re David Peter Andrew Moen - [2018] SASC 136

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
THE LEGAL PRACTITIONERS ACT 1981 (SA) RE DAVID PETER ANDREW MOEN
[2018] SASC 136
Judgment of The Honourable Justice Nicholson
14 September 2018
PROFESSIONS AND TRADES - LAWYERS - PRACTISING CERTIFICATES
The practitioner gave notice of a show cause event pursuant to section 20AH of the Legal Practitioners Act 1981 (SA) (the Act). The relevant show cause event was the practitioner’s presentation of a declaration of his intention to present a debtor’s petition. The practitioner subsequently presented a debtor’s petition, resulting in his bankruptcy. The practitioner’s financial difficulties arose as a result of a failed investment.
Each of the practitioner, the Law Society of South Australia and the Legal Profession Conduct Commissioner were represented. The Legal Profession Conduct Commissioner proposed a number of conditions for endorsement on the practitioner’s practising certificate. The practitioner submitted that he remains a fit and proper person to be able to continue to practise subject to the proposed conditions.
On 15 May 2018, the Court made orders endorsing conditions on the practitioner’s practising certificate in the terms of draft minutes of order provided by the Commissioner and with the consent of the practitioner.
Held per Nicholson J:
1. Where, following its consideration of a practitioner's show cause event, the Supreme Court is satisfied of fitness to practise subject to certain conditions, the Court has power to order that the practitioner's practising certificate be endorsed to that effect.
2. The practitioner is a fit and proper person to hold a practising certificate subject to conditions endorsed on his practising certificate as set out in paragraph [2] of the reasons for judgment.
Legal Practitioners Act 1981 (SA) s 20AA, s 20AH, s 20AI, referred to.
The Legal Practitioners Act 1981 (SA) Re Roderic Jason Lindquist [2016] SASC 134; In the Matter of Barry John Jenner [2007] SASC 263, considered.

THE LEGAL PRACTITIONERS ACT 1981 (SA) RE DAVID PETER ANDREW MOEN
[2018] SASC 136
Civil: Application
NICHOLSON J.
Introduction

On 15 May 2018, I made orders endorsing conditions on the practising certificate of Mr Moen (the practitioner) as a result of his having given notice of a show cause event pursuant to section 20AH(2) of the Legal Practitioners Act 1981 (SA) (the Act). The orders were made in the terms of draft minutes provided on behalf of the Legal Profession Conduct Commissioner (the Commissioner) and with the consent of the practitioner. The Law Society of South Australia (the Law Society) was represented by counsel at each hearing of this matter and did not oppose the making of the orders in the terms provided by the Commissioner.
The orders were in these terms.
Upon the Practitioner becoming bankrupt on 31 January 2018 and upon the Practitioner providing notice of a show cause event pursuant to section 20AH of the Legal Practitioners Act 1981 ("the Act") and upon the Court being satisfied that the Practitioner is a fit and proper person to hold a practising certificate subject to conditions.
By…

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 David Peter Andrew Moen

Details

AGLC: re David Peter Andrew Moen [2018] SASC 136
Case: [2018] SASC 136
Decision Date: 14 September 2018

CaseChat Overview and Summary

The case involves David Peter Andrew Moen, a legal practitioner who became bankrupt on 31 January 2018 and subsequently filed a debtor’s petition. The dispute revolves around the conditions that should be imposed on Moen’s practising certificate following his bankruptcy. The Supreme Court was tasked with determining whether Moen, who became bankrupt, is a fit and proper person to continue holding a practising certificate and, if so, under what conditions.

The primary legal issue was whether the Supreme Court has the power to impose conditions on Moen’s practising certificate, given that the Legal Practitioners Act 1981 no longer expressly provides for such conditions in the case of an undischarged bankrupt. The Court had to consider the show cause regime within the Act and determine if it grants the necessary authority to impose conditions. Additionally, the Court needed to assess whether Moen is a fit and proper person to hold a practising certificate and, if so, what conditions should be imposed to ensure this.

The Court found that although the Act no longer explicitly states that an undischarged bankrupt cannot practise without authority, the show cause regime in Part 3, Division 2B of the Act still allows the Court to impose conditions on a practitioner’s certificate. Section 20AI of the Act empowers the Court to refuse, amend, suspend, or cancel a practising certificate if certain conditions are met, but it does not specifically address imposing conditions when the practitioner is deemed fit and proper. The Court determined that Moen is a fit and proper person to hold a practising certificate, subject to specific conditions that restrict his practice and handling of trust money.

The Court ordered that Moen's practising certificate be subject to conditions that limit his practice to that of an employed practitioner or at the independent bar, prohibit him from operating a trust or controlled money account, and restrict his handling of trust or controlled money. Additionally, Moen must notify relevant authorities within seven days of any changes in his employment or bankruptcy status. The Court, the Commissioner, and the Law Society retain the liberty to apply for variations to this order.

Orders

Orders of the court

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Background

Background to the litigation

The orders were in these terms. Upon the Practitioner becoming bankrupt on 31 January 2018 and upon the Practitioner providing notice of a show cause event pursuant to section 20AH of the Legal Practitioners Act 1981 ("the Act") and upon the Court being satisfied that the Practitioner is a fit and proper person to hold a practising certificate subject to conditions.By consent the Court orders that:1. From the date of this order until the date upon which the Practitioner is discharged from bankruptcy, and pursuant to the Court's inherent jurisdiction to control and discipline legal practitioners, conditions be endorsed upon the Practitioner's current practising certificate, and on any subsequent certificate that may issue to the Practitioner as follows:1.1 The Practitioner must not practise as a principal, his right of practice being limited to that of an employed practitioner or at the independent bar.1.2 The Practitioner must not operate a trust account or a controlled money account as defined in Part 1 of Schedule 2 of the Act.1.3 The Practitioner must not receive, hold, handle or deal in any way with trust money or controlled money as defined in Part 1 of Schedule 2 of the Act.1.4 The Practitioner must notify the Court, the Commissioner, the Law Society and, if applicable, the South Australian Bar Association in writing within 7 days if he ceases employment as a practitioner with Edge Law or commences alternative employment or at the independent bar.1.5 The Practitioner must provide such information in relation to his practice of the law and/or employment as may be reasonably required from time to time by the Law Society and/or the Commissioner and, if applicable, the South Australian Bar Association.1.6 The Practitioner must notify the Court, the Commissioner, the Law Society and, if applicable, the South Australian Bar Association in writing within 7 days if the period of his bankruptcy is extended or shortened, stating the reason(s) why.2. The Practitioner, the Commissioner and the Law Society shall have liberty to apply to the Court to vary this order.These are my reasons for making the orders.Background On 7 February 2018, the practitioner filed an affidavit providing notice to the Supreme Court of a show cause event pursuant to section 20AH(2) of the Act. The relevant show cause event was the practitioner’s presentation to the Australian Financial Security Authority (AFSA) of a declaration of his intention to present a debtor’s petition, pursuant to section 54A of the Bankruptcy Act 1966 (Cth).[1] [1] Section 5 of the Legal Practitioners Act 1981 (SA) defines a show cause event, in relation to a person, to include “(b) presenting (as a debtor) a declaration to the Official Receiver under section 54A of the Bankruptcy Act 1966 of the Commonwealth of his or her intention to present a debtor’s petition or presenting (as a debtor) such a petition under section 55 of that Act”. The declaration was presented to and accepted by AFSA on 31 January 2018. The practitioner filed a debtor’s petition which was accepted by AFSA on 21 February 2018. A trustee in bankruptcy was appointed on 27 February 2018.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J

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Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

The practitioner has indicated his willingness to subject himself to conditions restricting his right to practise. It was not suggested on behalf of either the Commissioner or the Law Society that the Court ought to suspend or cancel the practitioner’s practising certificate. Consideration Prior to 1 July 2014, section 49 of the Act provided, inter alia, that an undischarged bankrupt could not, without the authority of the Supreme Court, practise the profession of law. Section 49 expressly conferred power on the Supreme Court to grant an authority to practise on such conditions as thought fit. Following amendments which took effect on 1 July 2014, section 49 now only deals with the situation of a legal practitioner who is a director of an incorporated legal practice during its winding up for the benefit of creditors. The Act no longer expressly provides that a practitioner who is an undischarged bankrupt is not, without authority, entitled to practise. Rather, this situation is now regulated by the show cause regime in Part 3, Division 2B (sections 20AG to 20AI) of the Act. Within that regime there is no express conferral of power to impose conditions on the practising certificate of a practitioner who is required to show cause. Section 20AH has been set out earlier. Section 20AI is in these terms.20AI—Refusal, amendment, suspension or cancellation of practising certificate—failure to show cause(1)The Supreme Court may refuse to issue or renew, or may amend, suspend or cancel, a practising certificate if the applicant or holder—(a) is required by section 20AG or 20AH to provide a written statement relating to a matter and has failed to provide a written statement in accordance with that requirement; or(b) has provided a written statement in accordance with section 20AG or 20AH but the Court does not consider that the applicant or holder has shown in the statement that, despite the show cause event concerned, he or she is a fit and proper person to hold a practising certificate.(2)For the purposes of this section only, a written statement accepted by the Supreme Court under section 20AH(3) is taken to have been provided in accordance with section 20AH.(3)If the Supreme Court makes a determination under this section, the Court must, as soon as practicable, give the applicant or holder written notice of the determination. Section 20AI empowers the Supreme Court to, inter alia, “amend … a practising certificate …” but only in the circumstances there outlined, that is, where the practitioner fails to provide a required show cause statement or, having provided such a statement, the court nevertheless is not persuaded that the practitioner is a fit and proper person to hold a practising certificate. For reasons to be explained, I am satisfied that the practitioner in this case is a fit and proper person to hold a practising certificate provided it is subject to certain conditions. A question arises whether, in such a case, section 20AI confers power to impose conditions on the practitioner’s certificate or whether any such power is to be found elsewhere and, if so, where.