit that a custodial disposition is the only disposition and concedes that other dispositions are appropriate.
For myself, I see them as serious offences. As I have said, the maximum penalty in respect to each offence is 14 years but I accept that in some respects count 2, 3 and 4 are repetitive in that you're not alleging further facts. It's a repetition of what has been said on other occasions. You were in a position of trust. A legal practitioner appearing in court is an officer of the court and owes a duty to the court not to mislead the court but I also accept that you were inexperienced in relation to this matter and I do express the view that, in my view, there should have been more supervision.
I say that because it's apparent from each of the transcripts that what took place on the various hearings and additionally the affidavits of 6 and 10 February, that you are quite confused as to where you were going and what you were trying to do. However, that does not excuse the perjury. Looking for a reason for the perjury, I think the probable cause, and it's one that was suggested by the crown to the jury, is that you were trying to dig yourself out of a hole for not having done anything, firstly, between 16 December and 31 December 1997 and secondly, when matters became more serious, because there was a judgment at that stage between 31 December, and 2 February.
However, taking all matters into account, I am of the view that it can be dealt with by way of a non‑custodial sentence. I say that because anything that you attempted to do had no effect on any decision of the magistrate and for other reasons that I have expressed about your inexperience and supervision. In respect to these matters I am of the view that there should be a global fine of $10,000. I allocate $2500 to each offence and I direct that the fines are to be enforced under Part 4 of the Fines Penalties and Infringement Notice Act."
The Practitioner was subsequently convicted of an offence of stealing, namely, that on 16 May 2002 at Morley he stole food, toiletries and medication valued at $11.15 from Coles. The Prosecution elected to have the case tried summarily and the Practitioner entered a plea of guilty. The facts stated to the Court of Petty Sessions on 18 June 2002 were that at about 12.02 pm on Thursday 16 May 2002 the Practitioner was observed inside the Coles supermarket. In the toiletries section he was observed to select a packet of Disprin and place it in the left pocket of his jacket. Shortly after this he selected a bottle of hair conditioner and placed it inside his pocket. He then went to the food aisle and selected two tins of tuna and placed them in his pocket. He then selected other items, went to the checkout and paid for the items he had selected but not hidden. He made no attempt to declare or pay for any items he had selected and placed in his jacket.
Outside the store he was approached by security and asked to return. The police were called and spoke to him. He was searched and a packet

of teabags were located down the front of his pants. He admitted that he had removed all of the property from the display in Coles. He started removing the property and admitted that he had not paid for it and acknowledged that it was stealing. His explanation was, "It was a stupid thing to do. I don't know why I did it. I just forgot to declare the items. I did not have a shopping trolley." An order was sought for the return of the property and payment of costs of $28.

The Practitioner admitted the facts alleged but was unable to give any explanation or reason for his actions. He had no need whatever for any of these items and he paid for them after being apprehended, as it was indicated to him by the security officer at the store that the penalty would be lighter if he paid for the goods. It was pointed out by his Counsel to the learned Magistrate that that was not correct. He did however pay for them and took them home afterwards. On the Practitioner agreeing to forfeit the amount of $150 he was released on a Conditional Release Order which required him to be of good behaviour for a period of 4 months with a formal order for return of the property.
In the result, the Tribunal resolved to submit a Report to this Court with a recommendation that the Practitioner be struck off the Roll. The Practitioner was ordered to pay the Law Complaints Committee costs agreed at $1000. The Tribunal also directed publication and finally directed that pending the determination by the Full Court the Practitioner be suspended from practice.
In the result, the Practitioner, through his Counsel, indicated that the recommendation that the Practitioner be struck off the Roll of Practitioners of this Honourable Court was not opposed. In the circumstances the adoption of that course was well advised. The circumstances were that the Practitioner's conduct was such that he was not a fit and proper person to be permitted to remain on the Roll. It was for these reasons that the Court ordered that the Practitioner be struck off the Roll of Practitioners.

TEMPLEMAN J: I have had the advantage of reading in draft the reasons published by the Chief Justice.
I agree that in the circumstances as set out in his Honour's reasons, it is appropriate that the Court should make an order striking the practitioner's name from the roll of practitioners.

WHEELER J: I have had the advantage of reading in draft the reasons for decision of the Chief Justice. I agree with those reasons and have nothing to add.