Re Sales
[2007] WASC 115
•21 MAY 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : FULL BENCH
CITATION: RE SALES; EX PARTE SALES [2007] WASC 115
CORAM: MARTIN CJ
SIMMONDS J
BLAXELL J
HEARD: 21 MAY 2007
DELIVERED : 21 MAY 2007
FILE NO/S: EXP 242 of 2006
MATTER :An application for admission as a legal practitioner by LUCIANO SALES
and
Mutual Recognition Act 1992 (Cth)
EX PARTE
LUCIANO SALES
Applicant
Catchwords:
Practice and procedure - Legal practitioners - Application for admission as a legal practitioner pursuant to State and Commonwealth mutual recognition legislation - Applicant admitted to practice in Queensland - Where Legal Services Commission of Queensland had determined that the professional conduct of the applicant was sufficient to establish either unsatisfactory professional conduct or professional misconduct, but disciplinary proceedings were not commenced on the basis that the applicant was not practising and therefore no adverse finding made - Where applicant had not been given the opportunity to put their case forward
Legislation:
Nil
Result:
Applicant to be admitted by the Court at the next available admissions ceremony
Category: B
Representation:
Counsel:
Applicant: In person
Amicus Curiae : Mr G T W Tannin SC
Amicus Curiae : Mr A Golem
Solicitors:
Applicant: In person
Amicus Curiae : State Solicitor for Western Australia
Amicus Curiae : Freehills
Case(s) referred to in judgment(s):
Nil
MARTIN CJ: This is an application for admission as a practitioner which previously came before the Full Bench of this Court differently constituted on 27 March of this year. The applicant is admitted as a practitioner in Queensland. On 27 March, the Court had before it two letters from Mr John Briton, the Legal Services Commissioner of Queensland, both dated 19 December 2006. The first was a letter to the Legal Practice Board of Western Australian in which Mr Briton advised the Board that the Legal Services Commission of Queensland ("the Commission"), had determined that the evidence obtained during an investigation into the professional conduct of the applicant was sufficient to establish either unsatisfactory professional conduct or professional misconduct. Attached to this letter was a copy of a letter which the Commission had written to Mr Sales.
The letter to the Legal Practice Board of Western Australia went on to observe that the Commission had determined that there was no public interest in commencing disciplinary proceedings on the basis that Mr Sales was no longer practising in the State of Queensland.
The second letter from Mr Briton was a letter to Mr Sales. This letter was also before the Court on 27 March. In the course of that letter, the Commission advised Mr Sales that the evidence obtained during the investigation of a complaint against him was sufficient to establish either unsatisfactory professional conduct or professional misconduct with four detailed sets of particulars of the circumstances giving rise to that conclusion. The letter also observed; however:
"[D]ue to the fact that you are no longer practising as a solicitor in Queensland it is not in the public interest to proceed with the disciplinary action and to commence the prosecutor process. It is for this reason alone that the Commission is not progressing this action."
It is clear from subsequent correspondence from Mr Briton that those two letters were quite misleading. In a letter dated 10 April 2007 from Mr Briton to the Chairman of the Legal Practice Board of Western Australia, Mr Briton particularised the complaints that were investigated by the Commission and they were three in number.
In the most recent letter, Mr Briton referred to the Queensland legislation applicable to an application to the relevant disciplinary body by the Commission. That legislation required the Commission to be satisfied that the evidence arising from the investigations, that had been conducted, established that there was a reasonable likelihood of a finding by the disciplinary body of unsatisfactory professional conduct or professional misconduct, which Mr Briton described as "the reasonable likelihood test"; and secondly, that it was in the public interest to make a discipline application, which Mr Briton described as "the public interest test".
In relation to the three matters that were investigated, in the most recent letter from Mr Briton he advised that the Commission had come to the conclusion that in relation to two out of three of those matters, there was insufficient evidence to support a finding that there was a reasonable likelihood that a disciplinary body would find the respondent guilty of unsatisfactory professional conduct or professional misconduct. So in respect of those two matters, the Commission found that the reasonable likelihood test was not satisfied.
The third matter related to an allegation that Mr Sales had paid $2450, belonging to the complainant, into the bank account of Mr Sales' wife rather than into the trust account of the legal firm by which Mr Sales was employed at the relevant time. Mr Briton advised that having considered all of the relevant evidence obtained during the course of the investigation, he was satisfied that the evidence obtained was sufficient to satisfy the reasonable likelihood test.
I digress to emphasise that because the matter never proceeded further, Mr Sales has been given no opportunity to answer that allegation or those propositions and that opportunity would of course be required by ordinary principles of procedural fairness.
In Mr Briton's most recent letter, he advised that the public interest discretion was only exercised by him in respect of the third allegation investigated because of course, as he most recently advised, in respect of the two other allegations, the reasonable likelihood test was not satisfied.
In relation to the application of the public interest test to the third matter; being, the matter in which he considered there was an arguable case, Mr Briton advised in his most recent letter that he took into account a number of factors in exercising the public interest discretion, including first, the fact that the respondent had no previous adverse findings by a disciplinary body; second, that the allegation is not one involving dishonesty or misappropriation; third, that there was no aspect of the allegation which goes to unfitness to practice; fourth, that the likely
outcome of any proceedings in the event of a finding of guilt would, in the circumstances and in his view, most likely result only in a finding of unsatisfactory professional conduct, a reprimand and a small financial penalty; and finally, he took into account the fact that Mr Sales was no longer residing or practising in Queensland.
It is important that I reiterate that no adverse finding has been made against Mr Sales. Mr Sales has not been given the opportunity to put forward his case which procedural fairness would have required in relation to any such finding. That opportunity will not arise under the current circumstances because of Mr Briton's view that it was not in the public interest for him to pursue that matter for the various reasons which he had now more fully enunciated.
Mr Sales is therefore entitled to have his application for admission to this Court dealt with on the basis that no inference adverse to him whatsoever should be drawn from the circumstances of the complaint made in Queensland. In those circumstances, there is no basis for any exercise of the inherent jurisdiction to refuse Mr Sales' admission.
It is obviously most regrettable that the admission of Mr Sales should have been delayed because of the unsatisfactory and misleading terms of the correspondence originally emanating from Mr Briton.
In my opinion, for these reasons, Mr Sales should be admitted and in due course we will call on Mr Sales to tell us whether he would like us to admit him on the papers or to include him in the next admission ceremony in early June.
SIMMONDS J: I agree with all of the reasons provided by the Chief Justice and would particularly wish to associate myself with his remarks concerning the unsatisfactory exchange with the Queensland Legal Services Commissioner, a matter of some concern under legislation like the mutual recognition legislation.
BLAXELL J: I agree that Mr Sales should be admitted as a practitioner of this Court and I do so for the same reasons as expressed by the honourable Chief Justice.
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