Scott v Law Society of Tasmania
[2009] TASSC 12
•12 March 2009
[2009] TASSC 12
CITATION: Scott v Law Society of Tasmania [2009] TASSC 12
PARTIES: SCOTT, Janet Margaret
v
LAW SOCIETY OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: 646/2007
DELIVERED ON: 12 March 2009
DELIVERED AT: Hobart
HEARING DATE: 17 October 2008
JUDGMENT OF: Crawford CJ, Slicer and Evans JJ
CATCHWORDS:
Professions and Trades – Lawyers – Duties and liabilities – To Court – Duty to inform Court – Duty not to mislead Court – Failure to disclose current disciplinary proceedings when applying for admission under Mutual Recognition legislation – Failure to disclose at later disciplinary proceedings.
Aust Dig Professions and Trades [1141]
Professions and Trades – Lawyers – Complaints and discipline – Professional misconduct – Misleading Court and perverting course of justice – Falsely asserting to Court in course of disciplinary proceedings that there were no earlier disciplinary proceedings – Falsely claiming to have lost memory of the earlier proceedings.
Aust Dig Professions and Trades [1240]
REPRESENTATION:
Counsel:
Appellant: P W Tree SC
Respondent: M E O'Farrell
Solicitors:
Appellant: Wallace Wilkinson & Webster
Respondent: Murdoch Clarke
Judgment Number: [2009] TASSC 12
Number of paragraphs: 72
Serial No 12/2009
File No 646/2007
JANET MARGARET SCOTT v LAW SOCIETY OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
CRAWFORD CJ
SLICER J
EVANS J
12 March 2009
Order of the Court
Appeal dismissed
Serial No 12/2009
File No 646/2007
JANET MARGARET SCOTT v LAW SOCIETY OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
CRAWFORD CJ
12 March 2009
It was ordered on 11 September 2007 that the name of the appellant be removed from the roll of legal practitioners. She appealed from the order.
The order was made on the application of the Law Society under the Legal Profession Act 1993, s80, which permitted any person to apply to hear and determine a complaint against a practitioner of professional misconduct or unprofessional conduct.
The grounds of appeal assert that errors were made by the learned judge. To address them, it is necessary to state the history of the proceedings and to refer to the findings of her Honour and some of the evidence.
The April hearing and May judgment
The hearing of the complaint commenced on 30 April 2007. The evidence consisted of a statement of agreed facts and a number of affidavits filed by the Society. The appellant neither gave nor adduced evidence. No oral testimony was received. Submissions were made by the respective counsel for the Society and the appellant as to the correct characterisation of the conduct (professional misconduct or unprofessional conduct) and the orders the Court should make in response to its findings. The learned judge reserved her decision.
On 25 May 2007 reasons for judgment were published.[1] The learned judge found that the appellant had misconducted herself on a great number of occasions with respect to the affairs of many clients over a period of about six months in 2004.
[1] Law Society of Tasmania v Scott [2007] TASSC 30
The learned judge found that the appellant was admitted to practice in the Northern Territory on 2 December 1991[2] and in Tasmania on 7 February 1994. Between 10 May 2003 and 25 June 2004, she practised on her own account in this State as "Janet Scott and Associates". At some time between 1990 and 2002, she practised in Queensland.
[2] Law Society of Tasmania v Scott (No 2) [2007] TASSC 72 at par6
Between 1991 and 2003, her practice was largely criminal and family law. Some time in 2003 or 2004, she saw an opportunity to capitalise on the property market and decided to expand into the area of conveyancing, advertising fixed fees for sales and purchases. She employed a clerk or assistant to undertake conveyancing work.
Between February and October 2004, she acted for a number of clients in conveyancing matters. Several of those clients made complaints to the Society about the manner in which she dealt with them and their matters. The following findings were made by the learned judge:
1 The Slade/Heaton matter:
(a)She failed to advise a client of a significant development by failing to inform the client that the period within which finance had to be confirmed had not been extended as requested by the client and that an early settlement was required. The failure breached the Rules of Practice, r10(2), which required the practitioner to inform her clients of all significant developments in their matters unless instructed otherwise.
(b)She failed to follow instructions in that she failed to obtain an extension of time to obtain finance when asked to do so.
(c) She failed to return telephone calls and reply to emails as she should have done.
(d) She failed to undertake relevant searches.
(e) She failed to obtain instructions before confirming an early settlement.
(f)She failed to fulfil her duty to her client to ensure that her employee was aware of principles applicable in conveyancing matters and of the obligations of purchasers, was competent to handle the transaction and was supervised by her. The employee had little understanding of those principles and obligations.
2 The Mars matter:
(a)She withdrew an amount in excess of $100 from her client's account in the trust ledger without authorisation and without a statement of account having been supplied, contrary to the Rules of Practice, r40. The amount was relatively small but was an amount she had represented to the client would not be required to be expended.
(b) She failed to return telephone calls and reply to emails.
(c) She failed to provide a settlement statement as promised.
3 The Wallace matter:
(a)She failed to provide her client with a settlement statement prior to settlement as promised and failed to provide one for almost 2½ months after settlement, thereby breaching the Rules of Practice, r10(1).
(b)She failed to follow instructions in that she failed, despite repeated requests to do so, to provide a settlement statement, and she breached her own promises that she would provide it. (There is obviously some duplication in the findings.)
4 The Winzar matter:
She failed to make necessary arrangements to ensure that settlement of a transaction occurred on time, resulting in a delayed settlement and costs being incurred by the client for storage and interest. Rule 10 was breached.
5 The Ford matter:
(a)She failed to complete a purchase on time and failed to stamp and register the transfer of title in a timely manner, thereby breaching r10.
(b)She exhibited a lack of candour in her dealings with her client in that she represented to the client that transfer documents were with the Land Titles Office when they were not.
6 The Hope matter:
(a)She overdrew her trust account in respect of her client's purchase by an amount of approximately $7,300 in circumstances where she had not obtained the correct amount from the client, thereby breaching r37 which prohibited the withdrawal of money from a trust bank account for or on behalf of a client unless money amounting to at least the amount withdrawn was held in that account at the time of that withdrawal.
(b)She also acted for her client's vendor and when doing so divulged to the vendor confidential information about her client's financial position.
7 The D'Arcy matter:
(a)She exhibited a lack of candour in her dealings in that she represented that a client had deposited moneys directly to her trust account when that had not occurred.
(b)She failed to obtain instructions before depositing into her trust account a bank cheque payable to the Commissioner of Taxes that was provided by the client for stamp duty.
(c)She failed to lodge a transfer for assessment of duty which resulted in a penalty being incurred.
8 The Galvin matter:
(a) She failed to respond to telephone calls and emails.
(b)She failed to advise her client about material appearing in a council certificate which had a significant effect on the client's transaction.
(c) She failed to provide a settlement statement as promised.
9 The Wass matter:
She failed to respond to telephone calls and emails.
10 The Berry/Malor matter:
(a) She failed to respond to telephone calls and emails.
(b)She failed to advise her clients about a construction on a right-of-way on land being purchased in respect of which advice had been sought.
11 The Elliott/Glassock matter:
(a)She failed to ensure that rates were paid to the local council by a vendor, resulting in a loss to her clients.
(b)She miscalculated settlement figures, deducting only $10,000 for a deposit and not $17,500 as paid and failed to ensure rates were paid. She then failed to take any, or any adequate, steps to rectify the problem over a number of months.
12She committed accounting breaches in that she failed to keep books of account in good order, which resulted in the trust account needing to be reconstructed by accountants, failed to balance her cashbook, failed to reconcile bank balances with cashbook balances, and failed to reconcile the trust account balances with cashbook balances and record those details within 10 days of the end of each month in the year ended 30 June 2004, thereby breaching r36.
13She advertised fixed fee conveyancing and in her advertisements held out that she would act in sales and purchases for an identified fee. The advertisements made no reference to the fee being exclusive of GST but she consistently charged GST in addition to clients who responded to her advertisement.
14She failed to co-operate at all times with Mr Kimber, an officer appointed by the Court to manage her practice.
15 She verbally abused clients who complained.
The learned judge summarised her conduct in the following ways. She did not do her best to complete her clients' business in a competent manner and within a reasonable time. She did not inform clients of significant developments in their matters. She breached accounting rules. All of that conduct amounted to breaches of the Rules of Practice and to professional misconduct by definition under the Act, s56.
Her Honour noted that all the conduct occurred over a period of about six months in 2004. It was not a case involving an isolated incident, but one involving a series of similar incidents. The evidence demonstrated that she did not understand the importance of time constraints in conveyancing transactions, that she was either unaware of the rules or disregarded them, and that she had little, or no, understanding of the level of disclosure and honesty required when dealing with clients. She made promises, advertising fixed fee conveyancing and advising in a letter that she would provide a settlement statement prior to settlement which she ignored more than once, and when taken to task by clients about those matters, she became abusive. She also misled clients about the status of their matters, presumably in an effort to stop them complaining. She failed to properly supervise her employee who, in a letter to the solicitors for vendors, that was written without proper instructions, demonstrated a complete lack of understanding of conveyancing practice.
The learned judge rejected any suggestion of criminal conduct or of conduct designed for personal gain. As a consequence of some of the appellant's actions, clients had obtained civil judgments against her for losses they suffered. In general terms, her actions resulted in a modest financial loss for clients and her clients would have suffered considerable anguish while their matters remained unresolved.
Because no evidence was given by the appellant no explanation was provided for the conduct, save that it appeared that in respect of some of the conduct she had been overwhelmed with business as a result of advertising.
The learned judge found that the appellant's conduct flowed from a complete lack of experience in conveyancing matters and a lack of willingness to ensure that she gained that experience before embarking on the practice she did. She demonstrated a willingness to disregard rules and mislead her clients when she felt it expedient.
Perhaps generously to the appellant, the learned judge found that the conduct was a product of the circumstances created by the appellant and in which she found herself, and not necessarily an indication of an inherent lack of fitness as a practitioner. In coming to that conclusion, the learned judge had regard to "what can be perceived as a lack of relevant history over several years' practice".
The breaches of the rules were found to amount to professional misconduct by definition in the Act. The other conduct of the appellant was found to amount to unprofessional conduct and not professional misconduct, because the learned judge was not persuaded that it could reasonably be regarded by other members of the profession of good repute and competency as disgraceful and dishonourable. With respect, that finding is questionable when all of the conduct over the six month period is considered.
After referring to the often repeated passage in the judgment of Cosgrove J in Dickens v Law Society A42/1981 at 15 – 16 concerning the powers of a court to discipline practitioners being protective in character, the learned judge concluded that an order striking the appellant's name from the roll was not required. However, it was found that undoubtedly she was not a fit and proper person to be held out to the public as an unsupervised conveyancing practitioner. It was concluded that to guard against any risks that might arise if she wished to resume conveyancing practice, the public would be protected from a repeat of such conduct if she was required, before doing so, to undergo some form of training in conveyancing practice and procedure and a course of training in the maintenance of proper books of account for a legal practice, and to demonstrate to the Society her competence in both areas, and if thereafter she was restricted to practice only as an employed practitioner for a period of two years. In the event that she did not seek to practice in the area of conveyancing, the learned judge said that in any event, she should be required to undertake training in the maintenance of books of account for legal practice, demonstrate to the Society her competence in that area and thereafter be permitted to practice only as an employed practitioner for a period of two years.
The learned judge said that she had no information about what sort of training or courses might be available and whether the conditions she proposed were workable. Rather than attempt to formulate precise orders immediately, she adjourned the further hearing to give counsel the opportunity to consider and make submissions about the precise terms of the orders yet to be made.
The application to re-open
Before any orders were made, leave was given to the Society on 1 June 2007 to reopen its case upon the basis of evidence in an affidavit of the Executive Director of the Society. The reopening of the Society's case arose out of the fact that at the first hearing, the appellant's counsel, Mr Barns, said in the course of submissions:
"My instructions also are that – and – that they have not been – this is the first time in which Ms Scott has been subject to Law Society or regulatory investigation and complaint. I asked her this question specifically and she instructs me that in Queensland there were a couple of occasions when clients wrote letters, or where she got letters from the Law Society. She instructs me they were dealt with at that level. So my instructions are, and I don't think it's – I don't think my colleagues put it on any other basis – this is not a case where, if I can put it in the vernacular, or the criminal vernacular, there are prior convictions."
The affidavit of the Executive Director contained evidence that what had been said by counsel was untrue for a complaint had been made about the appellant to the Law Society of the Northern Territory. The complaint was found proved by that Society's council, which decided to admonish her.
The August hearing
The hearing continued on 20 and 27 August 2007. The centre of attention was the appellant's failure in 1994 to disclose the Northern Territory matter in the course of her application for admission to the Supreme Court of this State under the Mutual Recognition Act 1992 (Cth) and her failure to do so in April 2007 in the course of the current proceedings. The Society did not seek to amend its originating application so as to make those failures additional grounds for finding professional misconduct or unprofessional conduct. The appellant has taken no point about the lack of amendment. There are precedents for disciplinary orders being based on matters arising in the course of the proceedings which were not made the subject of the application originally or by subsequent amendment. See for example Howes v Law Society of Tasmania [1998] TASSC 112. The appellant has not sought to argue that there was a breach of the rules of nature justice by some failure to give notice of allegations.
At the continuation of the hearing counsel for the Society read an affidavit of the Director of Professional Standards of the Law Society of the Northern Territory ("the NT society"), Ms Stone. An affidavit of the appellant was read by her counsel and she was cross-examined by counsel for the Society.
At that time, the 1994 admission file of the Supreme Court of this State had not been located. It has since been found and it was admitted into evidence on the hearing of the appeal. I will refer to its contents to add to what was revealed by the evidence at the hearing.
Following her admission in the Northern Territory on 2 December 1991, the appellant was issued with a restricted practising certificate in January 1992 which was subsequently renewed. It appears that she was practising as a solicitor in the Northern Territory. In about April 1992, her marriage broke down and she moved from the family home. She moved on two further occasions prior to moving to Tasmania in late 1993. At some stage towards the end of 1992, the firm that employed her ceased its operations and she did not then obtain alternative employment.
On 7 January 1994, the appellant lodged with the Supreme Court of this State a notice of her intention to apply for admission as a practitioner of the court under the Mutual Recognition Act, relying on her admission in the Northern Territory. As required by that Act, s19(2)(d), she stated in the notice that she was "not the subject of disciplinary proceedings in any state (including any preliminary investigations or action that might lead to disciplinary proceedings)". (The meaning of the word "state" in the Mutual Recognition Act included the Northern Territory and the Australian Capital Territory. See s4(1).) The application was listed for hearing before the Master (as he then was) on 7 February 1994.
The evidence of Ms Stone revealed that a meeting of the council of the NT society on 27 January 1994 considered a complaint against the appellant by one B Miller, which the President of the society described to the council as involving significant incompetence. The minutes recorded that the council made a finding of unprofessional conduct and resolved that "the practitioner be admonished under s47(2)(c)." The reference to s47(2)(c) was erroneous. It is obvious that the intended reference was to s47(1)(c) of the Legal Practitioners Act (NT), to which I refer in par38.
Ms Stone produced the minutes of the meeting. Attached to them was a report of the society's Executive Officer dated January 1994, which appears to be his report to the council for that meeting. In it he stated, among other things:
"Ms Janet Scott, an ex-employee of Andrew Rogerson, recently telephone [sic] me requesting a Certificate of Fitness as she wished to be admitted in Tasmania. I refused as there was an outstanding complaint which we could not follow up as Ms Scott had left the Territory and failed to advise the Society of her new address. The complaint was referred to the President as Mr Gardner is currently on leave."
The appellant agreed in evidence that she telephoned the council's Executive Officer and requested a certificate of fitness. However, she said that she had no recollection of the Executive Officer informing her there was a complaint against her. In cross-examination she was asked: "Are you saying that he didn't say that or you just don't recall it?" She answered: "Don't recall, because it happened very quickly." She accepted that it was possible that he did tell her about it, but repeated that she could not remember it. She added: "See, what happened was I was being admitted on the 7th February — so we only had a week to have the certificate of fitness issued, so it was quite rushed and they pushed it through quickly for me so I could get admitted on the 7th."
It is more probable than not that the Executive Officer told her, when she telephoned him, that he was refusing to issue a certificate of fitness because there was an outstanding complaint against her. It is also more probable than not that she requested the Executive Officer to have the complaint dealt with by the council in the hope that it would be determined in such a way that would not prevent the issue of a certificate of fitness and her admission in this State.
She maintains that at no time did she see the complaint that was made against her, that she had no knowledge of it at the time, that she did not respond to it and that the council dealt with it without her response. It has been impossible to test her claims with the society's records because its file, that would have been created with respect to the complaint, cannot be located.
On the day after the council's meeting, 28 January 1994, the Executive Officer sent a letter to the appellant at the address of the legal office where she was working in Hobart. It may be inferred that she had given the address to him. The letter advised her that the complaint against her had been found proven and that the council had decided that the matter could be adequately dealt with by admonishing her.
Also on 28 January, there was a telephone conversation between the appellant and the NT society's Executive Officer. The evidence of that is in a letter sent by the appellant to him on 31 January 1994, in which she referred to their conversation on that day and formally requested that she be supplied with a certificate of fitness. She enclosed $50, presumably in payment of a charge for providing the certificate. She also asked that a facsimile copy of it be sent to her as a matter of urgency. The certificate was issued by the Executive Officer on 2 February 1994. It is likely that it was posted to the appellant that day.
On 7 February 1994 the Master granted the application for admission and ordered that the appellant be admitted as a practitioner and that her name be enrolled. She did not disclose the finding of unprofessional conduct and admonishment by the Northern Territory council. In cross-examination, she said that "I just handed my certificate of fitness before the court and applied for admission". The learned judge found that at that time she had an obligation to disclose those matters to the court and breached it, and that by doing so she had demonstrated a lack of candour in 1994.
Her evidence was that she received the letter of 28 January from the Executive Officer but when she instructed Mr Barns that she had not been investigated by a law society before, she had forgotten about it. Only after reading about the matter in documentary evidence in the current proceedings did she recall it. In her affidavit she said: "What I then recalled was a vague memory of receiving that letter … I can only conclude that at the time I assumed the conduct alleged was on the lower end of the scale and that as I was busy working with a young child, and the matter appeared finalised, I made no further enquiry."
She claimed in her affidavit and in cross-examination that when she instructed Mr Barns she had completely forgotten about the Northern Territory admonishment. The learned judge considered it impossible to accept that evidence and found that she had deliberately misled her Honour in failing to disclose the matter. Her conduct was held to amount to professional misconduct.
The learned judge also had regard to other aspects of the appellant's conduct in the course of cross-examination. It was found that she had demonstrated a complete lack of insight into what was expected of a practitioner of the court and what constituted candour as far as the court was concerned. It was further found that her statements in evidence had showed a lack of understanding as to what had occurred and a lack of appreciation of the stage proceedings had reached. The learned judge concluded that she could have absolutely no confidence in the circumstances that, were the appellant permitted to practice on any basis, she would appreciate her obligations as a practitioner such that members of the public with whom she would deal would be protected from any wrongdoing. As a result, it was ordered that her name be removed from the roll of legal practitioners.[3]
The failure to disclose in 1994
[3] Law Society of Tasmania v Scott (No 2) [2007] TASSC 72
Counsel for both parties appear to have accepted that it was on 16 December 1993 that the appellant gave notice of her intention to apply for admission in this State under the Mutual Recognition Act. However, the court's file reveals that although the appellant's notice bears that date, it was not lodged at the Principal Registry until 7 January 1994. I mention that only because her counsel submitted that the court had to grant the registration within one month of the date of lodgement, unless within that time it was postponed or refused, and as it did not do that, her entitlement to registration was an automatic one by 17 January. However, in view of the actual date of lodgement, automatic entitlement to registration had not arisen on 7 February, the day upon which the Master dealt with the application.
It was pointed out by the appellant's counsel that there was no indication in the letter of 28 January 1994 from the Executive Officer of the NT society that it had been determined that the appellant had been significantly incompetent or guilty of unprofessional conduct. The letter merely informed her that the "Council found the complaint [by B F Miller] proven and pursuant to Section 47(1)(c) decided that the matter could be adequately dealt with by admonishing you."
The reference to s47(1)(c) must have been to that provision in the Legal Practitioners Act (NT), which empowered the NT society if it found a complaint proved, but was of the opinion that it might be adequately dealt with by either admonishing or fining the legal practitioner against whom the complaint was made, to admonish the practitioner or fine him or her up to an amount of $2,000.
It was submitted by the appellant's counsel that there was no evidence that she was in fact admonished, only that the council had determined that the matter could be adequately dealt with by admonishing her and that she was informed of that fact. The submission does not assist her. The undoubted facts are that she was advised by the Executive Officer that the complaint had been found proven and that the council had decided to admonish her, and that she did not disclose those matters at the time of her admission in this State. Her failure to do so is under consideration in these proceedings.
In her reasons[4] the learned judge cited passages from Lawyers' Professional Responsibility by Professor G E Dal Pont at 30 and 32, which refer to the duty of an applicant for admission to be entirely candid with the court and disclose anything in his or her prior behaviour or experience that could impact negatively on his or here good fame and character. The authorities referred to for that proposition are Re Del Castillo (1998) 136 ACTR 1 at 7, Thomas v Legal Practitioners Admissions Board [2005] 1 Qd R 331 at 334, 335, Re Davis (1947) 75 CLR 409 at 426 and Re Evatt (1987) 92 FLR 380. Her Honour concluded that there was no doubt that the appellant had an obligation to disclose to the court, in the course of her application for admission under the Mutual Recognition Act, her admonishment by the NT society, and that her failure to fulfil that obligation demonstrated lack of candour at the time.
[4] Law Society of Tasmania v Scott (No 2) [2007] TASSC 72 at par 19
I note that it is not at all clear from the reasons of the learned judge that the appellant's lack of candour in 1994 was a factor in the decision to remove her name from the roll of legal practitioners. There was no statement by the learned judge to that effect.
The cases to which Professor Dal Pont referred did not concern applications for admission under the Mutual Recognition Act. My view is that the overall duty of candour that normally applies to applications for admission is not as broad in the case of applications under the mutual recognition regime. That is because the Mutual Recognition Act, s20(1), establishes entitlement to admission under the Act as if the law of the second State expressly provides that admission in the first State is sufficient ground of entitlement to admission, provided that the applicant is a person who has lodged a notice seeking admission under s19. On its face, s20(1) leaves little room for a discretion based on the applicant's character or prior conduct. However, there is authority for the proposition that there is a remaining discretion. Re Petroulias [2005] 1 Qd R 643; Re Tkacz; ex parte Tkacz (2006) 206 FLR 171.
Whatever the correct position may be under general principles relating to the obligation of candour at the time of an application for admission, the learned judge was correct in finding that the appellant had such an obligation and breached it for a reason that may not have been apparent to her because the court's file relating to the application for admission was not available to her.
The Mutual Recognition Act, s19(1), provided that a person who was registered in one State for an occupation might lodge a written notice with the local registration authority in a second State for the equivalent occupation, seeking registration for the equivalent occupation in accordance with the mutual recognition principle. By subs(2) the notice was required to state a number of things and in particular, by par(d), it was required to state that the person was not the subject of disciplinary proceedings in any State [or Territory] (including any preliminary investigations or action that might lead to disciplinary proceedings) in relation to the occupation. In purported compliance with that requirement, the appellant included such a statement in the notice she lodged with the court. (See par24 of these reasons.) Even if, at the time she lodged the notice, she was unaware of any such disciplinary proceedings or preliminary investigations or action that might lead to disciplinary proceedings (she denied that she was and there was no evidence suggesting that she was aware at that time), she nevertheless became aware later in January 1994 and before the hearing of her application in February.
If she had been so aware at the time she lodged the application and as a result could not have truthfully included the statement required by s19(2)(d) in her notice, she would have been prohibited from proceeding with it, for the statement was a requirement for a successful application. Plainly, her notice misled the Master for the statement that conformed with par(d) was erroneous at the time of lodgement. As a practitioner of another court and an applicant for admission in this State, it was her plain duty to inform the Master that the statement was erroneous, once she became aware of the Northern Territory complaint. Her failure to do so amounted to a breach of her obligation of candour that she owed to the court.
That was the case even if she was denied natural justice in the Northern Territory through being given no opportunity to respond to the complaint.
The 2007 failure to disclose and denials of recollection
The learned judge found it impossible to accept the appellant's evidence that she had no memory of the Northern Territory complaint when she instructed Mr Barns. Her Honour saw significance in the fact that in her evidence she claimed to have been able to recall a client complaint (or complaints) in Queensland to which she was required to respond in writing to a Law Society in Queensland, and which was dismissed, and yet she claimed to be unable to remember that a complaint had also been made in the Northern Territory which, according to a formal letter sent to her at the time, the council of the NT society had found proven and resolved to admonish her.
The learned judge concluded that the appellant had deliberately misled the court. It is to be inferred that her Honour found that she had done so through her instructions to Mr Barns and also through her evidence in her affidavit and in cross-examination that when she instructed Mr Barns she had forgotten about the Northern Territory matter. In other words, it is to be inferred that her Honour found that the appellant lied several times in the course of her evidence.
It is the appellant's case that the conclusion of the learned judge was not open and that there was nothing inherently implausible in her claim to have forgotten about the Northern Territory complaint until reminded of it by evidence presented by the Society. It was argued that it was not unlikely that she would have forgotten an admonition by the NT society in 1994 for conduct earlier than that, the nature of which was not disclosed to her. It was pointed out by her counsel that no consequence to her had flowed from the matter over the succeeding 13 years and argued that there was no particular reason why it would have remained in her memory. It was submitted that the Queensland matter or matters may have been remembered by her because she had been given an opportunity to respond to the complaint or complaints and did so. It was also argued that if she wished to mislead the court, it is difficult to conceive why she disclosed that there were two Queensland complaints. The obvious answer to that last argument is that their outcome was not unfavourable to her and disclosing them was favourable to her in the sense that it demonstrated candour.
Notwithstanding all of those arguments, I have reached the same conclusion as the learned judge for one simple reason. It is that it is extremely unlikely that a legal practitioner would forget that a complaint had been made against her, that it was found proven by the council of the local society and that the council had resolved to admonish her. If she was denied natural justice because she was given no details of the complaint and no opportunity to respond to it, she had an additional reason to remember it because it would have amounted to an injustice to her.
It was also argued for the appellant that the learned judge erred in fact and in law by failing to direct herself in accordance with, and apply, the appropriate degree of satisfaction required by Briginshaw v Briginshaw (1938) 60 CLR 336 before finding that the appellant had deliberately misled the court. There is no reason why this Court should come to that conclusion. The learned judge was not obliged to state in her reasons that she had directed herself in that way and that she had applied the test of satisfaction required by Briginshaw. Her attention had been drawn to it by the Society's counsel in written submissions and there is no reason to think that her Honour disregarded it.
A finding that the appellant's evidence was surreal
At the first hearing on 30 April, the appellant's counsel advised the learned judge that the agreed statement of facts was indeed agreed between the Society and appellant. To a large extent it amounted to a summary of the affidavits that were filed by the Society and formally read into evidence. Many of the affidavits were sworn by the appellant's clients who complained to the Society about her conduct, and contained the details of their complaints. The contents of the affidavits were not challenged by the appellant at that hearing.
At the outset of the appellant's cross-examination at the hearing on 20 August, counsel for the Society asked her questions concerning her understanding of the obligation of candour owed by a legal practitioner to the court, his or her professional body and his or her clients. She accepted that the obligations of a practitioner included a duty to all three to tell the truth. She agreed that a deliberate untruth to any of them would amount to conduct falling well below professional standards the court expects of its practitioners. She maintained that she would never tell a deliberate untruth to the court or a client.
Her assertion that she would never tell an untruth to a client was contrary to a fact that had been agreed and which had been asserted by one of her clients in an affidavit that had been read. It had not been challenged in any way at the hearing in May. Counsel for the Society pointed out to her that in the first reasons of the learned judge, a finding was made that she had lacked candour in the Ford matter when she represented to her client that transfer documents were with the Land Titles Office, which was contrary to the true situation.
There then followed a lengthy passage of cross-examination that was quoted by the learned judge in her second reasons. It included statements by the appellant that no matter what the learned judge may have found, her position was that she had made no misrepresentation to the client about the transfer; that the client had misunderstood her by confusing a priority notice with a transfer; that she could have explained that to the learned judge at the first hearing but did not do so; that although initially she had expected that her evidence would be presented, she chose not to present it following advice from her lawyer that the matter should be expedited in the quickest possible way. She said that the statement of agreed facts was not false. There was then read to her a passage in it stating that on 3 August 2004 she represented to Mrs Ford that the necessary documentation was at the Land Titles Office when she knew or ought to have known that the documents were not at that office. She said that she could not remember making that admission and maintained that she had not seen the statement of agreed facts in the form in which it was placed before the court. She appeared to express surprise that the fact in question was in the document and maintained that it was not true and she would not have agreed to it, because she did not lie to the client. She said that she had not admitted that fact, "not that I'm aware of", and she did not remember Mr Barns referring to it at the hearing.
There is no information before this Court which permits a finding that the particular admission was read out at the May hearing. It is possible that although it was undoubtedly contained in pars70 and 71 of the statement of agreed facts, there was no express oral reference to it at the hearing.
The appellant's evidence continued to the effect that she had been given a draft statement of agreed facts and had instructed Mr Barns that she agreed with some of the facts, "roughly half or a little bit over half of the allegations, probably less actually, and some weren't agreed". She agreed that she allowed all of the affidavits, including the affidavit of Mrs Ford, to go into evidence without objection.
Mrs Ford's affidavit contained statements that included that settlement occurred on 22 June 2004; that on 3 August 2004 she asked the appellant whether or not the title to the property had been transferred into her husband's name; that the appellant informed her that the title was at the Land Titles Office "and that was the delay in the property being put in my husband's name"; that on that day she made enquiries of the Land Titles Office and was informed by an officer that the title had not been received; that she then contacted the appellant and relayed what she had been informed; that the appellant became very rude and told her that the title was at the Stamp Duties Office and that she did not know what she was talking about and she was not to ring the appellant again; that she then rang the Stamp Duties Office and was informed that it had not received any documents; that she then contacted the appellant's office and the appellant refused to speak to her; that she informed the receptionist that she wished to take up the title and other documents from the appellant's office so that she could attend to registration of the title herself; that the receptionist placed her on hold and after a short time advised her that she could collect a cheque and paperwork from the appellant's office on the following day; and that she subsequently attended to registering the title into her husband's name. Almost all of the statements about those matters in Mrs Ford's affidavit were read aloud by the Society's counsel shortly after the hearing commenced.
The appellant said in further cross-examination that she had agreed that none of her own affidavits in response would be put into evidence, explaining that "it was a tactical manoeuvre instructed by counsel, this is how we are going to handle the matter, none of your material is going to be put before the court so we don't have to lead any evidence". Asked did she not say to her counsel that she owed an obligation of candour to the court and she had to put her material before it, she explained: "It was filed with the court, okay, but whether it was read into evidence at a hearing is another matter, and that's totally my discretion whether I choose to do that or not ... otherwise I would have been ordered into the witness box to explain myself, wouldn't I, but I elected not to."
The response of the learned judge to the passage of the appellant's cross-examination I have summarised, was as follows:
"The respondent's counsel, in the absence of any evidence on behalf of the respondent, stated both orally and in writing that the statement of agreed facts put forward by the applicant was accepted by the respondent. His submissions, while containing some limited factual material not the subject of evidence, did not extend to any comment to the effect that the respondent did not accept any part of the agreed facts. The respondent was present in Court throughout counsel's submissions. She made no attempt to contradict him or cavil with the position as he put it. In her evidence on 20 August 2007, however, the respondent said she did not accept all of the facts in the statement of agreed facts and she did not hear her counsel agree to them. She agreed that the Court had made findings based on them, but said that the Court only heard what the applicant put before it. Her evidence about that and the evidence she then gave in an attempt to refute one of the client complaints against her, in the context that she had taken no step to refute the allegation initially, and findings had already been made as to her conduct in relation to the complaint, can only be described as surreal. It was indeed difficult to understand the thought processes of the respondent such that prompted her to give the evidence she did.
The ground of appeal that concerns this aspect of the case asserts that the learned judge erred [at the August hearing] in failing to provide the appellant with an opportunity to seek leave to contradict or qualify the so-called agreed fact concerning Mrs Ford. There is no merit in the ground. The appellant had the opportunity to seek such leave but made no application. The learned judge did not deny an attempt to do so.
However, the appellant's counsel did not make submissions that addressed the ground. Instead he made a general attack on what was said by the learned judge including her description of the appellant's evidence as surreal.
Having regard to the fact that the appellant had practised as a legal practitioner, in this State or elsewhere, for much of the time since 1991, the comments of the learned judge are understandable. Regardless whether the appellant was cognisant of the contents of the agreed statement of facts, she knew, at the May hearing, that the damning contents of Mrs Ford's affidavit were in evidence and she made a deliberate decision to present no evidence to challenge them. A finding other than that she lacked candour with Mrs Ford would have been a perverse one. Her claim that she would not have agreed to what Mrs Ford said is impossible to understand. By not challenging it she had accepted it. As the learned judge said, her thought processes are difficult to understand.
Of concern is the disclosure by the appellant that a reason for not presenting evidence at the May hearing was a tactical one, and that one of the advantages to her that she perceived at that time was that counsel for the Society would not be able to cross-examine her. The inference that is plainly open is that she believed that less damage to her would result if she accepted as factual an erroneous assertion by an ex-client rather than leave herself open to cross-examination. It is a reasonable conclusion to draw that she made a conscious decision not to be forced into a position where she would have to be candid and explain her conduct to the court.
I have not ignored her earlier evidence in cross-examination concerning her reasons for not putting evidence before the court in April. They were expressed as avoiding the complainants being brought to court and put through the stress of the witness box, that she could not financially afford a [long] hearing and that she was following advice from her counsel. At that point in her evidence she maintained that she wanted to get into the witness box and she would have been quite happy to be exposed to significant cross-examination. That statement does not sit comfortably with her later assertion that it was totally her discretion whether she chose to present evidence to the court or not "otherwise I would have been ordered into the witness box to explain myself, wouldn't I, but I elected not to."
Whatever the true reasons may have been, it is clear that the appellant made a tactical decision not to present evidence in April. I agree with the submission of counsel for the Society that it is another example of the appellant's lack of candour.
Conclusions concerning the outcome of the appeal
No attack has been made on the findings of professional misconduct and unprofessional conduct that were made after the first hearing. When regard is also had to her other acts of professional misconduct, this was a clear case for striking her name from the roll of practitioners. I am referring of course to the deliberate misleading of the court by withholding from Mr Barns, for disclosure to the learned judge, the fact that the NT society had resolved to admonish her, and her deliberate attempt to mislead the learned judge when she gave evidence that at the time she instructed Mr Barns she had forgotten about the NT complaint.
As long ago as 1893 it was said by Lopes LJ in Re Weare; In re the Solicitors Act, 1888 [1893] 2 QB 439 at 448:
"To my mind the question which the Court in cases like this ought always to put to itself is this, Is the Court, having regard to the circumstances brought before it, any longer justified in holding out the solicitor in question as a fit and proper person to be entrusted with the important duties and grave responsibilities which belong to a solicitor?"
That test still applies today. In this case it was correctly answered by the learned judge when she determined to order the removal of the appellant's name from the roll of legal practitioners. Her Honour was correct in her conclusion that the Court can have absolutely no confidence in the circumstances that, were the appellant permitted to practice on any basis, she would appreciate her obligations as a practitioner such that members of the public with whom she would deal would be protected from any wrongdoing.
The appeal should be dismissed.
File No 646/2007
JANET MARGARET SCOTT v LAW SOCIETY OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
SLICER J
12 March 2009
I have had the advantage of reading in draft form the reasons for judgment of the learned Chief Justice and agree with both his reasons and conclusion. I would dismiss the appeal.
File No 646/2007
JANET MARGARET SCOTT v LAW SOCIETY OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
EVANS J
12 March 2009
I agree with Crawford CJ's reasons for judgment and would dismiss the appeal.
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