Wright v Queensland Law Society Incorporated

[2000] QCA 47

[2000] QCA 47

COURT OF APPEAL

PINCUS JA

Appeal No 349 of 2000

WENDY ANN WRIGHT   Appellant

v

THE COUNCIL OF THE QUEENSLAND
LAW SOCIETY  Respondent

BRISBANE

DATE 28/02/2000

ORDER

PINCUS JA:  This is an application for a stay by Wendy Ann Wright.  Ms Wright was the subject of proceedings in December which were brought before the Solicitors Complaints Tribunal.  The conclusions which were come to are set out by the Tribunal at page 341, and the Chairman of the Tribunal said this:

"We have considered the submissions made on behalf of the parties and the authorities referred to.  Taking into account our findings and the views expressed by the Court of Appeal in Bax and Gregory, we are of the view that the practitioner's actions have demonstrated that she should no longer be held out as fit to practise as a solicitor.  And accordingly we order that the name of the practitioner is struck from the role of solicitors at the Supreme Court of Queensland."

Subsequently submissions were made by the legal representatives and it was urged upon the Tribunal that an immediate striking-off order would create excessive inconvenience; consequently upon that and an application for a general stay, the Tribunal made this ruling, which is at page 343:

"We are not disposed to order a general stay pending the hearing of the appeal.  We do, however, order that the order for striking off shall take effect from 1 March 2000.  Until that time the practitioner shall not accept new instructions and shall not act for any parties in litigious matters."

And the Tribunal Chairman went on to explain, in effect, that this was done to avoid excessive disadvantage to the clients of Ms Wright.

Now, today Mr Dutney QC appears leading Mr Hackett and seeks, in effect, a stay further to that ordered by the Solicitors Complaints Tribunal.  Mr Bond SC opposes it.

The basis of the application for a stay as explained by Mr Dutney was this: he said that one must balance the considerable inconvenience to those associated with Ms Wright's practice and to her family and the hardship which may ensue to them against the risks to the public.  And as to the latter Mr Dutney contends that the risk to the public is not in the same category as in a case in which the ground for striking off was, for example, stealing money.

Here the core of the complaint against Ms Wright which led to her striking off by the Tribunal was that she misled the Court, and in particular Judge Robin, and that she did so in a serious and persistent way.  It does not appear to me clear that in those circumstances the public interest is not involved in the question whether Ms Wright should continue to practise, as is proposed, for some considerable time after having been struck off.  It is necessary to add that there is no suggestion made on behalf of the appellant that there is any egregious error in the order which is appealed from, or in the reasons given for that order.

As far as I can tell from the arguments which have been advanced, the ground of attack upon the Tribunal's order involves principally factual questions; that is, it is intended, it appears to me, to put forward principally as grounds of appeal errors made by the Tribunal, it will be argued, in analysing the facts.

Of course such an appeal may have prospects of success and I have no opinion as to whether it will succeed or not; but it is, as it appears to me, a significant factor in determining whether or not a stay should be granted that no particular outstanding error is argued to exist, of the kind pointed to in some other cases of application for a stay.

The argument which is advanced by Mr Bond against the application takes various grounds.  But it appears to me that one must first look at the application as a matter of principle.  Generalising the proposition which is put forward in support of a stay, it is this: that in cases of this sort, that is in cases in which the ground of striking off is not any defalcation or a malpractice of that kind, and where it can be seen that the striking off will have a serious effect upon the practitioner and those associated with her, then it would appear, if Mr Dutney's submission is accepted, that one would routinely order a stay.  And the result is, as it seems to me, that one acts upon the basis that if there is considerable inconvenience (as there ordinarily would be) to those associated with a practitioner by the striking-off order and the case is, for example, one of misleading the Court, then although the solicitor has been held unfit to practise, we would routinely make an order allowing the practitioner to continue to practise pending the appeal.  That is not a proposition which I find attractive.

I have studied the affidavit of Ms Wright explaining the inconvenience and hardship which is caused by the order.  I have studied that carefully and taken it into account, and I must say I feel some sympathy with those associated with the practitioner, and in particular her family.  It appears to me nevertheless, with all respect to Mr Dutney's able argument, quite clear that acceptance of the principle which seems to underlie it would be erroneous.  It cannot be right to order a stay, there being no particular error identified in the order appealed from, simply because there is considerable hardship to the practitioner and the matter is not in the defalcation class.

For these rather broad reasons and without especially taking into account the additional matters which were referred to by Mr Bond in his helpful argument, I would refuse the application with costs.  And that will be the order.

MR DUTNEY:  Before your Honour adjourns I have got instructions to ask for a short stay so that a further application can be made to the High Court.

PINCUS JA:  That is refused.

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