The Council of the Law Society of the Act v Lester
[2022] ACTSCFC 1
•25 November 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
FULL COURT
Case Title: | The Council of the Law Society of the ACT v Lester |
Citation: | [2022] ACTSCFC 1 |
Hearing Date: | 18 November 2022 |
DecisionDate: | 25 November 2022 |
Before: | Elkaim, Loukas-Karlsson and Kennett JJ |
Decision: | (a) Pursuant to s 460(2) of the Legal Profession Act 2006 (ACT) and/or the Court’s inherent jurisdiction, the Defendant’s name (William Frederick Lester) be removed from the roll of people admitted to the legal profession maintained by the Supreme Court of the Australian Capital Territory pursuant to s 27 of the Legal Profession Act 2006 (ACT). (b) The defendant is to pay the plaintiff’s costs of the proceedings, except that each party is to pay its own costs of the hearing. |
Catchwords: | FULL COURT – LEGAL PROFESSION – Where the plaintiff seeks an order to remove the defendant’s name from the roll of the Supreme Court of the Australian Capital Territory – where the Supreme Court of Tasmania had made a recommendation that the Supreme Court of the Australian Capital Territory do so – where such an order must be made by a Full Court – defendant removed from the roll |
Legislation Cited: | Judiciary Act 1903 (Cth) s 78B Legal Profession Act 2006 (ACT) s 460 Supreme Court Act 1933 (ACT) s 11 |
Cases Cited: | Gypsy Jokers Inc v Commissioner of Police [2008] HCA 4; 234 CLR 532 Legal Profession Board of Tasmania v Lester [2021] TASSC 41 Wainohu v New South Wales [2011] HCA 24; 243 CLR 181 |
Texts Cited: | Thomas Prince and Perry Herzfeld, Interpretation (Thomson Reuters, 2nd ed, 2020) |
Parties: | The Council of the Law Society of the Australian Capital Territory (Plaintiff) William Frederick Lester (Defendant) |
Representation: | Counsel D Moujalli (Plaintiff) A Bucknell (Defendant) |
| Solicitors Thomas Geer (Plaintiff) Rachel Bird and Co (Defendant) | |
File Number: | SC 208 of 2022 |
Elkaim and Loukas-Karlsson JJ
1․The plaintiff filed an originating application dated 24 June 2022. The plaintiff, the ACT Law Society, seeks an order that the defendant’s name be removed from the roll of people admitted to the legal profession in the ACT.
2․Section 11 of the Supreme Court Act 1933 (ACT) says that such an order can only be made by the Full Court.
3․The application arises from a recommendation by the Supreme Court of Tasmania made on 8 September 2021 that the defendant be removed from the ACT roll of practitioners.
4․The application is supported by two affidavits of Mr Samuel Harper affirmed on 24 June 2022 and 21 July 2022 respectively.
5․A Notice of Intention to Respond was lodged on behalf of the defendant on 12 July 2022. The notice says that
The defendant submits to the orders of the Court [except as to costs].
6․Section 460(2) of the Legal Profession Act 2006 (ACT) is as follows:
If a corresponding disciplinary body makes a recommendation or order that a person’s name be removed from the roll of lawyers under this Act, the Supreme Court must order the removal of the name from the local roll.
7․Pursuant to the Dictionary to the above Act a “corresponding disciplinary body” includes:
(b) the Supreme Court of another jurisdiction exercising—
(i) its inherent jurisdiction or powers in relation to the control and discipline of any Australian lawyer; or
(ii) its jurisdiction or powers to make orders under a corresponding law of the other jurisdiction in relation to any Australian lawyer.
8․The Supreme Court of Tasmania is clearly a corresponding disciplinary body.
9․The first affidavit of Mr Harper annexes the decision of Brett J on the application of the Legal Profession Board of Tasmania (the Board) for the Court to determine three complaints arising from the conduct of the defendant (Legal Profession Board of Tasmania v Lester [2021] TASSC 41).
10․Brett J sets out the three complaints made by the Board at [4]:
4 The complaints can be summarised as follows:
(a) A complaint made by Mrs S on 2 November 2017. Mrs S engaged the respondent in respect of workers compensation proceedings between 2011 and 2017. The complaint asserts gross delay and dishonesty. The gravamen of the dishonesty allegation is that from 2012, the respondent led Mrs S to believe that he had commenced workers compensation proceedings on her behalf in the Workers Rehabilitation and Compensation Tribunal (the Tribunal) when he had not done, and did not do so until January 2017. He maintained that pretence until his dishonesty was discovered by Mrs S in October 2017. The complaint asserts an ongoing and systemic course of dishonest conduct which involved numerous lies told to Mrs S and the falsification of documentation intended to support those lies.
(b) A complaint made by the Board concerning the failure of the respondent to disclose a relevant disciplinary order made by the ACT Law Society, when applying to renew his practising certificate in Tasmania in 2016 and 2017.
(c) A complaint by the Board in relation to the respondent's failure to comply with a requirement imposed on him by an investigator under s 572 of the Act.
11․Brett J found that each complaint was established. Professional misconduct was found in respect of the first and third complaint. Unsatisfactory professional conduct was found in respect of the second complaint. His Honour concluded as follows:
74 In conclusion, I am satisfied to the Briginshaw standard that the respondent is not, and will not be for an indefinite time, a fit and proper person to carry on practice as a legal practitioner. In view of that finding, the only appropriate outcome is that his name be removed from the roll of practitioners. Any sanction short of striking off would be inconsistent with this Court's duty to maintain proper professional standards. In arriving at this conclusion, I have been particularly influenced by the nature and extent of the respondent's dishonesty in respect of Mrs S, and other aspects of dishonesty to which I have referred, as well as my concerns in respect of the respondent's insight into that aspect of his conduct. I have also taken into account the findings made in respect of the second and third complaints, and the gross delay in Mrs S's matter. It is not appropriate in my view to fashion or suggest separate sanctions for each complaint and discrete conduct within a complaint. Although clearly the imposition of sanctions has punitive effect, their purpose is not punitive, but responds to the protective purposes already discussed. The order must respond to the totality of the conduct, and any suggestion of what individual sanction might be imposed for a discrete aspect of that conduct would be without context and unhelpful. Accordingly, the sanction of striking off will be imposed as a response to the totality of the conduct.
75 Because of the jurisdictional position arising from the respondent's admission in the ACT, the appropriate order is that this Court recommends to the Supreme Court of the ACT that the practitioner be removed from the roll of practitioners entitled to practice before that Court. I order that that recommendation be made.
12․Mr Harper’s second affidavit annexes a copy of the sealed orders of the Supreme Court of Tasmania. They are:
1.Mr Lester is:
(a) guilty of professional misconduct in respect to complaints 1 and 3;
(b) guilty of unsatisfactory professional conduct in respect of complaint 2.
2.The appropriate sanction is that his name be removed from the roll of legal practitioners.
3.This Court recommends to the Supreme Court of the ACT that the Practitioner be removed from the roll of practitioners entitled to practice before that Court.
13․The above recommendation having been made by the Supreme Court of Tasmania, the mandatory direction under s 460(2) requires this Court to “order the removal of the name from the local roll”.
14․It should be added here that in written and oral submissions the plaintiff raised the question of whether or not the use of the word “must” in s 460(2) did actually impose a mandatory direction. Learned counsel contrasted this section with s 431(3) where the word “may” is employed. He suggested that the effect of s 6(2) of the Legislation Act 2001 (ACT) is that “the meaning of “must” stated in s 146(2) can be displaced by a manifest contrary intention”.
15․Counsel could not offer any explanation as to why the legislature might have made the distinction. In fact, to the contrary, the deliberate, and contrasting, use of the mandatory direction would seem to indicate an intention on the part of the Legislature that the Court is subject to a mandatory requirement.
16․It is not however necessary to decide the issue in this matter. This is because it is patently obvious from the facts set out in the decision of Brett J that removal of the defendant from the roll is necessary. The order sought can be equally made under the inherent jurisdiction of the Court as it can under s 460(2). This was reinforced during the hearing by the defendant’s solicitor stating in clear terms that his client’s position had moved from not resisting any order to positively consenting to the order, specifically on the basis of the findings made by Brett J.
17․It is not necessary to set out the facts and findings of Brett J. They are plainly set out in his judgment which, as mentioned above, is annexed to the first affidavit of Mr Harper. The conduct described is of such a nature that removal from the roll inevitably follows.
18․In relation to costs, the plaintiff says that the costs of the proceedings should be paid by the defendant. That is said to be the normal order of this Court. The defendant responds by referring to a letter sent to the plaintiff’s solicitors on 24 August 2022 in which the defendant says that he consents to the order for his removal from the roll and suggests that each party pay its own costs. He also says that the matter could be appropriately dealt with by a solicitor, therefore not necessitating the appearance of counsel.
19․The Court of course has a wide discretion in respect of costs and is bound to attempt to reach a just result. The application was made at the instigation of the Supreme Court of Tasmania. But more importantly it arose from the conduct of the defendant.
20․On the other hand, armed with the defendant’s consent, and knowing that the orders could be made under the Court’s inherent jurisdiction, the necessity for counsel, and perhaps even written submissions, is doubtful.
21․With this background the following costs order seems appropriate: that the defendant pay the plaintiff’s costs of the proceedings, except that each party pay its own costs of the hearing.
22․We propose the following orders:
(a)Pursuant to s 460(2) of the Legal Profession Act 2006 (ACT) and/or the Court’s inherent jurisdiction, the Defendant’s name (William Frederick Lester) be removed from the roll of people admitted to the legal profession maintained by the Supreme Court of the Australian Capital Territory pursuant to s 27 of the Legal Profession Act 2006 (ACT).
(b)The defendant is to pay the plaintiff’s costs of the proceedings, except that each party is to pay its own costs of the hearing.
KENNETT J
23․I agree with the orders proposed by Elkaim and Loukas-Karlsson JJ and with their reasons. I add the following observations.
24․The plaintiff, while seeking an order removing the defendant’s name from the roll of practitioners, submitted that the Court had a discretion whether to make such an order under s 460(2) of the Legal Profession Act 2006 (ACT) (Legal Profession Act). The defendant ultimately consented to the proposed order, and submitted that s 460(2) is to be read literally: that is, it involves a mandatory direction to the Court.
25․Perry Herzfeld and Thomas Prince, in Interpretation (2nd edition, Thomson Reuters, 2020) at [4.210], give examples of cases in which it has been held that the word “must” can be construed as conferring a discretion rather than imposing an obligation. However, the learned authors describe that conclusion as “doubtful”, and perhaps justifiable only by way of correction of a drafting mistake.
26․In this jurisdiction, s 146(2) of the Legislation Act 2001 (ACT) (Legislation Act) provides that the word “must”, when used in relation to a function, means that the function “is required to be exercised”. Section 146(3) provides that s 146 is a “determinative provision”, which means that it can be displaced only expressly or by a “manifest contrary intention”. A literal reading of s 460(2) sits uneasily with the maintenance of the Court’s inherent jurisdiction (s 462), and leads to the strange result that this Court is bound by the recommendation of a court or tribunal in another State or Territory over which it has no supervisory jurisdiction (see the definition of “corresponding disciplinary body” in the Dictionary to the Legal Profession Act). However, I doubt whether these considerations are enough to constitute a manifest contrary intention.
27․The argument concerning the operation of s 460(2) may also have a constitutional dimension. In Legal Profession Board of Tasmania v W [2011] TASSC 67 at [14], Evans J expressed the view (obiter) that the equivalent provision to s 460(2) in the Legal Profession Act 2007 (Tas) was unconstitutional. This was on the basis that the provision directed the outcome of an exercise of power by the Supreme Court of a State and was inconsistent with its institutional integrity. His Honour cited Wainohu v New South Wales[2011] HCA 24; 243 CLR 181, [44], [105], South Australia v Totani[2010] HCA 39; 242 CLR 1, [62], [69], [427], [443] and Gypsy Jokers Inc v Commissioner of Police[2008] HCA 4; 234 CLR 532, [39].
28․In the light of North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; 218 CLR 146, [27]-[29], that conclusion, if correct, is arguably applicable to the Supreme Court of a Territory.
29․However, no constitutional argument was relied on before us and notices have not been issued under s 78B of the Judiciary Act 1903 (Cth). In these circumstances it would be inappropriate to express any concluded view. In any event it is not clear (in the light of s 146 of the Legislation Act) that the solution to any invalidity of s 460(2) would be to construe “must” as meaning “may”.
30․It may therefore be that consideration should be given to amending s 460(2).
31․The issues I have noted above do not require resolution in this case because the Court’s inherent jurisdiction is preserved. I agree with Elkaim and Loukas-Karlsson JJ that the conduct described in the reasons of Brett J amply justifies making the order sought in the exercise of that jurisdiction.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: |
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