The Legal Practitioner v Council of the Law Society of the ACT

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Murrell CJ,Burns,Perry JJ
• Judgment Date: 22 May 2015
• Docket Number: File Number: ACTCA 7 of 2014
• Date: 22 May 2015

[2015] ACTCA 20

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Before:

Murrell CJ, Burns and Perry JJ

File Number: ACTCA 7 of 2014

The Legal Practitioner

(Appellant)

and

Council of the Law Society of the ACT

(Respondent)

Cases Cited:

A Solicitor v Law Society (NSW) (2004) 216 CLR 253

Banque Commerciale SA, En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279

Belmost Finance Corporation Ltd v Williams Furniture Ltd [1979] Ch. 250

Briginshaw v Briginshaw (1938) 60 CLR 336

Council of the Law Society (ACT) v The Legal Practitioner [2010] ACAT 45

Council of the Law Society of the Australian Capital Territory v The Legal Practitioner [2010] ACAT 2

Council of the Law Society of the Australian Capital Territory v The Legal Practitioner [2010] ACAT 46

Jones v Dunkel (1959) 101 CLR 298

Krakowski v Eurolynx Properties Limited (1995) 183 CLR 563

Legal Practitioner v Council of the Law Society (ACT) (2011) 257 FLR 118

Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149

NSW Bar Association v Cummins (2001) 52 NSWLR 279

O'Donnell v Reichard [1975] VR 916

Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121

Smith v New South Wales Bar Association (1992) 176 CLR 256

The Legal Practitioner v Council of the Law Society of the Australian Capital Territory (No 2) [2014] ACTSC 9

Walter v Council of Queensland Law Society Incorporated (1988) 62 ALJR 153

Legislation Cited:

ACT Civil and Administrative Tribunal Act 2008 (ACT) s 79

Legal Profession Act 2006 (ACT) ss 397, 425(3)

ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009 (ACT) reg 30

Legal Profession (Solicitors) Rules 2007 (ACT) rr 1.1, 1.2, 39.1

APPEAL AND NEW TRIAL — In general and right of appeal — appeal from Supreme Court of ACT affirming decision of Civil and Administrative Tribunal — where Tribunal made findings of unsatisfactory professional conduct and professional misconduct — where Tribunal found practitioner made false representations and acted without instructions — whether Tribunal should have had regard to possibility of mistake as to date, where sequence of events rather than precise date is material — whether ‘dishonesty’ needed to be alleged where intermediate findings of fact — whether acting contrary to instructions resulted in harm — no error in Tribunal's findings

APPEAL AND NEW TRIAL — Excessive or inadequate penalty — whether penalty was excessive — no error in principles applied by Tribunal — where considering and rejecting practitioner's submissions as to penalty did not amount to failure to consider alternative penalty — where penalty concerned with protection of the public and integrity of the justice system

EVIDENCE — Unexplained failure to give evidence cannot assist the party declining to lead evidence — principle in Jones v Dunkel cannot be used to infer that untendered evidence would have been damaging to the party not calling the evidence — principle in Jones v Dunkel cannot convert speculation into inference

THE COURT:

Introduction

1. The appellant, a legal practitioner (the Practitioner), was found guilty of unsatisfactory professional conduct and professional misconduct by the ACT Civil and Administrative Tribunal (the Tribunal): Council of the Law Society of the Australian Capital Territory v The Legal Practitioner [2010] ACAT 2 (the ACAT Substantive Decision). The Tribunal ordered that his local practising certificate be cancelled and recommended removal of his name from the local roll: Council of the Law Society of the Australian Capital Territory v The Legal Practitioner [2010] ACAT 46 (the ACAT Penalty Decision).

2. An appeal to the Supreme Court against the Tribunal's decisions on liability and penalty was dismissed on 6 February 2014: The Legal Practitioner v Council of the Law Society of the Australian Capital Territory (No 2) [2014] ACTSC 9. The Practitioner appeals from that decision on the grounds that the primary judge ought to have found error in the Tribunal's decisions as to liability and penalty.

3. For the reasons set out below, no error is apparent in the decision below and the appeal must be dismissed.

Background

Circumstances leading to the complaints

4. In 2007 the Practitioner practiced as an employee solicitor in two Canberra legal firms and held a restricted practising certificate.

5. The Practitioner encountered Ms L and Ms N for the first time on 7 May 2007 at the Magistrates Court. Ms L and Ms N are sisters.

6. Later that month, the Practitioner received instructions from Ms N to act for her in proceedings in the Family Court of Australia in a child custody matter. Ms N and the Practitioner commenced a personal intimate relationship although the question of whether that relationship commenced before the Practitioner was retained was the subject of dispute in the Tribunal.

7. In about June 2007, the Practitioner received instructions to act for Ms L in an appeal by Ms A to the Supreme Court. The appeal related to an order of the Magistrates Court refusing an application for revocation of a personal protection order made in February 2007 against Ms A in Ms L's favour. Ms A is the mother of Ms L's former de facto husband.

8. The Practitioner appeared for Ms L in this Court before Higgins CJ on 14 September 2007 on an application to inspect documents in connection with the appeal. Mr C appeared for Ms A. On that date, the appeal was allowed allegedly by consent and the protection order was set aside. The proceedings were remitted to the Magistrates Court for hearing on condition that Ms A gave an undertaking in the same terms as the protection order pending that hearing.

9. On 23 October 2007, the Practitioner wrote to Legal Aid advising that the firm was withdrawing from Ms N's matter as the client had taken back the file and stating that Ms N's matter was substantially completed. He signed the covering letter and attached an invoice for $1650 + GST from which was deducted the ‘client contribution’ of $90. Legal Aid paid the invoice on the same day.

10. On 25 October 2007, the Practitioner told Ms L that he could no longer act for her as Ms N had made a complaint against him.

11. Ms N complained on 29 October 2007 to the Law Society of the Australian Capital Territory (the Law Society) about the Practitioner's conduct in acting for her. A copy of that complaint was forwarded to the Practitioner on 31 October 2007 under cover of a letter from the Law Society which gave him until 14 November 2007 within which to respond.

12. The Practitioner replied to the letter from the Law Society on 12 November 2007 and stated among other things that he had entered into a relationship with Ms N about one month before he commenced acting for her.

13. The Practitioner also wrote to Legal Aid stating that Ms N had withdrawn her instructions from him on 23 October 2007 ‘due to a conflict of interest issue’ and recommended that legal aid be continued. The body of that correspondence was quoted in a letter to Legal Aid dated 12 November 2007 although the original letter (if it existed) does not appear to have been in evidence. He also stated in the letter that he was always acting for Ms N ‘on a Pro Bono basis’ and that ‘even though the grant of Legal Aid was transferred to my firm due to Ms [N's] insistence we had no intention of ever claiming the grant.’ He further said that his firm had never collected the $90.00 client contribution. The Tribunal found however, that ‘there is no doubt that Ms [N] paid the $90.00 contribution fee’ and paid it in cash.

14. Legal Aid responded by letter dated 13 November 2007 to the partner at the Practitioner's firm which had been retained to act for Ms N. In the letter, Legal Aid stated that it found the Practitioner's comments about acting in the matter pro bono to be misleading and evasive, and that at all times the Practitioner had held himself out to Legal Aid as acting in the matter pursuant to a grant of legal assistance. In the letter, Legal Aid also said that:

In respect of the grant to Ms [N], our file shows a record of an email from yourself in the matter requesting that the s.32 list be amended to include your firm for family law matters and that the grant be transferred to you. On 21 August 2007, we sent correspondence to your firm seeking confirmation of the present position. Your [the Practitioner] replied by way of email indicating the status of the matter.

15. On 14 November 2007 the Practitioner replied, again asserting that it had always been his intention to act for Ms N on a pro bono basis and enclosing a personal cheque in the sum of $1,815.00 in repayment of monies paid to his employer by Legal Aid for Ms N's matter.

16. Ms L made a complaint to the Law Society on 19 November 2007 that the Practitioner had terminated his retainer on 25 October 2007 without just cause and had misled her.

17. On 19 February 2008, Ms L made a further complaint to the Law Society that the Practitioner had acted against her instructions by informing the Supreme Court on 14 September 2007 that she was willing to have the personal protection order against Ms A lifted.

18. As required by s 397 of the Legal Profession Act 2006 (ACT) (the Legal Profession Act), the Law Society informed the Practitioner of each of the complaints seeking his response.

19. In due course, the Law Society commenced investigations into the complaints by Ms N and Ms L.

The complaints

20. The Council of the Law Society (the Council) applied under s 419 of the Legal Profession Act to the Legal Practitioners Disciplinary Tribunal for orders on 21...