Re A Practitioner
[2002] WASCA 93
•11 FEBRUARY 2002
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
TITLE OF COURT : THE FULL COURT (WA)
| CITATION | : | RE A PRACTITIONER [2002] WASCA 93 |
| CORAM | : WALLWORK J |
ANDERSON J
TEMPLEMAN J
| HEARD | : 11 FEBRUARY 2002 | ||
| DELIVERED | : 11 FEBRUARY 2002 | ||
| PUBLISHED | : 22 APRIL 2002 | ||
| FILE NO/S |
| ||
| MATTER | : Legal Practitioners Act 1893 |
and
A Practitioner of this Honourable Court
and
A Report by the Legal Practitioners Disciplinary under the Legal Practitioners Act, s 29A(2)(a) and s 30
Catchwords:
Legal practitioners - Heroin addiction - Number of convictions in Court of Petty
Sessions - Disciplinary proceedings - Removal from the Roll
Legislation:
Legal Practitioners Act 1893, s 29A s 30(2)
[2002] WASCA 93
Result:
Practitioner struck off the Roll of Practitioners
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):
Ex Parte Attorney-General for the Commonwealth; Re A Barrister and Solicitor
[1972] 20 FLC 234
In the Matter of a Report by the Legal Practitioners Disciplinary Tribunal to the
Full Court, unreported; FCt SCt of WA; 14 June 1995
Re A Barrister and Solicitor [1979] 40 FLR 1
Re A Legal Practitioner, unreported; FCt SCt of WA; Library No 930527;
30 September 1993
[2002] WASCA 93
Case(s) also cited:
Harvey v Law Society of New South Wales (1975) 49 ALJR 362
New South Wales Bar Association v Evatt (1968) 117 CLR 177
Re A Practitioner [2001] WA SCA 154
Re A Practitioner, unreported; FCt SCt of WA; Library No 970354; 18 July
1997
Re A Practitioner, unreported; FCt SCt of WA; Library No 980654; 13 October
1998
Re Andrew Michael Bibby, unreported; FCt SCt of WA; Library No 970467; 19
August 1997
Re Davis (1947) 75 CLR 409
Ziems v the Prothonotary of the Supreme Court of New South Wales (1975) 97
CLR 279
[2002] WASCA 93
WALLWORK J
WALLWORK J: On the 11 February 2002, having heard submissions from counsel on behalf of the Legal Practitioners Disciplinary Tribunal and from the Practitioner, this Court ordered that the Practitioner should be struck off the roll of practitioners. I now set out my reasons for agreeing in that order.
2 By notice of originating motion dated 31 October 2001 the Legal
Practitioners Disciplinary Tribunal moved for orders that the Practitioner be struck off the roll of practitioners of the Court or be otherwise dealt with pursuant to s 30(2) of the Legal Practitioners Act 1893.
3 The Practitioner had become addicted to heroin and had been
convicted in the Court of Petty Sessions of a number of offences as
follows:
(a)
Wilfully misleading a policeman then acting in the course of his duties at Lockridge on 29 June 1998.
(b) Aiding an escaped convict at Scarborough on 2 November 1998. (c)
16 offences of intent to defraud by deceit by issuing cheques between 21 January 2000 and 29 February 2000. The total value of the cheques issued was $2,071.60. The Practitioner advised the Court of Petty Sessions that she had written the cheques when she was under the influence of heroin. She had wished to acquire goods; also cash to help pay for heroin for herself and her then partner.
(d)
On 7 February 2000 at Perth with intent to defraud the Legal Aid Commission, falsely claiming a grant of legal assistance for a client. The Practitioner had claimed and been paid some $1,300 after she advised the Legal Aid Commission that she had acted for a client at a two day trial before the District Court. She had not appeared for the client at the trial.
(e)
Receiving a Bankwest Visa card the property of another knowing it to have been stolen between 22 March 2000 and 11 April 2000.
(f)
Giving a false name and address to a policeman on 12 October 2000 at Maylands
(g)
With intent to defraud, using a Bankwest Visa card on 36 occasions, obtaining goods valued at $2,349.55.
(h)
Receiving a stolen television and gold watch, knowing them to have been stolen.
[2002] WASCA 93
WALLWORK J
(i) With intent to defraud, pretending to be the owner of the television and gold watch and entering into a loan contract, thereby gaining $140.
(j) Receiving 31 stolen compact disks knowing them to have been stolen, valued at $775. (k) With intent to defraud and by pretending to be the owner of the 31 compact disks entering into a loan contract, gaining $73. (l) Receiving stolen scuba-diving equipment valued at $1,208 knowing it to have been stolen. (m) With intent to defraud and by pretending to be the owner of the scuba-diving equipment entering into a loan contract, gaining $50. 4 The Practitioner was placed on a Drug Court regime for four months
on the 31 January 2001. On the 26 March 2001, after the Practitioner had successfully engaged in the Drug Court regime, she was sentenced by the Drug Court Magistrate to an 18 month intensive supervision order with a programme of supervision requirements.
5 The facts concerning the offences committed by the Practitioner are
fully set out in the report from the Chairman of the Legal Practitioners Disciplinary Tribunal to the Full Court and it is not necessary to repeat them in these reasons.
6 The Legal Practitioners Disciplinary Tribunal found that each of the
offences had been proven and that the nature of the conduct committed by the Practitioner demonstrated that she was not a fit and proper person to be a practitioner.
7 As stated above the Practitioner had become addicted to heroin. She
said that she had gradually exhausted all her money including the profit from the sale of her house. She had then used various methods to obtain money for heroin. She said she had been a heavy drug user from September 1999 until April 2000. She had then undertaken to a home detoxification programme supervised by a physician. However, she later relapsed.
8 On 7 December 2000 Dr A Bell reported that the Practitioner had
engaged in successful treatment for her heroin addiction of her own volition and appeared to have the personality strengths to cope with her life with continuing psychiatric management.
9 On the 27 June 2001 Dr K McManus reported that the Practitioner
had told her that she had first used oral amphetamines and ecstasy with
[2002] WASCA 93
WALLWORK J
her peers on social occasions at the age of 28 years. At the age of 33 years she had commenced using heroin in the context of continuing psycho-social stress and due to the influence of her then partner. Dr McManus advised that the Practitioner had fully engaged in psychiatric management beyond "just meeting" the requirements of the Ministry of Justice.
10 A clinical psychologist later advised that the Practitioner's obvious
intellectual ability, commitment to treatment and apparent readiness to resolve the relevant issues suggested that progress would be possible. However, she was unable to estimate the length of time necessary to achieve significant change.
11 On 18 July 2001 an officer from the Offender Management
Community Based Services of the Ministry of Justice reported that the Practitioner had attended for urinalysis testing and had presented physical signs of being relatively drug free. She was then engaged fully in therapy and appeared to be making good progress.
12 The Chairman of the Tribunal advised this Court that it was the view
of the Tribunal that whether the traits of the Practitioner's character maybe resolved so as to justify her being able to enjoy the public confidence which will lead her to her being able to practice again, is a matter for the future. The Tribunal was of the opinion that the Practitioner has some way to go before she can come to grips with whatever it is that led to her illegal activities.
13 The Tribunal's Report referred to the many references which had
been produced to the Tribunal which had indicated the value of the services performed by the Practitioner to her clients and otherwise showing her good community work. However, the Tribunal agreed with the submission of counsel that the object of disciplinary action against legal practitioners is not to exact retribution but rather to protect the public and the reputation of the legal profession - Ex Parte Attorney- General for the Commonwealth; Re A Barrister and Solicitor [1972] 20 FLC 234 at 244; Re A Legal Practitioner, unreported; FCt SCt of WA; Library No 930527; 30 September 1993 at 7; In the Matter of a Report by the Legal Practitioners Disciplinary Tribunal to the Full Court, unreported; FCt SCt of WA; 14 June 1995 at 24 - 25 and Y Ross, Ethics in Law at [7.3].
14 The Tribunal found that the nature of the Practitioner's illegal
conduct had demonstrated that at the present time she is not a fit and
[2002] WASCA 93
WALLWORK J
proper person to be a practitioner; that she had shown by her conduct a
lack of the integrity and reliability that is demanded of all practitioners.15 The Tribunal resolved to make and did transmit a report to this Court
recommending that the Practitioner should be struck off the Roll or otherwise dealt with as the Full Court deems fit. Because the Practitioner had no savings or assets of any substance and because her income was limited to receipt of sickness benefits, no order for costs was made against the Practitioner.
In Re A Barrister and Solicitor [1979] 40 FLR 1 at 24 - 25 Blackburn CJ, Connor and Davies JJ said:
"The object of disciplinary proceedings is the protection of the public and the maintenance of proper standards in the legal profession. Disciplinary proceedings are not taken by way of punishment, per Barwick CJ in Harvey v Law Society of New South Wales (1975) 49 ALJR 362 at 364, or to exact retribution per Fox, Blackburn and Woodward JJ in Ex Parte Attorney-General for the Commonwealth; Re A Barrister and Solicitor [1972] 20 FLR at 244. In the former case Barwick CJ said that the function of the Court is: '… to examine the material proffered to it in order to determine whether that material establishes that the solicitor has failed, by action or inaction, to maintain in his conduct the standards required by him as a member of the profession. The Court's duty is to ensure that those standards of the profession are fully maintained.' (1979) 49 ALJR at 364. In the latter case Fox, Blackburn and Woodwood JJ said that the object of disciplinary action is: '… to protect the public and the reputation of the profession' [1972] 30 FLR 244. Their Honours discussed the principles to be applied in determining whether the conduct of the practitioner had been of such a nature as to justify the intervention of the Court. We respectfully adopt the principles enunciated by their Honours. Their Honours said: 'When it is a question of removal from the Roll, there is, in the end, a single question, namely, whether the legal practitioner who has been charged is a fit and proper person to remain a member of the profession (see per Latham CJ in Re Davis (1947) 75 CLR 409 at 416). In Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 298, Kitto J said that the issue is not capable of more precise statement.' (1972) 20 FLR at 243."
[2002] WASCA 93
WALLWORK J ANDERSON J TEMPLEMAN J
17 Having considered the Report from the Legal Practitioners
Disciplinary Tribunal and the medical and other reports forwarded with that Report, and applying the principles discussed by Blackburn CJ, Connor and Davies JJ in the decision in Re A Barrister and Solicitor (supra), it was my view that that the Practitioner should be struck off the roll of practitioners. I therefore acceded to that order. No order was made for costs.
ANDERSON J: My reasons for joining in the decision to order that the practitioner should be struck off the roll of practitioners are fully set out in the reasons for judgment of Wallwork J, and there is nothing I wish to add.
TEMPLEMAN J: On 11 February 2002 I agreed with Wallwork and Anderson JJ that the Practitioner should be struck off the roll of practitioners.
The reasons given by Wallwork J for making the striking-off order accord with my view of the matter. There is nothing I wish to add.
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