Re DP and the Legal Practitioners Act 1970

[2005] ACTSC 78

IN THE MATTER OF DP AND THE LEGAL PRACTITIONERS ACT 1970
[2005] ACTSC 78 (1 August 2005)

EX TEMPORE JUDGMENT

No. SC 177 of 2005
Judges:        Higgins CJ, Gray and Ryan JJ
Supreme Court of the ACT
Date:           1 August 2005

IN THE SUPREME COURT OF THE     )          
  )          No. SC 177 of 2005
AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF DP AND THE LEGAL PRACTITIONERS ACT 1970

ORDER

Judges:  Higgins CJ, Gray and Ryan JJ
Date:  1 August 2005
Place:  Canberra

THE COURT ORDERS THAT:

1. The applicant has been guilty of unprofessional conduct.

2. There be no further penalty imposed.

3. The applicant pay the respondent’s costs of and incidental to these proceedings.

IN THE SUPREME COURT OF THE     )          
  )          No. SC 177 of 2005
AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF DP AND THE LEGAL PRACTITIONERS ACT 1970

Judges:  Higgins CJ
Date:  1 August 2005
Place:  Canberra

REASONS FOR JUDGMENT

HIGGINS CJ:

1. The court has arrived at a conclusion which I will shortly state.  I think we can dispose of the matter now.  That, in my opinion, is desirable for the sake of finality apart from anything else. 

1. In my opinion the applicant, on his own admission, is guilty of unsatisfactory professional conduct in two respects.  The first is his admitted rudeness, discourtesy and lack of respect in connection with the professional conduct board of the Law Society.  Despite the history of the matter, with which the applicant has expressed dissatisfaction, his conduct was not excusable and he ought not, as a legal practitioner, to have behaved in that way.  That conduct is, therefore, unsatisfactory. 

1. The second is his refusal to comply with the Law Society direction (as it became) to respond to a complaint.  The Law Society must, and indeed should, if it finds a complaint to have apparent substance, seek an explanation from the solicitor concerned.  And if the Law Society lacks the power to do that then the system will not work satisfactorily for the protection of clients generally.  So it must be emphasised that the Society has that power, is entitled to exercise it, and the exercise of that power is further entitled to respect and compliance with it by members of the legal profession to whom it is directed. 

1. I would also say that, in respect of the proceedings, there are certainly no objective indications that I can discern that the Law Society was motivated by any malice towards the applicant or any ill will or other bias towards him.  I acknowledge that the applicant may have a different view, but in my opinion that view is not one which is objectively based or justified.  Now having said that, the question that arises is, what then should be the response? 

1. Firstly, as I have already indicated, a finding of unsatisfactory professional conduct is inevitable and I would make it. So far as the further response, if any, is concerned, it seems to me that, as to the alternatives (a) to (d) under s 58(2) of the Legal Practitioners Act 1970 insofar as they are implied by s 67(2) of that Act, in all the circumstances, given the applicant’s previous unwarranted suspension and having regard to the burden of the proceedings upon him (both as to that particular episode and accepting that to some extent his attitude to the Society thereafter was coloured by that experience, albeit as I say without objective justification), it nevertheless seems to me that no further punitive action is required, not even a reprimand.  That is not to say that the applicant should regard his conduct as therefore having any sort of approval.  Rather, he has suffered a sufficient sanction already.

1. On the last occasion the Court made it plain what it considered to be the applicant’s obligations and that he was in breach of them and I do not need to reiterate those. 

1. Further it seems to me that under s 68 of the Act, the power to order costs is enlivened by the adverse finding that the applicant has been guilty of unsatisfactory professional conduct and I would order that he pay the costs of these proceedings.  These costs should include only the costs of proceedings in this court.  Insofar as there are any other costs that can be ordered, we make no such order.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date:    1 August 2005

IN THE SUPREME COURT OF THE     )          
  )          No. SC 177 of 2005
AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF DP AND THE LEGAL PRACTITIONERS ACT 1970

Judges:  Gray J
Date:  1 August 2005
Place:  Canberra

REASONS FOR JUDGMENT

GRAY J:

1. I agree and have nothing to add. 

I certify that the preceding paragraph numbered eight (8) is a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date:    1 August 2005

IN THE SUPREME COURT OF THE     )          
  )          No. SC 177 of 2005
AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF DP AND THE LEGAL PRACTITIONERS ACT 1970

Judges:  Ryan J
Date:  1 August 2005
Place:  Canberra

REASONS FOR JUDGMENT

RYAN J:

1. I also agree with the reasons expressed by the Chief Justice. In my view the exigencies of this unfortunate case are best met by a finding or declaration of unsatisfactory professional conduct under s 67(1) of the Legal Practitioners Act without proceeding to impose any of the further disciplinary sanctions provided in that subsection or contemplated by s 67(2).  The decision of the court not to impose even a reprimand at this stage should not be regarded as resiling from what was clearly implied by the direction given on the last occasion, namely that the conduct of the practitioner to that date had been unsatisfactory. 

1. I also agree that an order for costs should be made in the form indicated by the Chief Justice. 

I certify that the preceding paragraphs numbered nine and ten (9) and (10) are a true copy of the Reasons for Judgment herein of his Honour, Justice Ryan.

Associate:

Date:    1 August 2005

Counsel for the Applicant:  Applicant in person

Solicitor for the Appellant:  -

Counsel for the Respondent:  Mr R L Crowe SC

Solicitor for the Respondent:  Dibbs Barker Gosling

Dates of hearing:  21 April and 1 August 2005

Date of judgment:  1 August 2005