THE LEGAL PRACTITIONERS ACT 1981 (SA) RE RODERIC JASON LINDQUIST
[2016] SASC 134
•16 August 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
THE LEGAL PRACTITIONERS ACT 1981 (SA) RE RODERIC JASON LINDQUIST
[2016] SASC 134
Judgment of The Honourable Justice Nicholson
16 August 2016
PROFESSIONS AND TRADES - LAWYERS - PRACTISING CERTIFICATES
Application pursuant to the Legal Practitioners Act 1981 (SA) to revoke conditions previously imposed on a practitioner's practising certificate. In 2009, the practitioner was experiencing financial difficulties unrelated to his conduct as a legal practitioner and entered into a Personal Insolvency Agreement. As a consequence, the Court granted the practitioner a conditional authority to practice. The practitioner has applied to this Court to remove the conditions on the grounds that they have been complied with and that there is no longer any justification for the conditions.
A preliminary consideration, bearing in mind the amendments to the Legal Practitioners Act 1981 (SA) in 2014, was as to the source of the Supreme Court's power to remove conditions imposed pursuant to a statutory provision since repealed.
Held:
1. Section 20AA(1) of the Legal Practitioners Act 1981 (SA) confers a discretion on the Supreme Court to give effect to any order, inter alia, revoking conditions imposed on a practitioner's practising certificate but does not expressly confer such a power of revocation.
2. The inherent jurisdiction of the Supreme Court confers power in the Court to revoke the practising certificate conditions imposed by the orders of the Court dated 3 April 2009.
3. The conditions placed on the practitioner's practising certificate, by the orders of this Court dated 3 April 2009, have been complied with, are no longer appropriate and are revoked.
4. The practitioner is to be issued with an unconditional (category A) practising certificate for the period 1 July 2016 to 30 June 2017.
Bankruptcy Act 1966 (Cth) Part X; Legal Practitioners Act 1981 (SA) s 20AA, s 20AB, s 20AC, s 20AD, s 20AE, s 20AF, s 20AG, s 20AH, s 20AI, s 49; Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA) s 6, Sch 2 Pt 4; Supreme Court Act 1935 (SA) s 17; Supreme Court Civil Rules 2006 (SA) Ch 17, r 364, r 389, referred to.
The Legal Practitioners Act 1981 (SA) Re Roderic Jason Lindquist [2009] SASC 93; Metropolitan Bank v Pooley (1885) 10 App Cas 210; Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421; Condon v Pompano Pty Ltd [2013] HCA 7, (2013) 252 CLR 38, considered.
THE LEGAL PRACTITIONERS ACT 1981 (SA) RE RODERIC JASON LINDQUIST
[2016] SASC 134Civil: Application
NICHOLSON J.
Introduction
The practitioner has applied for orders that certain conditions placed upon his practising certificate, pursuant to orders made by Gray J on 3 April 2009,[1] be revoked and that he be issued with an unconditional practising certificate. The Law Society of South Australia, the Legal Profession Conduct Commissioner and the State Attorney-General have all been notified of the application and its terms and do not oppose the orders sought being made. The matter was heard by me in the chamber list on 29 July 2016. However, during the hearing of the application an issue concerning the power of the Supreme Court to make the first order, as sought, arose. As a preliminary to determining the practitioner’s application, these reasons deal with that question of power.
[1] The Legal Practitioners Act 1981 (SA) Re Roderic Jason Lindquist [2009] SASC 93. His Honour’s Reasons for Decision were published on 6 April 2009. However, the Court record discloses that the orders were made on the day of the hearing, 3 April 2009.
The need for conditions to be endorsed on the practitioner’s practising certificate arose as a result of certain financial difficulties in which the practitioner found himself, caused by failed investments and a marriage breakdown with consequential property settlement. On the evidence before Gray J, the practitioner’s financial difficulties were entirely unrelated to his practice as a solicitor. I observe at the outset that, at the time the conditions were imposed and at all times thereafter, nothing was or has been brought to the attention of this Court to suggest that the practitioner had not conducted his professional obligations with honesty and integrity.
In 2009 when the matter came before Gray J, as a consequence of the financial difficulties then being experienced, the practitioner was in the process of negotiating an arrangement with his creditors pursuant to Part X of the Bankruptcy Act 1966 (a Personal Insolvency Agreement or PIA) in lieu of entering into bankruptcy. At the time, section 49(1) of the Legal Practitioners Act 1981 (the LP Act) was in the following terms:
(1)A legal practitioner –
(a) who has become bankrupt or subject to a composition or deed of arrangement or assignment with or for the benefit of creditors; or
(b) who is or has been a director of an incorporated legal practitioner during the winding up of a company for the benefit of the creditors,
must not, without the authority of the Supreme Court, practice the profession of the law.
Maximum penalty: $10,000
The remaining subsections of section 49, as then in force, conferred a discretion on the Supreme Court to grant an authority to practice, notwithstanding that the circumstances in paragraphs (a) or (b) applied, and provided that any such authority may be granted “on such conditions as [the Court] thinks fit”.[2]
[2] Section 49(2) of the Legal Practitioners Act 1981 (SA).
An important policy consideration, underlying a perceived need for restrictions to be imposed where an authority to practice was to be given in such circumstances, is the protection of the public from any risk that such a practitioner might give into temptation and, for example, take advantage of trust account funds or overcharge clients in order to alleviate their financial difficulties. Accordingly, conditions typically imposed would include that the practitioner is only to practice as an employed solicitor, is to be supervised and is to have no access or capacity to deal with trust account funds.
On the practitioner’s application, Gray J exercised the powers under section 49, as it then stood, to grant a conditional authority to practice and made the following orders.
1.That upon Roderic Jason Lindquist (“the Practitioner”) executing an authority pursuant to Part X of the Bankruptcy Act 1966, the Practitioner be authorised until further order to practise the profession of the law pursuant to Section 49(1a) of the Legal Practitioners Act 1981 (“the Act”) subject to the following conditions:
1.1 The Practitioner’s right of practice be limited to that of an employed solicitor only and under the supervision of a legal practitioner of this Court who has at least 10 years standing and as approved for this purpose by the Law Society of South Australia (“the Supervising Solicitor”);
1.2 The Practitioner will advise the Law Society of South Australia as soon as he commences or ceases to be employed by the Supervising Solicitor;
1.3 The Practitioner will not render any bill for professional fees other than practice taxation invoices for the legal practice of the practitioner who will be supervising him.
1.4 The Practitioner will not receive or deal with money paid by his employer’s clients;
1.5 The Practitioner will not establish or maintain a solicitor’s trust account in his own name;
1.6 The Practitioner will not operate any trust account of any other practitioner;
1.7 The Practitioner will ensure that his Supervising Solicitor provide regular reports to the Law Society of South Australia and the Attorney-General as to the progress of the Practitioner as his or her employee and as to the compliance of the Practitioner with the terms of this Order such reports to be prepared and sent each quarter with the first to be prepared and sent by the 30 June 2009;
1.8 The Practitioner will comply with the reasonable directions of any trustee appointed pursuant to a Personal Insolvency Agreement pursuant to the provisions of the Bankruptcy Act 1966 (“PIA”) or a trustee in bankruptcy in the event that the Practitioner presents a debtor’s petition, and his statutory obligations under the Act;
1.9 That the Practitioner will retain Anthony Broome of Ashmans, Chartered Accountants, Hutt Street, Adelaide or any other accountant acceptable to the Law Society of South Australia until further order, to manage his financial affairs and to assist him in ensuring compliance with his financial and taxation obligations and the Practitioner will ensure that the accountant provides the Law Society of South Australia with a report of his compliance with his financial and taxation obligations on a quarterly basis, the first to be provided for the quarter ending 30 June 2009;
1.10 The Practitioner will comply with the preparation of tax returns and payment of money to the Australian Taxation Office as required by law;
1.11 The Practitioner will forthwith advise the Law Society of South Australia and the Attorney-General should he cease to practise;
1.12 The Practitioner will request his trustee under the PIA or his bankruptcy, whichever shall apply, to provide the Society and the Attorney-General on a quarterly basis reports regarding his compliance with the PIA or his bankruptcy, the first report to be prepared for the quarter ending 30 June 2009;
1.13 The Practitioner will forthwith advise the Law Society of South Australia if his PIA is not accepted by his creditors and if he subsequently lodges a debtor’s petition.
2.A copy of the PIA is to be served on the Law Society of South Australia and the Attorney-General within 48 hours of its execution.
3.That should the Practitioner fail to comply with any condition of this order, leave is reserved to the Law Society of South Australia and the Attorney-General to apply at short notice for an order revoking paragraph 1.
The LP Act was substantially amended by the Legal Practitioners (Miscellaneous) Amendment Act 2013 (the LP Amendment Act).[3] One of the changes concerned amendments to section 49. Essentially, paragraph (a) in section 49(1) was deleted with consequential changes being made to the following subsections. The effect of the amendment is that the power conferred on the Supreme Court pursuant to section 49 to grant an authority to practice now only applies in the context of the winding up of an incorporated legal practice.
[3] Act No. 44 of 2013.
However, the mischief to which paragraph (a) was directed is now addressed by Part 3 Division 2B of the LP Act (sections 20AG, 20AH and 20AI). These provisions address this particular issue in significantly more detail. For example, section 20AH addresses the situation where a “show cause event” happens in relation to the holder of a practising certificate. In such circumstances, certain obligations are imposed on the holder of the practising certificate including an obligation to provide specified information to the Supreme Court. Under section 20AI, the Supreme Court may refuse to issue or renew or may amend, suspend or cancel a practising certificate if the holder of the certificate fails to provide the information as required under section 20AH or, having provided such information, the Supreme Court nevertheless does not consider the holder to be a fit and proper person to hold a practising certificate. It would seem that the financial circumstances that confronted the practitioner in 2009 were such as now would fall within the definition in section 5 of the LP Act of the expression “show cause event”.
Neither section 49 in its earlier or current form nor Part 3 Division 2B (sections 20AG, 20AH and 20AI) makes express provision for the variation or revocation of any conditions imposed in accordance with the power conferred on the Supreme Court by those provisions.
However, at the same time as section 49 was amended and Part 3 Division 2B introduced into the LP Act, Part 3 Division 2A (sections 20AB, 20AC, 20AD, 20AE and 20AF) was also introduced into the LP Act. In addition, section 20AA (falling within Part 3 Division 2) formed part of the LP Act in 2009 and was not affected by the amendments introduced by the LP Amendment Act.
The various amendments and new provisions to which I have referred were all proclaimed to take effect as at 1 July 2014. However, Part 4 of Schedule 2 of the LP Amendment Act contains various transitional provisions. Clause 6 of Schedule 2 provides:
Part 3 Division 2A to C of the principle Act, as inserted by section 17 of this Act, apply in relation to a practising certificate whether issued before, on or after the commencement of that section.
It would seem that it is to section 20AA and Part 3 Division 2A (sections 20AB, 20AC, 20AD, 20AE and 20AF) that one should look for any express power conferred on the Supreme Court to amend or revoke any conditions previously imposed on a practitioner’s practising certificate pursuant to the authority granted under section 49(1) of the Act in its old form.
My review of the LP Act, including Part 3 Division 2B (sections 20AG, 20AH and 20AI) has not disclosed any other provisions that might be of assistance.
It is convenient to set out in full the terms of sections 20AA, 20AB, 20AC, 20AD and 20AF.[4]
[4] Section 20AE only applies where an order has been made under section 20AD and simply makes provision, by operation of law, for how and when any order to amend, suspend or cancel a practising certificate is to have or take effect.
20AA—Endorsement of conditions on practising certificates
(1)If, in accordance with this Act, a regulatory authority of this or any participating State makes a determination or order—
(a) imposing conditions on, or requiring the endorsement of conditions on, a legal practitioner's practising certificate; or
(b) varying or revoking conditions on, or requiring the variation or revocation of conditions on, a legal practitioner's practising certificate,
the Supreme Court may record or give effect to the determination or order by revoking the practising certificate currently held by the legal practitioner and issuing the legal practitioner with a new practising certificate in the appropriate form.
(2)A regulatory authority must notify the Supreme Court of the making of a determination or order referred to in subsection (1).
(3)If a determination or order is made imposing, varying or revoking conditions on a practising certificate, the determination or order will be taken to have effect from the date it is made, or from a subsequent date specified in the determination or order, and not from the date of issue of a new practising certificate under this section.
...
20AB—Application of Division
This Division does not apply in relation to matters referred to in Division 2B.
20AC—Grounds for amending, suspending or cancelling practising certificate
Each of the following is a ground for amending, suspending or cancelling a practising certificate:
(a)the holder of the certificate is not a fit and proper person to hold the certificate;
(b)if a condition of the certificate is that the holder of the certificate is or has been limited to legal practice specified in the certificate—the holder of the certificate is engaging in legal practice that the holder is not entitled to engage in under this Act.
Note—
Such conditions could be imposed under section 17A(1)(b) or by the Commissioner or the Tribunal under Part 6. A particular category of certificate may also limit the holder of the certificate to specified legal practice.
20AD—Amending, suspending or cancelling practising certificates
(1)The Supreme Court may, on the application of the Attorney General, the Society or the Commissioner, make an order amending, suspending or cancelling a practising certificate if the Court considers that a ground exists for the amendment, suspension or cancellation.
(2)An application under this section—
(a) must be served on the holder of the certificate in accordance with the rules of the Supreme Court; and
(b) must—
(i)specify the order sought by the applicant (including details of any amendment or suspension period proposed in the application); and
(ii)state the ground for seeking the proposed order; and
(iii)invite the holder to make written representations to the Court, within a time specified by the Court of not less than 7 days and not more than 28 days, as to why the order should not be made.
(3)If, after considering all written representations made within the specified time and, in its discretion, written representations made after the specified time, the Supreme Court considers that a ground exists to—
(a) make an order amending, suspending or cancelling the certificate as proposed in the application; or
(b) make an order for the amendment or suspension of the certificate that is less onerous than the order proposed in the application,
the Court may make the order.
(4)If the Supreme Court makes an order amending, suspending or cancelling the practising certificate, the Court must give the holder a written notice about the order setting out—
(a) the terms of the order; and
(b) the reasons for the order.
Note—
Under some provisions of this Act, a practising certificate is taken to be suspended by force of the provision. See, for example, section 19(1) and Schedule 1 clause 12(2).
This section does not derogate from the power of LPEAC to cancel a practising certificate under section 17A.
...
20AF—Revocation of amendment, suspension or cancellation of practising certificate
(1)The holder of a practising certificate that has been amended, suspended or cancelled under section 20AD may make written representations to the Registrar of the Supreme Court about the amendment, suspension or cancellation and the Court must consider the representations.
(2)The Supreme Court may revoke the amendment, suspension or cancellation at any time, whether or not in response to any written representations made to it by the holder.
Section 20AA contains machinery provisions. It empowers the Supreme Court to record or give effect in certain ways to the making of a determination or order by a regulatory authority of South Australia or of any participating state which serves, inter alia, to impose conditions on or to vary or revoke conditions on a legal practitioner’s practising certificate. The assumption underlying the powers conferred on the Supreme Court by section 20AA is that a regulatory authority has made, “in accordance with this Act”, a determination or an order imposing, varying or revoking practising certificate conditions. It does not, itself, confer power on a regulatory authority to impose conditions or to vary or revoke them.
It is to be observed that the definition of regulatory authority in section 5 of the LP Act includes, in relation to the State of South Australia, the Supreme Court.[5] It follows that the machinery provisions in section 20AA apply where the Supreme Court has made a determination or order imposing, varying or revoking conditions. It is to be inferred from the existence and terms of section 20AA that there is a power, to be found elsewhere, conferred on the Supreme Court, as a regulatory authority, to impose, vary or revoke conditions.
[5] Together with the Legal Practitioners Education and Admission Council (LPEAC), the Law Society, the person holding or acting in the Office of Legal Profession Conduct Commissioner in accordance with the provisions of the Act and the Legal Practitioners Disciplinary Tribunal established under Part 6 of the LP Act.
Part 3 Division 2A (sections 20AB, 20AC, 20AD, 20AE and 20AF) also would not appear to confer power on the Supreme Court in the present circumstances, that is, to revoke conditions previously imposed under section 49.
Section 20AF provides that the holder of a practising certificate that has been amended, suspended or cancelled under section 20AD may make written representations about the matter and that the Supreme Court must consider those representations. Subsection (2) empowers the Supreme Court to revoke the amendment, suspension or cancellation at any time whether or not in response to any written representations made. However, section 20AF is predicated on the amendment, suspension or cancellation having been ordered pursuant to section 20AD.
Section 20AD(1) provides that, on the application of the Attorney-General, the Law Society or the Legal Profession Conduct Commissioner, the Supreme Court may make an order amending, suspending or cancelling a practising certificate “if the Court considers that a ground exists for the amendment, suspension or cancellation”. However, section 20AC sets out the circumstances which qualify as “a ground for amending, suspending or cancelling a practising certificate”. The circumstances set out in section 20AC as grounds for amending, suspending or cancelling a practising certificate would not appear to embrace the circumstances in which the practitioner found himself in 2009 and finds himself now. Further, the power of amendment conferred by section 20AD arises only on the application of the entities referred to in section 20AD(1). An application by the practitioner is not envisaged.
It would seem to follow, that the power of revocation conferred by section 20AF(2) on the Supreme Court is not wide enough, at least in its express terms, to empower the Court to revoke the conditions imposed on the practitioner’s practising certificate by Gray J in 2009.
This analysis is consistent with the terms of section 20AB which provides that Part 3 Division 2A does not apply in relation to matters referred to in Part 3 Division 2B. In other words, Division 2A and the powers conferred thereunder do not apply to the Supreme Court’s refusal to issue or renew a practising certificate or to any amendment, suspension or cancellation of a practising certificate which arises as a consequence of a “show cause event”. As earlier indicated, the circumstances in which the practitioner found himself in 2009 would, today, qualify as a show cause event and be dealt with under Division 2B.
Whilst the orders made by Gray J in 2009 pursuant to section 49 of the LP Act, as it then stood, undoubtedly were within power and, indeed, were expressly contemplated by section 49(2) I have been unable to identify in the LP Act, either in its pre-1 July 2014 form or its present form, an express power to revoke conditions imposed pursuant to section 49(2) of the LP Act in its pre-1 July 2014 form. For the Supreme Court to be without such a power would be remarkable and, as earlier indicated, section 20AA of the Act which has remained unchanged at all relevant times plainly contemplates that such a power exists.
The Supreme Court has an inherent jurisdiction or power which exists separately from the Supreme Court Civil Rules 2006. There is an implied power in the Court to do what is necessary to assert, effectively, its authority.[6] It is no impediment to the existence of an inherent jurisdiction that the matter under consideration is otherwise regulated by statute provided that the expression or application of the inherent jurisdiction does not operate inconsistently with or contravene any such statute.[7]
[6] Metropolitan Bank v Pooley (1885) 10 App Cas 210 at 220-1.
[7] Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421.
In Condon v Pompano Pty Ltd,[8] French CJ described the inherent jurisdiction or inherent power of a superior court of general jurisdiction in terms that apply to the Supreme Court of South Australia.[9]
[8] [2013] HCA 7; (2013) 252 CLR 38 at [40]-[42] (citations omitted).
[9] See section 17, Supreme Court Act 1935 (SA).
The jurisdiction of the Supreme Court defined by the Supreme Court of Queensland Act 1991 (Qld) and the Constitution of Queensland incorporates, by reference, the inherent jurisdiction of the Courts of Common Law and Chancery, which is “the inherent power necessary to the effective exercise of the jurisdiction granted”. That is not to say that statutory incorporation of those powers was necessary. Menzies J observed in R v Forbes; Ex parte Bevan that the inherent jurisdiction is “the power which a court has simply because it is a court of a particular description.” Dawson J, who reproduced that description in Grassby v The Queen, acknowledged the “elusive” character of inherent jurisdiction, but said:
“it is undoubtedly the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power. In the discharge of that responsibility it exercises the full plenitude of judicial power.”
His Honour observed of the Supreme Court of New South Wales, in terms applicable to the Supreme Court of Queensland: “Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts at Westminster.”
The inherent jurisdiction of superior courts of record was described in Master Jacob’s frequently cited Hamlyn lecture on the topic as something which flows from the essential character of such courts:
“the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court; it is its very life-blood, its very essence, its immanent attribute.”
Another explanation proffered in another influential article is that “inherent powers arise at common law when they are necessary if the court or tribunal in question is to be able to manage its activities appropriately”.
The extent, if any, to which the inherent powers of the Supreme Courts of the States are protected from statutory derogation by Ch III of the Constitution, was not in issue in these proceedings. However, the nature and purpose of those powers indicate that they are not, as a rule, displaced or abrogated by general words in a statute nor by statutory provisions or rules which overlap with them. Rich J said in Cameron v Cole:
“[I]n the absence of clear words, a statute should not be treated as depriving a court of the inherent jurisdiction possessed by every court to ensure that trials before it are conducted in accordance with the principles of natural justice.”
Early in the life of this court Griffith CJ remarked that:
Rules and forms of procedure are not ends in themselves, but means to an end, which is the attainment of justice.
It follows from that uncontroversial proposition, as Mr Keith Mason observed in an article on the topic of inherent jurisdiction in the Australian Law Journal:
that the mere fact that a statute or rule of court addresses itself in a particular way to a particular matter does not usually exclude by implication a superior court’s wider inherent powers relating to that matter if they are appropriate.
In the present case, I am satisfied that the Court has an inherent power to revoke or amend orders previously made within jurisdiction, including orders that imposed conditions or restrictions on a legal practitioner’s right to practice. To recognise such an inherent power, does not, in my view, run contrary to the powers and restrictions imposed on the Supreme Court in accordance with the provisions of the LP Act. To the contrary, such a power is implicit in the terms of section 20AA. It would lead to an absurdity if conditions imposed on a practitioner’s right to practice could not, in the appropriate circumstances, later be varied or, indeed, revoked.
The practitioner initially relied on section 20AA of the LP Act and Rule 389 of the Supreme Court Civil Rules 2006. For the reasons already given, section 20AA, whilst it contemplates such a power, does not expressly confer it. As far as Rule 389 is concerned, it only deals with applications under section 20AF to revoke an order, cancelling, suspending or amending a practising certificate. As indicated, section 20AF contemplates that any such order sought to be revoked is one made pursuant to section 20AD. And, as earlier explained, the orders made by Gray J did not fall within the power conferred by section 20AD or any cognate provision in the LP Act in its pre-1 July 2009 form.
Chapter 17 of the Supreme Court Civil Rules 2006 applies to “lawyers” and prescribes a number of rules dealing with matters arising under the LP Act. Under the heading “Part 2 – General procedural rules”, Rule 364(3) provides “in any matter governed by this Chapter, the Court may make such orders as it thinks fit”. This provides a plenary power to the Court. However, the matter under consideration must be one “governed by this Chapter”. In the absence of jurisdiction conferred either by the relevant legislation or through the inherent jurisdiction of the Court it is difficult to see how Rule 364(3), notwithstanding its apparent breadth, can satisfy such a deficiency.
At the end of the day, I am satisfied that the Court has power to revoke the conditions imposed on the practitioner’s practising certificate by Gray J. In this respect, I note that section 20AA(3) is to the following effect.
If a determination or order is made ... revoking conditions on a practising certificate, the determination or order will be taken to have effect from the date it is made, or from a subsequent date specified in the determination or order and not from the date of issue of a new practising certificate under this section.
The practitioner’s present application
The practitioner’s application was supported by an affidavit sworn by the practitioner on 6 July 2016, an affidavit by Peter James Leech sworn on 27 July 2016 and an affidavit sworn by Rosalind Marion Burke on 10 August 2016. It is unnecessary to set out the affidavit evidence in full. It is sufficient to note the following matters.
The practitioner has deposed at some length to the history of his practising career as an employed solicitor since the making of the orders by Gray J and the circumstances of his compliance with the conditions imposed by Gray J requiring action on the practitioner’s part.
The practitioner, as required, did enter into a PIA following a meeting of creditors on 7 May 2009, pursuant to which Mr Allan Scott was appointed trustee. On and from 19 June 2009, the practitioner commenced and remained (but for a brief period) in employment as a solicitor with two prominent firms in Adelaide. In each case, the practitioner was supervised by a partner who was a legal practitioner of this Court of at least ten years standing and approved of by the Law Society of South Australia. There was a period between 2 September 2013 and 21 October 2013 when the practitioner was without employment. He did not practice as a solicitor during this period.
As from 17 June 2016, the practitioner has ceased supervised employment at his most recent firm. The practitioner, through counsel, advised the Court that he had no present intention of practising on his own account but would seek further employment as an employed solicitor. Nevertheless, for reasons quite understandable, it is important to the practitioner that the conditions imposed on his practising certificate be removed now that they are unnecessary and that he, like other practitioners of his personal standing and experience, should be entitled to an unrestricted practising certificate.
On 11 October 2013, the practitioner was released from the PIA and a certificate of completion of the PIA is exhibited to his affidavit. I set out paragraph 10 of the practitioner’s affidavit.
Since the April 2009 Order I say except for the period between 2 September 2013 and 11 October 2013 when I was not employed I:
10.1have only practised under the supervision of a legal practitioner who has at least 10 years standing and was approved for this purpose by the Law Society of South Australia.
10.2I have not rendered any bill for professional fees on my own account.
10.3I have not received or dealt with money paid by my employer’s clients.
10.4I have not established or maintained a solicitor’s trust account in my own name.
10.5I have not operated the trust account of my employers.
10.6My supervising solicitor has provided regular reports to the Law Society and the Attorney-General as to my progress in compliance with the terms of the April 2009 Order during my PIA.
I am satisfied that, from the period when the orders were made by Gray J until now, the practitioner has, by and large, complied with his obligations imposed by the conditional nature of the practising certificate. I am also satisfied that the circumstances which called for the practitioner to be issued with a conditional practising certificate, restricted in the manner as required by the orders of Gray J, no longer apply. I am satisfied that the conditions imposed by Gray J should now be revoked and that, at least to this extent, the practitioner should be entitled to hold an unconditional practising certificate.
Peter James Leech is a solicitor employed at the law firm at which the practitioner was employed from October 2013 until June this year. Exhibited to his affidavit is a letter from Mr Greg May, the Legal Profession Conduct Commissioner and a letter from Ms Rosalind Burke of the Law Society of South Australia, dated 18 July and 21 July 2016, respectively. In their correspondence, both Mr May and Ms Burke (on behalf of the Law Society) have indicated no opposition to the practitioner’s application.
At the time Gray J made his orders, both the Law Society and the Attorney-General were permitted to intervene on the basis that matters concerning the public interest might arise when consideration was being given to the proper financial standing of a member of the legal profession. Both the Law Society and the Attorney-General consented to the orders made by Gray J. When the matter came on for hearing before me, Ms Burke was present on behalf of the Law Society of South Australia and Ms Halliday appeared on behalf of the Attorney-General of South Australia. Ms Halliday advised the Court that the Attorney-General also did not oppose the practitioner’s application.
Subsequent to my hearing of the matter, the affidavit by Ms Burke, earlier referred to, was provided. Ms Burke is an admitted legal practitioner and the Director (Ethics and Practice) of the Law Society of South Australia. Ms Burke deposed to matters to the following effect.
(i)The practitioner’s last practising certificate expired (by effluxion of time) on 30 June 2016. It was not renewed because, his employment having ceased, he was unable to comply with aspects of the existing Gray J conditions to be endorsed on any new practising certificate.
(ii)Apart from the Gray J conditions and the usual statutory rules and requirements applying to all practitioners, she is not aware of any restriction on the practitioner’s right to practice.
(iii)The practitioner has complied in full with his continuing professional development obligations for the period 1 April 2015 to 31 March 2016. The practitioner would be entitled, on application, to a category A or unrestricted practising certificate in the event that the Gray J conditions were to be revoked.
(iv)Ms Burke is satisfied that the Gray J orders have been complied with.
Conclusion
Section 20AA(1) of the LP Act (earlier set out) confers a discretion on the Supreme Court to give effect to any order, inter alia, revoking conditions on a practitioner’s practising certificate, by revoking the certificate currently held and issuing the legal practitioner with a new one in the appropriate form. The practitioner’s most recent practising certificate was unrestricted other than as to the Gray J conditions, the revocation of which I propose to order.
In the circumstances, I am of the view that I have the power to make the orders sought by the practitioner in the draft minutes provided to the Court and that, on the evidence before the Court, the orders should be made. I order that:
(i)The conditions placed on the practitioner’s practising certificate, by the orders of this Court dated 3 April 2009, are revoked.
(ii)The practitioner is to be issued with an unconditional (category A) practising certificate for the period 1 July 2016 to 30 June 2017.
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