The Legal Practitioners Complaints Committee v Scott Malcolm Trueman No. SCGRG 95/2650 Judgment No. 5910 Number of Pages 17 Professions and Trades Lawyers

[1996] SASC 5910

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COX, PERRY AND LANDER JJ

CWDS
Professions and trades - lawyers - misconduct, unfitness and discipline - appeal against dismissal of complaint by Legal Practitioners Disciplinary Tribunal - argued that there was sufficient evidence to make out the charge, that the Tribunal ought to have drawn the necessary inferences for an adverse finding by reason of the absence of the practitioner and that the Tribunal misunderstood its role and failed to use its inquisitorial powers to compel the practitioner to give evidence - held that the appropriate standard of proof is the civil standard having regard to the gravity of the facts to be proved - held that the evidence was not sufficient to establish the charges brought against the practitioner - held that the Tribunal erred in failing to exercise the power it has to require the legal practitioner to give evidence - appeal allowed - matter remitted to Tribunal for further hearing. Legal Practitioners Act1981 (SA) ss82(4), 74, 78, 82(5), 83, 84, referred to. Weissensteiner v R (1993) 178 CLR 217; Kerin v Legal Practitioners Complaints Committee (Millhouse, Duggan and Debelle JJ, 20 September 1996, unreported) , applied. Re Veron Ex parte Law Society of New South Wales (1966) 84 WN (Pt1) (NSW) 136, discussed. Spector v Ageda (1973) Ch 30; Re Evatt: Ex parte Bar Association of New South Wales (1967) 67 SR (NSW) 236; Briginshaw v Briginshaw (1938) 60 CLR 336; Re A Practitioner (1927) SASR 58; Clyne v Bar Association of New South Wales (1960) 104 CLR 186; Bar Association of New South Wales v Evatt
(1968) 117 CLR 177; Weaver v Law Society of New South Wales (1979) 142 CLR 201, considered.

HRNG ADELAIDE, 5 September 1996 (hearing), 4 December 1996 (decision) #DATE 4:12:1996 #ADD 29:1:1997

Counsel for appellant:        Mr B R Hayes QC

Solicitors for appellant:     M A Bonesmo

Counsel for respondent:     Mr G B Hevey

Solicitors for respondent:    Scammell and Co.

ORDER
Appeal allowed.

JUDGE1 COX J

1. The circumstances of this appeal are set out in the reasons of Lander J. I think the clear implication of paras (a), (d) and (e) of sub-s(1) of s84 of the Legal Practitioners Act 1991 is that an inquiry pursuant to s82 is not a purely adversarial proceeding. The Tribunal's misunderstanding of the Act in this respect is enough to vitiate its decision. The Tribunal, having regard to the evidence before it, should have required the respondent to attend and answer questions. The appeal should be allowed, the order of dismissal and any consequent orders set aside, and the matter remitted to the Tribunal to continue the hearing of the charges.

JUDGE2 PERRY J

2. I agree that the appeal should be allowed for the reasons to be published by Lander J, which I have had the benefit of perusing in draft.

3. It appears to me that the hearing before the Tribunal miscarried due to a misunderstanding by the Tribunal of the true nature of the proceedings before it, and the failure by the Tribunal properly to consider the exercise by it of its ability to call the respondent.

4. The obligation of the Tribunal pursuant to s82(4) of the LegalPractitioners Act 1981 ("the Act") is to "inquire into the conduct of the legal practitioner... to whom the charge relates". While this does not mean that the proceedings before the Tribunal are to be regarded as completely amorphous, the Tribunal's function is not to be circumscribed by reference to the manner in which the parties choose to place their respective cases before it.

5. It is true that the dictates of procedural fairness oblige the Tribunal to confine its inquiry into such conduct of the legal practitioner as is relevant to a determination of the charge as particularised by the complainant, and as to which the practitioner has been given proper notice. However, vested in the Tribunal is the power to call the practitioner of its own motion, and question him or her.

6. That power is to be implied from the very nature of the Tribunal's function, which is to conduct an inquiry. Its exercise is facilitated by s84 of the Act, which relevantly provides:
    "84 (1) For the purposes of an inquiry under this Part, the
    Tribunal may-
    (a) by summons signed on behalf of the Tribunal ... require the
    attendance before the Tribunal of any person (including a party
    to the proceedings) whom the Tribunal thinks fit to call before
    it ...
    (d) require any person to make an oath or affirmation to truly
    answer all questions put by the Tribunal, or by any person
    appearing before the Tribunal, relevant to any matter being
    inquired into by the Tribunal (which oath or affirmation may be
    administered by any member of the Tribunal); or
    (e) require any person appearing before the Tribunal (whether
    summoned to appear or not) to answer any relevant question put by
    any member of the Tribunal, or by any other person appearing
    before the Tribunal; or...."

7. If during the course of the hearing before it the Tribunal was of the view that the evidentiary hiatus which emerged in this case might be cured by answers given by the practitioner to direct questions put by the Tribunal, it should not have hesitated to call him and put the necessary questions.

8. If the Tribunal fails to require the practitioner to answer questions in circumstances when the answers would be likely to shed some light on an important aspect of the matter which for one reason or another remains unexplained by the evidence placed before it by the complainant, it has failed to make a proper inquiry as required by the Act.

9. I agree with the order proposed by Lander J.

JUDGE3 LANDER J

10. This is an appeal by the Legal Practitioners Complaints Committee (the Committee) from a decision of the Legal Practitioners Disciplinary Tribunal (the Tribunal) which dismissed a complaint containing a charge of unprofessional conduct against the respondent.

11. Whilst the complaint contained one charge of unprofessional conduct, the charge particularised the alleged unprofessional conduct in two ways. The substance in the particulars of the charge of unprofessional conduct was identified by the Tribunal as follows:

12. 1. The practitioner did from about 10 August 1992 onwards commit an act of unprofessional conduct in that he acted for Mr Tony Jesson in relation to allegations of Mr Jesson's involvement with a conspiracy and fraud case in circumstances amounting to a conflict of interest in respect of another client of the practitioner, Mr Colin Hunt. Further the practitioner continued to act for Mr Hunt in circumstances amounting to a conflict of interest with Mr Jesson. 2. In the alternative to count one the practitioner did from about August 1992 onwards commit an act or acts of unprofessional conduct by taking instructions from Mr Tony Jesson such conduct falling short to a substantial degree of the standard of professional conduct observed or approved of by members of the legal profession of South Australia of good repute and competency.

13. In about June of 1992 the practitioner accepted instructions to act for Mr Hunt in connection with charges of larceny and false pretences. The practitioner continued to act for Mr Hunt until 29 December 1992 when Mr Hunt terminated the practitioner's instructions.

14. During that period the practitioner also accepted instructions to act for Mr Jesson, apparently first accepting instructions on or about 14 August 1992. On that occasion he was instructed by Mr Jesson to apply for and appear on the application for bail. He accepted those instructions and acted for Mr Jesson until 17 August 1992, and charged Mr Jesson for the services he had rendered shortly after that date; by rendering an account and appropriating from the practitioner's trust account $500, which had previously been deposited in the practitioner's trust account by or on behalf of the practitioner.

15. On 10 November 1992 Mr Jesson wrote again to Mr Trueman advising that he intended to make a further application for bail and that in connection therewith he had retained Andrew Fraser, a solicitor in the Melbourne firm of Haines and Polites. He asked Mr Trueman to co- operate and to assist Mr Fraser in connection with the bail application.

16. It is not clear from the evidence whether those instructions were accepted by the practitioner or indeed whether he took any steps at all in relation to that request. On 4 December 1992 Mr Jesson wrote yet again to the practitioner inter alia in the following terms:
    "This letter is to confirm my intention to use the services of K
    Borrick, who is to be engaged by your firm as already stated for
    a bail application, but further to that effective today on all my
    matters through your firm.

I have this day confirmed these instructions with my previous
    legal council (sic) Stephen MacFarlane and instructed him to
    forward any documentation he may be holding to your office.

I draw your attention to my impending next court appearance in
    the Criminal district (sic) court on the 7th of December 1992 and
    look forward to being represented K Borrick."

17. To a certain extent the letter suggests that perhaps the earlier instruction was not accepted, because no reference was made to that previous correspondence or anything which might have occurred as a result of it.

18. In the proceedings before the Tribunal the Committee delivered a notice to the practitioner seeking the admission of facts and documents. In response to that notice, the practitioner admitted that he acted for Mr Hunt between June and December of 1992 in connection with criminal charges against Mr Hunt of larceny and false pretences, and in relation to the recovery of some opals for reward. He also admitted that in August 1992 he accepted instructions from Mr Jesson with respect to a bail application in relation to a charge of fraud against Mr Jesson. Moreover he admitted that after 13 November 1992 he acted on behalf of Mr Jesson in his fraud case. It is to be noted that the charges of unprofessional conduct allege that the conduct occurred in the period from 10 August 1992 until, although it is not expressly stated, 29 December 1992. In the hearing of this appeal, the appellant, notwithstanding the allegations in the charges and the admission by the practitioner in the response to the Notice to Admit, limited its allegations of unprofessional conduct to conduct after 4 December 1992.

19. The fact that the practitioner was acting for two persons charged with separate criminal offences is a matter of no significance unless, as was claimed by the Committee, information came to the attention of the practitioner in respect of one of those persons which impacted upon his being able to act in criminal charges relating to the other. A legal practitioner should not accept instructions to act for more than one client where there is a conflict of interest or a significant risk of a conflict of interest between the interests of those clients. In a case such as this the solicitor's duty was stated by Megarry J in Spector v Ageda (1973) Ch 30:
    "A solicitor must put at his client's disposal not only his skill
    but also his knowledge, so far as is relevant; and if he is
    unwilling to reveal his knowledge to his client, he should not
    act for him. What he cannot do is to act for the client and at
    the same time withhold from him any relevant knowledge that he
has: see, e.g. Moody v Cox (1917) 2 Ch 71."

20. It is not entirely easy to understand what that information was but I understand it to be that on the 7th of July Mr Hunt asserted to police that Mr Jesson intended to murder a witness who was to give evidence in Mr Jesson's trial on charges of fraud. Mr Hunt repeated that information to two police officers Breda and Fahy on 12 August 1992 together with the further information that Mr Jesson had asked Mr Hunt to arrange the purchase of a pistol in order to effect the plan to murder the witness in Mr Jesson's trial.

21. On 21 August 1992 Mr Hunt passed further information to the police including information that the proceeds of a fraud, allegedly committed by Mr Jesson, were located in a safety deposit box. The police were also told by Mr Hunt that a certain person was in a position to sell a pistol for $600 and that the purchase of the pistol would be effected by the use of monies in a legal practitioner's trust account.

22. Sergeant McDonald was the only witness called before the Tribunal. He became involved in September 1992 and was informed by other police officers prior to 30 September 1992 that Mr Hunt had informed Constables Breda and Fahy that it was Mr Jesson's desire to have a witness in his matter killed, and that Mr Jesson was prepared to supply the money for the purchase of the pistol, and that a person had been nominated to Messrs Breda and Fahey as a contact for police to purchase the pistol.

23. On 30 September Mr Hunt told Sergeant McDonald of the name of the person from whom the pistol was to be purchased. Further he said that a sum of $5,000 had been deposited in the practitioner's trust account out of which the sum of $600 was to be used for the purchase of that pistol. Mr Hunt told Sergeant McDonald that the police officer ought to contact Mr Trueman and money would be made available for police to purchase the pistol.

24. Sergeant McDonald discussed Mr Hunt's allegations with his superior officers and it was decided that the police department would make the funds available, in a covert operation, for the purchase of the gun. Sergeant McDonald then attempted to contact Mr Trueman, at his office, to advise him that if a gun was to be purchased it would be purchased by the police department and not from the money standing in his trust account. Initial attempts to speak to Mr Trueman were unsuccessful but eventually sometime after 30 September, probably one month later and perhaps even two months later, Sergeant McDonald said in his evidence in chief, that he spoke to Mr Trueman near the Supreme Court building in Victoria Square.

25. It is not clear from his evidence when the conversation occurred but it is tolerably clear that whatever conversation was had between Sergeant McDonald and Mr Trueman did occur prior to the 4th of December. Of course, the conversation must have been after 17 August 1992. In cross examination he accepted that the conversation may have occurred over the telephone.

26. Indeed I think it is likely that that conversation did occur on the telephone. There is an undated file note in the practitioners file of a conversation with Peter McDonald. It records:
     " - have picked the gun up
    - opals: $1,000,200"

27. Sergeant McDonald said in his evidence:
    "I approached Mr Trueman too - because it was my intention to
    contact him and I wished to advise him that the decision made by
    the Police Department that the pistol would be purchased by them
    and - if that did, in fact, take place, and to let him know we
    wouldn't be requiring any money from him in relation to that.
    That was my main concern in contacting him. During that - it
    wasn't a long conversation, it was a fairly brief conversation,
    but the matter involving the whole issue was just generally
    discussed."

28. He went on to say:
    "The main point that I recall was the point that I wanted to
    contact Mr Trueman on, which was in relation to the purchase of
    the pistol. Other comments were made in relation to - I know
    that there was a light hearted comment, I think, made in relation
    to the $5,000, because I can recall that I did make a comment
    that I hope it had - it wasn't any of the counterfeit money that
    Mr Hunt was talking to us about that he had been given. I know
    that I made the comment in relation to Peter Burns, the witness
    who was supposedly to be killed, that he had been placed - that
    he was offered police custody, protection, in Victoria, but he
    refused that and he was under 24 hour surveillance in Victoria."

29. His evidence was that Mr Trueman asked no questions but appeared to apparently understand what he was talking about.

30. Whenever and wherever this conversation took place if Sergeant McDonald spoke to the practitioner about a gun, it is suggested that it would be likely, if the practitioner knew nothing about a gun at all, that he would have said so. I have already referred to the file note of the mention of the gun and the absence of a note indicating that the information was new to the practitioner.

31. The appellant tendered before the Tribunal a copy of a record of the practitioner's trust account relating to Colin Hunt.

32. That shows a deposit on 7 July 1992 of $500 and a debit on 24 July 1992, by transfer to office account of the same amount. Relevantly, it next shows on 4 September 1992 a deposit of $2,000 received from Mr Jesson regarding Colin Hunt and then various transfers to office account on account of costs. A sum of $400 was paid to Miss Starcevich (Mr Hunt's girlfriend) on 17 September 1992 and a further sum of $500 paid to her on 23 September 1992. On 3 December 1992 the account was credited with $4,000 received from Reilly Downes and Humphries, solicitors. The trust account makes it clear enough that there was never a sum of $5,000 deposited in the practitioner's trust account. There was only deposited a sum of $2,000 by Mr Jesson for the benefit of Mr Hunt on 4 September 1992.

33. The appellant also tendered the practitioner's trust account relating to Mr Jesson. That showed only a deposit of $500 in August 1992 and a debit by transfer to the office account of the same sum.

34. Neither account therefore supported the suggestion of Mr Jesson having deposited a sum of money for the purpose of the acquisition of a gun.

35. If the practitioner had been told by Mr Hunt that Mr Jesson had deposited money with the practitioner for that purpose, the practitioner would have known that statement to be inaccurate. The fact that no sum of $5,000 was deposited by or on behalf of Mr Jesson is contrary to the assertion that Mr Hunt made to Police. It may be consistent, although not necessarily so, with the practitioner not having any knowledge of Mr Hunt's allegations about Mr Jesson. But that would still not explain the practitioner's failure to say to Sergeant McDonald that he knew nothing about a gun.

36. Evidence was led to establish the various conversations between Mr Hunt and the police officers to which I have referred, but of course there is no suggestion that the practitioner was present at any of those conversations.

37. The Legal Practitioners Complaints Committee relied upon these further matters. First that Mr Hunt instructed the legal practitioner to inform the police that Mr Hunt had information relating to the sum of $330,000 which might be located in a safe deposit box. Secondly that Mr Hunt instructed the practitioner to inform the police as to certain information given to him by Mr Hunt which included information relating to the murder of a witness.

38. Those matters were sought to be proved by the tender of a statement from Detective Fahy. In that statement the police officer said:
    "On the 21st August 1992 Mr Hunt's solicitor, Mr Scott Trueman,
    telephoned our office and I spoke to him. Mr Trueman told me
    that Mr Hunt had information regarding the location of money in a
    safety deposit box and the murder of an unknown witness and if
    the Police needed to speak with Mr Hunt then he was prepared to
    assist acting as Mr Hunt's solicitor. I advised Mr Trueman that
    the Police already had all of the information he was speaking of
    and that Mr Hunt had provided us with nothing but words and no
    real evidence. However I did say to Mr Trueman that if we did
    need anything further we would contact him. From this telephone
    conversation it was my impression that Mr Trueman was doing

    nothing more than acting upon his client's instructions to pass
    on that specific information and Mr Trueman was making no further
    effort than to merely follow those instructions. Mr Trueman made
    no mention of either money paid into or out of his trust account
    or the Adelaide Remand Centre trust account and neither did he
    make mention of the purchase of any gun."

39. Mr Fahy's statement, if accepted, makes it clear enough that the practitioner had an awareness of some of the allegations made by Mr Hunt.

40. At least he knew of the allegation of money in a safety deposit box and the suggestion of the murder of a witness. The statement, however, does not disclose that the practitioner knew that the allegations which Mr Hunt had made related to Mr Jesson.

41. Apart from a brief contact between Detective Fahy and the practitioner at Mr Jesson's trial there was no further contact between those gentlemen.

42. Otherwise the prosecuting authority relied upon file notes taken from the practitioner's file dated 19 August 1992, 20 August 1992, and 21 December 1992 being telephone attendances on Mr Hunt and other persons.

43. The file note of 19 August 1992 shows a telephone attendance on "Kim" after a failed telephone attendance on Mr Fahy.

44. The note refers to a "big problem" and speaks of "help the state". It mentions "can't take the risk at this stage". It talks about a need for "more info".

45. The second note of 20 August 1992 contains a number of apparently disjointed facts. There is reference to "Singapore/Chinese" and of suggestions of drugs. There is a note "get the plates" - "no more info until Hunt is out".

46. There is reference to police officers, "Eddie Breaker or Brian Fahey". There is also reference in the note "to safe deposit" and "money that's missing $330,000". The second file note really contains no further information than the admission made by the legal practitioner in the notice to admit.

47. Like the statement of Mr Fahy, the file notes tend to indicate that the practitioner had an awareness of some or part of the allegations being made by Mr Hunt. Again, like that statement, the file notes do not establish that the practitioner was aware that the allegations made by Mr Hunt concerned Mr Jesson.

48. A file note of 21 December 1992 was tendered. That apparently records some matters obtained in a telephone conversation between Mr Hunt and the practitioner. The note records:
    "Terri - threats against her life (Tony Jesson)
    - gone off the deep end.
    - A-G Dept
    - Law Society
    - Channel 7"

49. Mr Hunt's girlfriend, for whom the practitioner had previously acted, was Teresa Starcevich (Terri). It was said that that note was evidence of the practitioners knowledge that Mr Hunt's accusations related to Mr Jesson.

50. That is an inference that could possibly arise. Even if it did, however, it might be that this was the first occasion that the practitioner knew the allegations concerned Mr Jesson. The 21 December 1992 was well after the practitioner had agreed to act for Mr Jesson. It was shortly before the Christmas holidays and shortly before, as the next document shows, Mr Hunt asked the practitioner to cease acting for Mr Hunt.

51. On 29 December 1992 Mr Hunt wrote to the practitioner in the following terms:
    "Dear Scott,

It is now with much disappointment that, further to our telephone
    discussions, I advise you that I no longer will be needing the
    services of yourself, or Ringwood and Co.

I do not wish to go any further into why and wherefores, but as
    you and I both know and have spoken about same.

I do believe now Scott, with your actions regards a certain
    person, whom (sic) now appears to be a new client, that if we
    continued, my position would have been compromised and a conflict
    of interests would have arisen.

You will therefore send my file to Mr David Stokes, and a cheque
    and balance of my trust account to be forwarded as forthwith.

With trepidation I end our business relationship.

Colin Hunt"

52. That letter is somewhat enigmatic, but I suppose if Mr Hunt was then an informer he may not have wished to make that clear in correspondence.

53. The letter, however does refer to a "new client" and "that if we continued, my position would have been compromised and a conflict of interests would have arisen." There was no complaint then of any previous conflict or indeed any continuing conflict but only, it would appear, to a potential conflict.

54. Whilst there is a body of evidence which would support the proposition that Mr Hunt asserted to police during July, August and September that Mr Jesson was involved in a plot to murder a witness, and that Mr Jesson was facilitating that plot by arranging for the purchase of a pistol, through monies deposited in the practitioners trust account, the evidence to establish that the legal practitioner was aware of Mr Hunt's assertions, and was therefore in a position of conflict, is much less clear.

55. The appellant relied upon a letter written by the respondent, in response to publication to the respondent of Mr Hunt's complaint. The respondent wrote:
    "The writer can assure the Committee that there has been no
    substance in any information that the Complainant has given the
    writer concerning the other client which would cause or
    potentially cause any embarrassment. Obviously if there were a
    conflict the writer would immediately withdraw his services..."

56. It was argued that that letter demonstrated that information concerning Mr Jesson had been given to the practitioner but that the practitioner had taken it upon himself to determine the accuracy of the information. That, it was said, was evidence of knowledge on the part of the practitioner and conflict. I am not sure that the letter goes anywhere near as far as the appellant would argue. I think the letter, which is not expressed in unambiguous terms, does not amount to an admission of that fact.

57. The difficulty for the prosecuting authority was that it was not able to call Mr Hunt to give evidence because Mr Hunt was, at the time of the hearing of these charges, incarcerated in a prison in Queensland under protective custody.

58. The other problem for the Committee, in establishing its case, was that some of the evidence relied upon, in particular the assertions of Mr Hunt, was inherently unreliable.

59. At the end of the appellant's case the evidence against the practitioner was both confused and confusing. There was, as I have already said, a body of evidence which supported the proposition that Mr Hunt had claimed to the police for a period of time prior to 4 December that Mr Jesson intended to have a witness in the proceedings against Mr Jesson killed. The evidence also suggested that Mr Hunt claimed that he had made the practitioner aware of that matter, however the evidence directly admissible against the practitioner was not sufficient, in my opinion, to conclude that the practitioner was aware that the matters about which Mr Hunt had complained concerned Mr Jesson.

60. At the close of the appellant's case the practitioner, through his Counsel, simply indicated that the practitioner would be calling no evidence. No submission was made at that stage that there was no case to answer.

61. The appellant thereafter drew to the attention of the Tribunal the fact that the Tribunal's duty was to inquire into the conduct of the practitioner pursuant to s82(4) of the Legal Practitioners Act1981 and that the Tribunal had available to it a number of powers in relation to that inquiry. The complainant did not ask that the Tribunal call the practitioner as a witness nor did the appellant seek itself to call the practitioner.

62. The Tribunal did not call upon the practitioner to give evidence, but proceeded to determine the matter upon the evidence adduced by the Committee and without an explanation from the practitioner. It determined:
    "In all of this we are very conscious of the fact that if Mr Hunt
    had been called to give evidence we may have been somewhat more
    enlightened as to the facts of the matter but without that
    evidence we are left with having to draw inferences from the
    various pieces of evidence provided. In that environment, we do
    not consider that on the standard of proof required in a matter
    of this kind, we are justified in drawing the necessary
    inferences to make an adverse finding against the practitioner.
    We accept that the Complaints Committee has done all that it
    could to secure the attendance of Mr Hunt but that for reasons
    beyond it s control it has been unable to do so.

In our view there is no evidence of the practitioner receiving
    information from Mr Hunt relating to Mr Jesson's forthcoming
    trial or his conduct prior to trial and relating to the trial.
    In the absence of such evidence, we do not think the complainant
    has made out a case on either of the charges (sic)."

63. The Committee appeals from this decision and put its case on appeal in three ways. First it said there was evidence sufficient to make out the charge of unprofessional conduct. Secondly it argued that the Tribunal ought to have drawn the inferences it refused to draw by reason of the absence of the practitioner from the witness box. It was put that the respondent's failure to give evidence of matters peculiarly within his own knowledge, which were relevant to the issues before the Tribunal, was a matter that the Tribunal should have taken into account in assessing the evidence before it. It was said that his "failure to give evidence made it safer for the Tribunal to draw the inferences capable of being drawn": Weissensteiner v R (1993) 117 ALR 545. Thirdly it argued that the Tribunal misunderstood its role and failed to use its inquisitorial powers to compel the practitioner to give evidence.

64. The first matter requires an examination of the evidence to determine whether the evidence would support such a finding to the appropriate level of satisfaction. I have already discussed the evidence. In relation to the standard of proof the Tribunal relied upon and followed a decision of the Court of Appeal in New South Wales viz Re Evatt: Ex parte New South Wales Bar Association (1967) 67 SR (NSW) 236 which determined that the standard of proof was the civil standard but that the degree of satisfaction of proof depended upon the gravity of the fact to be proved Briginshaw v Briginshaw
(1938) 60 CLR 336.

65. Since the decision of the Tribunal in this case was given the Full Court of this Court has delivered its reasons in Kerin v Legal Practitioners Complaints Committee (Millhouse Duggan and Debelle JJ, 20 September 1996, unreported, available on SCALE). The Court determined in proceedings under this Act that the appropriate standard of proof is the civil standard having regard to the gravity of the facts to be proved. With respect, I agree with that decision.

66. The alternative argument, upon the evidence adduced, was that the Tribunal ought to have had regard to the absence of the practitioner from the witness box and raised inferences consistent with his guilt by reason of his failure to explain.

67. If these were ordinary civil or criminal proceedings the practitioners failure to give evidence would not of itself be evidence nor would that failure amount to an admission. However the failure to give evidence of facts which are peculiarly within the knowledge of a party can allow a court to more readily accept the evidence, which that party has not contradicted, or draw inferences more easily in the absence of that party.

68. There may be good reason however for a party not to give evidence. First the facts, as here, may not be peculiarly within the party's knowledge. Here the facts, if they were true, were well known to Mr Hunt, whom the Committee did not call for the reasons given. So also in civil or criminal proceedings a good reason for not giving evidence is that the prosecution case may be so deficient that a party may simply rely upon the prosecution's failure to discharge the burden cast upon it.

69. As Mason CJ Deane and Dawson JJ said in Weissensteiner (at 553):
    "The failure of the accused to give evidence is not of itself
    evidence. It is not an admission of guilt by conduct. It cannot
    be, because it is the exercise of a right which the accused has
    to put the prosecution to its proof. In some other
    circumstances, silence in the face of an accusation when an
    answer might reasonably be expected can amount to an admission by
    conduct. But when an accused elects to remain silent at trial,
    the silence cannot amount to an implied admission. The accused
    is entitled to take that course and it is not evidence of either
    guilt or innocence. That is why silence on the part of the
    accused at his or her trial cannot fill in any gaps in the
    prosecution case; it cannot be used as a make-weight. It is only
    when the failure of the accused to give evidence is a
    circumstance which may bear upon the probative value of the
    evidence which has been given and which the jury is required to
    consider, that they may take it into account, and they may take
    it into account only for the purpose of evaluating that
    evidence."

70. In this case the Committee did not call a witness who could have given direct evidence of the matters essential to the proof of the prosecution case. In failing to call that witness it ran the risk of not discharging the burden of proof upon it. It is not entitled to say, in those circumstances, that those facts were peculiarly within the knowledge of the practitioner. Nor is it entitled to seek to have the Tribunal, or this Court, use the absence of the practitioner from the witness box as a "make weight" in the prosecution case.

71. The charges brought against the practitioner were serious and indeed suggested that the practitioner well knew that one of his clients was asserting that another client was plotting the murder of a witness at the second client's trial. Moreover the allegation suggested that the legal practitioner's trust account was being used as a vehicle for the purpose of the purchase of the pistol which would be used for the commission of the murder.

72. In the end result the Tribunal was not satisfied that the case had been made out on the balance of probabilities, and in particular was not satisfied that the practitioner had the knowledge of the facts which Mr Hunt had given to the police. I agree with the decision arrived at by the Legal Practitioners Disciplinary Tribunal and for the reasons it gave. I think that the evidence was not sufficient to establish the very grave charges brought against the practitioner.

73. That, however, is not an end of the matter because the appellant claimed, in the alternative, that the Tribunal erred in failing to use the powers available to it requiring the practitioner to give evidence, notwithstanding the practitioner's decision not to give evidence.

74. At the relevant time the Legal Practitioners Act constituted the Legal Practitioners Complaints Committee for the purpose of carrying out the functions set out in s74 of the Act. The Act now provides for those functions to be carried out by the Legal Practitioners Conduct Board but the change in responsibilities is of no consequence.

75. Broadly those functions require the Committee to receive, consider and investigate complaints of unprofessional conduct, and where in the opinion of the Committee a complaint of unprofessional conduct cannot be dealt with either by conciliation or admonition, to lay charges of unprofessional conduct before the Legal Practitioners Disciplinary Tribunal.

76. The Tribunal is especially constituted under s78 of the LegalPractitioners Act. Section 82 of the Act provides that charges may be laid before the Tribunal alleging unprofessional conduct on the part of any legal practitioner or any former legal practitioner who is, at the time of the alleged unprofessional conduct, a legal practitioner. The persons who may lay the charges were at the relevant time the Attorney General, the Legal Practitioners Complaints Committee, the Law Society or a person claiming to be aggrieved by reason of the alleged unprofessional conduct.

77. The laying of the charge invokes the jurisdiction of the Tribunal and s82(4) provides:"Where a charge has been laid under this section, the Tribunal must, subject to subsection (5), inquire into the conduct of the legal practitioner or former legal practitioner to whom the charge relates."

78. Subsection (5) provides that if the Tribunal considers any charge frivolous or vexatious it may summarily dismiss that charge. Section 82 (4) however makes it clear that the Tribunal is obliged to carry out an enquiry into the conduct of the legal practitioner.

79. Section 83 requires that the Tribunal must give to a legal practitioner, whose conduct is subject to inquiry, written notice of the time and place at which it intends to conduct the inquiry, and must allow that legal practitioner to be represented at the inquiry by Counsel, and must allow the legal practitioner a reasonable opportunity to call and give evidence to examine or cross examine witnesses, and to make submissions to the Tribunal. At the same time it must also allow the person, at whose instigation the inquiry is to be held, the same opportunity in relation to the calling of evidence, cross examinations and submissions.

80. Section 84 invests the Tribunal with particular powers for the purpose of carrying out its inquiry.

81. Relevantly s84 provides:
    "84. (1) For the purposes of an inquiry under this Part, the
    Tribunal may-
    (a) by summons signed on behalf of the Tribunal by a
    member of the Tribunal, require the attendance before the
    Tribunal of any person (including a party to the proceedings)
    whom the Tribunal thinks fit to call before it; or
    (b) ...
    (c) ...
    (d) require any person to make an oath or affirmation to truly
    answer all questions put by the Tribunal, or by any person
    appearing before the Tribunal, relevant to any matter being
    inquired into by the Tribunal (which oath or affirmation may be
    administered by any member of the Tribunal); or
    (e) require any person appearing before the Tribunal (whether
    summoned to appear or not) to answer any relevant question put by
    any member of the Tribunal, or by any other person appearing
    before the Tribunal; or
    (f) ..."

82. Section 84 provides the power to the Tribunal to require any person, including a party, which would include a practitioner, to attend before it if the Tribunal wishes to call that party. It empowers the Tribunal to require a person (including a practitioner) to make an oath or affirmation and truly answer all questions put by the Tribunal relevant to any matter being inquired into.

83. Lastly it empowers the Tribunal to require a person (including a practitioner) appearing before the Tribunal to answer any relevant question put by any member of the Tribunal. The proceedings therefore, in my opinion, are an admixture of adversarial proceedings and inquisitorial proceedings. There are good reasons for that. First because the Act contemplates that a person laying a charge may be a person simply who is aggrieved by reason of the alleged unprofessional conduct. In those circumstances that person may not be in a position to mount "a prosecution" in the circumstances envisaged in a pure adversarial proceeding.

84. Secondly it may not always be easy for a client to identify precisely the conduct about which the client is complaining. Indeed in some cases it may be that the Committee cannot identify with particularity, as in this case, exactly what it was that the practitioner did or did not do.

85. The third and possibly more important reason for the proceedings being both adversarial and inquisitorial is that they are proceedings to consider the conduct of legal practitioners. Unprofessional conduct includes any conduct on the part of a legal practitioner which violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved of by members of the profession of good repute and competency: Re A Practitioner

(1927) SASR 58.

86. The jurisdiction which is being exercised by the Tribunal is protective: Clyne v Bar Association of New South Wales (1960) 104 CLR 186; Bar Association of New South Wales v Evatt (1968) 117 CLR
177.

87. Disciplinary proceedings under the Act are proceedings sui generis. The proceedings being protective in character are concerned with ensuring that the public generally are protected from misconduct on the part of legal practitioners. It is undoubtedly in the public interest to ensure that legal practitioners who do not behave to the appropriate standard of professional conduct are disciplined and, if the breach warrants, are disentitled from practising; Weaver v Law Society of New South Wales (1979) 142 CLR 201.

88. In those circumstances it is of the utmost importance that if an allegation of unprofessional conduct comes to the notice of the specialist Tribunal constituted for the purpose of hearing such conduct, that the Tribunal fully inquire into those allegations for the purpose of determining the truth or otherwise of the allegations.

89. In my opinion therefore the Tribunal is not constrained, as a Court may be in true inter partes proceedings, to allow the opposing parties to call their own evidence, and to offer an opinion based upon the respective cases adduced by each side. If the Tribunal is satisfied that the absence of the practitioner from the witness box is likely to lead to an inability to reach a decision upon the evidence before the Tribunal, it has the power, and indeed the obligation, to direct that the practitioner give evidence so that the matter may be resolved. Put another way, the Tribunal can call a practitioner to give evidence in relation to an inquiry into an allegation relating to the unprofessional conduct of that practitioner, if the Tribunal is satisfied that the evidence would be of assistance to the Tribunal in determining whether or not the allegation of unprofessional conduct has been made out. Of course in exercising that power, the Tribunal would always be under an obligation to ensure that the practitioner was accorded procedural fairness in accordance with the rules of natural justice.

90. A legal practitioner stands in a special place in relation to inquiries into unprofessional conduct because of the special privileges that are accorded legal practitioners by reason of their calling. As officers of the Court they have an obligation to assist the Court at all times and that obligation includes an obligation to assist the Court or a Tribunal in an inquiry in relation to that legal practitioners own conduct.

91. In Re Veron Ex parte Law Society of New South Wales (1966) 84 WN (Pt 1) (NSW) 136 the Court of Appeal in NSW speaking of a practitioner who had failed to give evidence in disciplinary proceedings in the Court said at 141-142:
    "As we have said, no affidavit as to the facts was filed by the
    respondent or on his behalf despite the fact that we repeatedly
    drew counsel's attention to the omission. Eventually Mr Gruzman
    stated that he had with his junior considered the matter
    carefully with his client and had decided not to file any
    affidavit of the respondent. He also stated that his client
    would not offer to give oral evidence in the witness box. This
    course, we think, was irregular. The respondent is an officer of
    the court. The Full Court of the Supreme Court held in November
    1965 that on the material presented to it by the Law Society a
    prima facie case of misconduct was made out and called upon the
    respondent to show cause why he should not be dealt with. The
    matter arises within the disciplinary jurisdiction of the Court
    and if the respondent after consideration declines to give his
    account on oath of the matters charged he cannot complain if the
    Court holds against him that the facts as deposed to by Mr Wilton
    and other witnesses are substantially true. From the earliest
    times, and as far back as the recollection of the individual
    judges of this Court goes, disciplinary proceedings in this
    jurisdiction in this State have always been conducted upon
    affidavit evidence and not otherwise. They are not conducted as
    if the Law Society (the successor to the Law Institute) was a
    prosecutor in a criminal cause or as if we were engaged upon a
    trial of civil issues at nisi prius. The jurisdiction is a
    special one and it is not open to the respondent when called upon
    to show cause, as an officer of the Court, to lie by and engage
    in a battle of tactics, as was the case here, and to endeavour to
    meet the charges by mere argument. We are well aware that if a
    solicitor is called upon to show cause he may do so in several
    ways. He may (a) argue that the material before the court
    discloses no evidence of misconduct; (b) argue that the facts
    adduced in evidence do not warrant a finding of misconduct; (c)
    meet the situation by a denial or explanation, in either case
    upon oath, of the truth or of the significance of the facts
    deposed to. It is the last alternative in the main with which
    the respondent was faced here. Yet, as we have said, no denial
    or explanation was forthcoming, the respondent having sought what
    refuge was available in argument from the Bar table. His counsel
    elected to cross-examine only nine of the twenty-five deponents."

92. In this matter the Tribunal was unable, upon the evidence, to determine where the truth lay. There was however, in my opinion, sufficient evidence to call upon the practitioner to assist the Tribunal in determining whether or not there was any substance in the matters raised by the Committee. Even though the Committee did not seek to have the practitioner called before it closed its case, in my opinion, the Tribunal ought to have invited the practitioner, notwithstanding his Counsel claimed that no evidence would be led, to give evidence in relation to the various matters particularised.

93. That in my opinion would not have offended against procedural fairness, because the practitioner had appropriate notice of the matters calling for an explanation. If it was likely to do so the Tribunal ought to have adopted a procedure which would have ensured that the requiring of the practitioner to give evidence would not have been unfair to that practitioner.

94. I agree therefore that the Tribunal erred in failing to exercise the power it has in failing to require the legal practitioner to give evidence.

95. In my opinion the appellant has made out the alternative ground upon which it relied and the appeal ought to be allowed.

96. It was pressed upon us that, in the circumstances of this case, as this is a matter of long standing, and as the Committee elected not to call Mr Hunt, and because the practitioner was acquitted by the Tribunal, that it would be inappropriate to refer this matter back to the Tribunal. I cannot agree with that. If this court is of the opinion that the Tribunal erred in failing to exercise its power to require the practitioner to give evidence for the reasons to which I have referred, it would be a contradiction, and indeed inconsistent with these reasons, to fail to send the matter back for further hearing.

97. In my opinion it is necessary that the matter go back to the Tribunal for further hearing in accordance with the reasons which I have expressed.