Victorian Lawyers RPA Ltd v Vodicka
[2000] VSC 272
•28 June 2000
| SUPREME COURT OF VICTORIA | |
| COMMON LAW DIVISION | Not Restricted |
No. 6307 of 1999
| VICTORIAN LAWYERS RPA LTD (ACN 075 475 731) | Plaintiff |
| v | |
| PETER VODICKA | Defendant |
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JUDGE: | Eames J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 June 2000 | |
DATE OF JUDGMENT: | 28 June 2000 | |
CASE MAY BE CITED AS: | Victorian Lawyers RPA Ltd v Vodicka | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 272 | |
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Legal practitioners – solicitor – professional misconduct – cancellation of practicing certificate – offences committed at time of Legal Profession Practice Act 1958 – matter referred to Supreme Court by Legal Profession Tribunal pursuant to s.160(2)(b) of Legal Practice Act 1996 – whether referral a “penalty” which was not open under Legal Profession Practice Act and therefore prohibited from being imposed by virtue of Clause 22(3) of Schedule 2 of Legal Practice Act – whether Court should order that practitioner be struck off roll of practitioners.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr.M. Randall | Mr. J.A. Barravecchio |
| For the Defendant | Mr.B. Halpin | Minter Ellison |
HIS HONOUR:
On 23 April 1999 the Legal Profession Tribunal, comprising Mr Justice Southwell (Chairman), Mr A. Isaacs and Mr F. Sweeney, having heard charges referred to it by Victorian Lawyers RPA Limited, found the defendant, a legal practitioner, guilty of misconduct and made the following orders:
“1.The practising certificate of the legal practitioner is cancelled and the legal practitioner may not apply for any practising certificate under the Legal Practice Act 1996 until 1 January 2001. A stay of the order cancelling the practising certificate for 21 days from this date is granted.
2.Pursuant to section 160(2)(b) of the Legal Practice Act 1996, the Tribunal refers the practitioner to the Supreme Court for the court to determine whether the practitioner’s name should be struck of the roll of practitioners. The Tribunal does not make a recommendation to the Supreme Court pursuant to s. 160(1)(c)(iv) of the Legal Practice Act 1996.
3The legal practitioner is to pay Victorian Lawyers RPA Ltd of and incidental to these proceedings costs of $10,000. The plaintiff has now instituted proceedings by way of originating motion pursuant to the order of the Legal Profession Tribunal and pursuant to s. 160(2)(b) of the Act for the court to determine whether the practitioner’s name should be struck off the roll of practitioners.
The defendant was a sole practitioner practising, at the time of these charges, at 602 St Kilda Road, Melbourne. In early February 1997 an inspector from Victorian Lawyers RPA Ltd inspected the defendant’s practice and as a result of that inspection concluded that the defendant had been guilty of misconduct relating to payments of cash out of trust funds to clients and the borrowing of moneys on his own behalf from clients. As a result of that investigation a number of charges were laid by the plaintiff against the defendant.
It was common ground that the offences were committed at a time when the former Legal Profession and Practice Act 1958 (the “old Act”) was in force, but were heard by the Legal Profession Tribunal (“the Tribunal”) pursuant to the transitional provisions of the Legal Practice Act 1996 (“the Act”).
The findings of misconduct were made by the Tribunal both as to s. 2A(a) of the old Act and also at common law. The Tribunal concluded that the practitioner was guilty of wilful and reckless breaches of s. 40(1) and s. 41(1) of the old Act and also Rules 8.1(a)(a) of the Solicitors (Professional Conduct and Practice) Rules 1984 and Rule 39(3) of the Solicitors’ (Audit and Practising Certificate) Rules 1990.
The circumstances of the findings of misconduct may be dealt with under convenient headings.
The mortgage of $80,000
The practitioner on 16 August 1988 entered into a contract to purchase a unit at Queens Road, Melbourne, for the sum of $125,000. A mortgage in the sum of $80,000 was taken out on the security of that property, the funds having been lent to the solicitor by Cecil Wynne and his wife Melva Wynne, who had been longstanding clients of the solicitor. Cecil Wynne died in April 1996. The terms of the mortgage provided for payment of interest at 12%, rising to 14%. The RPA inspector queried the circumstances of this mortgage with the practitioner, and the inspector could find no evidence of the payment of interest due under the mortgage.
The practitioner offered a series of conflicting accounts concerning the mortgage. The Tribunal accepted the evidence of the inspector to the effect that the solicitor lied to him as to the circumstances of the mortgage and as to the loan having been repaid in part. The solicitor told the inspector that interest had in fact been paid but said it was paid in cash under a private arrangement. Finally, the practitioner said that the loan was in fact an interest free loan. The Tribunal accepted that the deceased had been concerned about his taxation situation and concluded that the overwhelming inference was that the practitioner assisted the deceased in laying the foundation for the evasion of tax. The Tribunal concluded that the loan was in fact obtained by the practitioner not for the purpose of acquiring the unit but for the purpose of helping to pay for a farming property which he owned.
The practitioner conceded that there was no contemporaneous document in existence supporting his version of events that the loan was to be interest free. Mrs Wynne, who gave evidence at the hearing before the Tribunal, said that as she recalled it, her husband had agreed to making an interest free loan, but only for a 12 month loan period. Some 20 months after the commencement of the mortgage the practitioner, the deceased and Mrs Wynne executed an agreement which recited that Mr and Mrs Wynne desired to use and occupy the unit, from time to time, and were being granted the right to do so in consideration of there being no interest payable under the loan to the practitioner. The Tribunal concluded that the suggested consideration was a sham and that the terms of this agreement were not adequately explained to Mrs Wynne.
Shortly before the death of Mr Wynne, both he and his wife executed a discharge of mortgage prepared by the practitioner. On 20 May 1996, a month after the death of Mr Wynne, the practitioner lodged the discharge of mortgage together with the certificate of title, in order to effect the registration of the discharge of the mortgage. On 1 July 1996 Mrs Wynne signed an “Authority”, prepared by the practitioner, which recorded, in clause 3, that the mortgage was to be treated as having been paid in full.
The principal was not repaid until February 1997, following the inspector’s attendance at the solicitor’s practice.
After examining the competing contentions as to the loan agreement and the provision of the mortgage the Tribunal held as follows:
“On either version of the loan contract, the mortgage did not accurately set out the terms of the agreement – for example, whether interest was payable and for what period.
Upon either version of events there is a sorry state of the creation and maintenance of a situation where a patent conflict of interest arose; the practitioner was dealing with elderly clients who, as he well knew trusted him implicitly; the principal beneficiary under the arrangements was the practitioner; it was in his interests that no or limited interest was payable; it was in his interest that the Wynne agreement was created and executed, and even on his own version, he must have known that, at any rate for the 20 months leading up to its execution, the consideration that the mortgagees could use the unit was hollow in fact: and that the procurement of Mrs Wynne’s signature to the document of 1 July 1996 without explaining the import of paragraph 3 was in our view quite disgraceful.
Even were it to be thought entirely proper for the practitioner to have become indebted to his clients, if ever there was a series of circumstances demanding that the practitioner insist that his clients obtain independent legal advice, it was here present.
We are firmly persuaded that in acting as he did, the practitioner was guilty of misconduct, both statutory and at common law, in that his conduct ‘would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency’. (Alison v General Council of Medical Education and Registration [1894] QB 750 at 761).
Trust cash transactions
The inspector concluded, and the Tribunal held, that the practitioner transferred various sums held in the trust account of Mr Wynne to a company controlled by Silvio and John Favero, who were market gardeners. The Faveros in turn gave cash to the practitioner who then paid cash into the trust account of the deceased. He would subsequently withdraw an amount equal to the cash which had been paid in and pay those sums to the trust accounts of the Favero group. The practitioner made similar transfers of funds to the trust ledgers of the Favero group from the accounts of other clients.
In submissions to the Tribunal the plaintiff asserted that what was taking place was in effect money laundering of cash on behalf of the Favero group. When the trust ledger was investigated it was found to have many unexplained trust to trust transactions, especially with respect to the Faveros. There were also unexplained transfers from six or seven clients of the practitioner and there were no entries in the records showing the receipt and payment of cash. The practitioner told the investigators that his client insisted on payments in cash and although he told him that payments out of trust accounts could not be made by cash, in compliance with the client’s wishes he had made arrangements for cash to be paid by way of the Faveros. It was conceded that the practitioner was in breach of Rule 35(3) of the Solicitors’ (Audit and Practising Certificates) Rules 1990 which prohibited payment of trust moneys by cash and it was submitted that he was also in breach of s. 40(1) which provided that moneys must be paid into a trust account, and s. 41(1) which provided for the keeping of proper records. There was no dispute that there were such breaches.
The Tribunal held that the practitioner breached provisions relating to the operation of his trust account in that:
i.upon receipt of cash, the practitioner failed to keep proper records (s. 41(1) of the old Act) and although such moneys were receipted into the trust account, failed to pay such moneys into the trust account (s. 40(1) of the old Act);
ii.paid the cash directly to other clients (upon the execution of authority to effect journal entries from the payee to the payer) in breach of Rule 35(3) of the Rules which prohibit the payment of trust moneys by way of cash;
iii.the actions of the practitioner “went a long way towards hiding the true nature of the transactions” in breach of s. 41(1) of the old Act.
The Tribunal concluded:
“It is neither necessary nor profitable for us to debate the question whether the process involved laundering. Whatever name be given to it, the process, in the acts performed, in the entries in fact made, and in the absence of the entries which ought to have been made, was one which not only involved breaches of the rules and the old Act but was one which went a long way towards hiding the true nature of the transactions, and the possession of cash by the deliverer and the receiver. This must have been well known to the practitioner. We are satisfied that in so conducting himself the practitioner was guilty of the misconduct alleged.”
B. and K. Ellis
The trust ledger which recorded funds held for B. and K. Ellis disclosed a number of unexplained transfers to other clients, S.E. and K.P. Eskell. The inspector found that the client Eskell used the name Ellis as an alias, and did so in order to hide money. The practitioner knew of this and was on notice that the cash payments which were recorded as having been made to Ellis were in fact made to Eskell. The practitioner said that it was only sometime after the transactions had commenced that he formed the view that Eskell and Ellis were the same person, and had that confirmed by Eskell. Rule 33 of the Rules provided that a solicitor shall not knowingly receive money or record a receipt of money in the trust accounts under a false name. The practitioner said he only became aware of that rule in February 1997. By that time the Ellis account had been closed for 10 months.
The Tribunal concluded that an experienced solicitor (who had been in practice for 30 years) could not hide behind ignorance of a rule with which it was his duty to be familiar. The Tribunal concluded that he shut his eyes to the fact that money in his control was being paid into the account of a client’s alias and that such conduct fell well short of the required standards of conduct, and amounted to misconduct.
Bird Trust
The practitioner administered a charitable trust known as the Bird Trust. He was one of four trustees and he or companies controlled by him borrowed moneys from the trust pursuant to three mortgages. As to each of those mortgages interest was often paid late and no penalty interest was charged when that occurred. The Tribunal accepted that the late payments of interest were due to computer problems and the defalcations of a staff member and that the practitioner could not be blamed for the non-payment of interest, or late payment. The Tribunal concluded that the conduct of the practitioner amounted to misconduct both at common law and by breach of Rule 8 of the Solicitors Professional Conduct and Practice Rules 1984, in that the client’s interests were not fully protected by independent legal advice, or otherwise. The Tribunal concluded that there was a clear conflict of interest, stating:
“The simple fact of borrowing from a trust which he as a legal practitioner administered raised the most obvious conflict. It was one which he ignored at his peril. At the very least he should have ensured that the trust obtained independent legal advice.”
Submission as to Jurisdiction
Counsel for the defendant made a preliminary submission to me that the Supreme Court had no jurisdiction to hear this matter.
The proceedings by way of originating motion are brought pursuant to s. 160(2)(b) of the Act which required the Tribunal upon making an order cancelling the practising certificate to refer the practitioner to the Supreme Court for the Court to determine whether the practitioner’s name should be struck off the Roll of Practitioners. Counsel for the defendant submitted that the Tribunal had no jurisdiction to make that order. The Legal Practice Act 1996 came into operation on 6 November 1996.
Section 160 of the Legal Practice Act 1996 provides as follows:
“160. Penalties for misconduct
(1)If the Tribunal finds a legal practitioner or firm guilty of misconduct, it may do any one or more of the following –
(a)make an order referred to in section 159;
(b)in the case of the Tribunal constituted by the registrar or a deputy registrar, make an order imposing a fine not exceeding $5000 on the practitioner or firm;
(c)in the case of the Full Tribunal –
(i)make an order imposing a fine not exceeding $50 000 on the practitioner or firm;
(ii)make an order suspending the practitioner's practising certificate for a period specified in the order;
(iii)make an order cancelling the practitioner's practising certificate;
(iv)make a recommendation to the Supreme Court that the practitioner's name be struck off the roll of practitioners;
(v)in the case of an incorporated practitioner, make an order that the practitioner be de-registered;
(vi)in the case of an interstate practitioner, make an order that the practitioner be suspended from engaging in legal practice in Victoria for a period specified in the order or an order that the practitioner be prohibited from engaging in legal practice in Victoria;
(d)make any other order the Tribunal thinks fit.
(2)If the Tribunal makes an order cancelling a practising certificate –
(a)it may specify a period during which the practitioner may not apply for a practising certificate or for a practising certificate with particular conditions; and
(b)it must refer the practitioner to the Supreme Court for the Court to determine whether the practitioner's name should be struck off the roll of practitioners.
(3)The Supreme Court must implement a recommendation of the Tribunal under sub-section (1)(c)(iv) unless satisfied that the Tribunal made an error of law in finding the practitioner guilty of misconduct.
(4)An order under sub-section (1)(c)(v) may specify a period during which the practitioner may not apply to be registered again.”
The relevant transitional provisions with respect to the old Act provisions giving way to the terms of the Legal Practice Act 1996 are to be found in cl. 22 of the Schedule 2 of the Legal Practice Act 1996. Clause 22(3)(a) provides:
“… a legal practitioner who is the subject of a complaint or investigation under this Act in relation to conduct allegedly occurring before the commencement day is not subject to any penalty that he or she could not have been subject to had this Act not been enacted;”
The commencement day was 1 January 1997. It is common ground that that clause applies in the case of the defendant. Under the old Act the penalties for misconduct were to be found in s. 38ZB. That section provided as follows:
“38ZB. Misconduct
(1)Where alleged misconduct or a matter arising under Part V is referred to a registrar's hearing or to the Board, the registrar or the Board shall hear, inquire into and decide upon the matter and may make such order or orders as the registrar or the Board thinks fit, including any one or more of the following orders:
(a)In the case of a registrar's hearing or a Board hearing –
(i)an order that no further action be taken against the solicitor;
(ii)an order reprimanding or admonishing the solicitor;
(iii)if the matter arose out of an obligation by the solicitor to pay money to the institute or the Solicitor's Liability Committee, an order that the solicitor pay interest on that money at a specified rate for a specified period;
(iv)an order that the solicitor undertake a specified course of education or receive such management or accounting advice as the registrar or the Board considers appropriate;
(v)an order that the solicitor's practice be subject to such supervision as the registrar or the Board considers appropriate;
(vi)an order that the solicitor give the registrar or the Board or the secretary such reports on the practice on such terms as the registrar or the Board requires;
(vii)an order that the solicitor not employ, engage or recommend a specified person or class of persons;
(viii)an order for the payment of the costs of the proceedings; and
(ix)an order for the payment of the costs of the registrar or the Board; and
(b)In the case of a registrar's hearing, a requirement that the solicitor pay to the institute within a time limited by the order, a sum specified in the order, not exceeding 10 penalty units, and
(c)In the case of a Board hearing –
(i)an order that the solicitor pay to the institute within a time limited by the order, a sum specified in the order not exceeding 50 penalty units;
(ii)an order cancelling any practising certificate held by the solicitor;
(iii)an order suspending any practising certificate held by the solicitor for a specified period;
(iv)an order that the solicitor not engage in practice as a barrister for a specified period;
(v)an order refusing any application for a practising certificate made by the solicitor;
(vi)an order that the solicitor is entitled to re-apply for a practising certificate only after the expiration of a time specified in the order or after compliance with any conditions so specified;
(vii)an order that any practising certificate held by the solicitor which authorises the solicitor to practise as a solicitor within the meaning of paragraph (a) of the interpretation of ‘solicitor’ in section 51 be varied so as to authorise the solicitor to practise as a solicitor only as the employee of another solicitor;
(viii)an order dispensing with the further performance of any matter or the further remedying of a breach of an obligation other than a matter or an obligation relating to the payment of moneys.
(2)The secretary and the parties to the proceedings shall give effect to the decision of the registrar or the Board.”
It is to be noted that under the old Act there was no equivalent provision to the terms of s. 160(2)(b) which required the Tribunal to refer the practitioner to the Supreme Court for determination as to whether his name should be struck off the Roll of Practitioners.
It is also to be noted that sub-s. (2) of 160 was repealed by Act No. 52 of 1999. Notwithstanding its repeal, it was accepted that its terms apply to the defendant. Furthermore, s.160(1)(c)(iv) was also replaced by a new clause, which had the effect that the Tribunal, thereafter, had the option whether or not to refer the matter to the Supreme Court, and if it did, the further option whether or not it would make a recommendation as to the striking off of the practitioner. These amendments all came into effect on 8 December 1999, and do not affect the present case.
Mr Halpin, counsel for the defendant, submitted that notwithstanding that the Board was given power under the old Act by s. 38ZB(1) to “make such order or orders as the Registrar or the Board thinks fit”, there was no express provision authorising the Board to refer the practitioner to the Supreme Court for determination as to whether he should be struck off the Roll. Accordingly, so it is submitted, when one applies the words of cl. 22(3) of Schedule 2 of the new Act, the referral to the Supreme Court amounts to a “penalty” and was a penalty “that he or she could not have been subject to had this Act not been enacted”.
Mr Halpin, counsel for the practitioner, submitted that to be referred to the Supreme Court so that the Court might consider whether or not to strike the practitioner off the Roll must constitute a “penalty”. He referred to the definition of “penalty” in the New Shorter Oxford English Dictionary which referred to “a punishment imposed for breach of a law, rule, or contract; a loss or disadvantage of some kind, either prescribed by law for some offence or agreed or in case of breach of contract; …a disadvantage or loss resulting from an action, quality, etc, especially of one’s own”.
Counsel submitted that to be referred to the Supreme Court in such circumstances must constitute a loss or disadvantage of some kind, because by virtue of the reference the practitioner is placed at risk of being struck off. In any event, the fact of having to appear before the Supreme Court, and to have the attendant publicity, must itself be a punishment.
The title to s. 160 is “Penalties for Misconduct”. It was agreed by counsel on both sides that that heading can not be used for the purpose of interpretation of the section (see s.36(3) of the Interpretation of Legislation Act 1984). Counsel for the practitioner submitted that, in any event, an examination of the section demonstrated that the whole of the terms of s.160 did constitute penalty provisions, if one used that term in a sense akin to “disposition”, as would be appropriate when considering the wide range of dispositions of criminal proceedings, which nonetheless would all constitute “penalties”.
In response, counsel for the plaintiff submitted that, in fact, the only penalties for which s. 160 provides are those set out in s. 160(1)(a)(b)(c)(d). The terms of sub-s. (2) Mr Randal submitted, are not penalty provisions but procedural provisions only. Mr Halpin replied that to specify a period (as s.160(2)(a) does) during which a practitioner might not apply for a practising certificate may be likened to the setting of the period over which a bond or suspended sentence might apply in criminal proceedings. It was a disadvantage which might be more or less great for the person concerned. I agree with that submission by Mr Halpin, but, of course, the power given to the Tribunal by s.160(2)(a) was available to it under the old Act too, so no question would arise of it imposing a penalty which had not been open to be imposed under the old Act. It does not follow, however, that sub-section (2)(b) is also concerned with imposing a penalty.
In my opinion, in performing the duties imposed on it by s. 160(2)(b) the Tribunal was not applying a penalty. Section 160(2)(b) imposed a mandatory requirement that a practitioner be referred to the Supreme Court once a practising certificate had been cancelled. That obligation was imposed irrespective of the time at which the allegations were investigated or the date of the circumstances which led to the offence. Whilst it is undoubtedly the case that to be referred to the Supreme Court for its evaluation must be an ordeal, it does not follow that that is a penalty, any more than a person being committed to stand trial has thereby incurred a penalty as that term would be understood in the law. (It might also be arguable that the practitioner has not suffered a “disadvantage” by being referred to the Supreme Court when that is the outcome which must happen to every person who has his or her practising certificate cancelled. Whether that argument might have merit was not debated before me.)
Mr Randall submitted that even if the Supreme Court did act pursuant to the referral and struck off a practitioner that would not constitute a “penalty” and, thus, the act of referral, itself, could not be a penalty. In New South Wales Bar Association v Evatt (1968) 117 CLR 177, at 183, the High Court held that:
“The Supreme Court thought moreover, that as the exercise of its disciplinary powers was, to some extent a punishment for wrongdoing, mercy might be shown towards a young man who had not understood the error of his ways. The power of the court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved. This has already been pointed out by this Court in Clyne v the New South Wales Bar Association (1960) 104 CLR 186 at 201-202.”
However, even if the striking off of a practitioner was to be regarded as a “penalty” within the terms embraced by cl.22(3) the important factor, in my opinion, is that cl.22(3) is concerned with a penalty imposed by the Tribunal, not by the Supreme Court. The Tribunal does not have the power to strike a practitioner off the roll. There is, it seems to me, a clear distinction to be drawn between the functions and penalties being imposed by the Tribunal, on the one hand, and the discretionary process undertaken by the Supreme Court, on the other hand, in its inherent jurisdiction to determine whether a practitioner should be struck off the Roll of Practitioners. No penalty is imposed by the Tribunal when it obeys the command contained in s.160(2)(b) to refer the matter to the Supreme Court.
Accordingly, I reject the jurisdictional challenge to these proceedings.
Should the practitioner be struck off?
By s.172 of the Act the inherent power of the Supreme Court to discipline practitioners on the roll is preserved. In his helpful history of the legislative and common law mechanism and prerogatives for the disciplining of practitioners, Mr Randall traced the history of the relevant legislation from the Law Institute Act 1917 to the Legal Practice Act 1996, and identified the discernible shift towards having identified disciplinary bodies, rather than the Supreme Court, take the primary role in investigating and punishing practitioners for professional misconduct. That shift in emphasis suggests that the standards set by the relevant disciplinary tribunal should be given particular weight by the Court, although it is always, ultimately, a matter for the Court to decide what are the appropriate standards which must be attained by practitioners if they wish to remain on the roll of practitioners.
The question whether I should order that the practitioner be struck off the role arises before me some 14 months after the order was made cancelling his practising certificate and some six months before he would be eligible to re-apply for a new practising certificate. Whether he was fit and proper to be on the roll 14 months ago is not the issue; the issue is whether he is now a fit and proper person to remain on the roll: see Law Institute of New South Wales v Meagher[1]; Re B (a Solicitor)[2]. Is it necessary for the protection of the public that I make such an order?
[1](1910) 9 CLR 655, at 691, per Higgins J.
[2][1986] VR 695, at 698, per Brooking J.
The conduct which constituted the findings of misconduct was, indeed, serious. The practitioner has not, however, been charged or convicted of any criminal offence, and the Tribunal accepted that a good deal of the conduct was explained by ignorance of the relevant rules. Whilst ignorance of the professional rules can not be a defence to a charge of misconduct it is relevant on the question whether at the moment, having very abruptly been confronted with his shortcomings, the practitioner is now unfit to practice. The conduct towards his elderly clients can not be so easily attributed to ignorance, but it was not contended to me that the practitioner ultimately made any financial gain at the expense of his clients. The real failure was in placing himself in a conflict of interest situation, and then compounding that by not ensuring that his clients received independent advice. Whilst one can be suspicious as to the intentions of the practitioner, the Tribunal (whose job it was) made a thorough investigation of the circumstances of the offences, and findings of fraud were not made against him, nor findings that he intended to so behave, and, as I have said, he has not been charged with a criminal offence.
The seriousness of the decision to strike off a practitioner has been noted, many times, as being one requiring even greater care than when considering an application for re-issuing of a practising certificate after cancellation: see In the matter of T.S.,[3] per Starke J; Victorian Bar Incorporated v Himmelhoch,[4] per O’Bryan J.
[3][1981] V.R. 577, at 581.
[4][1999] VSC 222; Unreported 18 June 1999.
The notion of “fitness to practice” includes honesty as well as knowledge and ability.[5] In speaking of an application for re-admission by a solicitor who had been struck off the roll after a conviction for conspiracy to pervert the course of justice, and who had subsequently been involved in improper practices as a land agent, Isaacs J held in Law Institute of New South Wales v Meagher[6] that the relevant tribunal which had to consider the application for re-admission would need to apply the following principles:
“It may be that the error, although flagrant, has proved to be a solitary lapse. It may be that after sufficient time has passed the applicant can satisfy the tribunal that his purgation is complete, his repentance real, his determination to act uprightly and honourably so secure that he may be fairly re-entrusted with the high duties and grave responsibilities of a minister of justice. But that obligation lies upon him and it is no light one.”
[5]Law Institute of New South Wales v Meagher, (1910) 9 CLR 655, at 682, per Isaacs J.
[6]supra, at 681.
Isaacs J later added, at 681:
“There is therefore a serious responsibility on the Court – a duty to itself, to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential. It is not a question of what he has suffered in the past, it is a question of his worthiness and reliability for the future.”
An important factor is the fact that the Tribunal did not make a recommendation that he be struck off. Nor has the plaintiff contended that such a result was appropriate: the RPA declining to take a position as to the outcome. The Tribunal, as the expert body charged with primary responsibility for the evaluation of professional conduct, and misconduct, concluded that he should be denied the right to re-apply for a practising certificate for some 20 months, placing the conduct not at the most grave end of the spectrum: the Tribunal on occasions has cancelled a certificate and imposed a disqualification of many years, without also recommending the striking off of a practitioner.
The fact that the recommendation, here, is not made for striking off, coupled with the fact that the orders necessarily mean that the Tribunal is not denying that in its opinion the practitioner might be appropriately restored to practise at 1 January 2001, suggests to me that the relevant statutory body does not regard the conduct as justifying striking off. It is, of course, a matter for my judgement, not that of the Tribunal, but the inference is plainly open to be drawn that if the Tribunal had the discretion, which it now has, to decide not to refer a matter to the Court, then the Tribunal in this case would not have made the reference to the Court. Counsel for the plaintiff did not seek to contend that that inference was not reasonably open to be drawn.
In the event that I decline to strike off the defendant he is eligible to re-apply for a practising certificate from 1 January 2001. Whether he does so apply, whether he is successful, and whether, if successful, he is granted only a restricted right of practice, are all matters which must be evaluated by the relevant bodies at that time. A successful resistance, before me, of a strike off order does not mean that he must succeed, or succeed without restrictions, or without terms, in the event that he does make such an application for a practising certificate. The question will be, as Cockburn C.J. identified it in Re Pike[7], whether the Tribunal was then perfectly satisfied that the penalties suffered “had had the salutary effect of awakening him to a higher sense of honour and of principle”.
[7]In re Pike 34 L.J.Q.B. 121, at 123, cited by Isaacs J in Meagher, supra, at 682.
In all the circumstances, I am not satisfied that I should order that the defendant’s name be struck off the role of practitioners.
Orders
I grant the procedural relief sought by paragraphs 1, 2 and 3 of the application, and I find that the defendant’s name should not be struck off the roll of practitioners.
I will hear the parties as to costs.
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