Southern Law Society v Westbrook

[1910] HCA 31

10 CLR 609

THE SOUTHERN LAW SOCIETY WESTBROOK

RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF Solicitor-Misconduct-Striking off roll.

On an application to strike a solicitor off the roll for professional misconduct the question is, is the Court, having regard to the circumstances brought before it, any longer justified in holding him out as a fit and proper person to be entrusted with the duties and responsibilities which belong to a solicitor ? MELBOURNE,

In re Weare In re The Solicitors Act 1888, (1893) 2 Q.B., 439, applied.

A solicitor, who was entitled to certain benefits under the terms of a will, which had been prepared by himself, and the validity of which was impeached, concealed from his clients, who were also interested under the will, the fact that he took any benefit under the will, and by the concealment of that and other material facts induced those clients to employ him as their solicitor, to become parties to a probate action, to support the will, and to agree to a compromise by which an investigation of the facts upon which the solicitor's right depended was prevented. The Supreme Court of Tasmania having decided that the solicitor's misconduct would be sufficiently punished by a reprimand, on appeal to the High Court,

Held, that the solicitor should be struck off the roll. Decision of the Supreme Court of Tasmania varied.

10 CLR 610

APPEAL from the Supreme Court of Tasmania.

On the application of the Southern Law Society of Tasmania a rule nisi was granted by the Supreme Court calling upon Roland William Theodore Westbrook, a legal practitioner on the roll of the Court, to show cause why he should not be required to answer the matters and allegations in a certain affidavit, and why his name should not be struck off the roll of the Court, or why he should not be suspended from practice, or why the Court should not make such other order as it might think right, and also why he should not pay the costs of the application, on the ground that the matters of fact in such affidavit constituted pro- fessional misconduct on his part as a practitioner and officer of the Court.

The facts disclosed by the affidavit referred to, and by others which were also used on the hearing before the Supreme Court, are fully stated in the judgments hereunder.

The Supreme Court found that Mr. Westbrook had been guilty of breaches of duty which did not amount to fraud, but which were objectionable acts and omissions tending to destroy the con- fidence which clients should be able to repose in their solicitors. The Court ordered that Mr. Westbrook should be reprimanded, but refused to order him to pay the costs of the rule.

From this decision the Southern Law Society now by special leave appealed to the High Court.

Mitchell K.C. (with him Clark), for the appellants. On the undisputed facts, and apart from those about which there may be a conflict of evidence, the conduct of the respondent was such that he was no longer fit to remain on the roll, and the Supreme Court should have ordered him to be removed from the roll.

Ewing and Arthur, for the respondent. All punishment of solicitors is for the benefit of the public In re Stewart 1. It is entirely within the discretion of the Court what punishment should be awarded. The test whether a solicitor should remain on the roll is fitness: Incorporated Law Institute of New South Wales

Meagher 2. Unless the irresistible conclusion from

1L.R. 2 P.C., 88. 29 C.L.R., 655. 10 CLR 611

the evidence is that the respondent was dishonest this Court should not interfere with the decision of the Supreme Court: In re Stewart 1; In re a Solicitor; Ex parte the Incorporated Law Society 2; In re the Incorporated Law Society and Four Solicitors 3.

[ISAACS J. referred to In re Crowdy 4.] The facts in this care are capable of an honest interpretation. The punishment awarded by the Supreme Court was adequate.

Mitchell K.C., in reply, referred to In re Hill 5.

Our. adv. vult.

GRIFFITH C.J. This is an appeal by the Southern Law Society of Tasmania against an order of the Supreme Court of that State making absolute a rule nisi calling upon the respondent, West- brook, to show cause why he should not answer the matters of a certain affidavit and why he should not be struck off the roll of practitioners. The Southern Law Society is by the Statute law of Tasmania authorized to take action in such matters. All the facts were not known to the Society when the rule nisi was granted, but additional facts which subsequently came to their knowledge were brought before the Supreme Court by another affi- davit, and the respondent in his answering affidavit dealt with the matters referred to in both affidavits. The case is therefore to be taken on the footing that the respondent was called upon to answer the matters contained in both affidavits. The Supreme Court after consideration thought that the respondent had been guilty of improper conduct of such a character that it would be sufficiently dealt with by a reprimand, and they expressed their disapproval of the conduct of the Law Society antecedent to the rule nisi and refused them the costs of the proceedings.

Before going into the facts I should say that the charge against the respondent is, in effect, that in order to ensure to himself certain benefits under a will, the validity of which was impeached, he concealed from his clients, who were also interested under the

1L.R. 2 P.C., 88. 2(1894) 1 Q.B., 254. 37 T.L.R., 672. 499 L.T Jo., 65. 5L.R. 3 Q.B., 543, at p. 547. 10 CLR 612

will, but interested in depriving the respondent of any benefit,

the fact that he took any benefit under the will, and that, by the concealment of that and other material facts, he induced those clients to employ him as their solicitor and to become parties to a probate action, to support the will and to agree to a compromise by which an investigation of the facts upon which his right depended was prevented. The charge was a very grave one and, if proved, I think there can be no doubt that the order asked for by the Society should be made. The case of In re Weare: In re The Solicitors Act 1888 1 states very concisely the principles to be applied in such a case. Lopes L.J. 2 said 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?" Mr. Ewing contended that the matter in the present case was merely one of punishment and the proper degree of punishment. But that is not so, as was clearly pointed out by Lord Esher M.R. in the same case. The Supreme Court of Tasmania thought that the question was one merely of the degree of punishment to be awarded. The ground of appeal is that the question is not one of punishment or degree of punishment, but whether the Court is justified in holding out the respondent as a fit and proper person to be entrusted with the duties and responsibilities of a solicitor. Lord Esher 3 referred to the case of Re Brownsall 4, a case in which, a solicitor having been convicted of larceny and sentenced to be branded in the hand and imprisoned for nine months, appli- cation was then made to strike him off the roll. Speaking of that case, he said (3) :- Then Lord Mansfield says We have consulted all the Judges upon this case, and they are unanimously of opinion that the defendant's having been burnt in the hand is no objection to his being struck off the roll.' That would only go to the point whether because he had been punished he could not be struck off; but he goes on to say: And it is on

1(1893) 2 Q.B., 439. 2(1893) 2 Q.B., 439, at p. 448. 3(1893) 2 Q.B., 439, at p. 442. 42 Cowp., 829. 10 CLR 613

this principle, that he is an unfit person to practice as an attorney.' That is the ground. It is not by way of punishment, but the Courts on such cases exercise their discretion whether a man whom they have formerly admitted is a proper person to be continued on the roll or not.' That, he says, is the question; and then he goes on to say Having been convicted of felony, we think the defendant is not a fit person to be an attorney.' There it seems, to me, is the whole law on the matter laid down as dis- tinctly as can be, and in a way the propriety of which nobody, as it appears to me, can doubt."

Upon the facts as presented to the Supreme Court and to us, it appears that the respondent had been for a long time the solicitor of an old widow lady, Mrs. Eleanor Hall, who died on 1st February 1909, aged 91, having been blind for many years-fifteen we are told. On 1st March 1900, during her husband's lifetime, she made a will under which he took a life interest in her property. He shortly afterwards died, and on 6th November 1902 she made a second codicil to her will by which she divided the income of her property amongst various relatives, and in particular gave the income of three-tenths of the estate to Mrs. Hinds, her niece, for life, and the residue of her estate, on the determination of the life interests, she left to her next of kin. On 15th December 1904 she made another will which is the one now particularly in question, and of which the terms are somewhat peculiar. The instructions for the will were given to the respondent, and the will was prepared by him on the day before its execution. By the will the testatrix directed her property to be divided into ten equal parts or shares. She gave shares abso- lutely to one William Batt, whom she appointed one of her executors. She gave one-half of a share absolutely to one Arthur Eckford, who was the respondent's managing clerk. She then directed that the other seven shares should, as to the personalty, be invested, and that the income from the real estate and represent- ing the investment of the personal estate should be applied, in the first place, in paying all rates, taxes, and premiums for insurances, and making repairs and improvements as thereinafter mentioned, and then in paying the income of five shares to five children of her brother Robert Irwin for life and afterwards to their children.

10 CLR 614

The income of one share she directed to be paid to Mrs. Hinds for

life, and after her death the corpus of that share was to go to William Batt, the gift of the corpus immediately following the gift of the income. As to another share she gave the income to be WESTBROOK. divided equally between her nephews William and Thomas Irwin

for life, and after their deaths to their issue. Then followed a long direction to the trustees out of the income of her estate to keep all buildings, &., in repair, and to carry out all that was neces- sary to make the premises tenantable as they might think neces- sary, and to "complete and finish all new houses that may at the time of my decease have been commenced and for that purpose to pay out of the capital moneys in my estate such sums of money as may be necessary," and SO on. Then followed at the end this clause :- And I appoint Roland Theodore Westbrook of Hobart in Tasmania solicitor and his heir residuary legatee hereunder to receive and take for his own absolute use and bene- fit all the corpus of my real and personal estate which may be or may become undevised or bequeathed hereunder for his kindness and attention to me in my matters." So that in effect the respondent became residuary legatee of six-tenths of the estate.

Under these circumstances it was clear that under the second rule laid down in Barry v. Butlin 1, there would have been some difficulty in establishing to the satisfaction of a Court that that gift of residue to the respondent could be maintained. The rule is that if a party writes or prepares a will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased." That may, of course, be in whole or in part. It is possible to grant probate omitting the part of the will which is not established. Some doubts appear to have occurred to the respondent whether the benefit conferred by this will was sufficiently secured to him, for on 8th October 1906 the testatrix executed a conveyance by way of settlement, which was declared to be irrevocable, of all her real

12 Moo. P.C.C., 480, at p. 482. 10 CLR 615

estate to the same persons who were the trustees of the will of 15th December, to be held for her for life and after her death upon the trusts of that will. If that settlement could stand, its effect would be to make the will, SO far as it related to real estate, irrevocable and to secure to the respondent his interest in the residue. It is a fact, perhaps not material, that, owing to the death of one of the beneficiaries, the respondent has already become entitled to a sum of about £4,000.

On 1st February 1909 the testatrix died, and her estate was then worth something over £40,000. On 8th February the respondent wrote a letter to one of the legatees in England, William Irwin. That was, I think, a perfectly natural thing to do. Knowing his address he told him of the death of his aunt and that he (Irwin) was given an annuity by her will. The respondent also promised to write more fully by the next mail, and asked William Irwin to find out the addresses of other beneficiaries. On 15th February the respondent wrote a longer letter to the same William Irwin, stating briefly how the property of the testatrix was disposed of by the will, but not mentioning the residuary gift of corpus to himself, and adding, "this disposes of the ten parts of the whole estate." He then said that Mrs. Hinds was very much dissatisfied that she only received the interest of one share and that the English relatives received SO much, and that she had entered a caveat. He did not mention the previous will under which the English relatives would have taken as next of kin nearly the whole of the residuary estate. The point to which the attention of William Irwin was especially directed was that Mrs. Hinds was dissatisfied because she did not get enough. The respondent then suggested that the English beneficiaries should send a telegram to him authorizing him to act for them and support the will against Mrs. Hinds' objection. On the same day the respondent wrote a letter to one George Irwin, who was not a beneficiary, but whom the respondent had apparently heard of as a relative who might be interested. In that letter there is no suggestion that a copy of the will was sent with it. Mr. Ewing this morning has told us that the trustees of the will have just received a letter from George Irwin stating that a copy of the will was sent to him with that letter, but, as will appear afterwards, it is in the highest degree

10 CLR 616

improbable that that was SO. It was an informal letter, whereas

what purported to be full information was given to William Irwin in a letter in which nothing was said about sending a copy of the will and nothing about the respondent being residuary legatee. William Irwin, following the suggestion made by the O.J. respondent, on 22nd March sent him a telegram, instructing

him to act on behalf of certain persons who on 21st March had signed a document by which they authorized William Irwin to send the telegram and agreed to pay costs in pro- portion to their interests under the will. That telegram was followed up by a formal authority which reached Hobart about the end of April. On 10th May the respondent wrote again to William Irwin saying :- As requested we send you under separate cover a copy of the will and codicil herewith." It is in the highest degree improbable that any copy of the will was sent before that date. He said in the same letter:- We are there- fore only writing you hurriedly by this mail and by the next we hope to send your solicitors a copy of the reasons which Mrs. Hinds files for her opposing the will and codicil. We will also write you hereon." On 17th May Mrs. Hinds filed her pleas. The first was that the testatrix was not of sound mind, memory and understanding; the second that the execution of the will was obtained by the undue influence of William Batt, Arthur Eckford, the respondent, and others acting with them; and the third that the testatrix did not know and approve of the contents of the will. On the same day the respondent wrote to William Irwin a letter in which he purported to state what Mrs. Hind's pleas were. The first he said was that the testatrix was not of sound mind, memory and understanding, and the second "undue influence." He did not mention that the undue infiuence alleged was that of himself and of his managing clerk. If he had done SO, we cannot tell what impression would have been produced on the minds of the persons receiving the letter, but we may conjecture. He added in that letter that the case would probably be set down for hearing on 7th July. On 24th June, nearly two months after the authority was received, application was made ex parte to a Judge for leave for the English beneficiaries to intervene, and an order was accordingly

10 CLR 617

made. No notice of that order was given to Mrs. Hinds, who was not aware of it until the case came on for hearing on 15th July, when counsel appeared for the executors, for the English legatees, and for Mrs. Hinds, the counsel for the executors and for the English legatees were both instructed by the respondent.

Evidence was given, apparently on the first issue, viz, that the testatrix was of sound mind, memory, and understanding. For that purpose Dr. Giblin was called. He said that the will was read over and fully explained to the testatrix, whom he did not know before. In cross-examination he said:- I did not under- stand that Mr. Westbrook was to get six-tenths of the corpus of the property after certain life interests fell in. I did not grasp that he would ultimately get six-tenths. I took it that the residuary legatee's share would be a very small thing"; and in re- examination he said :-" My idea was that the residuary legatee would get nothing." If that was the opinion of an intelligent doctor called in for the purpose of certifying that the testatrix understood what was being said, it is at least possible that the testatrix also thought that the residuary legatee would get practically nothing. Eckford, the managing clerk of the respondent for twenty-seven years, then deposed that he read over the will clause by clause and explained it and that the testatrix understood it. At the conclusion of his examination in chief the Court adjourned for the day. At that point it was extremely doubtful whether the residuary gift to the respondent could have been supported. On the following morning it was announced that the parties had come to terms, and that Mrs. Hinds would withdraw her pleas. What she had under the will was a life interest in property worth about £4,000. What was given to her to withdraw was a lump sum of £5,000 and her costs as between solicitor and client. She was allowed to withdraw her pleas and probate was granted. Public attention seems then to have been attracted to the case, and the Law Society intervened. On 26th July, while in correspondence with the Law Society, the respondent wrote a letter to the English solicitors for the English legatees telling them that a proposal for a compromise had been made, that the compromise had been submitted to the Court in Chambers, that the Judges had approved of it, that the

10 CLR 618

case had been withdrawn by the Court, and that "the Chief Justice

gave expression to the views of the Court in approving of it, that he and his brother Judges were satisfied with the evidence given that Mrs. Hall was mentally sound in memory and understand- WESTBROOK. ing." The other issues apparently had not been considered at all.

In the letter the respondent went on to point out that £5,000 was considerably more than the interest of Mrs. Hinds was worth. He said that the will was made three years and four months before the death of the testatrix, and added "she had a copy of it and there is not, we think, the slightest doubt as to her being thoroughly acquainted with it and that it carried out her wishes and instructions. We have unfortunately had to bear a good deal of odium in the matter because our Mr. R. W. T. Westbrook drew the will and comes in as residuary legatee. Mrs. Hall was asked by him that another solicitor should act in drawing the will, but she refused to allow it and Mr. Westbrook had to do it by her instructions." He did not mention the fact that the testatrix was blind. In the same letter the respondent wrote:- " We sent Mr. Wm. Irwin a copy of the will and codicil on 10th June [May] last and no doubt he has handed it to you and you have made all those interested aware of it." That effectually negatives the suggestion made this morning that a copy of the will was sent to George Irwin on 15th February.

It results from all this that the respondent, by the non-dis- closure of the existence of the previous will and of his being made the residuary legatee of the corpus of six-tenths of the property, induced the English legatees to appoint him to support the will against their own interests. In other words, by concealing from them the fact that his interest and theirs were adverse, he induced them to appoint him to support his interest and oppose theirs. If ever there was a case of conflict of duty and interest this is one.

Then the only question is: Is conduct of that sort, which seems to have been clearly proved, reasonably capable of an innocent interpretation ? The omission by the respondent to mention his interest might, as I suggested during argument, have been owing to his consciousness of rectitude, and to the fact that he was perfectly satisfied that the testatrix understood what she

10 CLR 619

was doing, and that it had not occurred to him that any doubt could arise as to the validity of the will, and therefore that he thought it unnecessary to mention his interest. But I find it difficult to reconcile that view with the settlement by which he had taken steps to make the will irrevocable as far as he could, and still more difficult to reconcile it with the omission to inform his clients, when there was still ample time to do SO before the trial, that the undue influence alleged was that of himself and of his managing clerk. Under these circumstances, with great regret I feel myself bound to come to the conclusion that the charge has been established and that only one consequence can follow, namely, that the respondent must be removed from the roll of practitioners.

O'CONNOR J. I entirely concur in the judgment just delivered, and I should content myself with merely expressing my concur- rence were it not that the importance of the issue involved both to the public and to the solicitor makes it necessary that I should add a few words. The Supreme Court in admitting a solicitor to the roll incurs very great responsibility to the public. Having ad- mitted him, it incurs an equally serious responsibility in keeping him on the roll if once the attention of the Court has been called to conduct on his part which shows that he is not a fit and proper person to remain there. As was pointed out by Lopes L.J. in In re Weare; In re The Solicitors Act 1888 1, referred to by the Chief Justice, the Court in maintaining a solicitor on the roll is holding out to the public that he is a fit and proper person to be entrusted by the public with those difficult and delicate duties and that absolute confidence which the public must repose in persons who fulfil the duties of solicitors.

The Southern Law Society, which may be taken to represent in the Southern part of Tasmania the profession of which the respondent is a member, have brought forward very serious charges of misconduct against him. It is true the charges are supported by what must be described as circumstantial evidence, but in many issues of a grave character which have to be decided by Courts, that is the only kind of evidence available, and when

1(1893) 2 Q.B., 439, at p. 449. 10 CLR 620

sufficient it is as cogent as direct evidence. If the Court is of

opinion that the only reasonable inference to be drawn from the facts is that the solicitor has been guilty of serious misconduet, then it is bound to act upon such evidence.

No doubt there are many cases of misconduct which can be fairly met by such disciplinary punishment as the Court may in its discretion think fit to inflict. It may be necessary to inflict it in some cases where there is nothing to show that the solicitor is not fit to remain on the roll, and in such cases, though the power to review exists in the High Court, it is highly improbable that it would be exercised. But where the misconduct is of such a nature that the solicitor is no longer a fit person to remain on the roll, and the Court below has failed to remove him, then this Court is called upon to interfere.

The misconduct which is charged here has been very fully dealt with by the Chief Justice and I do not wish to enter into the details of it, but I desire to express my concurrence in the view that the Supreme Court of Tasmania did not, as it appears to me, properly realize the gravity of the misconduct of which this solicitor had been undoubtedly guilty. The result to him was a reprimand without even having to pay the costs of the Law Society. The most trivial offence by a solicitor would, if proved, merit that kind of punishment. But it is quite evident from the terms of their judgment that the Supreme Court took the view that the conduct was of such a nature as to be fully punished by a reprimand. Now the view of the matter which it seems to me the Court is bound to present to itself is this:-Would a person proved to have been guilty of conduct of a similar kind be admitted to the profession I think it is impossible to say that the Court would, if that was the question they were con- sidering, admit a person to the roll who had been guilty of the conduct which has undoubtedly been established against the respondent.

The circumstances which are relied upon by the Law Society extend over a considerable period, and relate to the early con- nection of the respondent with the property of this old lady, and to the circumstances under which he originally became a bene- ficiary under her will. There is not, it appears to me, sufficient

10 CLR 621

evidence before the Court to create anything more than suspicion that the gift to him may have been in some way brought about by his undue influence. But when we get to the period of the making of the will on 15th December 1904, the position amounts to much more than suspicion. This old lady was 84 years of age and had been blind for some years. She had about her no relatives or persons interested in her welfare, and apparently the only persons who took an interest in the making of her will were the respondent, his managing clerk, and an intimate friend of the managing clerk named Batt. Under these circumstances the fiduciary nature of the relation between the respondent and his old lady client was of a peculiarly delicate character, but, not- withstanding this, without the advice or assistance of any other person, the will is made conferring very large benefits upon the respondent and his managing clerk. The matter does not stop there because two years afterwards the deed of settlement was prepared. Under all the circumstances it was peculiarly the duty of this solicitor to take care that the old lady was properly advised and fully understood the dealings with her property by which he was to benefit. Notwithstanding this a deed of settlement was drawn which, SO far as one can see, would confer very little benefit on his client, but would secure to him irrevocably the benefits which were conferred by the will.

A little while afterwards one of the trustees died, young Batt was appointed in his stead, and from that out, apparently, the only persons who have anything to do with the property are Batt, the father, an intimate friend and business associate of Eckford, Batt the son, Eckford and the respondent. In 1909 the testatrix died, and proceedings were taken for obtaining probate of the will. Without going into the details of the letters referred to in the argument it is perfectly clear to my mind that the respondent communicated with the English relatives in order to get them before the Court as parties to the probate proceedings SO that he might obtain proof of the will under such circumstances that his possession of the interest which he acquired under it would not be disturbed. I have no hesitation in saying that the evi- dence establishes beyond all doubt that the consent of these English relatives as parties to the suit and supporters of the will

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OF A. was obtained by the respondent's wilful concealment of all the

circumstances which could indicate to them that his interest and their interests were adverse. It is difficult to imagine a case in which a solicitor could be guilty of greater misconduct than WESTBROOK. that, and I therefore agree that his misconduct was of such a

character that the Supreme Court of Tasmania ought no longer to hold him out to the public as a fit and proper person to remain a solicitor. One must realize, of course, that the punishment of striking a solicitor off the roll is a very serious one. It involves very serious consequences to him, but the interests of the public and those of the honorable profession to which the respondent belongs must also be considered. Having regard to those interests as well as to the solicitor's interests, this Court, in my opinion, can properly take no other course than to vary the order of the Supreme Court of Tasmania by directing that the respondent should be removed from the roll.

ISAACS J. read the following judgment :-The seriousness of these proceedings to Mr. Westbrook, and the fact that I am differ- ing from the Supreme Court of Tasmania on a question of general importance, lead me to state my own reasons for arriving at the same conclusion as my learned colleagues.

The letter of 15th February 1909 was the first link in the chain of events that have involved Mr. Westbrook in this controversy, the compronise of 16th July 1910, and his written account of it being the last.

For some time I struggled hard to read in these events and the intervening circumstances a meaning that would absolve the respondent from the more serious aspect that has been presented.

I regret my inability to do SO.

The fact that he was a legatee of a client under a will prepared by himself was in itself sufficient on well established legal prin- ciples to excite the suspicion of the Court. Eckford, his manag- ing clerk, having assisted in taking the instructions, brought him- self also within the same sphere of suspicion. The age and visual infirmity of the testatrix increased the burden of dispelling that suspicion. Other circumstances added to the difficulties of the task-as the deed of October 1906.

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In that situation the greatest care and candour were demanded of Mr. Westbrook in assisting the Court to discharge its duty.

The letter of 16th February 1909 took a decided step in the opposite direction. Its declared purpose was to solicit and even urge the English beneficiaries to place themselves at once and unreservedly in Westbrook's hands. Its effect was to suppress vital information, namely, that Batt was an executor, and a close friend of Eckford that Eckford was Westbrook's managing clerk, and had assisted to take the instructions that Westbrook was deeply interested personally, and had himself prepared the will that Batt had a further interest in the corpus, and that Mrs. Hall was blind for 15 years, and had made other wills in which the strangers had smaller interests. It further untruly stated that the English beneficiaries must be represented-that is, to support the will. The real effect of their presence in sup- port of the application for probate was twofold, first to count against Mrs. Hinds, and next to bind the beneficiaries themselves by the result. The very first step therefore was a violation of duty to the Court, and a want of loyalty to clients he himself sought out. The English beneficiaries gave the necessary author- ity by cable and letter, the latter reaching Mr. Westbrook early in May.

On the 10th of that month, with the most absolute air of frankness he promised to send to the English solicitors of the beneficiaries a copy of the caveator's reply and with equal appearance of good faith a week later (17th May) he purports to do SO. The only important plea for present purposes was the second, which was stated in the letter simply as "undue influ- ence." A copy of the will had gone a week before, as it was requested. That will would have shown that Batt was executor, and the extent of his interest, and Westbrook residuary legatee. But in view of these facts, and of the express promise in the previous letter, a special obligation of disclosure existed which I regret to say was utterly neglected. The whole point of the second plea was omitted, and deliberately, for it could not be otherwise. The allegation was that the undue influence was exercised by Batt, Eckford, Westbrook and others acting with them. What possible motive consistent with honesty could induce the omission

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of these names ? It would have become at once apparent to the

legal advisers in England, if not to the laymen themselves, had the real truth been told, that the beneficiaries there were really being asked to support the interests and defend the challenged conduct of the executor, the solicitor, and the solicitor's clerk in relation to the will of 15th December 1904.

The concluding paragraph of the same letter of 17th May to Ford &Warren is in these terms:-" We are doing everything in our power to protect your clients' interests therein and your counsel is ably acting in the case." It would be hard to suggest anything more cunningly designed to throw the distant legatees off their guard until the matter was closed. We are invited to assume that all these extraordinary circumstances were mere unhappy but well-meant accidents. No step was taken to secure the intervention of the English beneficiaries until 24th June. This was close up to trial. The delay in itself is equivocal, and

I draw no adverse conclusion from it. But it was done without notice to Mrs. Hinds, upon whom it was sprung at the trial. There can be no shadow of doubt that at the time the order was obtained, and when it was acted upon by appearance at the trial, Mr. Westbrook, if he knew anything whatever of his own busi- ness, knew perfectly well that the consent of the English legatees to appear by his instrumentality was brought about by his representations, and that those representations included the con- cealment of most material facts. At that late stage ignorance was impossible; and in any event the respondent cannot be allowed to assert it. A distinct wrong was done to confiding clients, especially disabled from protecting themselves. It was also a block in the Court's way, when it attempted to arrive at the truth. Its tactical value was to overweight Mrs. Hinds; its pecuniary value in inducing the compromise is now beyond our calculation.

It is not our province to canvass the justice of the order for probate. We are not now concerned with that. But we are con- cerned with the justice of the methods by which it was procured.

The Supreme Court perceived three reprehensible features in the respondent's conduct-first, in explaining the will to the testatrix, next, in executing the settlement, which both in the

10 CLR 625

recital and operative part is expressed to be irrevocable, and lastly, in concealing in the letter of 15th February Batt's interest in the one-tenth of the corpus, and Westbrook's interest in the estate.

The Court does not place weight upon the other circumstances to which I have alluded, and does not think the Court was misled. But plainly the Court was misled by having concealed from it the mode by which the respondent had secured and held the instructions of his client to appear-a most material circuinstance in inducing the Court to consent to the withdrawal of the pleas; and the Court may have been misled by the consequent breaking off of the proceedings, to which counsel for the English bene- ficiaries agreed- course, in utter ignorance of the way his clients had been induced to assume their attitude of support. It is, in short, impossible to say now how far justice has been foiled, with the result-intendended or not-of placing rights worth thou- sands of pounds in full possession of Westbrook, Eckford and Batt.

In face of all this can it be reasonably said that a reprimand is sufficient to meet the case ?

It has been argued that it is a mere question of punishment, and the Supreme Court of Tasmania has exercised its discretion as to that.

We rejected that argument in Incorporated Law Institute of New South Wales v. Meagher 1, and reject it now. No doubt the severity of the Court, in repressing the misconduct of its officers, is felt as punishment. But that is not the aim of the discipline. I have in Meagher's Case (1) dealt SO fully with what

I believe to be the legal principles derivable from the authorities appropriate to this class of case that I refrain from entering upon them now. I content myself with repeating a few words I there said 2 :- There is therefore a serious responsibility on the Court-a duty to itself, to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfac- torily establish his right to that credential. It is not a question of what he has suffered in the past, it is a question of his worthiness and reliability for the future."

19 C.L.R., 655. 2C.L.R., 655, at p. 681. 10 CLR 626

That I conceive to be the true view point. The discipline exerted by the Court looks entirely to the future. How will the administration of justice be affected ? How can this prac- titioner be trusted to make wills for confiding clients, often in extremity of body and spirit, and afterwards, when the client is for ever silent, assist the Court in determining whether they should be accepted as the true expression of the testator's own mind, or the unfair product of the will of the solicitor and his managing clerk ?

That is the real question, and I regret to say that in my opinion one conclusion only is possible, namely, that the respondent cannot possibly be SO trusted to place duty before personal advantage. His conduct throughout this case has been con- sistently misleading; it was persevered in for a lengthened period it went systematically from step to step it began with the invitation to the clients and ended only with the determination of the suit and his account of the way it ended it always wore the semblance of candour, but most frequently tended to con- cealment or deception; it assumed an air of loyalty and even anxiety for the welfare of the beneficiaries, but moved steadily in the direction of self-interest. Even now it stands without ex- planation, or contrition, or any promise for greater care or circumspection in the future.

Giving the fullest weight to the principle that the onus of proof rests on the attacking party, I cannot but be convinced that the onus is amply discharged, and the facts leaving no other reason- able conclusion possible, I concur in the judgment proposed by the learned Chief Justice.

I feel bound to add that learned counsel for the respondent left nothing unsaid that could in the least degree benefit their client's

HIGGINS J. read the following judgment:- concur. I not at all surprised, however, at the resentment expressed by the learned Judges with regard to the censorious resolutions-par- ticularly resolution 4-passed by the Law Society and published on imperfect information. But it is our duty, on the appeal, to avoid all by-issues, and to keep strictly before our minds the real

10 CLR 627

question-is the respondent, on the facts disclosed, a fit and proper person to be retained on the roll as a solicitor, as an officer of the Court ? No doubt the burden lies on the Society to show that he is not. The settlement was an extraordinary document, and admittedly, on the facts appearing, could have been set aside for undue influence. It is not necessary for us to find that the will could have been set aside for undue influence. But the circumstances being very suspicious, the respondent sent, or caused to be sent, letters to the beneficiaries in England, which letters were cunningly devised to put the beneficiaries off their guard, to conceal from them the facts on which the will might have been attacked. The respondent was the solicitor for the executors as well as the solicitor who prepared the will and got the benefits and it was his duty to communicate to the bene- ficiaries all material facts by which they might direct their action. He pretended that Mrs. Hinds was attacking the beneficiaries- to use his words, is bitterly opposed to you" whereas Mrs. Hinds was attacking his own conduct, and the conduct of his clerk and of an executor, for undue influence. By these means he got the beneficiaries to trust their interests to his care. It is as if a wolf in sheep's clothing persuaded a lamb to put itself under his protection against a wolf whom he pretends to be near. So great is the power which a solicitor has, in affairs of money, over his clients that the Courts insist on the utmost good faith on his part towards them, and do not tolerate deceit practised by him with a view to his private interest. I come to the conclusion- though with much regret-that Mr. Westbrook must be removed from the roll. We are not allowing an appeal as to the mere extent of punishment. We are allowing an appeal on the ground that the Supreme Court has not, as we think, apprehended the true character of the misconduct of which Westbrook has been guilty.

Appeal allowed. Rule absolute to strike the

respondent off the roll of practitioners. Respondent to pay the costs of the rule. Respondent to pay the costs of the appeal.

10 CLR 628

Solicitors, for the appellants, Finlay, Watchorn &Clark Solicitors, for the respondent, Ewing, Hodgman &Seager.

[HIGH COURT OF AUSTRALIA.]

HENRY HAWKER

JAMES McLEOD AND JOHN DICKINSON

DEFENDANTS, Crown Lands Act 1884 (N.S.W.) (48 Vict. No. 18), secs, 121,* 122-Agreement to

lease conditionally purchased and conditionally leased land-Option of purchase --Agreement made prior to issue of certificate of conformity-Illegral agreement reserves Meaning of " applicant."

Sec. 121 of the Crown Lands Act of 1884 provides that every devise, con- April 12, 13,

tract, lease, &., made before, at, or after the date of any application for a con- ditional purchase or conditional lease, with the intent or having the effect of enabling any person other than the applicant to acquire the land applied for, shall be illegal.

The respondent D. in 1902 applied for an original conditional purchase of Crown lands, and his application was confirmed in the same year. In September 1906 he agreed to lease these lands to the appellant for three years, with an option of purchase at any time during that period. In February 1908 the appellant gave notice to the respondent that he in- tended to exercise the option of purchase. In June 1908 a certificate of conformity was issued to the respondent. *Sec. 121 is as follows: " Every

with the intent or having the effect of devise contract lease agreement or

enabling any person other than the security made entered into or given

applicant to acquire by purchase or before at or after the date of any appli-

otherwise the land applied for shall be cation to make a conditional purchase

illegal and absolutely void both at law and in equity.'