Territory v A Legal Practitioner (Occupational Discipline)
[2010] ACAT 84
•1 November 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL
TERRITORY v A LEGAL PRACTITIONER (Occupational Discipline)
[2010] ACAT 84
LP 09/08
Catchwords: OCCUPATIONAL DISCIPLINE - legal practitioner – professional discipline – several cases conducted together – consideration of penalties – separate orders – amendment of order under the slip rule.
List of Legislation: ACT Civil and Administrative Tribunal Act 2008 (ACT)
Tribunal: Mr C G Chenoweth Presiding Member
Mr A O’Neil Senior Member
Mr G Wright Member
Date of Orders: 1 November 2010
Date of Reasons for Decision: 29 November 2010
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) LP 08/09
BETWEEN:
THE ACT LAW SOCIETY
Applicant
AND:
THE LEGAL PRACTITIONER
Respondent
Tribunal: Mr C G Chenoweth Presiding Member
Mr A O’Neil Senior Member
Mr G Wright MemberAMENDED ORDERS
Date of Order: 1 November 2010
The Tribunal Orders:
Pursuant to section 63 of the ACT Civil and Administrative Tribunal Act2008, the Tribunal corrects an error or omission in the Order dated 17 May 2010 in this matter by withdrawing paragraph 1 of that Order and substituting the following:
The Tribunal has earlier found that in this matter the Respondent’s conduct in two specified respects constituted unsatisfactory professional conduct.
The Tribunal orders that the Respondent be publicly reprimanded.
The Tribunal orders that the order made in matter LP 7 of 2008, that the Respondent undertake and complete within 12 months of 17 May 2010 and to the satisfaction of the Director of the Legal Workshop attached to the Australian National University a course in ethics conducted by the Legal Workshop be made concurrent with this order.
........................................
Mr C Chenoweth,
Presiding Member
REASONS FOR DECISION
These are the reasons for the Tribunal determining to amend the order made on 17 May 2010 in this matter, pursuant to section 63 of the ACT Civil and Administrative Tribunal Act 2008. The amended order was issued on 1 November 2010, and was issued to "correct an error or omission in the order dated 17 May 2010 in this matter..."
The Law Society of the Australian Capital Territory (“Society”) had instituted three matters in respect of the Practitioner. One of these (LP 08/2008) was dismissed by the Tribunal. In matter number LP 07/2008, the Tribunal found that the Practitioner had been guilty of professional misconduct and unsatisfactory professional conduct in respect of the matters set out in the reasons for decision in that case. The Tribunal made an order that the practitioner be publicly reprimanded, and that he be required to undertake a course of study in legal ethics.
In this matter (LP09/2008), the Tribunal found that the Practitioner had been guilty of unsatisfactory professional conduct in two specified respects. The hearing as to orders to be made in matter LP 07/2008 were delayed by agreement until the Tribunal handed down its decision in this matter.
The Tribunal held a single hearing in respect of the issue of penalties to be imposed for the adverse findings made in matters LP 07 and LP 09/2008. Orders were made in matter LP 07/ 2008. The orders were that the Practitioner was to be publicly reprimanded, and that he was required to undertake a course in legal ethics conducted by the Australian National University. In matter LP 09/2008, the Tribunal's order noted that the Practitioner's conduct in two specified respects constituted unsatisfactory professional conduct. It stated that having regard to the decision in LP 07/ 2008 the Tribunal would make no additional orders in matter LP 09/ 2008.
The Society raised with the Tribunal and the Practitioner’s representative a concern that the wording of the document of 17 May 2010 did not constitute an “order” as required by section 425 of the Legal Profession Act 2006, and that an order was required by that section.
Counsel for the Practitioner submitted that the order of 17 May 2010 showed an intention by the Tribunal not to make any further order beyond those made in LP 07/2008, and that if a further order was made this would result in a further notice on the Disciplinary Register. Such a notice may suggest that the Practitioner had been guilty of further unsatisfactory conduct since 17 May 2010. Counsel urged that as a matter of discretion a further order should not be made.
The intention of the Tribunal in expressing the order of 17 May 2010 in this way was to impose a public reprimand and an order that the education course be completed in relation in each of the two matters on which the Practitioner had been found guilty. The Tribunal accepts the submission from the Society that in order to properly express this, there needed to be a specific order in this matter, and that the order in matter LP07/2008 could not be taken to apply to this matter. Each case requires its own specific order.
The Tribunal found in the reasons for decision in this matter that the Practitioner's conduct constituted unsatisfactory professional conduct. The Tribunal considered that the conduct warranted a public reprimand and a direction that the course of education be undertaken, but that no further penalty such as a fine or suspension should be imposed. The finding in matter LP 07/ 2008, that the Practitioner had been guilty of professional misconduct as well as unsatisfactory professional conduct, warranted the maximum penalty that the Tribunal thought should be imposed in the two cases.
At the time of making the order 17 May 2010, the Tribunal considered that a public reprimand was appropriate in respect of each of the matters, as was the direction to undertake a further course of legal education. The Tribunal has confirmed this view by issuing the order of the 1 November 2010.
The Tribunal is conscious that the use of the "slip rule" should be made sparingly, but it is a power available to the Tribunal. Unless the Tribunal sets out in an appropriate order the condemnation of the conduct which is reflected in the reasons for decision in this matter, members of the public and other practitioners may take a view that the Tribunal condoned such conduct, or did not think it worthy of even a reprimand. The Tribunal notes that a result of the amended order is that a further notation will be placed on the Disciplinary Register in respect of this matter. Such a notation may not have appeared before, but it is appropriate that the Disciplinary Register contain details of all penalties imposed on the Practitioner. This is its statutory purpose.
The conduct in this matter that resulted in the application by the Society was separate both in time and circumstances from the matter the subject of case LP 07/2008. While the fact that the hearing on penalty was conducted jointly, the Tribunal considered that the facts in this case warranted a separate public reprimand, but no greater penalty. The order for the Practitioner to undertake the legal education course was made concurrent because, obviously, the course can only be completed once.
It is for these reasons that the Tribunal issued the amended order of 1 November 2010.
........................................
Mr C Chenoweth,
Presiding Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: LP 9 of 2008
APPLICANT: THE ACT LAW SOCIETY
RESPONDENT: THE LEGAL PRACTITIONER
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER/S:
DATE/S OF HEARING: PLACE: CANBERRA
DATE/S OF DECISION: PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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0
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