Re an Application by L for Admission as a Legal Practitioner
[2015] ACTSCFC 1
•26 February 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
FULL COURT
Case Title: | Re an Application by L for Admission as a Legal Practitioner |
Citation: | [2015] ACTSCFC 1 |
Hearing Date(s): | 26 February 2015 |
DecisionDate: | 26 February 2015 |
Before: | Murrell CJ, Refshauge and Burns JJ |
Decision: | 1. That L be admitted as a lawyer of this Court on the following conditions: (a) that he consult Dr Victoria Carr within 14 days of 26 February 2015 and thereafter every three months for the next twelve months or more frequently if Dr Carr recommends it; (b) that he authorise Dr Carr to report to the Law Society of the Australian Capital Territory on his progress and any risk of relapse identified to her; (c) that he not apply within the next twelve months for admission as a lawyer to any other jurisdiction without giving the relevant admitting authority a copy of these conditions; and (d) that he give a copy of these conditions to any employer for whom his admission as a lawyer is a requirement or desirable qualification for any employment undertaken by him in the next twelve months. 2. That L’s name be entered on the Roll of Practitioners of this Court. |
Category: | Principal Judgment |
Catchwords: | PROFESSIONS AND TRADES – LAWYERS – QUALIFICATIONS AND ADMISSION – Legal practitioner – Fit and proper person to be admitted – Suitability matters – Disclosure of criminal offences – History of problems with alcohol – Admission to practice subject to conditions |
Legislation Cited: | Australian Capital Territory (Self‑Government) Act 1988 (Cth), s 48(A) Legal Profession Act 2006 (ACT), ss 11, 20, 21(1), 26(2), 30(1), 31(1), Court Procedures Rules 2006 (ACT)), rr 3065, 3606 |
Cases Cited: | A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253 Board of Examiners v XY [2006] VSCA 190 |
Parties: | L (Applicant) Law Society of the Australian Capital Territory (Respondent) |
Representation: | Counsel Mr G Stretton SC (Applicant) Mr M Phelps (Respondent) |
| Solicitors Self Represented (Applicant) Phelps Reid (Respondent) | |
File Number(s): | A 10564 |
THE COURT:
Being over the age of 18 years (s 21(1) of the Legal Profession Act 2006 (ACT)) and having attained the approved academic qualifications (s 21(1)(a) of the Legal Profession Act and r 3065 of the Court Procedures Rules 2006 (ACT)), and having satisfactorily completed the approved practical legal training requirements (s 21(1)(b) of the Legal Profession Act and r 3606 of the Court Procedures Rules), the Applicant, L, applied for admission as a legal practitioner.
Under s 26(2) of the Legal Profession Act, an applicant may not be admitted unless he or she is "a fit and proper person to be admitted to the legal profession." That requires an applicant to disclose all matters described as "suitability matters" under s 11 of the Act that may be relevant to a determination of the fitness and propriety of the applicant for admission.
L made disclosure of a number of matters that were of concern to the Court. As a result, on 12 December 2014 the Court adjourned the application to a date to be fixed (see Re An Application for Admission as a Legal Practitioner [2014] ACTSCFC 4, (the earlier decision)). The application returned to court for a further hearing on 3 February 2015 when Mr G Stretton SC appeared for the applicant and Mr M Phelps for the Law Society.
The issue which had concerned the Court was the difficulty that the Applicant clearly had in managing his consumption of alcohol, leading to him being arrested and detained for being intoxicated in public twice in 2010, twice in 2011 and once in 2013. In addition, he was convicted of the offence of driving with a high range prescribed concentration of alcohol in January 2011, and for the same offence in February 2013.
As set out in the earlier decision, the Applicant had sought professional assistance for his alcohol misuse from a clinical psychologist, Dr Victoria Carr, who provided comprehensive reports annexed to L's affidavit and in support of his Application for Admission. L had attended for six sessions with Dr Carr, commencing on 22 March 2013. Notwithstanding this assurance, it is to be noted that the most recent of the incidents where he was intoxicated in public occurred after he had completed the six sessions with Dr Carr.
As pointed out by Mr Stretton SC, it was important to put that incident in context. The Applicant explained in his affidavit:
... I committed to a course of abstinence from alcohol, which I successfully maintained for six months after the drink-driving offence in early 2013. After this period of abstinence, I re-introduced alcohol carefully and moderately and was guided by the insights learned from my sessions with Dr Carr, my growing maturity, and my resolute commitment to my studies during the period. I obtained outstanding results in all of my courses in 2013 and this was no small achievement given the way in which the year began with the drink-driving incident. During September, I decided to reward myself and attend a friend’s birthday party in the City. I had not been out with my friends since before the drink-driving offence of 2013. I had made prior arrangements that night to go home with one of my friends; however, at a certain point we became separated. As a result, and given we had consumed a large quantity of alcohol over the evening, we were unable to contact each other to carry through on the plans we had made. I was also tired from the early mornings and long hours I had been devoting to my studies, and so I eventually fell asleep on a bench at around midnight. But around 1.00 am I was awoken by police and directed to move on, however, I had no place to go given I was twenty-six kilometres from Murrumbateman [where he was then residing] and a taxi would have cost over $100 which I simply could not afford. I would have taken this action, and have departed the City, at a much earlier juncture if I had somewhere to stay in Canberra. The police telephoned my mother to see if she could pick me up but she did not answer her phone because it was on silent mode and she did not hear it. The police tried to contact several of my friends on my behalf, and at my suggestion, but this was equally to no avail. On this basis, the police conveyed me to the watch house for my own protection.
As was submitted, this incident, although involving an excessive consumption of alcohol leading to an unsatisfactory outcome, was different from, in particular, the drink driving offences, which not only showed poor judgment but also criminality.
Having read the material provided by the Applicant, initially the Full Court said in the earlier decision:
In our provisional view it is appropriate to delay his Application for Admission for a further 12 months to enable him to demonstrate that the changes he has made are enduring, that this problematic period in his life is now a matter of history and that the strategies he has put in place together with his professional advice are effective.
At the further hearing, L gave sworn evidence before us. He explained that he had a troubled youth. His parents’ divorce affected him greatly and led to a difficult relationship with both of them. He lived with his grandparents, who gave him stability, until his uncle’s mental illness forced him to leave their home and find shared accommodation. His co-tenants were rarely at home, which left him with a rather solitary life.
In mid 2009, he began a relationship with a fellow student; it blossomed and they became engaged to be married. The relationship broke down, however, by about late 2010, but it did not finally end until March or April 2011. Although he ended the relationship, L found that very difficult and it affected him greatly. It was a great disappointment to him.
Following that, he put enormous energies into his studies for the next two years and achieved good academic grades, but by August 2012 he was burnt out and took leave from study. He returned to study in 2013 and achieved excellent academic results, including two high distinctions and a 74 per cent average. He completed his degree in the first half of 2014 and his Graduate Diploma in Legal Practice in the second half of that year. He supported his application with a number of references from academic staff who all attested that he was an exceptional student, "one of the brightest and most diligent students it is been my pleasure to work with," as one referee commented.
He frankly acknowledged the problems he had encountered and the "reckless foolishness of his behaviour" between 2010 and 2013. He expressed great concern at his offending but referred to the steps he had taken to address the problem. As noted above, he sought counselling from a Clinical Psychologist. Dr Carr assisted him to address the source of the problematic behaviour and encouraged him to use the discipline which had been so successful with his studies to moderate his alcohol consumption.
By May 2013 she was able to report that he had restructured his work and study responsibilities into a more sustainable pattern which minimised the chance of burnout and the likelihood of "binge drinking episodes". In a further report in November 2014, Dr Carr reported that he had been able to reflect insightfully on his more recent incident, which enabled him to develop better strategies for such future contingencies.
Dr Carr attested that L takes his responsibilities to the legal profession very seriously and is determined not to jeopardise his career or bring the profession into disrepute. L had agreed with Dr Carr to return for further counselling should he feel that his ability to cope or to manage stress was deteriorating. Dr Carr opined that L was not experiencing any psychological disorders at the time of her examination, was not demonstrating any depression or anxiety symptomatology and that his behaviour did not meet the criteria for any substance use disorder. He was able to speak openly about how he had, for some time, managed to balance his health, work and general lifestyle.
The deponents of the affidavits L filed as to whether he was a fit and proper person to be admitted to the legal profession were all aware of the matters he disclosed in his affidavit, two of the three having read it. The affidavit was a very detailed account of the matters disclosed. All of the deponents, nevertheless, considered that L was a person of honesty and integrity and that he was of good fame and character. L's affidavit in support of his Application for Admission annexed a number of other references from academic staff, former school staff who had known him and a colleague. They were uniformly supportive.
Under the s 31(1) of the Legal Profession Act, the Legal Practitioners Admission Board is required to report to the court as to whether an applicant is eligible for admission and is a fit and proper person to be admitted and whether the application is in accordance with the admission rules. The Court was informed that the Board had sought an additional report from Dr Carr, a copy of which was attached to L's affidavit, and that senior members of the Board had interviewed him.
The Board provided a Compliance Certificate certifying to the matters required to be certified under s 30(1) of the Legal Profession Act, which includes the assertion that L is a fit and proper person to be admitted to the legal profession. The Board plays an important part in the governance of the legal profession and its views derived from the accumulated experience of its members deserves respect and due consideration. The significant place of such a Board is described by Stawell CJ in Re Shaw (1878) 4 VLR (L) 509 at 511. It is an approach that has been since followed. See Re Warren [1976] VR 406 at 409; Re Miller [1979] VR 381 at 384; Victorian Lawyers RPA Ltd v X [2001] VSC 429 at [37] and XY v Board of Examiners [2005] VSC 250 at [25].
Nevertheless, as Doyle CJ pointed out in In the Matter of an Application for Admission as a Legal Practitioner (1997) 195 LSJS 482 at 482:
“it remains the function of the Court to decide for itself whether the statutory requirement for admission are satisfied”. See also Re B [1981] 2 NSWLR 372 at 378.
The ultimate issue in this case is whether L has satisfied the Court of his good character and fitness for admission. As Doyle CJ said also in the South Australian decision, at 489:
By admitting a person as a practitioner of the Court, this Court holds out that person to the public as someone upon whom the public can rely. The public must and does rely upon the integrity of solicitors, as well as upon their technical skills. The public has no choice. In addition, as I have already said, the courts themselves rely upon the integrity of members of the legal profession. They rely upon that integrity not just when practitioners appear before the courts as advocates. The courts also rely upon members of the profession, when they deal with clients, to support and to uphold the integrity of the legal processes. A practitioner who lacks respect for the courts and for their orders is likely to damage the integrity of the system of justice, by communicating that lack of respect to clients.
Another matter to take into account is the importance of the reputation of the profession. None of us are perfect. But a profession cannot survive unless the public regards its members as trustworthy and honourable people. The Court has to consider the impact upon the public of the knowledge that a member of the profession has committed offences. What I have just said is based upon what was said by King CJ in In re Vadasz (1988) 146 LSJS 455, in a judgment with which the other members of the Court concurred, and upon what was said by this Court in In re Harrison (1992) 168 LSJS 84.
To the same effect, see Re Application for Admission as a Legal Practitioner (2004) 90 SASR 551, at 555-6; [28].
There can be no doubt that personal misconduct is relevant to the question of fitness for admission to the legal profession, even though it may not directly impinge on the practice of the profession (see In Re Davis (1947) 75 CLR 409 at 425). They are different, but personal misconduct is still relevant (see Zeims v the Prothonotaryof the Supreme Court of New South Wales (1957) 97 CLR 279).
Thus it is necessary for the Court to consider the conduct, or course of conduct, in question, and the light that it may throw on the fitness of L to be admitted to the legal profession, in the context of the impact on the public confidence in that profession if a person with L's antecedence is admitted. It is also necessary to have regard to the purposes of the process of admission as set out in s 20 of the Legal Profession Act as follows:
(a)In the interests of the administration of justice and for the protection of consumers of legal services, to provide a system under which only applicants who have appropriate academic qualifications and practical legal training and who are otherwise fit and proper persons, people to be admitted are qualified for admission to the legal profession in the ACT;
It must be said that there are two important matters often seen in the context of contested Applications for Admission, namely, lack of candour evidenced by non-disclosure of suitability matters or incidents, or incidents, including offences, of dishonesty. Neither of these are present in this case. That is not decisive, however the presence of either or both of these matters make the successful persuasion of the court to admit the applicant a more difficult task for the applicant. Nevertheless, misuse of drugs is a serious matter which is to be taken seriously by the courts, as pointed out by Young CJ, with whom Meagher and Tobias JJA agreed, in Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320 at [15]. This must include the serious misuse of alcohol, which is also a drug.
The provisional view of the Court was that the matters disclosed by L were not such as to debar him from admission, so long as it could be assured that he had been able to successfully manage his propensity to misuse alcohol. It seemed, provisionally, that a delay of about a year was appropriate to assess that. On the hearing, however, the Court was taken to a more detailed analysis of the chronology and the steps taken by L, including the success he has had. It also had the opportunity to hear from him personally.
The Law Society of Australian Capital Territory appeared and did not oppose the application. Like the Legal Practitioners Admission Board, the Law Society is an important part of the proper regulation of the profession. As with the Board, the view of the Law Society cannot be determinative, but its view is also deserving of high respect and consideration.
It was further pointed out that there will be severe financial consequences for L if the delay that has been suggested is implemented and that his present state of reform and ability to manage his alcohol abuse and avoid consequent breaches of the law may mean such a delay is a disproportionate response. This is supported by the possibility of putting in place some mechanism to regulate L's membership of the profession to prevent any repetition of likely relapse.
Two possibilities were canvassed. One is conditional admission. This was available in South Australia and considered in the South Australian case. The other is to accept an undertaking from L which, of course, is a solemn promise to the Court, breach of which is contempt. This was the course taken in Prothonotary of Supreme Court of New South Wales v P.
The Court set out matters that could be included as conditions to admission or as undertakings, these were:
1. That the Applicant not consume alcohol for a period of 12 months;
2. That the Applicant consult Dr Victoria Carr within 14 days of his admission and thereafter:
a. Every 3 months for the next 12 months, or
b. More frequently if Dr Carr recommends.
3. That the Applicant authorise Dr Carr to report to the Law Society of the ACT on the Applicant’s progress and any risk of relapse identified by her.
4. That the Applicant not apply for admission to any other jurisdiction without giving the relevant admitting authority a copy of these conditions/undertakings.
5. That the Applicant give a copy of these conditions/undertakings to any employer for whom his admission is a requirement or a desirable qualification.
The Court invited submissions on:
(a) whether the court has power to impose conditions on an admission; and
(b), if so, whether these conditions were appropriate.
Both L and the Law Society made submissions. Both submitted that the Court had power to impose conditions on admission. In Re Bridgeman [1934] St R Qd 1 at 9 it was said that the court has a power to admit a practitioner conditionally or unconditionally. This decision was followed on that point in R v Taylor [1997] 1 Qd R 533 at 537.
The Court was referred to two other decisions, but neither seemed to provide authority for the propositions asserted that the court has power to impose conditions on admission, see Re B at 378 and Board of Examiners v XY [2006] VSCA 190 at [2].
I note that the Legal Profession Act, by regulating the admission of persons to the legal profession, has not abolished, in so far as it can in the face of s 48(A) of the Australian Capital Territory (Self‑Government) Act 1988 (Cth), the inherent jurisdiction of the court which has its source in the Charter of Justice. This is in contrast with the position in New South Wales as explained in A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253 at 260; [2].
In those circumstances, the Court is satisfied that it has power to impose conditions on admission.
The next question is as to the conditions. Neither L nor the Law Society opposed conditions 2, 3, 4 or 5. Both submitted that condition 1 was not necessary and may be "unduly restrictive". L submitted that condition 1 was contrary to the recommendation of Dr Carr and where condition 2 required continued consultation with her, the condition was "inconsistent and inappropriate". The Law Society pointed to the comments in Dr Carr's report of 4 November 2014 that moderate controlled use of alcohol is more sustainable for L than total abstinence and submitted:
An enforced period of total abstinence may be detrimental to the Applicant's ability to control his use of alcohol into the future. The Applicant has demonstrated an ability to restrain himself to moderate drinking. His last serious alcohol-related offence having occurred two years ago.
The real vice to which condition 1 was directed is, of course, were L to consume alcohol to excess. That would clearly be a violation of condition 1 but if too restrictive could be limited to excessive drinking. The real difficulty is in defining "excess" so that L, Dr Carr and his employer would know when the condition had been breached.
In any event, the supervision of L to protect from drinking alcohol to excess, would probably not be any more effective under an amended condition 1 than is provided for in conditions 2 and 5.
Having regard to all the circumstances, the Court is satisfied that it would be appropriate to admit L, conditionally upon conditions in accordance with those numbered 2, 3, 4 and 5 as set out above.
[The Court then proceeded to admit L as a lawyer of the Court subject to conditions].
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Refshauge and Burns JJ. Associate: Date: 14 April 2015 |
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