A Solicitor v The Council of the Law Society of New South Wales S132/2002 [2002] HCATrans 545 (5 November 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S132 of 2002

B e t w e e n -

A SOLICITOR

Applicant

and

THE COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

GAUDRON J

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 NOVEMBER 2002, AT 2.01 PM

Copyright in the High Court of Australia

MR W.S. VEITCH: If your Honour pleases, I appear for the applicant/solicitor. (instructed by the applicant)

MR J.E. GRIFFITHS, SC: If the Court pleases, I appear for the respondent. (instructed by Raymond John Collins, Law Society of New South Wales)

GAUDRON J: Thank you. We though we might be assisted by hearing from you, Mr Griffiths.

KIRBY J: You got off too lightly this morning.

MR GRIFFITHS: Yes. I fear that might be the case, your Honour.

GAUDRON J: The issue really is whether this is professional misconduct. There might be other considerations that would warrant the intervention of the Court, but, professional misconduct?

MR GRIFFITHS: As the Court will appreciate it, the basis for the conclusion of the Court of Appeal that this was professional misconduct had two aspects to it. First, in relation to the criminal offences and the court recognised that, as this Court had found in the Ziems Case, just because someone has been convicted of a criminal offence does not of itself mean that that constitutes professional misconduct. The court here below was well aware of that fact but nevertheless said that in the circumstances of this particular conviction, which related to four offences, at the root of which was a fundamental breach of trust, because of the parental relationship that the applicant had with the two girls in question.

In view of that breach of trust the court found that the case was distinguishable from - - -

GAUDRON J: Did they say that in terms?

MR GRIFFITHS: In my respectful submission, they do, your Honour, at page 72, paragraph 100, where Justice Sheller in the leading judgment specifically addresses the Ziems Case and distinguishes it for reasons that are given there and at line 29 onwards, in particular, his Honour gives emphasis, and we say appropriate emphasis, to the central relevance of the breach of trust underlying the offences in question. Your Honours then see in paragraph 101, at about line 51 - - -

GAUDRON J: At this stage he had not married the children's mother, had he?

MR GRIFFITHS: That is correct, your Honour. These offences took place in 1997. He first met the mother in, I believe, 1993 or 1994 - 1993, I believe. The marriage took place in 2000 and then the subsequent matters, if I can describe them that way, occurred shortly after the marriage occurred but no reliance is placed upon those matters other than in respect of the setting limb of the finding of professional misconduct which, of course, related to the breach of duty of candour in failing to disclose those subsequent convictions.

Your Honours see at page 72, paragraph 101, his Honour is squarely addressing the issue that the presiding judge has put to me and distinguishes Ziems in terms by saying that, and we would respectfully put it, because of the breach of trust that was involved.

GAUDRON J: Could I just take you back to Ziems, Mr Griffiths. That was "a fit and proper person". This is said to be "professional misconduct" and I am not too sure that the issues are identical.

MR GRIFFITHS: Your Honour sees that the Court of Appeal below approached the matter effectively in two stages, reflecting I suspect the way in which the matter was put in the amended summons which your Honours will find at page 1 of the application book which asked for a declaration that the solicitor was guilty of professional misconduct on the basis of three matters. The second, of course, in the event was not found to ground that finding. Your Honours see in paragraph - - -

GAUDRON J: Is there a definition anywhere of "professional misconduct" in the Legal Profession Act?

MR GRIFFITHS: I believe, your Honours, there is in an inclusive sense. It does not purport to be exhaustive. Section 127 provides that - and I do not believe this is in the material before your Honours, but for the purposes of - - -

KIRBY J: Start at 136.

GAUDRON J: Just read it slowly.

MR GRIFFITHS: Yes, if I can:

"professional misconduct" includes:

(a) unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence -

plainly irrelevant; (b), which is relevant:

conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law which, if established, would justify a finding that a legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners.

GAUDRON J: Upon what part of that definition do you rely?

MR GRIFFITHS: That part of the definition, noting again that it is inclusive and not exhaustive, of course, that it was conduct - the convictions at least, the offences in 1997 as upheld in 1998 - were as conduct occurring otherwise in connection with the practice of law, justifying a finding that the legal practitioner (1) was not of good fame and character, and also that he is not a fit and proper person to remain on the roll. We rely on both. That is the way in which, in our respectful submission, Justice Sheller approached the matter.

KIRBY J: Did his Honour refer to that definition? I do not recall reading it.

MR GRIFFITHS: I do not believe that he does, your Honour. I should also just draw to the Court's attention that the jurisdiction which the Supreme Court was exercising was not jurisdiction under Part 10 of the Legal Profession Act but rather the jurisdiction - there is jurisdiction, I beg your pardon, which is the inherent power or jurisdiction of the court as was expressly preserved in section 171M of the Act. I will read that out if I may:

The inherent power or jurisdiction of the Supreme Court with respect to the discipline of legal practitioners is not affected by anything in this Part or Part 2.

Your Honours may be aware from the papers that originally these matters were sought to be agitated before the Administrative Decisions Tribunal under Part 10 and in the event the Tribunal ruled that it lacked jurisdiction to entertain - - -

KIRBY J: It was because of the time problem, was it not?

MR GRIFFITHS: It was an alleged failure to provide adequate reasons and I believe that that is caught by this Court's decision in the Barwick matter. As a consequence, although the Tribunal ruled that it lacked jurisdiction, the complaints against the practitioner still being on foot, they were progressed in the inherent jurisdiction of the court which, as I recollect, was a matter which your Honour Justice Kirby, left open as I recall either in Barwick or in Walsh as to the co-existence, if I could put it that way, or alternative availability, if I could put it another way, of the statutory jurisdiction under Part 10 as opposed to the inherent jurisdiction of the Court.

Your Honours will see at page 78 of the application book, paragraph 112, the last sentence starting at line 25, one sees there Justice Sheller expressly finding that the opponent "is not a fit and proper person to be a legal practitioner of the Supreme Court" which, in our respectful submission, is a reflection of the declaration that was sought in paragraph 1A of the amended summons which your Honours will find at page 2 of the application book.

So, the matter was effectively put and successfully put, if I can put it that way, in two ways: one, professional misconduct; two, a declaration that in the light of that professional misconduct the solicitor is not a person of good fame and character. In paragraph 2, I should also have mentioned - I apologise for having omitted it - paragraph 2 of the amended summons:

A declaration that in light of the matters in paragraphs 1 and 1A above, the solicitor is not a fit and proper person to be a legal practitioner of the Supreme Court of New South Wales.

Those matters are all picked up in the amended summons and conclusions unfavourable to the applicant were made by his Honour in the passages to which I have taken the Court.

As I indicated and as your Honours will be aware, the offences which involve this serious breach of trust were used as the basis for distinguishing Ziems and your Honours will see over at the top of page 73, in particular, Justice Sheller giving reasons why in this particular case and on the individual circumstances here it was appropriate to draw a nexus, if I can put it that way, between the breach of trust which was central to the criminal offences and to the trust that is involved in someone who holds themselves out to be an officer of the court. His Honour, in particular, mentions the importance - - -

GAUDRON J: But there is no doubt that it is implicit in the plea of guilty that there is an acceptance and realisation of the obligation of trust.

MR GRIFFITHS: Yes.

GAUDRON J: Does that not impinge on it - on the question?

MR GRIFFITHS: It may impinge upon it.

GAUDRON J: Or, indeed, on the ultimate order that was made?

MR GRIFFITHS: It may impinge upon it, your Honour.

GAUDRON J: Is that issue dealt with by Justice Sheller?

MR GRIFFITHS: Not in the terms that your Honour has put. In our respectful submission, it may be a relevant factor and it was regarded to be regarded a relevant factor, if I may, by the court to the extent that the plea of guilty was taken into account as one of the matters in the applicant's favour.

GAUDRON J: But we are talking about the continuous present, are we not? We are talking about "is now a fit and proper person".

MR GRIFFITHS: That is correct, your Honour.

GAUDRON J: Would that not have to be taken into account? I mean, can you just say by reference to past conduct in respect of which there is an acknowledgment not only of guilt but the inherent wickedness of it, if you like, that that is still continuing? This is the difficulty I have about this matter. It seems to have proceeded really on the basis of the conduct that occurred without reference to the current situation.

MR GRIFFITHS: The gravamen of the approach that was taken by Justice Sheller - and on this aspect of the case Justice Giles and of course the presiding judge also agreed - is to the effect that the particular offences here involved such a fundamental breach of trust that notwithstanding that the applicant saw fit to plead guilty to those offences, nevertheless - - -

GAUDRON J: And to engage in counselling.

MR GRIFFITHS: Counselling, yes, indeed, your Honour. Those matters were all taken into account.

GAUDRON J: I wonder if that is an appropriate way of dealing with them. It is a question of "is", is it not? "Is of good fame and character; is fit and proper"?

MR GRIFFITHS: But merely because somebody has pleaded guilty to criminal offences of the nature involved here would not be determinative, in our respectful submission, of the person not having displayed by the underlying conduct a fundamentally flawed character which evinces an irresponsibility when it comes to positions of trust, which fundamental flaw is not necessarily assuaged by a plea of guilty. But it can be an ongoing matter if it is such a fundamental breach of trust.

The court, of course, also took into account not only that breach of trust but it also had regard to the applicant's conduct when first confronted by the mother of the children as to whether there had been an incident. Your Honour points to the fact that counselling was sought but if your Honour goes to page 73 of the application book at about paragraph 102, his Honour, effectively summarising an affidavit from the applicant which relates to the circumstances of the offences and what was going through the applicant's mind at the time that the offences occurred, bearing in mind that the four offences were over a period of some five weeks and involved, as the Court will be aware, two girls, and your Honours will see at about line 52 Justice Sheller says:

He was horrified, embarrassed and ashamed about what had happened and said "it will never happen again." In fact he did nothing else until after 31 May 1997 when -

the mother -

confronted him. Two days later he confessed to a friend and sought help.

Your Honours then see paragraph 103:

This is not the case of an isolated offence followed by the taking of steps to ensure it would not be repeated. Despite repeated demonstration that the opponent was unable to control his behaviour he did nothing until -

the mother -

confronted him. Even at that point he denied her allegation. In my opinion, his conduct in 1997 as charged must be regarded as professional misconduct.

So, his Honour - - -

KIRBY J: When did the mother marry him? What year?

MR GRIFFITHS: In 2000, your Honour.

KIRBY J: And the children still live with him?

MR GRIFFITHS: The three girls did. I think there is a boy as well but I think he is living with the grandparents. The date of the marriage is 8 April, your Honour. The second alleged incidents occurred in I think in May 2000, upon which he was - - -

KIRBY J: They are the ones which, when checked against the effective evidence were found not to have been proved?

MR GRIFFITHS: That is correct, on appeal.

KIRBY J: Does the Society rely on the failure to disclose those?

MR GRIFFITHS: Yes, it does. It relies upon the failure to disclose those convictions in circumstances where the Law Society was engaged in correspondence with the applicant and in circumstances where, as the Court pointed out, the applicant was putting forward positive statements that he was a person of good fame and character and that these earlier incidents were isolated matters. We say - the Court of Appeal agreed - this was a serious breach of the duty of candour that the solicitor owed to his ....., where he had put forward positive statements relating to the earlier offences and held back from the Law Society that he had actually been convicted of not dissimilar offences. So we rely on both.

KIRBY J: There was a point that he said he was not aware of a provision of the Act requiring him to disclose - - -

MR GRIFFITHS: That is requiring him to disclose convictions to an employer.

KIRBY J: Employer, that is right. That is not pursued?

MR GRIFFITHS: That was the third plank. That is not in issue, your Honour, it is only the two matters that we have discussed.

GAUDRON J: I take that the Law Society pressed for striking from the roll?

MR GRIFFITHS: Yes, indeed, your Honour, as the amended summons indicates in paragraph 3 on page 2.

KIRBY J: What do you say about the cases that we have now been presented with from England and America, apart from your complaint that they were not raised in the Court of Appeal?

MR GRIFFITHS: They were not raised in the Court of Appeal, your Honour.

KIRBY J: What else is there?

MR GRIFFITHS: Each of these cases must of necessity turn on their individual facts and circumstances. This was a case - and I am not aware of any of the others that have been referred to now before this Court - involving a man who was effectively the step-father of these children. He was certainly in a parental role at the time. Merely because in another set of circumstances in another regime the view might be taken that a sexual offences does not equate to or provide a basis for a finding of professional misconduct, cannot be conclusive of the case here because of the essential necessity to have regard to the particular facts and circumstances.

I have not already mentioned it - forgive me if I have - at page 78 of the application book, paragraph 112, his Honour Justice Sheller makes it abundantly clear and there is no reason at all to doubt it, that he had taken into account all of the material that was available to the opponent which had been put before the court. Your Honours will be aware that there is an extensive summary of that - - -

GAUDRON J: You see, that is the difficulty I have, if I may point it out. The chance of any recurrence of this incident is slight. How do you then go to "is not a person of good fame and character", "is not a fit and proper person"? That seems to me to be the difficulty.

MR GRIFFITHS: Because, merely because the prospect of recidivism is slight is simply one of the factors that is to be weighed in the balance against other factors.

GAUDRON J: Against what?

MR GRIFFITHS: Against the circumstances surrounding the crime and the breach of trust that was involved in those offences.

GAUDRON J: How do you say it is to be weighed in the balance?

MR GRIFFITHS: It is to be weighed in the balance by having regard to the fact of the offences and the circumstances in which they were committed, and that proposition - - -

GAUDRON J: Which really means it is not to be weighed in the balance.

MR GRIFFITHS: With respect, it is.

GAUDRON J: Does your submission not come to this, that the conduct itself was such a fundamental betrayal of trust that nothing can relieve against it?

MR GRIFFITHS: Not that nothing could relieve against it, with respect, and I do not believe his Honour - - -

GAUDRON J: What could? I mean, if the chance of re-offending or of recurrence is slight, the person has admitted guilt, accepted responsibility and indicates an acceptance of what was wrong, what then can be weighed in the balance? What, in your view, could be weighed in the balance? When you speak of "weighing in the balance", one seems to assume that there might be something that might bring it to even keel.

MR GRIFFITHS: I cannot, as I stand here, answer that as convincingly as I would like to be able to other than to say that the court nevertheless did not address this matter entirely with a closed mind by equating the fact that there had been convictions on these offences with a finding of professional misconduct, even if one is to look at the offences and not look at the second limb of that finding. It is evident from the passages that I have taken your Honours, especially paragraph 112, that the court did, in accordance with the principle laid down in Ziems Case, have regard to all the relevant matters, all the surrounding circumstances, including, as I said, not just the fact of the conviction but also the applicant's refusal at first to admit to the mother when first confronted that the offences had occurred and also the court's dissatisfaction with the applicant's evidence that he was agonising about his behaviour and yet the behaviour continued on four separate occasions and it was not until some time later that he sought professional help. Rather than seeking that professional help after the first incident which occurred in April 1997, he delayed it, he delayed it until the matter was far developed.

GAUDRON J: Yes, thank you.

MR GRIFFITHS: If the Court pleases.

GAUDRON J: We need not trouble you, Mr Veitch. There will be a grant of special leave in this case. The matter can comfortably be heard in one day I take it?

MR VEITCH: May it please, your Honour.

GAUDRON J: And if counsel cannot agree as to the allocation of time, it will be agreed for them.

MR VEITCH: Thank you, your Honour.

MR GTRIFFITHS: If the Court pleases.

AT 2.27 PM THE MATTER WAS CONCLUDED