Stanoevski v The Council of the Law Society of New South Wales

[2008] NSWCA 93

New South Wales

Court of Appeal

CITATION:	Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93
HEARING DATE(S):	22 April 2008
JUDGMENT DATE:	14 May 2008
JUDGMENT OF:	Hodgson JA at 1; Campbell JA at 2; Handley AJA at 86
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	LEGAL PRACTITIONERS – discipline – professional misconduct – proceedings commenced in Administrative Decisions Tribunal under Legal Profession Act 1987 – Appeal Panel ordered Appellant’s name be removed from roll of solicitors – right of appeal to Supreme Court on question of law – s 118 Administrative Decisions Tribunal Act 1997 – proceedings pending in Tribunal immediately before commencement of Legal Profession Act 2004 – proceedings governed by 1987 Act – Sch 9, cl 15 Legal Profession Act 2004 – whether Appeal Panel applied wrong legal test or misapprehended nature of its task in determining whether Appellant’s name should be removed from roll – proper test for removal from roll – whether a difference between fitness to be on the roll and fitness to hold a practising certificate – whether Appeal Panel misapprehended on which party onus lay of establishing certain matters – whether Appeal Panel took into account irrelevant matters – whether Appeal Panel made erroneous findings of fact – whether Appeal Panel exercised its discretion in a manner outside permissible legal bounds – where ground of appeal dependent on success of at least one of other grounds - EVIDENCE – matters relating to proof – onus of proof – proof of negative proposition – not a fit and proper person to remain on roll – shifting of evidential onus in respect of negative proposition – distinction between burden of proof in the sense of establishing a case and burden of proof in the sense of introducing evidence - WORDS AND PHRASES – “permanently unfit to practice”
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987 Legal Profession Act 2004
CATEGORY:	Principal judgment
CASES CITED:	Ex parte Brounsall (1778) 2 Cowp 829; 98 ER 1385 Ex parte Lenehan (1948) 77 CLR 403 Johns v Law Society of NSW [1982] 2 NSWLR 1 Law Society of NSW v Foreman (1994) 34 NSWLR 408 Liljana Stanoevski v the Law Society of New South Wales (NSW ADT Appeal Panel, 20 September 2004, unreported) Liljana Stanoevski v The Law Society of New South Wales (NSW ADT Appeal Panel, 27 September 2004, unreported) New South Wales Bar Association v Maddocks (Court of Appeal, 23 August 1988, unreported) New South Wales Bar Association v Murphy [2002] NSWCA 138; (2002) 55 NSWLR 23 NSW Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal, 31 July 1987, unreported) Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Re B [1981] 2 NSWLR 372 Re Evatt; Ex parte NSW Bar Association (1967) 67 SR (NSW) 236 Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 Stanoevski v Law Society of New South Wales (LSD) [2007] NSWADTAP 25 Stanoevski v Law Society of New South Wales (No 2) (LSD) [2004] NSWADTAP 35 Stanoevski v Law Society of New South Wales [2003] NSWADTAP 33 Stanoevski v R [2001] HCA 4; (2001) 202 CLR 115 Stanoevski v The Council of the Law Society of New South Wales [2005] NSWCA 428 Wentworth v NSW Bar Association (Court of Appeal, 14 February 1994, unreported) Yates Property Corporation Pty Ltd (in liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156
TEXTS CITED:	Phipson on Evidence, 10th ed 1963, para 95
PARTIES:	Liljana Stanoevski (Appellant) The Council of the Law Society of New South Wales (Respondent)
FILE NUMBER(S):	CA 40377/07
COUNSEL:	CE Adamson SC; JC Sheller (Appellant) GC Lindsay SC (Respondent)
SOLICITORS:	Greg Walsh & Co, Hurstville (Appellant) Law Society of New South Wales, Sydney (Respondent)
LOWER COURT JURISDICTION:	Administrative Decisions Tribunal of NSW Appeal Panel
LOWER COURT FILE NUMBER(S):	ADTAP 059079
LOWER COURT JUDICIAL OFFICER:	Acting Judge A Karpin, Deputy President; G Molloy, Judicial Member; C Bennett, Non Judicial Member
LOWER COURT DATE OF DECISION:	16 May 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	Stanoevski v Law Society of New South Wales (LSD) [2007] NSWADTAP 25

CA 40377/07

HODGSON JA
CAMPBELL JA
HANDLEY AJA

14 MAY 2008

LILJANA STANOEVSKI v THE COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES

Judgment

1 HODGSON JA: I agree with Campbell JA.

2 CAMPBELL JA:

Nature of the Case

3 The Appellant is a solicitor who the Appeal Panel of the Administrative Decisions Tribunal has found engaged in various significant acts of professional misconduct: Stanoevski v Law Society of New South Wales (No 2) (LSD) [2004] NSWADTAP 35.

4 After a further hearing on penalty, the Appeal Panel ordered her name be removed from the roll of solicitors: Liljana Stanoevski v the Law Society of New South Wales (NSW ADT Appeal Panel, 20 September 2004, unreported.)

5 She appealed to the Court of Appeal against both of those decisions: Stanoevski v The Council of the Law Society of New South Wales [2005] NSWCA 428.

6 The Court of Appeal held that there was no reason to set aside the findings of professional misconduct, but that the process by which the penalty had been arrived at contained a material procedural flaw. Thus, the Court of Appeal set aside the orders imposing the penalty, and remitted the matter to the Appeal Panel “for the question of the proper orders to be made in light of the findings of professional misconduct to be decided again in accordance with the reasons of the Court of Appeal”.

7 When the Appeal Panel reconsidered the question of penalty, it came once again, though by a majority rather than unanimously, to the conclusion that the Appellant’s name should be removed from the roll: Stanoevski v Law Society of New South Wales (LSD) [2007] NSWADTAP 25. The present appeal is from that decision.

8 The right of appeal from the Appeal Panel to the Supreme Court lies only “on a question of law”: section 119(1) Administrative Decisions Tribunal Act 1997 (“ADT Act”).

9 The errors of law that the Appellant submits the Appeal Panel committed are:

(1) Applying the wrong legal test, or misapprehending the nature of its task, in determining whether the Appellant’s name should be removed.

(2) Misapprehending on which party the onus lay of establishing certain matters.

(3) Taking into account irrelevant matters.

(4) Erring in finding that the Appellant had some recollection of the events that were the subject of the findings of professional misconduct.

(5) Exercising its discretion in a manner outside permissible legal bounds.

The Course of the Proceedings

10 Though this appeal is from the decision of the Appeal Panel given in 2007 on penalty, it is necessary to have some understanding of the course of the proceedings prior to that particular decision. In all, there has been a first instance decision of the Administrative Decisions Tribunal, a total of four separate decisions of the Appeal Panel, and the decision of the Court of Appeal to which I have earlier referred.

11 The Law Society began proceedings against the Appellant by filing in the Tribunal on 26 March 2002 an information under section 167 Legal Profession Act 1987 (“the 1987 Act”). It made a total of nine allegations of professional misconduct, and one of unsatisfactory professional conduct. Two of the allegations of professional misconduct were dismissed, and the allegation of unsatisfactory professional conduct is not relevant for present purposes.

12 The first instance hearing of the Tribunal occurred in December 2002, with judgment being given on 17 April 2003. The first group of acts of professional misconduct that the Tribunal found related to the handling by the Appellant of a simple application for probate. She delayed, in a way found not to amount to professional misconduct. She replied to letters from the Law Society concerning a complaint about the handling of the estate on 29 January 1993, 12 March 1993, and 29 March 1993, in a way that the Tribunal found was misleading. The Tribunal found that her dealings with the Law Society concerning the estate were professional misconduct.

13 Another group of findings of professional misconduct related to instructions received concerning a property settlement relating to the divorce of Mr and Mrs Buldioski. They had agreed on the property division they wanted made, and the Appellant’s task was to implement that agreement. She forged the signatures of Mr and Mrs Buldioski on four separate copies of consent orders, and purported to attest (in her own name) those signatures. Those orders were filed with the Family Court. In correspondence with the Law Society she made positive assertions that the documents were signed before her, and were not forgeries. Those assertions were held to be misleading, or attempting to mislead, the Law Society. Such letters were written to the Law Society on 22 June 1992, 20 October 1992, and 23 November 1992. Lodging the purported order with the Family Court was held to be misleading, or attempting to mislead, the Family Court. The misleading of, or attempting to mislead, the Law Society, and the misleading of, or attempting to mislead, the Family Court were all held to be professional misconduct.

14 A third group of complaints related to divorce proceedings involving a Mrs Fowler. Three affidavits, dated 27 January 1993, 4 February 1993, and 13 April 1993, purportedly sworn by Mrs Fowler, were attested by the Appellant, notwithstanding that Mrs Fowler had not signed the documents in front of her. The Appellant lodged those documents with the Family Court. The false attestation, and the lodging of the documents with the Family Court, were both held to be professional misconduct.

15 On the basis of these various acts of professional misconduct, the Tribunal ordered that her name be removed from the roll.

16 There was evidence before the Tribunal, that it accepted, that in the period 1991-1993 the Appellant had some significant personal difficulties. She suffered a miscarriage in August 1991, which led to depression. The birth of a child in July 1992 led to some stress-related complications. She suffered a second miscarriage in February 1993, resulting in a continuation of her stress and depression. From 1991 she also had marital difficulties. Through all these difficulties she worked at her practice with scarcely a break. Her depression was not diagnosed at the time. It was first diagnosed, retrospectively, in April 1997.

17 The Appellant appealed to the Appeal Panel against the Tribunal decision. That appeal succeeded: Stanoevski v Law Society of New South Wales [2003] NSWADTAP 33. The basis on which it succeeded was that the Tribunal had made it appear that it had not heard and determined the actual case that the Appellant was putting forward, concerning the significance of the medical and personal difficulties she was undergoing. The Appeal Panel ordered a reconsideration. The Appeal Panel decided it would not remit the matter to the Tribunal, but that it would extend the appeal to the merits, and itself hear such further evidence as the parties wished.

18 There was a hearing before the Appeal Panel for the purpose of that reconsideration in January and March 2004, with a decision concerning it delivered in August 2004. For the purpose of that hearing the Appeal Panel was provided with some fresh medical evidence, but the Appellant did not give evidence herself. Following that reconsideration, the Appeal Panel affirmed the findings of misconduct: Stanoevski v Law Society of New South Wales (No 2) (LSD) [2004] NSWADTAP 35. A further hearing on penalty that followed resulted in the Appeal Panel ordering that the Appellant’s name be removed from the roll: Liljana Stanoevski v The Law Society of New South Wales (NSW ADT Appeal Panel, 27 September 2004, unreported).

19 Through the histories in the new medical evidence made available for the reconsideration, some additional facts were established relevant to stresses that the Appellant was under in the course of the 1990s. She had been the subject of a criminal charge in April 1993, on which she was convicted in March 1997 and sentenced to 9 months home detention in June 1997. The conviction was quashed by the High Court in 2001 (Stanoevski v R [2001] HCA 4; (2001) 202 CLR 115) but only after she had served the sentence. She was not re-tried. When the conviction had been quashed, the sole relevance of the charge, conviction and sentence was to the stress to which the Appellant had been subjected.

20 In the course of its rehearing, the Appeal Panel reached the conclusion that the Appellant had given deliberately false evidence before the Tribunal. The Tribunal had rejected certain evidence that the Appellant had given before it, had found that “her evidence is substantially a reconstruction rather than a recollection”, had expressed the view that her “oral evidence to this Tribunal has in the Tribunal’s opinion been less than frank”, but had said nothing about her evidence being deliberately false.

21 The Appellant had never been charged with giving false evidence before the Tribunal. It was the fact that the Appeal Panel took into account its finding that she had given such false evidence to the Tribunal that led this Court in 2005 to set aside the 2004 order removing the Appellant’s name from the roll and to remit the matter to the Appeal Panel for further hearing on sentence.

The Appeal Panel Decision against which this Appeal is made

22 The hearing from which this appeal comes occurred on 28 and 29 August 2006, with the decision being delivered on 16 May 2007. That hearing took place before a newly constituted Appeal Panel. The transcript of the 2002 hearing before the Tribunal, and the documentary evidence that had previously been before the Tribunal and the Appeal Panel were put in evidence for the purpose of that hearing. As well, new medical evidence was called, and the Appellant gave oral evidence. As mentioned, she had not given evidence at the previous rehearing in 2004 before the differently constituted Appeal Panel.

23 It was uncontested evidence at the 2006 Appeal Panel hearing that the Appellant gave up practice on a date “in or about 1995 or 1996, that she held a practising certificate between late 2001 and early 2003, and had not held a practising certificate since that time.” She had worked as a solicitor in the period between late 2001 and early 2003 as an employee rather than on her own account, and subject to a restricted practising certificate.

Relevant Legislation

24 Clause 15 of Schedule 9 of the Legal Profession Act 2004 provides that a complaint that was made under the 1987 Act and in respect of which proceedings instituted under the 1987 Act in the Tribunal were pending immediately before the commencement day of the 2004 legislation are to be dealt with as if the 2004 legislation had not been enacted. As the proceedings against the Appellant were begun in March 2002, the 1987 Act continues to be the relevant legislation for the purpose of this appeal.

25 Part 10 of the 1987 Act runs from section 123 to 171T. Section 123 states that the general objects of that Part include:

“(b) to ensure compliance by individual legal practitioners with the necessary standards of honesty, competence and diligence, and
(c) to maintain at a sufficiently high level the ethical and practice standards of the legal profession as a whole.”

26 While section 127(1) states certain matters that “professional misconduct” includes, it does not purport to be an exhaustive definition.

27 Section 167 confers on the Tribunal power to conduct a hearing into each allegation particularised in an information laid with it.

28 Section 171C provides:

“ 171C Determinations of Tribunal
(1) If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct, the Tribunal may do any one or more of the following:
(a) order that the name of the legal practitioner be removed from the roll of legal practitioners if the legal practitioner is guilty of professional misconduct,
…
(b) order that the legal practitioner’s practising certificate be cancelled,
(c) order that a practising certificate not be issued to the legal practitioner until the end of the period specified in the order,
…
(g) in the case of a solicitor, make any one or more of the orders referred to in subsection (2),
…
(i) make ancillary orders.
(2) In the case of a solicitor, the Tribunal may do any one or more of the following:
…
(f) order that the solicitor cease to accept instructions in relation to the class of legal services specified in the order,
(g) order that the solicitor’s practising certificate be endorsed with a condition restricting the solicitor from acting as a solicitor otherwise than in the course of employment by a solicitor holding an unrestricted practising certificate.
…”

Application of the Wrong Test, or Misapprehension of the Correct Task?

29 In the course of the reasons of the majority the question being considered was stated in various ways. At para [50] they said:

“The findings of professional misconduct are not in issue. The matter to be determined is whether or not the Appellant is presently a fit and proper person to hold a practising certificate. There can be little doubt that at the time of the events giving rise to these long running proceedings, the Appellant was not a fit and proper person to be permitted to practise as a solicitor . There is persuasive evidence that she was not a fit and proper person as at 2002 when the matter was before the Divisional Tribunal. That is accepted by the Panel. It is not, however, conclusive of the issue to be determined. The evidence given by the Appellant in 2002 is part of material the Panel will have to consider in determining whether or not she is presently a fit and proper person to be on the roll of legal practitioners.” (emphasis added)

30 At [74] the Panel said:

“This Appeal Panel, having reviewed the evidence available to the Divisional Tribunal and to the first Appeal Panel, is satisfied that at the time of the events constituting the findings of misconduct; at the time of the hearing before the Divisional Tribunal; and at the time of the hearing before the first Appeal Panel, the Appellant was not a fit and proper person to hold a practising certificate ; she was clearly guilty of professional misconduct, and having regard to the obligation of the Tribunal to protect the interests of the public, the only appropriate order was an order that her name be removed from the roll of legal practitioners. ” (emphasis added)

31 Concerning the evidence that was available before the first Appeal Panel, the 2007 Panel said, at [75]:

“This Appeal Panel is satisfied that a review of the evidence then available, would lead inevitably to an order striking the Appellant from the roll.” (emphasis added)

32 They continued, at [76]:

“The question now, is whether or not the Appellant is a fit and proper person to hold a practising certificate , determining that issue in compliance with the reasons of the Court of Appeal, and taking in account the fresh evidence adduced before the presently constituted Appeal Panel.” (emphasis added)

33 In stating their assessment of the evidence given before them, the majority said, at [100]:

“The Tribunal is left with a deep sense of disquiet as to the ability of the Appellant to acknowledge her wrongdoing in any meaningful way. That view militates against a finding of insight and self knowledge facilitating genuine contrition, which is essential if this Appeal Panel is to arrive at a finding that the Appellant is currently a person of good character , and, as such, a person suitable to hold a practising certificate .” (emphasis added)

34 At [134] they said:

“The totality of the evidence points to a level of fragility, which, were the Appeal Panel minded to restore the Appellant to the Roll , would require working conditions for the Appellant, not merely usual conditions of a practising certificate, but, more importantly, conditions of her work as a solicitor” [which would be difficult, though not impossible, to make workable in practice] (emphasis added)

35 At [153] they stated their task as being to make “an assessment of her current integrity and good character, in order to determine whether or not she is now a fit and proper person to be on the roll.”

36 The Panel’s statement of its conclusions included the following:

“The Appeal Panel, having reviewed the totality of the evidence, and, in particular, the evidence given by the Appellant before this Appeal Panel, is unable to be satisfied that she is a person of integrity and good character, capable of discharging her professional duties to the required standard. Accordingly, the Tribunal cannot be satisfied that she no longer presents a risk to the public in the performance of her professional responsibilities.
The Appeal Panel cannot be comfortably satisfied that she is now, or ever will be, a fit and proper person to remain upon the roll of legal practitioners.
The Law Society has discharged the onus upon it to demonstrate that the Appellant is permanently unfit to practice . That is an onus to be discharged pursuant to the standard set down in Briginshaw v Briginshaw (1938) 60 CLR 336.
…
A review of the whole of the evidence in each of the proceedings since the inception of the original information, has led the Tribunal to the view that whilst the Appellant’s views may be improved, she has demonstrated, in the proceedings before this Appeal Panel, that she is not a fit and proper person . Nor, having regard to that history, is the Tribunal able to form the view that she will ever be a fit and proper person . Thus, any penalty other than her removal from the Roll is totally inappropriate.
The Appeal Panel recognises that it is unfortunate that a person who is a qualified lawyer and has some experience in the field, should not be able to return to the practice of law on the Roll of Legal Practitioners. It is not, however, the role of the Appeal Panel to provide her with a practising certificate in order to assist her general wellbeing, but to protect the public.
…
Having regard to the totality of the evidence, but, particularly having regard to the evidence given by the Appellant before this Appeal Panel, we have arrived at the decision that the Appellant is not a fit and proper person to hold a practising certificate and that the order of this Tribunal should be that her name be removed from the Roll of Legal Practitioners.” (emphasis added)

37 Ms Adamson SC, for the Appellant, submits that the differing ways in which the majority stated the matter that they were considering, and in particular the repeated references to whether she was a “fit and proper person to hold a practising certificate” reveals a sloppiness of thought and expression such that the decision-making process has miscarried. The diversity of expressions that the Appeal Panel used is such that it may not be possible to pinpoint whether what it has done is to apply the wrong legal test, or to misapprehend the nature of the task it was required to perform, but in one of these ways or other the decision-making process has miscarried. Particularly is that so, Ms Adamson submits, when there are differences between fitness to be on the roll, and fitness to hold a practising certificate. She directs our attention to New South Wales Bar Association v Murphy [2002] NSWCA 138; (2002) 55 NSWLR 23 where Spigelman CJ said, at [21]:

“The powers in s 38FC can be exercised to ensure that, in an appropriate case, a practitioner does not continue in practice, pending a more thorough inquiry under Pt 10 of the Act. However, it is not, in my opinion, appropriate to use the power in s 38FC with effect intended to be permanent. Section 38FC is not an alternative to a thorough investigation leading to a finding of permanent unfitness. Any such investigation is more properly conducted under Pt 10 leading to an order under s 171C(1) or in the inherent jurisdiction of the Court.”

38 In the same case Giles JA said, at [111]:

“The difference between unfitness to hold a practising certificate and unfitness to be a legal practitioner may not be great in many cases. But the difference can not be overlooked.”

39 It is clear that the Appeal Panel’s reference at [174] to restoring the Appellant to the roll is erroneous – she was already on the roll, and the question was whether she should be removed from it. However, that a decision-maker has made an error of law does not necessarily mean that the decision is set aside – it is set aside only when the error is one upon which the decision depends: Yates Property Corporation Pty Ltd (in liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156 at 177. The repeated references in the decision of the Appeal Panel to whether the Appellant should be removed from the roll, and whether the Appellant was a fit person to hold a practising certificate, leave a person who reads the judgment as a whole in no real doubt that it was by reference to those considerations that the decision was made, and that the reference to restoring the Appellant to the roll was an inconsequential slip.

40 I am not persuaded that the Appeal Panel misapprehended its task, or applied the wrong test in any way that was material to its decision in making reference to both whether the Appellant was a fit and proper person to hold a practising certificate, and whether the Appellant was a fit and proper person to be on the roll. There are two separate reasons for reaching this conclusion.

41 The first concerns the manner in which the case was conducted. At the time of the hearing, though the name of the Appellant was still on the roll, she was not practising, and had not held a practising certificate for over two years. Her case was that she should be permitted to practice as a solicitor, though only with a restricted practising certificate at first, and subject to whatever conditions the Tribunal or the Law Society might think fit to impose. The view that the minority member of the Appeal Panel came to was that extensive conditions be imposed upon her, namely:

“a) The Appellant be permitted to practice as an employed solicitor only.
b) That she not engage in any type of litigious matters.
c) That she submit herself to psychiatric/psychological assessment once every six months for the next five years, the consulted psychiatrist/psychologist to provide a copy of the assessment reports direct to the Law Society.
d) The Appellant to provide any employer with the following documents:
(i) a copy of the decision of the Divisional Tribunal;
(ii) a copy of the decision of the Appeal Panel;
(iii) a copy of the decision of the Court of Appeal;
(iv) a separate sheet of paper setting out the conditions/restrictions imposed by this Appeal Panel.
e) The employer to provide a certification in writing direct to the Law Society that the employer has been provided with all of that material, has read and understood that material and for his/her part will comply with the conditions/restrictions imposed by this Appeal Panel.
f) The Applicant not to be employed in a position that would require her to work for more than five (5) hours per day during a five (5) day working week nor to be employed in circumstances that would impose upon her stress.
g) Her employer to undertake to the Law Society that he/she will properly supervise the solicitor during the term of her employment and consistent with the views expressed by the Divisional Tribunal, the Appeal Panel, the Court of Appeal and this Appeal Panel with a view to avoiding the occurrence of any circumstances that may put the solicitor into a position of risk of the type(s) of which she has been found guilty of professional mis-conduct.”

42 It is not necessary to consider whether, in light of the terms of section 171C, the Tribunal would have had power to impose all those conditions. What matters for present purposes is that through the Appellant presenting a case that she should be issued with a practising certificate subject to conditions, the question of whether she was a fit and proper person to hold a practising certificate (whatever conditions it might be subject to) was a live issue in the proceedings. Thus it was not only appropriate, but necessary, for the Appeal Panel to consider whether she was a fit and proper person to issue any sort of a practising certificate to.

43 The second reason is a matter of legal analysis. I have earlier set out at para [28] the powers that the Tribunal had that were relevant in the circumstances of the present case. They included powers relating to removal from the roll, and powers relating to the terms of the solicitor’s practising certificate. The “roll” there referred to is the Roll of Legal Practitioners that is adverted to in section 4(1) of the 1987 Act:

“The Supreme Court may admit and enrol natural persons as legal practitioners in accordance with subsection (2).”

44 In NSW Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [7]-[8], Spigelman CJ said:

“The reference in s 4 to “admitting” legal practitioners, is reflected in a number of sections which refer to “admission”. The reference in s 4(1) to the Court “enrolling” legal practitioners is not otherwise referred to. The Act confirms, by this reference, the longstanding practice of the Court to maintain a roll of legal practitioners in its inherent jurisdiction, the continuation of which the Act preserves: see generally Re Application by a Solicitor [1966] 1 NSWR 42.

Pursuant to Pt 65C, r 2(2) of the Supreme Court Rules 1970 :
“Every person applying for admission as a legal practitioner shall personally attend in Court and shall on such admission —
…
(b) sign the Roll of Legal Practitioners in the Court””

45 Section 3 of the 1987 Act defines “legal practitioner” as meaning “a person enrolled in the Supreme Court as a legal practitioner”. Section 25(1) of the 1987 Act forbids a legal practitioner whose sole or principal place of legal practice is in New South Wales from practising as a barrister, or solicitor and barrister, without being a holder of a current practising certificate.

46 Section 28 empowers the Law Society Council to grant a practising certificate of a kind that authorises a person to practice as a solicitor or barrister, but an essential prerequisite of the Law Society so doing is that the certificate be granted “to a legal practitioner”. Thus, a person who, like the Appellant, did not currently hold a practising certificate could not be a fit and proper person to be granted a practising certificate, unless that person was also a fit and proper person to remain on the roll. As well, when the holding of a practising certificate is a legal prerequisite for actually practising, deciding whether a person is a fit and proper person to hold a practising certificate involves considering whether someone is a fit and proper person to actually practice. Deciding whether someone is a fit and proper person to actually practice is an essential part of deciding whether they are a fit and proper person to remain on the roll. In the circumstances of the present case, there was no difference of substance between being a fit and proper person to be granted a practising certificate, and being a fit and proper person to remain on the roll.

47 The remarks of Spigelman CJ and Giles JA in Murphy that I have earlier set out were made in the context of considering section 38FC of the 1987 Act. Section 38FC was part of Part 3, Division 1AA of the 1987 Act, introduced in 2001 to make specific provision concerning the issuing of practising certificates to legal practitioners who had committed an act of bankruptcy, or who had been found guilty of an indictable offence or a tax offence.

48 Section 38FB(1) obliged such a person to provide a statement, in a prescribed form,

“… showing why, despite the act of bankruptcy or finding of guilt and any circumstances surrounding the act or finding, the applicant considers that he or she is a fit and proper person to hold a practising certificate.”

49 Section 38FC(1) provided:

“A Council must refuse to issue, or must cancel or suspend, a practising certificate if:
(a) the Council is aware that the applicant for or holder of the practising certificate has, since being admitted as a legal practitioner, committed an act of bankruptcy or been found guilty of an indictable offence or a tax offence, and
(b) the Council considers that the act of bankruptcy, indictable offence or tax offence was committed in circumstances that show that the applicant or holder is not a fit and proper person to hold a practising certificate.”

50 The Court in Murphy considered the relationship between section 38FC, and the more elaborate provisions for enquiry into fitness under Part 10 of the 1987 Act. One significant difference that the Court found was that the process for a Council arriving at a decision under section 38FC(1)(b) was narrower than the process involved in a full inquiry into the fitness of the person to remain on the roll. Without being exhaustive, relevant factors leading to that conclusion were that section 38FC(1)(b) appears in a context relating to the issuing or cancellation of a practising certificate, which of its nature (section 36(1) 1987 Act) remains in force for only a limited time, and the evident legislative intent that a Council should act promptly in making a decision under section 38FC(1)(b). A significant indicator of that legislative intent was that section 38FH provided that if a Council had not made a decision under section 38FC(1)(b) within the “relevant period” (three months, but extendable – section 38FA) the practising certificate is suspended.

51 When the Appeal Panel in the present case was acting under Part 10 of the 1987 Act, the context in which it came to consider the fitness of the Appellant to hold a practising certificate was not the same as the context in which Spigelman CJ and Giles JA made the remarks in Murphy that I have earlier set out. The remarks in Murphy do not show that the Appeal Panel applied the wrong test, or misapprehended its task.

Onus of Proof

52 Ms Adamson submitted that the onus was on the Law Society to establish that a person whose name is on the roll is not a fit and proper person to remain on it: Re Evatt; Ex parte NSW Bar Association (1967) 67 SR (NSW) 236; New South Wales Bar Association v Maddocks (Court of Appeal, 23 August 1988, unreported) per Kirby P at 1; Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 at [17] (1). That, she submits, is to be contrasted with an application for admission, in which the onus is on the applicant to establish fitness: Re B [1981] 2 NSWLR 372 at 403; Wentworth v NSW Bar Association (Court of Appeal, 14 February 1994, unreported) at 5.

53 Ms Adamson initially submitted that removal from the roll requires the Law Society to establish that the solicitor is “permanently unfit to practice”. Various cases concerning removal of a legal practitioner from the roll make mention of “permanent unfitness”, sometimes in the context of a presumption that arises from the making of an order for removal from the roll (eg New South Wales Bar Association v Maddocks per McHugh JA, penultimate paragraph), sometimes in the context of what must be established before an order for removal can be made (eg Ex parte Lenehan (1948) 77 CLR 403 at 422; Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal, 31 July 1987, unreported) at 4 per Kirby P, 38 per McHugh JA; New South Wales Bar Association v Maddocks per Kirby P at 38; NSW Bar Association v Cummins at [25]-[28] per Spigelman CJ (with whom Mason P and Handley JA agreed); Prothonotary of the Supreme Court of NSW v P [17](2) per Young CJ in Eq (with whom Meagher JA and Tobias JA agreed). In the course of argument Ms Adamson accepted that a requirement to establish “permanent unfitness to practise” did not mean that it was necessary for the Law Society to prove that in no circumstances whatever would the solicitor be fit to practise. She accepted that the existence of the jurisdiction to readmit a person whose name has been removed from the roll shows that “permanent” could not have that shade of meaning.

54 Rather, in my view, it has the shade of meaning of being likely to be unfit to practice for the indefinite future. Some cases have recognised that shade of meaning explicitly: Maddocks at 38 per Kirby P; Ritchard at 4 per Kirby P, both of which passages are cited by Spigelman CJ in Cummins at [25] and [27]. If the Tribunal or Appeal Panel is of the view that a person is presently unfit to practice, but after a particular period of time will be once again fit to practice, then suspension for that period of time is the appropriate order. Suspension is achieved by orders under section 171C(1)(b) and (c). Removal from the roll is appropriate only when a legal practitioner is unfit to practice, and suspension for a particular period is not appropriate.

55 Ms Adamson also submitted that examination of the reasons of the majority in the Appeal Panel show that they reversed the onus, and improperly placed an onus on the Appellant.

56 Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ have said:

“Where an order for removal from the Roll is contemplated, the ultimate issue is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner of the Supreme Court upon whose roll the practitioner’s name presently appears.” ( A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 at [15].)

57 That test echoes the test by reference to which the inherent jurisdiction of English courts to discipline attorneys by removal from the roll has traditionally been exercised, namely whether the solicitor was “an unfit person to practice as an attorney”: per Lord Mansfield LCJ Ex parte Brounsall (1778) 2 Cowp 829 at 830; 98 ER 1385 at 1385; Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 441-442.

58 I accept that the relevant onus of proof of the ultimate issue in the proceedings was on the Law Society. The case it was propounding was that the Appellant was not a fit and proper person to remain on the roll, and it bore the onus of establishing that negative proposition.

59 The starting point of one strand of the reasoning of the Appeal Panel was that the actions of the Appellant that were the subject of the information were all acts of serious professional misconduct. The next step was that the collective effect of the acts of professional misconduct was that, as at the time the last of them had been committed, the Appellant was not fit to remain on the roll. That conclusion was not argued against, nor could it be. I accept that the Appeal Panel then looked to see whether the Appellant had provided any basis for the Appeal Panel believing that the situation had changed. The Appeal Panel was not satisfied that any such basis existed.

60 In my view, in proceeding in this way the Tribunal was not improperly casting an onus of proof onto the Appellant. All it was doing was recognising that the proved facts of the various acts of professional misconduct led to the Appellant being under an onus of adducing evidence. That is an entirely proper way of proceeding. In Johns v Law Society of NSW [1982] 2 NSWLR 1 Moffit P (with whose reasons Hope JA agreed) dealt with a situation where a solicitor had engaged in acts of professional misconduct some years before proceedings for his removal were heard. He said, at 9-10:

“Where there is misconduct prima facie requiring at that time a striking off order on the basis of then unfitness, the substance of the question whether when the matter comes for decision some years later is not dissimilar to the question arising upon an application for re-admission, namely whether it appears that there is material before the court to lead it to conclude that the past proved unfitness has been changed to fitness. The ultimate onus is on the Law Society, but where there is admitted professional misconduct and a claim of rehabilitation or of fitness replacing unfitness, the court will look to what evidence there is to establish this change and will expect he who claims there is such a change to point to the evidence that there is.”

61 In Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 at [4], Barwick CJ, Kitto and Taylor JJ referred to two distinct meanings of the expression “burden” or “onus” of proof.

“(1) the burden of proof as a matter of law and pleading – the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and
(2) the burden of proof in the sense of “introducing evidence”.”

62 Their Honours approved the statement from Phipson on Evidence, 10th ed 1963, para 95:

“The burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates.”

63 In Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 at [78], [84] I endeavoured to explain what is involved in there being a shifting of an evidential onus:

“If a plaintiff has the onus of proving a negative proposition, the fact that the defendant has greater means to produce evidence which contradicts that negative proposition, does not mean that the plaintiff ceases to have the onus of proof of that negative proposition. However, once the plaintiff establishes sufficient evidence from which, if that evidence is accepted, the negative proposition may be inferred, an evidential onus shifts to the defendant to adduce evidence that tends to show that the negative proposition is incorrect. If a defendant adduces such evidence, the plaintiff must then, as part of its overall burden of proof, deal with that evidence either by submission or argument. See generally Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561; Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 at [1]-[2], 371-2; Baiada v Waste Recycling & Processing Service of NSW [1999] NSWCA 139; (1999) 130 LGERA 52 at [55], 64-65. As Hunt J put it in Apollo at 565:
“… provided that the plaintiffs have established sufficient evidence from which the negative proposition may be inferred, the defendant carries what has been called an evidential burden to advance in evidence any particular matters with which (if relevant) the plaintiffs would have to deal in the discharge of their overall burden of proof …. [T]he plaintiffs’ burden of proof of the negative proposition for which they contend is not as difficult in this case as it might otherwise have been because of the defendant’s greater means to produce evidence which contradicts that proposition.”
…
Before an evidential onus shifts from a plaintiff, the plaintiff must have adduced enough evidence for the court to infer, if the evidence that the plaintiff adduced was accepted by the court and was the only evidence on that topic in the case, that the proposition concerning which the plaintiff had the onus of proof was more likely than not true. In that situation, one says that an onus of adducing evidence shifts to the defendant because the defendant is then in a situation in which, if the defendant does not adduce evidence concerning that proposition, the plaintiff might succeed in establishing that proposition. Counsel for a defendant has to decide whether to adduce evidence on a topic at a time in the course of the trial when counsel necessarily cannot be absolutely sure of two matters that are of critical importance to whether the onus of adducing evidence has actually shifted – will the judge accept the plaintiff’s evidence on the topic, and if so will the judge regard that evidence, if no other evidence is adduced, as enough to make it more likely that the plaintiff’s contention concerning that topic is correct. The type of “onus” that the defendant is then under is one of practical necessity – either adduce evidence, or risk losing on that issue. But before a defendant is in that situation, the evidence that the plaintiff has put forward on the topic must be such that, if accepted and the only evidence on the topic, it would justify the court in deciding it is more likely than not that the proposition for which the plaintiff bears the onus of proof is true. If the evidence that a plaintiff adduces is equally consistent with that proposition being true, or that proposition not being true, so that the plaintiff would fail to discharge its onus of proof if that were the only evidence on the topic, the defendant does not come under the sort of practical compulsion that I have been describing.”

64 Those remarks are in my view directly applicable in the present case, where the Law Society had the onus of proving a negative proposition, namely that the Appellant was not a fit person to remain on the roll. The evidence it adduced of the various acts of professional misconduct in the period 1991 to 1993 were enough to establish that the Appellant was then unfit. A presumption of continuity would then arise, such that a court or tribunal would be justified in concluding that the Appellant was still unfit, unless the Appellant could produce evidence that gave reason for believing that the situation had changed. That is a totally conventional application of a shifting evidential onus. It involved no error of law by the Appeal Panel.

65 There may be some subject matters concerning which the strength of an inference arising from a presumption of continuity attenuated with time until it totally disappeared. However, the subject matter to which the presumption of continuity is applied in the present case is the character of a person. It is not at all uncommon for aspects of the character of a person to persist over decades, frequently for someone’s entire life. In my view, a tribunal of fact would be justified in using the extremely serious acts of professional misconduct in which the Appellant engaged in the period 1991 to 1993 as a basis for inferring that she was then unfit to practise, and that it was likely, notwithstanding that 15 years had passed, that she was still unfit to practise, unless the Appellant could produce evidence that gave reason for believing the situation had changed.

66 In fact, the reasoning of the Appeal Panel was not totally dependent upon applying a presumption of continuity to the demonstrated unfitness of the Appellant in the period 1991-1993. A very important strand in the reasoning of the Appeal Panel related to the evidence that she had given (or failed to give) in various hearings before the Tribunal and the Appeal Panel, including the hearing before the Appeal Panel from which the present appeal is brought. Their assessment of her evidence before them was (at [154]):

“The Appellant has shown no real understanding of her own misconduct, nor has she shown genuine contrition, and her evidence before this Appeal Panel does not lead to a finding that she was openly frank and candid.”

67 The Appeal Panel concluded (at [162]):

“The attitude adopted by the Appellant in the course of her evidence before this Appeal Panel was not conducive to a finding that, on the balance of probabilities, she had candidly come to terms with her wrongdoing; recognized the enormity of her conduct, and could, accordingly, undertake never to engage in similar conduct. She appeared to the Appeal Panel to have insufficient insight to recognize and frankly acknowledge her gross professional misconduct. Accordingly, it is not possible for the Appeal Panel to be satisfied that faced with a situation requiring her to make frank admission of error, oversight or ignorance, she is capable of the necessary candour. Thus, there continues, in the opinion of the Appeal Panel, an unacceptable risk to the public.”


Even though there was this most important strand to the reasoning of the Appeal Panel, to the extent to which its reasoning depended upon the Appellant having failed to convince it that she was a fit and proper person, there was no error of law.

Considering Fitness at Irrelevant Times?

68 Ms Adamson submits that the Appeal Panel took into account irrelevant considerations by considering the fitness to practice of the Appellant at times other than the present. Ms Adamson submits, correctly, that the Appeal Panel considered the fitness of the Appellant at three separate times prior to the present – the time of the events which were the subject of the proceedings, as at 2002 when the matter was before the Divisional Tribunal, and at the time of the hearing before the first Appeal Panel in January to March of 2004.

69 I do not agree that considering the Appellant’s fitness at those earlier times involves taking into account any irrelevant consideration. Rather, it is an example of the process of reasoning approved by Moffit P in Johns.

70 The Appellant submitted that the present case should be distinguished from Johns because in the present case there was evidence showing that the conduct of the Appellant in 1991 to 1993 was affected by a medical condition which has now resolved, and because of the extremely long time that had passed between the acts of professional misconduct and the time of the Appeal Panel’s decision.

71 The Appeal Panel gave lengthy consideration to the medical evidence and its effect on their deliberation, commencing at [79].

72 In broad terms, the medical evidence established that the Appellant was probably suffering from depression at the time of the acts of professional misconduct. The Appeal Panel evidently accepted that she was still suffering from depression at the time of giving evidence before the Tribunal in 2002, but that her depression had resolved before she gave evidence before the Appeal Panel in 2006. Their conclusion was:

“The Appeal Panel accepts that her emotional and psychiatric condition at the time of her original misconduct played a substantial part in her wrongdoing. Similarly, her subjective circumstances and depressive illness contributed to her unimpressive evidence before the Divisional Tribunal. None of those factors excuse any inadequacies in her evidence before this Appeal Panel.”

73 It is to be noted that this finding is that the Appellant’s emotional and psychiatric condition at the time of her original misconduct “played a substantial part” – not that it was the sole cause of her wrongdoing, or was such as to relieve her from all responsibility concerning it. None of the medical evidence on which the Appellant relied went so far as to attribute her acts of professional misconduct solely to her stress and depression. No doubt because of evidence that her depression in 2002 was not as deep as it was likely to have been in the early 1990s, the finding of the Appeal Panel was that her evidence before the Divisional Tribunal was “contributed to” by her subjective circumstances and depressive illness, without there being a finding that that contribution was substantial.

74 There was fresh medical evidence before the Appeal Panel at its 2006 hearing. It included evidence, evidently accepted by the Tribunal, from Ms Duffy, a forensic psychologist, that:

“… the Appellant has a character trait, which is marked by a reluctance to admit fault or wrongdoing on her part. This is not a component of her depressive state.”

75 An important part of the reason why the Appeal Panel came to the conclusion that she was not a fit person to be on the roll was that, even in 2006, she did not accept that she had actually done the repeated acts of forgery and false attestation that had been found against her. The findings of forgery and false attestation had been based upon (1) evidence of the people whose signatures purported to be on the documents, that those signatures were not theirs, (2) concerning the Buldioski documents (but not the Fowler documents) evidence of a handwriting expert positively stating that the signatures in question were forgeries, (3) evidence that a handwriting expert instructed by the Appellant had had access to the documents in question, but no report from that expert had been tendered, and (4) evidence of circumstances in which the Appellant had delayed dealing with the Buldioski and Fowler matters to a point where she urgently needed to have signed documents of the type in question. In the Appeal Panel’s view this provided compelling evidence that the Buldioski signatures were forged. It regarded the evidence supporting the findings of false attestation as no less compelling.

76 When this is an appeal on a question of law, it is not appropriate to enter into a detailed consideration of all the evidence. It suffices to say that the Appeal Panel recognised that the behaviour of the Appellant, both at the time of the original misconduct, and in 2002, was affected by her depression, and, having taken that into account, nonetheless came to the view that as at those times she was unfit. As at the time of the hearing before them, while her depression had resolved, the character trait that Ms Duffy identified was still actively operating. As the Appeal Panel said at [139]-[140]:

“… the most troubling aspect of her evidence is her apparent inability to demonstrate any current personal conviction that she actually did those acts that constitute her misconduct, and which have been proved established long since. Her position is expressed in the assertion “it’s possible that I may have done it, but I don’t believe myself, that I did that.”
That statement is only explicable in circumstances that, against the weight of all the evidence, and having had years to consider that evidence, particularly in recent years when the medical evidence is that she is suffering no psychological or physical illness that might be detrimental to her mental processes, she cannot bring herself to concede in a frank and forthright manner, that she did that which has been found proved against her.”

77 In substance, the Appeal Panel accepted that, to the extent to which depression had been a cause of her professional misconduct in the period 1991-1993, and of her unimpressive evidentiary performance in 2002, it was no longer a factor that affected her. But, when the depression was not found to be the sole cause of her behaviour in 1991-1993, or of the manner in which she gave evidence in 2002, the fact that her depression had resolved did not make her conduct at those earlier times irrelevant to the question of her present fitness. Rather, the significance of her conduct at those earlier times needed to be evaluated in light of the extent to which she was depressed. It is precisely that task that the Appeal Panel carried out.

78 As well, the Appeal Panel was unable to accept the Appellant’s assertions, before them, that she had no recollection of any part of the events. The Appeal Panel had before it a report made on 13 May 1997 by Professor Boyce, Professor of Psychiatry at the University of Sydney, who identified the Appellant as having suffered from an episode of post-natal depression. He stated:

“It is noteworthy that her depression was characterised by indecisiveness and confusion which may explain why she cannot clearly recall the events of early 1993.”

He did not say, however, that she had no recollection at all of those events.

79 There was evidence from Dr Gertler (who interviewed the Appellant in July 2006 for the first time) that:

“… she was able to describe certain aspects of her contact with Mr Buldioski, eg the signing of documents in her office; it is unlikely that Mrs Stanoevski could have had no recollection of forging the Buldioski signatures yet recall other aspects of that contact.”

80 It appears that the Appeal Panel accepted that evidence. I say that because the Appeal Panel said (at [135]-[137]):

“Over an extended period she wrote to the Law Society denying any wrongdoing, and giving a coherent, albeit false account of what had occurred in each matter. She filed affidavits and gave evidence in support of the versions of events she had maintained, again, over an extended period.
The medical evidence does not support a finding that the Appellant from 1991 up to and including 2002 would have no recollection of these events.
…
Accepting the Appellant’s emotional and depressive state caused her initial actions, and that she was still suffering from depression when she gave evidence in 2002, the Appeal Panel is unable to accept that it follows as credible that she was subsequently, without recalling any aspect of her misconduct, able consistently to give misleading exculpatory accounts of her conduct, and to cast the blame upon others. That may be the result of reconstruction and a refusal to accept the facts of her own initial wrongdoing.”

81 I have already given reasons, at para [65] why the passing of a long time between the acts of professional misconduct and the time of the Appeal Panel’s decision did not make consideration of her fitness at earlier times irrelevant.

82 In all these circumstances, I see no error of law in the way in which the Appeal Panel considered the fitness of the Appellant at various times prior to the time of delivering their judgment.

Erroneous Fact-Finding about Some Recollection of Events?

83 The Appellant contends that the Appeal Panel was mistaken in law in finding that the Appellant had some recollection of the events the subject of the findings of professional misconduct. On an appeal as to matters of law, such a ground could succeed only if there was no evidence on the basis of which it was open to a reasonable tribunal to make such a finding. In my view, the evidence of Dr Gertler provided such a basis.

Improper Exercise of Discretion

84 Ms Adamson accepts that this ground of appeal is dependent upon success of at least one of the other grounds. In the circumstances, it does not arise.

Orders

85 I propose that the appeal be dismissed with costs.

86 HANDLEY AJA: I agree with Campbell JA.

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