Walsh v Legal Practitioners Board

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SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

WALSH v LEGAL PRACTITIONERS CONDUCT BOARD

[2016] SASCFC 52

Judgment of The Full Court

(The Honourable Justice Stanley, The Honourable Justice Parker and The Honourable Justice Doyle)

13 May 2016

PROFESSIONS AND TRADES - LAWYERS - DUTIES AND LIABILITIES - DUTIES TO COURT - CONDUCT OF TRIAL

Appeal against findings by the Legal Practitioners Disciplinary Tribunal (“the Tribunal”) that the appellant was guilty of unsatisfactory and unprofessional conduct. 

The Tribunal found the appellant guilty of unsatisfactory conduct in that he provided information to Federal Magistrate Simpson (as he then was) being reckless as to whether the information was misleading.  The Tribunal further found the appellant guilty of unprofessional conduct in that between 23 July 2009 and 22 August 2010 he provided information to the Legal Practitioners Conduct Board knowing that the information was misleading. 

The appellant appealed on 28 separate grounds. 

The respondent filed a notice of alternative contention seeking to uphold the finding that the appellant was guilty of unprofessional conduct on count 2 on the basis that the particulars of the charge were proved and the Tribunal erred in finding to the contrary.

The respondent cross-appealed against the Tribunal’s decision that the appellant was not guilty of unprofessional conduct.

Held per Stanley J (Parker and Doyle JJ agreeing), dismissing the appeal:

1.  None of the grounds of appeal succeed. Appeal dismissed (at [70] - [72]).

2.  The gravity of the appellant’s unprofessional conduct on count 2 would not be increased if the allegations particularised in particulars 1.3 and 1.3.1 were found proved (at [71]).

3.  The Tribunal’s finding that the practitioner did not knowingly mislead the magistrate tells against a finding that his conduct should be characterised as unprofessional conduct rather than unsatisfactory conduct. Cross appeal dismissed (at [79] - [80]).

Legal Practitioner’s Act 1981 s 5(1), s 86; Supreme Court Civil Rules 2006 r 286; Rules of Professional Conduct and Practice r 14.1, referred to.
Fox v Percy (2003) 214 CLR 118; Jones v Dunkel (1959) 101 CLR 298; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, applied.
Legal Practitioners Conduct Board v Colton (2012) 113 SASR 467, distinguished.
Blatch v Archer 98 ER 969, discussed.
CSR Ltd v Della Maddalena (2006) 80 ALJR 458; Batrouney v Forster [2015] VSC 230; Law Society of South Australia v Jordan (1998) LSJS 434; Payne v Parker [1976] 1 NSWLR 191; ASIC v Hellicar (2012) 247 CLR 345; Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; Cubillo v Commonwealth (2000) 103 FCR 1; Legal Practitioners Board v Phillips (2002) 83 SASR 467; Fidock v Legal Profession Complaints Committee [2013] WASCA 108; AK v Western Australia (2008) 232 CLR 438; Mifsud v Campbell (1991) 21 NSWLR 725; RESI Corporation v Munzer [2016] SASCFC 15; Terry v Leventeris (2011) 109 SASR 358; Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168;

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Details
Case
[2016] SASCFC 52
Decision Date

CaseChat Overview and Summary

The case of *Walsh v Legal Practitioners Board* involved an appeal by a legal practitioner against a finding of misconduct made by the Tribunal. The practitioner's conduct in misleading a magistrate during a trial was the subject of the adverse finding. The appeal concerned the adequacy of the Tribunal's reasons for its decision, particularly in relation to the finding that the practitioner had knowingly provided misleading information to the Board.

The central legal issue before the court was whether the Tribunal had provided sufficient and adequate reasons for its decision, as required by law. This involved an examination of the principles governing the obligation to give reasons for judicial and quasi-judicial decisions, and whether the Tribunal's explanation for its findings met the minimum acceptable standard. The court also considered whether the finding of recklessness in the practitioner's conduct was open on the evidence presented.

The court affirmed that there is a fundamental duty to provide reasons for decisions, which promotes good decision-making, enhances public acceptance of decisions, and upholds democratic institutional responsibility. The reasons must expose the basis for resolving critical points of contention and should not leave parties to speculate. While the level of detail required varies, the reasons must apprise the parties of the broad outline and constituent facts of the reasoning. The court found that the Tribunal had applied the correct legal test for recklessness and that the finding of the practitioner's conduct in misleading the magistrate was supported by the evidence, with no demonstrable error in that finding.

The appeal was dismissed, with the court finding no error in the Tribunal's decision or its reasons.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view, the Tribunal applied the correct legal test as to recklessness. The finding that the practitioner’s conduct in misleading the magistrate was reckless was open on the evidence. No error has been demonstrated in that finding. Inadequate reasons for decision and uncertainty of findings: grounds 21, 22, 24, 25, 26 and 28 Grounds 21, 22, 24, 25, 26 and 28 in essence complain of the adequacy of the Tribunal’s reasons in relation to the adverse finding against the practitioner on count 2 that he knowingly provided misleading information to the Board. The Board was under a duty to provide reasons for its decision. In AK v Western Australia[34] Heydon J explained the reasons why there is an obligation to give reasons. First, there is an obligation to give reasons because it promotes good decision making, second, the general acceptability of decisions is promoted by the obligation to explain them and, third, it is consistent with the idea of democratic institutional responsibility to the public that those who are trusted with the power to make decisions affecting the lives and property of their fellow citizens, should be required to give an account of their reasoning by which they came to a decision.[35] The failure to provide sufficient or adequate reasons can promote a sense of grievance and may deny the fact and the appearance of justice having been done.[36] The principles applicable to satisfying the requirement to provide adequate reasons were recently summarised by Lovell J in RESI Corporation v Munzer.[37] He said:1.“The extent and content of reasons will depend upon the particular case under consideration and the matters in issue”. Keith v Gal [2013] NSWCA 339 at [110]. While a judge is not obliged to spell out every detail of the process of reasoning to a finding it is essential to expose the reasons for resolving a point critical to the contest between the parties.[38]2.A court when considering the decision under appeal should not be left to speculate from collateral observations as to the basis of a particular finding.[39]3.A trial judge has a duty to refer to material evidence and make findings about material issues in the case.[40] It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another and assert that having seen and heard the witnesses he or she prefers or believes the evidence of one and not the other. In other words, a bald statement of an ultimate conclusion may not be sufficient.[41] A trial judge is required to engage with the issues canvassed and to explain why one expert is accepted over the other.[42]4.It will ordinarily be sufficient if by his or her reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he or her has acted.[43]5.Reasons for decision are to be read fairly and in the context of the manner in which the trial was conducted. Reasons may appear by necessary inference from what is stated expressly.[44]6.It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. The function of the appellate court is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of the judicial power.[45][34] [2008] HCA 8, (2008) 232 CLR 438. [35] [2008] HCA 8 at [89], (2008) 232 CLR 438 at 470. [36] Mifsud v Campbell (1991) 21 NSWLR 725 at 728. [37] [2016] SASCFC 15 at [71]. [38] Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212 at [40].[39] Assad v Eliana Construction & Developing Group Pty Ltd [2015] VSCA 53.[40] The Waterways Authority v Fitzgibbon [2005] HCA 57.[41] Assad v Eliana Construction & Developing Group Pty Ltd [2015] VSCA 53.[42] Archibald v Byron Shire Council [2003] NSWCA 292.[43] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.[44] Transport Accident Commission v Kamel [2011] VSCA 110; Assad v Eliana Construction & Developing Group Pty Ltd [2015] VSCA 53.[45] Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48].

Ratio Decidendi

Legal Principle Established

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