RE FATHARLY AND THE LEGAL PRACTITIONERS ACT 1893 [1999] WASCA 163

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 163
Court:	THE FULL COURT (WA)	Published:	10/09/1999
Case No:	LPD:1/1999	Heard:	13 AUGUST 1999
Coram:	MALCOLM CJ ANDERSON J WHITE J	Delivered:	13/08/99
No of pages:	6	Judgment Part:	1 of 1
Result:	Practitioner struck off the Roll
PDF Version

Parties:	LEGAL PRACTITIONERS COMPLAINTS COMMITTEE SIMON PETER FATHARLY
Catchwords:	Legal Practitioners Solicitor Struck off Roll of Practitioners for misconduct Convicted on number of offences of stealing as agent Not a fit and proper person to remain on Roll
Legislation:	Legal Practitioners Act 1893 s 29A, s30
Case References:	Clyne v NSW Bar Association (1960) 104 CLR 186 Harvey v Law Society of New South Wales (1975) 49 ALJR 362 In Re Davis (1947) 75 CLR 409 New South Wales Bar Association v Evatt (1968) 117 CLR 177 Re a Barrister and Solicitor (1979) 40 FLR 1 Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : RE FATHARLY AND THE LEGAL PRACTITIONERS ACT 1893 [1999] WASCA 163 CORAM : MALCOLM CJ

ANDERSON J

WHITE J

HEARD : 13 AUGUST 1999 DELIVERED : 13 AUGUST 1999 PUBLISHED : 10 SEPTEMBER 1999 FILE NO/S : LPD 1 of 1999 MATTER : The Legal Practitioners Act 1893

and

Simon Peter Fatharly a practitioner of the Supreme Court of Western Australia

Catchwords:

Legal Practitioners - Solicitor - Struck off Roll of Practitioners for misconduct - Convicted on number of offences of stealing as agent - Not a fit and proper person to remain on Roll

Legislation:

Legal Practitioners Act 1893 s 29A, s30

(Page 2)

Result:

Practitioner struck off the Roll

Representation:

Counsel:

Legal Practitioners Complaints Committee : Mr B J H Goetze

Practitioner : No appearance

Solicitors:

Legal Practitioners Complaints Committee : Minter Ellison

Practitioner : No appearance

Case(s) referred to in judgment(s):

Clyne v NSW Bar Association (1960) 104 CLR 186
Harvey v Law Society of New South Wales (1975) 49 ALJR 362
In Re Davis (1947) 75 CLR 409
New South Wales Bar Association v Evatt (1968) 117 CLR 177
Re a Barrister and Solicitor (1979) 40 FLR 1
Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279

Case(s) also cited:

Nil

(Page 3)

1 JUDGMENT OF THE COURT: This was a motion to the Court pursuant to s 30(2) of the Legal Practitioners Act 1893 (WA) ("the Act") to have the name of the practitioner Simon Peter Fatharly struck off the Roll of Practitioners of this Honourable Court or be otherwise dealt with as the Court think fit. At the conclusion of submissions made by counsel for the Legal Practitioners Complaints Committee on 13 August 1999, the Court was unanimously of the opinion that this was a plain and obvious case for striking off. The Court ordered that:

1. Simon…

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 Fatharly and the Legal Practitioners Act 1893

Details

AGLC: Re Fatharly and the Legal Practitioners Act 1893 [1999] WASCA 163
Case: [1999] WASCA 163
Decision Date: 10 SEPTEMBER 1999

CaseChat Overview and Summary

The case involves a lawyer, Fatharly, and the Legal Practitioners Act 1893. Fatharly was convicted of several offences of stealing while acting as an agent. The disciplinary proceedings were initiated to determine if he should be struck off the Roll of Practitioners due to his misconduct. The court was required to decide if Fatharly was a fit and proper person to remain on the Roll.

The central legal issue was whether the practitioner's criminal convictions and dishonest conduct rendered him unfit to continue practising law. The court considered the gravity of the offences and the impact on the legal profession's integrity. It was also necessary to assess whether the misconduct was so severe that it warranted removal from the Roll of Practitioners.

The court found that the nature of the offences and the fact that they were committed while Fatharly was acting as an agent were significant factors in determining his fitness to practise. The court concluded that the misconduct was of such a serious nature that it was not appropriate for him to continue as a legal practitioner. Consequently, the court ordered that Fatharly be struck off the Roll of Practitioners.

Orders

Orders of the court

Practitioner struck off the Roll

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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