Re a Practitioner
[2003] WASCA 172
•26 JUNE 2003
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE A PRACTITIONER [2003] WASCA 172
CORAM: HASLUCK J
HEARD: 26 JUNE 2003
DELIVERED : 26 JUNE 2003
FILE NO/S: LPD 2 of 2002
LPD 3 of 2003
MATTER :Section 31F of the Legal Practitioners Act 1893 As Amended
and
A Practitioner of this Honourable Court
and
An originating motion by the Legal Practitioners Complaints Committee to this Honourable Court under the Legal Practitioners Act 1893, s 31F
Catchwords:
Legal practitioners - Application for interim relief against a practitioner - Need for interim relief pending hearing of complaints against the practitioner - Consideration of the public interest in disciplinary proceedings being dealt with expeditiously - Serious issue to be tried - Interim relief granted
Legislation:
Criminal Code
Legal Practitioners Act 1893, s 31F, s 34, s 34A, s 59, s 58B, s 58I
Result:
Application for adjournment dismissed
Application for interim order allowed
Category: B
Representation:
Counsel:
Legal Practitioners Complaints Committee : Mr B J H Goetze
Practitioner : In person
Solicitors:
Legal Practitioners Complaints Committee : Minter Ellison
Practitioner : In person
Case(s) referred to in judgment(s):
Orsi v Legal Contribution Trust [1976] WAR 74
Case(s) also cited:
D'Allesandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198
HASLUCK J:
Application by Legal Practitioner's Complaints Committee
The Legal Practitioners Complaints Committee, has applied by an originating motion dated 18 June 2003 for an order that the practitioner be suspended from practice pending the hearing of a matter, being R 11 of 2003, by the Legal Practitioners Disciplinary Tribunal. I pause to say that R 11 is a reference in the procedures of the relevant bodies to reference 11.
The Committee has supported the application before me with various affidavits including the affidavit of Catherine Frances Mary Coombs sworn 18 June 2003, the affidavit of Jacqueline Taylor sworn 16 June 2003, the affidavit of Anna Maria Buckley sworn 17 June 2003, the affidavit of Henry Neil Howard Christie sworn 16 June 2003, the affidavit of Neville Taylor sworn 16 June 2003 and the affidavit of Robert Erskine Lindsay sworn 16 June 2003.
The practitioner's application
The practitioner has brought on for hearing simultaneously his notice of motion dated 23 June 2003 in which he seeks an order that the hearing of the Committee's application be adjourned to a date after the month of August 2003. He seeks an order also that the costs of the application be paid by the Committee to the practitioner.
The practitioner has supported his application for an adjournment by an affidavit sworn 23 June 2003. That affidavit is principally concerned with the state of his health in recent weeks, with reference being made particularly to events concerning a heart condition. He refers to his awaking with some discomfort in the area of the heart on 14 June 2003. That subsequently led to his admission to hospital. It is apparent from an exhibit to his affidavit that he was subsequently discharged on 17 June 2003.
In addition to the affidavit I have just mentioned, in the course of the hearing before me, the practitioner placed reliance upon a document described as a medical imaging report. This referred to an examination of the practitioner on 10 May 2003. I will not set out the full particulars of that report but it concludes with a final paragraph referring to a degree of compromise in the practitioner's spine.
It is not entirely clear to me to what extent the condition concerning the practitioner's spine makes it difficult for him to present his case in regard to the matters in issue. I understand from argument before me that essentially the application for an adjournment is grounded on the affidavit material bearing on his heart condition and this further document handed up in the course of argument concerning his spinal condition.
Matters in issue
I must now turn to the matters in issue between the parties. It seems to me that, in order to deal with the application for an adjournment properly, it would be taking an unduly narrow view of the matter to look simply at the medical issues I have briefly described.
Quite clearly, in order to understand what might be the respective prejudice to the respective parties if an adjournment is granted or not granted, I need to understand the matters in issue so that I can pay some regard to the public interest in this matter, for that is an issue arising out of disciplinary proceedings concerning a legal practitioner.
Background
It emerges from the affidavits relied upon by the Committee that the practitioner was admitted to the Bar in Sri Lanka in 1973 and was later admitted to the Bar in the State of Western Australia. I understand that he has a background of experience in immigration law.
I note in passing from the materials, and from what has been submitted to me, that the practitioner some time ago was subject to an order as a consequence of which he became bankrupt. This led to certain restrictions being placed upon the manner in which he could practise law.
The practitioner was released from the effect of the bankruptcy order, towards the end of the year 2001. It was in those circumstances that he proceeded to apply for a practising certificate. A copy of his application for a practising certificate appears as exhibit AMB6 at page 179 of the affidavit of Anna Maria Buckley.
When one refers to the relevant document, it becomes apparent that the practitioner wished to practise on his own behalf. It was said that his firm maintained or would maintain a trust account at the Commonwealth Bank at Forrest Chase. It was said that he would advise the Legal Practice Board of any obligation to keep a trust account that arose during the year in respect of which the application was made.
Trust accounts
I digress briefly to say that there are various provisions of the Legal Practitioners Act concerning practitioners' trust accounts. I will not review those provisions in their entirety. However, a central feature of the provisions is s 34 of the Act, which requires that:
"Every practitioner who, practising within the State, receives trust moneys shall, unless then dealing with them as directed by the person from whom, or for whose use or benefit, they are received, forthwith deposit them to the credit of a trust account."
It is a matter of common knowledge, certainly to practitioners in this state, that trust accounts must be maintained and that a practitioner is not at liberty to deduct moneys from those trust accounts ostensibly in satisfaction of an account in respect of legal costs or services performed unless an account has been prepared and rendered to the client.
It is true that costs agreements can bear upon the way in which these provisions operate but the terms of a particular agreement has to be considered within the framework of the statutory provisions.
Additional matters
It emerges also from the evidentiary materials before me that on 26 June 2002 the Legal Practice Disciplinary Tribunal ordered that the practitioner be suspended from practice for 12 months, commencing on 2 July 2002.
This order was made as a consequence of various complaints of misconduct which were considered by the Disciplinary Tribunal. The findings of the Tribunal are set out in a document which is exhibited to the Coombs affidavit as CFMC1 at page 1. I will not traverse the range of matters touched on there but, in essence, they arise out of complaints in respect of which the Tribunal made various findings.
Those orders remain in force. Thus, at the hearing before me this morning, as the practitioner himself acknowledged in the course of the argument, he is presently under suspension as a consequence of the orders previously made. However, it follows from the description of the orders I have given, that the period of suspension is about to come to an end.
It emerges, then, that the background to the matters before me include the fact that the practitioner has not been at liberty to practise in an unfettered manner for the past 12 months. I consider that this bears upon the question of any prejudice which might flow should the adjournment sought not be allowed.
The reference document
I turn now to more recent events. Exhibited to the Coombs affidavit at pages 8 to 10 is a copy of the reference 11 that I referred to in earlier discussion. The reference document arises out of certain complaints concerning the practitioner's conduct and constitutes a summary of matters that are to be dealt with by the Tribunal.
The reference document is in these terms, beginning at par 1. It is alleged that between January 2002 and July 2002 at Perth the practitioner was guilty of illegal and/or unprofessional conduct when acting for his client Neville Taylor, with respect to a migration matter. More particularly, it is said the practitioner misappropriated the sum of $10,900 from his client.
It is said that on or about 8 January 2002, the practitioner and his client agreed that in consideration of the fixed sum of $10,000 the practitioner would undertake all such work and incur such reasonable disbursements as may be necessary as an additional expense in respect of the client's migration matter, namely, to make application to the Federal Court of Australia at Perth and the High Court of Australia, if necessary, to set aside the decision of the Minister for Immigration and Multicultural Affairs to cancel the client's permanent resident visa, which had previously enabled him to reside in Australia.
It is said that the practitioner received $10,900 on account of costs from or on behalf of his client and particulars are then provided as to the basis upon which the relevant advances were made. Reference is made to payments in cash and direct deposit into the practitioner's private account and also the practitioner's general office account. Those payments or advances occurred during the period commencing 8 January 2002 and terminating on 21 June 2002.
It is said that the practitioner told his client the details of the practitioner's bank account numbers referred to into which he requested that the client make payment of moneys on account of costs. It is said the practitioner failed to pay or transfer any of the $10,900 referred to into his trust account and to thereafter retain such moneys in trust until such time as they could be dealt with as directed by his client or otherwise according to law.
The reference also speaks of the practitioner not having undertaken all such work as was necessary to set aside the Minister's decision. It is said that he prepared an application and a one-page supporting affidavit to the Federal Court and attended to certain directions hearings before the Federal Court. It is said he prepared an application to the High Court and supporting affidavit but the application has not been filed and the affidavit has not been sworn.
It is said that the practitioner has neither completed nor anywhere near completed his client's instructions. It is said that the practitioner does not have a valid costs agreement with his client within the meaning of s 59 of the Legal Practitioners Act. The reference goes on to say that the practitioner has never rendered and/or served or caused to be served memoranda of costs and disbursements to his client either at all or within the 14 days so as to justify the failure to pay into his trust account the cash moneys and the deposits made direct into the two accounts.
It is said that the practitioner has never rendered and/or served or caused to be served memoranda of costs showing the trust moneys had been applied by the practitioner towards payment of costs and disbursements.
In par 2 of the reference it is said that further and in the alternative, the practitioner was guilty of unprofessional and/or illegal conduct when acting for his client with respect to a migration matter in that the practitioner failed to comply with s 34(1) and s 34A of the Legal Practitioners Act. Particulars in support of that allegation are drawn from the matters referred to earlier in the reference.
Summary of the case
Counsel for the Committee has taken me through the affidavit evidence bearing upon the allegations the subject of the reference to the Disciplinary Tribunal. He has satisfied me that there is evidence to support a case of the kind reflected in the reference. I will not traverse the full range of matters referred to. My observations indicate the nature of the case being advanced and the evidentiary materials bearing upon it.
It emerges from what I have said to date that the reference alleges a misappropriation of seven distinct sums of client's trust money or, alternatively, a failure to comply with the requirements of the Legal Practitioners Act concerning trust accounts.
The case, in summary, is that the practitioner's client was Mr Neville Taylor, a British migrant who had been sentenced to a term of imprisonment following conviction of certain criminal offences. Upon Mr Taylor's release from prison, the Minister for Immigration and Multicultural Affairs sought to deport him back to England.
The client sought legal advice from the practitioner to prevent such deportation from being effected and was required to pay costs on account, which he or his wife, Mrs Taylor, paid over time by seven instalments within the period I mentioned earlier, commencing in January 2002 and concluding in June 2002.
The date and amount of each instalment and the place in the evidence in which the records can be found are detailed as part of the written submissions made by counsel for the Committee in the course of argument before me. Briefly, one notes that annexure JT4 to Jacqueline Taylor's affidavit consists of an Energy Credit bank statement. There are depicted withdrawals of the first five payments from the relevant account.
As I have noted, when the practitioner completed an application for a practising certificate on 14 November 2001, he advised the Legal Practice Board that he would maintain his trust account at Commonwealth Bank. There is evidence before me in the Buckley affidavit that the practitioner did not open a Commonwealth Bank trust account but, rather, a trust account was opened at Challenge Bank.
None of the payments referred to were paid into the practitioner's trust account. The statements from Challenge Bank are at annexure AMB1 to Mrs Buckley's affidavit. They show the position in regard to the payments. There is no known record in any of the practitioner's accounts of the payment of $1000, another payment of $1000 and $400 respectively on 8, 9 and 11 January. It is unknown what happened to such moneys save that the same were paid to the practitioner.
It seems from the evidentiary materials, that the payments of $1000 and $3500 on 21 February and 13 March 2002, which were paid into the practitioner's private account, 06638310129179, were largely withdrawn on 19 March 2002 by the practitioner when he made an assisted phone transfer of $4000 to his credit card number 5353179000602551. That appears from annexure AMB5 to the affidavit of Ms Buckley.
Copies of the practitioner's general office account bank statements are at annexure AMB2 to Ms Buckley's affidavit. The deposits on 21 June 2002 of $3500 and $500 can be found at page 67 of the affidavit. Prior to the deposit of such moneys the account was overdrawn to the extent of $189.39. On 24 June 2002 the sum of $310 was withdrawn by the practitioner and on 26 June 2002, Challenge Bank, on instructions from its credit department, withdrew $3500.61 leaving a nil balance.
The evidentiary materials indicate that the work done by the practitioner consisted of an application to the Federal Court, a 1‑page supporting affidavit from Mr Taylor, the practitioner's own 1‑page affidavit, a subsequent 3‑page affidavit to the Federal Court together with attendances in the Federal Court on the dates mentioned to me by counsel. Reference has been made to the various orders made in the course of those comparatively short attendances.
Admissions
I note from the materials and from what has been put to me by way of submission that, on 8 July 2002, in regard to an application for restraining orders concerning the practitioner's bank accounts, the practitioner attended before McKechnie J. The practitioner admitted that he had received $10,900 in this matter from Mr and Mrs Taylor and that he did not pay the money into trust. He admitted he had not rendered accounts although he claimed to have prepared accounts which were not sent to the client because he was in prison. However, the accounts were not on the file delivered to Mr Christie who was appointed eventually as a supervising solicitor.
The nature of the Committee's case
The case for the Committee is that the practitioner does not have a valid costs agreement with Mr Taylor. It is said that the practitioner failed to pay or transfer any of the seven instalments of money referred to above into his trust account. It is said he has not performed work to the value of $10,900 or anywhere near that amount. It is said he has not rendered and served any bill of costs upon his client in the manner required by s 34A of the Legal Practitioners Act.
It is said further that the practitioner has fraudulently converted the seven instalments of money to his use.
Counsel for the Committee referred to the decision of Wickham J in Orsi v Legal Contribution Trust [1976] WAR 74. In that case it was said that whether money placed with a practitioner was entrusted "in the course of the practitioner's practice" was to be tested subjectively. The transaction was to be viewed from the point of view of what the claimant believed to be the case. The effect of certain provisions of the Criminal Code is that funds held under direction could be stolen by the bailee. Fraudulent conversion of such funds would fall within the general definition of stealing.
It therefore emerges from a consideration of the case being advanced against the practitioner, and from the evidentiary materials said to underpin the case, that there is a body of evidence which appears to be sufficient to support a finding that the practitioner should be disciplined in the manner contended for. I have to say when I review the materials that I am persuaded that there is a strong case against the practitioner.
As I complete my review of factors bearing upon the applications before me, I note that by letter dated 24 December 2002 the Committee provided the practitioner with a written statement from Mrs Taylor outlining the details of what subsequently became reference 11.
It emerges from the affidavit of Ms Coombs that the practitioner did not respond to this letter. The reference then issued but the practitioner has not filed an answer thereto, notwithstanding that on 11 June 2003 he was able to type up a seven-page statutory declaration for the benefit of the Tribunal which was sitting on 12 June 2003 to hear the reference.
The hearing date
I understand from what has been put to me that on 12 and 16 June 2003, reference 11 concerning the practitioner came on for hearing before the Legal Practitioners Disciplinary Tribunal. The hearing did not proceed on 12 June 2003 by reason that the Committee claimed he was too unwell. On 16 June the Committee telephoned the Tribunal to advise that he had been admitted to hospital.
The Chairman of the Tribunal declined the Committee's request for a short adjournment with reference to a fixed date and adjourned the reference sine die. In that context there was some discussion as to whether interim relief could be obtained by the Committee pursuant to s 31F of the Legal Practitioners Act.
Interim relief
Section 31F of the Legal Practitioners Act is to this effect:
"(1)The Complaints Committee may apply to the Supreme Court for an order suspending a practitioner from practice or restricting the entitlement of a practitioner to practise, pending ‑
(a)inquiry, and determination or referral of a matter, by the Complaints Committee;
(b)the hearing of a matter by the Disciplinary Tribunal; or
(c)an appeal against a decision of the Disciplinary Tribunal.
(2)On an application made under subsection (1), the Supreme Court may make an order under section 58B as though it were an application by the Board."
I pause to say that this facility for providing interim relief is obviously designed as a measure to protect the public interest and to ensure that speedy relief can be obtained if there is a risk to the public interest arising out of the activities of a practitioner.
Section 58B deals with restraint on bank accounts and allows for orders to be made in that respect if the Judge is satisfied that there are reasonable grounds for believing that there is or may be a deficiency in any trust account or that there has been undue delay on the part of a practitioner in properly paying or applying trust moneys to or on behalf of a person or persons or for whose use or benefit they have been received.
I note also that in s 58I of the Legal Practitioners Act it is said that where a Judge, on the application of the board, notice whereof should be given to the practitioner, is satisfied that there are reasonable grounds for believing that a practitioner is, for any reason, incapable of properly conducting the practice carried on by that practitioner, the Judge may make various orders, including suspension of the practitioner from practising for such period as may be specified in the order. Provision is also made for related orders concerning supervision or restraint upon the use or dealing with bank accounts.
It therefore emerges, in regard to the Committee's application for interim relief, for the reasons I have outlined, that there is a strong case to be answered concerning the matters of misconduct alluded to. I stress that I do not purport to come to any final conclusion in respect of any of those matters. At this stage they remain simply allegations which are to be dealt with by the Disciplinary Tribunal.
It emerges also from my reading of the relevant provisions of the Legal Practitioners Act that even if a suspension order be made pursuant to s 31F, it will still be open to the practitioner in the present case to bring forward his stance in regard to these allegations when the matter is dealt with by the Tribunal.
I pause to say that although there is no evidentiary material before me at the moment, it has been foreshadowed in the course of argument that the practitioner will indeed wish to bring forward certain matters in his own defence. He has referred in the course of discussion to a lack of familiarity with the provisions concerning the rendering of bills of costs and the operation of trust accounts. It is said that this may be sufficient to excuse his alleged misconduct if the misconduct be found to exist.
He has referred also in the course of debate to the question of what exactly is the status of the person who is said to have been his client. There is also the question of the effect of the costs agreement which purports to have been entered into between the practitioner and Mr and Mrs Taylor or either one of them.
These matters, it seems, will be in contention, but the fact remains that, as matters stand before me, they have not been underpinned by evidence. I am, therefore, left in the position of concluding that there is a reasonably strong case to be advanced by the Committee for interim relief and that there is a serious issue to be tried before the Disciplinary Tribunal.
Conclusion
Let me draw these various considerations together. I am conscious that the effect of the proposed orders will undoubtedly have a serious impact upon the practitioner. He is a trained lawyer and, prima facie, he should be at liberty to practise his profession and to obtain the remuneration which will permit him to defend the matters in issue and possibly to engage legal assistance in that regard.
However, as I have noted, he is presently the subject of an earlier suspension order. Thus, it cannot be said that he has some existing or thriving practice as a lawyer which will be prejudiced by the interim relief applied for by the Committee. I am conscious, as I have noted, that the earlier suspension order is coming to an end. Nonetheless, it must be considered within the context I have described.
I must also be conscious of the public interest in this matter. As I say, the case against the practitioner appears to be a strong one and if sustained it will establish that the practitioner has been involved in what is said to be a misappropriation involving a member of the public. It is quite clear from the various provisions of the Legal Practitioners Act I have mentioned that these provisions exist to safeguard unsophisticated members of the public. The legal profession, through its various committees, is empowered to play a part in the self regulation of the legal profession. It is therefore expected to be vigilant in ensuring that the public interest is protected.
I am conscious also, as I weigh up the competing considerations, that there will be a further opportunity for the practitioner to put his defence when the matter comes for the Tribunal to deal with the issues raised by the reference. Thus, the granting of interim relief pursuant to s 31F does not in any sense foreclose the matters in issue or prevent the practitioner from putting the position he wishes to espouse.
All these factors are present to my mind as I look at the question of an application for an adjournment. It is commonly thought that an adjournment should be granted if its refusal would result in serious injustice to one party unless its grant would mean serious injustice to the other party.
Here, in the present case, the practitioner asserts in effect that his present medical difficulties make it difficult for him to properly formulate and advance the defence he wishes to espouse concerning the allegations put against him. However, balanced against this is the consideration that if the matter is further delayed, the existing suspension order will run its course and he will be free to continue practising. This would be against the background of evidentiary materials raising a serious issue to be tried as to whether there is some misconduct on his part.
There is no assurance that if the adjournment sought is allowed his medical difficulties will be overcome. Thus, one takes account of the prospect that in further weeks or months, if the adjournment be allowed, the position may be much the same as it stands before me today.
For all these reasons then, as I weigh up the competing considerations, I do consider that the public interest as I perceive it must prevail. Section 31F, which allows for interim restrictions on practice, is clearly designed to provide a facility or mechanism whereby there can be some restraint on a practitioner practising pending the determination of a matter before the Disciplinary Tribunal.
In the circumstances I have described, it seems to me that this is a case in which an order of the kind applied for should be allowed. I am not persuaded, notwithstanding the medical matters relied upon by the Committee, that the matter should be adjourned. There has been an opportunity for the practitioner to bring forward matters bearing upon the allegations against him.
It is the fact of the matter that although he has been able to file papers and affidavits bearing upon his medical condition, to date there has been no written answer or response to the matters in issue raised by the reference. The practitioner has foreshadowed certain matters by way of defence but has not underpinned them by evidence.
I conclude, on weighing up all these considerations, that the injustice that may be caused by the matter being adjourned outweighs the possible injustice to the practitioner by the adjournment being refused, particularly in circumstances where, as I say, the effect of the provisions is to allow a further opportunity at the hearing before the Disciplinary Tribunal for the practitioner to put his case.
For these various reasons, I am of the view that there are reasonable grounds for believing that the practitioner is incapable of properly conducting his legal practice having regard to the grounds relied on by the Committee. I consider that an adjournment should not be allowed. I am persuaded that the suspension order applied for should be made pursuant to section 31F and I will make the order accordingly. The effect of the order is that the practitioner be suspended from practice pending the hearing of a matter, being R 11 of 2003 by the Legal Practitioners Disciplinary Tribunal.
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