Sunday, December 23, 2012


IN THE SUPREME COURT OF WESTERN AUSTRALIA
THE FULL BENCH                                                                          LPD 2 OF 2012

In the matter of the Legal Profession Act, 2008

AND

In the matter of a practitioner of this Honourable Court

AND

In the matter of a Report dated 24 April, 2012 and 20 August, 2012 by the State Administrative Tribunal to the Full Bench of this Honourable Court under the Legal Profession Act, 2008, section 438(2)(a)

BETWEEN

LEGAL PROFESSION COMPLAINTS COMMITTEE                              Applicant

and

NI KOK CHIN                                                                                        Respondent


WRITTEN SUBMISSIONS BY RESPONDENT FOR HEARING BEFORE THE FULL BENCH OF THE SUPREME COURT OF WESTERN AUSTRALIA ON 23.11.2012 AT 10.30 AM: TO WARD OFF THE RECOMMENDATION OF SAT TO HAVE THE RESPONDENT STRUCK OFF THE ROLL AS A LEGAL PRACTITIONER.


Your Honour

HEADINGS                                                                                                       PAGE NUMBERS

THE FIRST JUDGMENT:

  1. The State Administrative Tribunal (SAT) as represented by JUDGE T SHARP[1] (DEPUTY PRESIDENT) MR J MANSVELD (MEMBER) MR M ODES QC (SENIOR SESSIONAL MEMBER) delivered its judgment on 24.4.2012 in LEGAL PROFESSION COMPLAINTS COMMITTEE and CHIN [2012] WASAT 77[2] in favour of the Applicant after a three day trial 11, 12 & 13 OCTOBER 2011 (the First Judgment).
  2. The First Judgment contains 275 numbered paragraphs in 64 pages.  SAT found the Respondent guilty of 13 findings of Professional Misconduct and two findings of Unprofessional Conduct.  Order 11 of paragraph 275 of the First Judgment Order provides that the Respondent is to file submissions on penalty within 21 days which was duly complied with on 31.5.2012.  This is found at: http://wwwnicholasnchin.blogspot.com.au/2012/05/in-thematter-of-legal-profession-act.html.  

THE FINAL JUDGMENT:

  1. As a result, SAT delivered its final decision in LEGAL PROFESSION COM-PLAINTS COMMITTEE and CHIN [2012] WASAT 77 (S)[3] on 20.8.2012 in 41 numbered paragraphs contained in 13 pages (the Final Judgment).  
  2. On 5.9.2012, the Applicant filed its Notice of Originating Motion in LPD 2 of 2012 which is listed for hearing before a Full Bench of three Judges on 23.11.2012 at 10.30 am.  On 13.9.2012, the Respondent wrote to the Chief Justice of the Supreme Court of WA copied to the LPCC followed by the Respondent’s facsimile and email letter to the regulator dated 21.9.2012 [4] requesting for a trial by jury and for the empanelling of Five Supreme Court Judges for the pending hearing of the matter but this request was refused by His Honour citing the lack of extraordinary circumstances, warranting it to be so.

THE COMMON ENTRY AND EXIT GATES FOR LAWYERS:

  1. The issue before this Honourable Court is WHETHER OR NOT to approve the recommendation of SAT[5]: that the Respondent be struck off the roll[6] of barristers and solicitors kept by the Supreme Court under s. 28 of the Act on the ground that he (the Respondent being never guilty of any disgraceful and or criminal conduct) is not a fit and proper person to practice law[7] (the issue of Fitness).   

  1. To determine the Issue of Fitness, this Honourable Court must have regard to the Statutory Provisions and the Common Law position in the following terms:  

THE STATUTORY PROVISIONS:


at the Suitability Factor as provided by s. 38[8] and 45[9] of the Legal Profession Act, 2008 (WA) (the Act):

at the Suitability for Admission Factor as per s. 22[10] of the Act.
at the Professional Misconduct of the Applicant as per s. 403[11] of the Act.
at the Purpose of Admission of Local Lawyers as per ss. 20[12], 26[13], 30[14], 31 [15] of the Act.


at the Grounds for Amending or Cancelling the Practice Certificate and the Show Cause Factors as per  s. 55[16], 62[17] and 63[18] of the Act.

THE OMMISSION FACTOR OF THE LPCC

at the Omission Factor on Ground of the Malicious Persecution by the Applicant before it (THE OMMISSION FACTOR):
6.6.1. Subs. 438(2)(b)) requires the Applicant, the LPCC to make/request of SAT for Orders as per ss. 439[19], 440[20] or 441[21] of the Act.  
6.6.2. the Applicant, the LPCC to make/request of SAT for Orders as per subs s. 438(2)(a) pursuant to Subs. 438(3):
(a) that the Australian legal practitioner’s local practising certificate be suspended for a specified period; 
(b) that specified conditions be imposed on an Australian legal practitioner’s local practising certificate restricting the entitlement of an Australian legal practitioner to practise for a specified period. 

SAT’S IMPROPER MOTIVE:

6.7. IN THE PREMISES, SAT THEREFORE HARBOURS THE IMPROPER PURPOSE FOR MAKING THE RECOMMENDATION FOR THE RESPONDENT TO BE STRUCK OFF THE ROLL (THROUGH THE OMMISSION FACTOR) to make/request for Orders as per subs s. 438(2)(a) pursuant to Subs. 438(4) of the Act for the presentment to the FULL BENCH OF THE SUPREME COOURT of:
(a) a record of the evidence taken at the hearing before SAT; 
(b) a recommendation that the name of the practitioner be removed from the local roll. 

THE COMMON LAW: MEANING OF DISHONESTY:


  1. The unique situation as described in the Respondent’s case in the First Judgment and the Final Judgment as the justification to strike the Respondent off the Roll as a legal practitioner contrasts starkly with cases in the common law[22]. There is NOT an iota of a criminal offence let alone a dishonest intention of the Respondent that meets the common law test of misappropriation of property[23] by deception either through fraud or through a conspiracy to defraud[24]. In this context, I quote what His Honour MACAULAY J said at para. 6 of his judgment in the case of: Legal Services Board v Andre Di Cioccio [2012] VSC 41:

“The circumstances of each of the offences are set out in my Reasons for Sentence made 7 February 2012:  R v Andre Vincent Di Cioccio [2012] VSC 28.  As I said in my sentencing remarks, it appeared that Mr Di Cioccio chose the course of offending for the benefits it could bring him, with his eyes well open to the nature of his conduct. He engaged in significant and sustained  dishonest offending  in a fashion that bespoke a cynical rejection of the honest path.”

WHY DISCIPLINE WHEN THERE IS NO WRONG?:

7.   Why does the regulator in WA through the Applicant need to discipline a lawyer who commits no wrongs?   His Honour MACAULAY J says that the court has “a discretionary power to remove a lawyer’s name from the Roll is supplementary to its jurisdiction to discipline lawyers under its supervision”: See Legal Services Board v McGrath [2010] VSC 266 [4] and [9].

THE MISSING ELEMENTS OF AN UNTRUSTWORTHY LAWYER?:

  1. Where are the elements of the Respondent’s case that points to the fact that the Respondent has missed out on his responsibility and is less than a trustworthy person? His Honour again at para. 14 of the above judgment said that the “The test is whether the defendant is a fit and proper person to engage in legal practice (or fit and proper to be entrusted with the important duties and grave responsibilities which belong to a solicitor) and will likely remain so for the indefinite future: See Legal Services Board v McGrath [2010] VSC 266 [9].

THE AMBIT OF THE INQUIRY?:

  1. MACAULAY J again at para. 15 said that the nature of the Inquiry which this Honourable Court should be embarking in, are in these words:

“The ambit of this enquiry has been described by the High Court in the widest terms:
 The expression “fit and proper person” is of course familiar enough as traditional words when used with reference to offices and perhaps vocations.  But their very purpose is to give the widest scope for judgment and indeed for rejection. “Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty knowledge and ability: “honesty to execute it truly, without malic affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it” – Coke.
When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances. Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156-157.”
 (citations omitted)

IS THERE CRIMINAL DECEPTION OR MISAPPROPRIATION?:

10.       Is there a misappropriation of property suffered by any of the Respondent’s clients?  The misconduct must be so grave as to warrant his removal from the roll? In this context, MACAULAY J at 17 said that In Legal Services Board v Bourozikas, [2009] VSC 382 where Forrest J held that the repeated theft of clients’ funds held by the defendant solicitor demonstrated that the defendant was not fit and proper to engage in legal practice.  His Honour quoted with approval the observations of Hansen J (as his Honour then was) in  Law Institute of Victoria vGough (Unreported, Supreme Court of Victoria, Hansen J, 10 February 1995, 14):

“The conduct (or misconduct) was grave (as were the offences), striking at the very heart of the standards of honesty and observance of proper professional standards which are essential to practice as a solicitor. Nor was there just one transaction, but a series of appropriations over a prolonged period of time.”

  1. At para. 18 MACALAY J said that that:

case involves misappropriation of clients’ monies in the course of legal practice, as well as thefts not strictly connected to legal practice.  Mr Di Cioccio’s conduct was deliberate and repeated.  The offences involved very substantial amounts of money, both individually and in aggregate, and they were committed over an extended period of time, more than two an a half years.”

PRACTITIONER’S CONDUCT DOES NOT STRIKE AT THE HEART OF ESSENTIAL STANDARDS?:

  1. Sad to say, in the Respondent’s case, there is not even one cent that was misappropriated by the Respondent from his clients.  He spent his own monies for his clients and paid his client Mr. Chang Ming Tang of J M Metals Pty Ltd, monies which he the Respondent did not owe Mr. Chang and gave Notice to him that he intended to recover it but is not impassioned enough to do so but is impassioned enough to right the injustice that had been unjustifiably meted out to him by the reckless judgments or is it something else? Adopting Hansen J’s observations in the above case the Respondent conduct: “does not strike at the very heart of the essential standards required of a legal practitioner” cited at paragraph 19 of MACAULAY’S J judgment.

WHO CAN BE STRUCK OFF FROM THE ROLL:

  1. None of the following cases apply to the Respondent’s case.  Examples of lawyers who can be struck off are for:
12.1. “A substantial and recurrent failure to meet the requisite professional standard of conduct.” as in the case of Legal Practitioners Conduct Board v Wharff [2012] SASCFC 116.
12.2. Misappropriation of funds as in the case of: Dupal v Law Society of New South Wales [1990] NSWCA 56.
12.3. Protection of the public: Wentworth v New South Wales Bar Association (1992) 176 CLR 239 per Deane, Dawson, Toohey and Gaudron JJ at 251;
12.4. Protection of the public from similar defaults by other practitioners: Harvey v The Law Society of New South Wales (1975) 49 ALJR at 364.
12.5. Failure to be honest with the Court or with fellow practitioners: Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 per Isaacs at 681.
12.6. Failures to comply with undertaking, condition on practising certificate and respond to the regulator’s correspondence: Council of the Law Society of NSW v Mee Ling [2012] NSWADT 146.
12.7. Misappropriation of funds, failure to inform of progress of client’s case, lying to client, misleading a Trust Account Inspector, failure to account for client funds: Council of the Law Society of NSW v Isaac [2012] NSWADT 203.
12.8. Quistclose trust in relation client’s moneys paid to the solicitor to be held in trust for the specific purpose of his paying counsel’s fees: Legal Services Board v Gillespie-Jones [2012] VSCA 68 (19 April 2012); Rhodes v Fielder, Jones and Harrison [1918-19] All ER 846 at 847 per Lush J (Sanke J agreeing); Re Robb (1996) 134 FLR 294 at 310 per Myles CJ, Gallop and Higgins JJ; Rhodes v Fielder, Jones and Harrisons [1918-19] All ER 846 at 847 per Lush J (Sanke J agreeing); Law Society of New South Wales v McCarthy [2002] NSWADT 58 at [46] per Malloy, Robinson QC and Kirk; Law Society of New South Wales v Graham [2007] NSWADT 67 at [29] per Karpin ADCJ, Pheils and Fitzgerald.

FALLACY OF THE FINAL JUDG-MENT:  

  1. Para. 3: The findings of SAT WA is fallacious and non-existent in terms of the following:
13.1. Disgraceful and dishonorable conduct;
13.2. Failure to retain and maintain standards of competence and diligence expected by a reasonable member of the public;
13.3. Failure to treat fellow practitioners and members of the public with courtesy.
13.4. Every questions to the above has been answered by the Respondent and he is prepared to give viva-voce evidence to this effect.

FALLACY OF THE FIRST JUDG-MENT:

14. Paras. 5, 6, 12, 13, 14, 15, 16, 17, 28, 30, 31, 32:    The reason why the relevant statements of the first judgment are in error in found in my written submission dated 30.5.2012 found at my blogspot at: http://wwwnicholasnchin.blogspot.com.au/2012/05/in-thematter-of-legal-profession-act.html.
15. Para.7: The Malicious Intent of the LPCC is explained in the OMMISSION FACTOR OF THE LPCC as indicated above.
16. Paras 8 & 9: As a result of OMMISSION FACTOR OF THE LPCC, the orders made pursuant to s. 438(2)(b) of the Act by the Tribunal is misconceived and is of null effect.
17. Para 10, 21, 22, 23, 24, 25, 27, 29 & 35: The ISSUE OF FITNESS is being explained by the COMMON ENTRY AND EXIT GATES FOR LAWYERS and the COMMON LAW MEANING OF DISHONESTY. The Respondent poses no public danger and there is no deterrence requirement as his all consuming passion was to do his clients justice in accordance with the law and to publicize the truth.  It’s an irony of the law for him to hear a fellow practitioner telling Judge Eckert during the First SAT decision that it is alright for a lawyer to speak “untruths” but he is required to swear by the Bible when he gives evidence before the tribunal that only the Respondent is required to speak the “truth and nothing but the truth”. It gives the ordinary person the impression that the law is a sham and that the judiciary system is hypocritical in its philosophy.
18. Para.11: This is the first time in history that the Respondent a fully qualified lawyer has been denied his independent practicing certificate since 12.9.2006 sans a finding of professional misconduct or unsatisfactory conduct. The same factual circumstances used by the Committee to find the Respondent guilty of NO MISCONDUCT or UNSATISFACTORY CONDUCT but only “guilty” of the ludicrous proposition that he is deficient in his professional knowledge is barred by the principle of res judicata or double-jeopardy in the many subsequent findings by tribunals that avoided the issues before them and refused to give the relevant reasons for their decisions. .
18. Para.18: There is lack of particularity as to how the Committee is contending that the Respondent has “little or no appreciation of correct legal procedures” as it is a general statement that is applicable even to the most senior lawyer coupled with the fact that a tribunal should not be dealing with procedural errors but with the substantive law.
19. There is no legal explanation that a different yard stick should not be used by the Committee to measure the different levels of culpability of the Respondent at the different stages of his professional life. If this argument is not accepted, why do we have trainee lawyers when other system in other countries does not make this distinction between a trainee lawyer and a full-fledged lawyer?  Is it not true that a trainee lawyer do not have full-autonomy to perform his duties as a lawyer and works under compulsion and advice of his mentor?
20. Para. 26: The respondent does not have defective personality traits as a social animal. There is no doubt that he is capable of commanding the personal confidence of his clients and fellow practitioners and judges if there was no interference of cronyism or the failure of the justice system to practice true democracy in that it is plain commonsense that meritorious litigants should be allowed to win their cases in accordance with the law only if the principle of the Rule of Law is obeyed by all with equanimity. The Respondent is quite capable of expressing with equanimity opinions which differ from the prejudices of his social environment.  If people around the Respondent are incapable of forming such opinions, fingers should not be pointed at the Respondent alone. 
21. Para. 32, 33 & 34: That is a sociability aspect of the Respondent for which the tribunal is not qualified to make that psychological assessment having regard to the fact that the Respondent has enjoyed a successful professional career in another profession for some 36 years of his life and is a matured and highly intelligent person with no known personality defects or psychological drawbacks and had been subjected to tests by trained psychologists and psychiatrists in Australia as suggested by the Committee or the regulator. 
22. Paras. 37, 38, 39, 40 & 41: The Respondent has not misconduct himself in these proceedings right from the very start.  The malice and prosecutorial misconduct of the Committee is very apparent to the reasonable mind. Therefore the costs orders made under unwarranted circumstances are null and void.
23. Every statement above is verifiable by facts already before the Tribunal and the various courts in these proceedings.  The Respondent is prepared to give viva-voce evidence to this effect.

CONCLUSION:

24. My grievances is made known to the general public and is being displayed in the Just Grounds Community website at: http://justgroundsonline.com/profile/NicholasNChin; http://justgroundsonline.com/forum/topic/listForContributor?user=2kb4af2y65b7j and

I AM THE LAWYER:

25. I am a lawyer who is not allowed to be called a lawyer[25] because of the following reasons:

I STAND:

a) I stand between the abuse of governmental power and the individual;
b) I stand between the abuse of corporate power and the individual.
c) I am the hair shirt to the smugness and complacency of society;
d) I am helping to mold the rights of individuals for generations to come.
d) In short, I am the trustee of our liberties.
e) This is our creed, our commitment, our Holy Grail and who do see who have performed this historic role?

WHO ARETHE REAL LAWYERS:

f) I quote the lawyers who have shaped our democracy:
F.1. I Saw Him So Long Ago, A Philadelphian In New York, The First Philadelphia Lawyer At The Nation’s First Political Trial, Upholding John Peter Zenger’s Right To Publish What He Chose, Free From Censorship Or Interference. His Name Was Andrew Hamilton, And He Was A Lawyer.
F.2. I Saw Him At The Trial Of Captain Preston, Another Political Trial, The Unpopular Cause And Client Arising Out Of The Boston Massacre. His Name Was John Adams, And He Was A Lawyer.
F.3. I Saw Him At That Miracle In Philadelphia, The Constitutional Convention Of 1787, Fighting For The Bill Of Rights, The Credo Of American Freedom Not Adopted Until 1789. His Name Was James Madison. He Was A Lawyer.
F.4. I Saw Him Presiding Over The Supreme Court Of Our Land, The Architect Of The Real Powers Of The Supreme Court. His Name Was John Marshall, And He Was A Lawyer.
F.5. I Saw Him Exhorting The Battle Cry Of The Republic, “Give Me Liberty, Or Give Me Death.” His Name Was Patrick Henry, And He Was A Lawyer.
F.6. I Saw Him At Gettysburg With Tears In His Eyes, Gaunt And Morose, Rededicating Our Country To The Principles Of Equal Justice For All. His Name Was Abraham Lincoln, And He Was A Lawyer.
F.7. I Saw Him, An Elemental Man, Fighting For One Cause Or Another In Dayton, Tennessee, Preaching The Legitimacy Of Evolution. His Name Was Clarence Darrow, And He Was A Lawyer.
F.8. I Saw Him Speaking To Us From His Wheelchair, Lifting Our Spirits, Making Us Stronger With His Inspirational Philosophy, “The Only Thing We Have To Fear Is Fear Itself.” His Name Was Franklin Delano Roosevelt, And He Was A Lawyer.
F.9. I Saw Him In The Senate Hearing Room In Washington, Uttering That Anguished Cry For Decency. His Name Was Joseph Welch, And He Was A Lawyer.

ONLY A THOUGHT LIVES

F.10. And I Thought Of The Precious Monuments hey Had Left To Their Lives And Of Milton’s Wonderful Comment On Shakespeare That, “Thou In Our Wonder And Astonishment Hast Left Thyself A Monument”. And Then You Might Think, What Kind Of A Monument Will I Leave? Not One Of Brick And Mortar Or Stone, But A Thought Because Only A Thought Lives.

SHARE MY PASSION AT THE PERIL OF BEING STRUCK OFF THE ROLL:

And, Finally, I Thought Of That Marvelous Admonishment Of Holmes, When Almost A Hundred Years Ago, He Said, “I Think That As Life Is Action And Passion, It Is Required Of Man That He Should Share The Passion And Action Of His Time At The Peril Of Being Judged Not To Have Lived.”

LIST OF AUTHORITIES

 

Websites:

1)      IF YOU ARE A LAWYER of The Connecticut Trial Lawyers Associations at http://www.ctlablog.org/if-you-are-a-lawyer_7588.html.
3)      The RESPONDING SUBMISSION of the RESPONDENT to the FIRST JUDGMENT at his Website at: http://wwwnicholasnchin.blogspot.com.au/2012/05/in-thematter-of-legal-profession-act.html.
6)      NOTICE TO REGULATOR RE: NULLITY OF THE COSTS ORDER OF SAT at the Website of Respondent: http://wwwnicholasnchin.blogspot.com.au/2012/09/email-to-legal-practice-board-regarding.html.
7)      MEANING OF DISHONESTY: R E G I N A-v- DEB BARAN GHOSH BAILII Citation Number: [1982] EWCA Crim  found at: http://www.bailii.org/ew/cases/EWCA/Crim/1982/2.html quoting Viscount Dilhorne in Scott v. Metropolitan Police Commissioner (1975) A. C. 819 at 836.
8)      THE GRIEVANCES OF THE RESPONDENT at the Website of the Just Grounds Community at: My grievances is made known to the general public and is being displayed in the Just Grounds Community website at:

TEXT BOOKS:


1.                 Steele, Jenny: Professor of Law at University of Southampton: Tort Law: Text, Cases, & Materials OUP 2007 at page 66.
2.                Trindade, Francis A: The Law of Torts in Australia, 3rd edition, 1999, page 56.2. 
3.                Trindale, Francis A: “The Modern Tort of False Imprisonment” page 229 at 246.7 in Torts in the Nineties, ed by Nicholas J Mullaney, LBC, Sydney, 1997;

STATUTES:


The Legal Profession Act (2008): ss.20, 26, 22, 28, 30, 31, 38, 45, 403, 438, 439, 440, 441.  


CASES:

1.                Antigua Case (1830) 1 Knapp 267 (12 ER 321;
2.                Chaytor v London, New York and Paris Association of Fashion Ltd (1961) 30 DLR (2d) 527 at 536-537 (Newfoundland Supreme Court, Canada) per Dunfield J..
3.                Council of the Law Society of NSW v Isaac [2012] NSWADT 203;
4.                Council of the Law Society of NSW v Mee Ling [2012] NSWADT 146;
5.                Dupal v Law Society of New South Wales [1990] NSWCA 56;
6.                Harvey v The Law Society of New South Wales (1975) 49 ALJR at 364;
7.                In re Davis [1947] HCA 53; (1947) 75 CLR, at p 409, 419, 414.
8.                Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 per Isaacs at 681;
9.                Law Society of New South Wales v Graham [2007] NSWADT 67 at [29] per Karpin ADCJ, Pheils and Fitzgerald.
10.             Law Society of New South Wales v McCarthy [2002] NSWADT 58 at [46] per Malloy, Robinson QC and Kirk; 
11.             Legal Practitioners Conduct Board v Wharff [2012] SASCFC 116;

12.             LEGAL PROFESSION COMPLAINTS COMMITTEE and CHIN [2012] WASAT 77
13.             LEGAL PROFESSION COM-PLAINTS COMMITTEE and CHIN [2012] WASAT 77 (S)
14.             Legal Services Board v Gillespie-Jones [2012] VSCA 68 (19 April 2012);
15.             Re Robb (1996) 134 FLR 294 at 310 per Myles CJ, Gallop and Higgins JJ;
16.             Rhodes v Fielder, Jones and Harrison [1918-19] All ER 846 at 847 per Lush J (Sanke J agreeing); 
17.             Rhodes v Fielder, Jones and Harrisons [1918-19] All ER 846 at 847 per Lush J (Sanke J agreeing); 
18.            Wentworth v New South Wales Bar Association (1992) 176 CLR 239 per Deane, Dawson, Toohey and Gaudron JJ at 251;
19.             ZIEMS v. THE PROTHONOTARY OF THE SUPREME COURT OF N.S.W. [1957] HCA 46; (1957) 97 CLR 2792;












[1] It must be noted that except for His Honour Judge Sharp, the other two Honourable Members of the Panel of Judges of SAT have already been involved in decisions against the Respondent in making the many varied findings in the past that the Respondent have only been guilty of “deficiency in his professional knowledge”. Therefore these two members are more likely to be biased against the Respondent.  As for His Honour Judge Sharp, all the Respondent can surmise  say is that His Honour Judge Sharp hands are tied. This is clear because the conduct of a person is the index of his state of mind.
[5] Such a recommendation is improper as SAT had failed to distinguish the particular circumstances of the Respondent, which might have warrant a suspension and NOT A REMOVAL from the Bar.  The Respondent therefore quote FULLAGAR J in this regard in ZIEMS v. THE PROTHONOTARY OF THE SUPREME COURT OF N.S.W. [1957] HCA 46; (1957) 97 CLR 2792 who made this distinction when he said at para.6:
“I have no doubt that suspension as distinct from disbarment could be ordered. Admission to the Bar of New South Wales is governed by Pt. II of the Legal Practitioners Act 1898-1954. A candidate is admitted by order of the court under s. 10. There is no express statutory power either to disbar or to suspend, but it was held by the Privy Council in In re the Justices of the Court of Common Pleas at Antigua (1830) 1 Knapp 267 (12 ER 321) , that "The power of suspending from practice must be incidental to that of admitting to practise . . . . The Court that confers . . . may for just cause take away." In In re Davis [1947] HCA 53; (1947) 75 CLR 409 , Starke J. said: "The power of removal or suspension is incidental to that of admitting to the roll of barristers" (1947) 75 CLR, at p 419 . In the same case Latham C.J. said: "In the unreported case of In re White (August 1930) the Supreme Court held on the authority of the Antigua Case (1830) 1 Knapp 267 (12 ER 321) that the court had a power of suspending barristers from practice and disbarring them in a proper case" (1947) 75 CLR, at p 414 . Whether the present is a proper case for suspension I will consider later. (at p291).
[6] This represents the culmination of the Respondent’s deprivation of his liberty by the regulator who is reasonably observed to have been abusing the process of court through an improper motive by the members of the Legal Profession Complaints Committee due to the undeniable fact that it is reasonably discerned that there was a concerted and persistent efforts by Members of the LPCC being imbued with an improper motive to impose upon the Respondent a psychological type of false imprisonment: See the Authority on the law for psychological false imprisonment in: Francis A Trindade, “The Modern Tort of False Imprisonment” page 229 at 246.7 in Torts in the Nineties, ed by Nicholas J Mullaney, LBC, Sydney, 1997; Francis A Trindade, The Law of Torts in Australia, 3rd edition, 1999, page 56.2. Dunfield J. in Chaytor v London, New York and Paris Association of Fashion Ltd (1961) 30 DLR (2d) 527 at 536-537 (Newfoundland Supreme Court, Canada).

[7] Id. At para. 2, His Honour further said: 
 …it is essential, … defining the ground on which an order of disbarment is to be made. ….by saying that the person in question is not a fit and proper person to be permitted to practise at the Bar. …- at what facts is it proper to look in order to see whether that conclusion is established? The answer ….  we must look at every fact which can throw any light on that question. ……to particularity, is it the conviction that is the vital thing, unchallengeable and conclusive of the ultimate issue? Or must we look beyond the conviction, and endeavour to ascertain, as best we can on the material before us, the facts and circumstances of the particular case? …only one answer to these questions. The conviction is not irrelevant: it is admissible prima facie evidence bearing on the ultimate issue, and may be regarded as carrying a degree of disgrace itself. But, in the first place, its weight may be seriously affected by circumstances attending it, and it must be permissible to look at the conduct of the trial. And, in the second place, it is on what the man did that the case must ultimately be decided, and we are bound to ascertain, so far as we can on the material available, the real facts of the case. It is only when we have done this that we can be in a position to characterise the conduct in question, and to see whether we are really justified in saying that a man is disqualified from practising his profession. …..one thing that we manifestly cannot do. We cannot look behind the conviction to the extent of saying that there is much evidence that the appellant was driving his car in a state of intoxication, and refuse to look any further behind it. (at p288)

 

[8] Section 38.  Suitability to hold local practising certificate

(1)  This section has effect for the purposes of section 45 or any other provision of this Act where the question of whether or not a person is a fit and proper person to hold a local practising certificate is relevant. 
 (2) The Board may, in considering whether or not the person is a  fit  and  proper person  to hold a local practising certificate, take into account any suitability matter relating to the person, and any of the following, whether happening before or after the commencement of this section — 
(a) whether the person obtained an Australian practising certificate because of incorrect or misleading information; 
(b) whether the person has contravened a condition of an Australian practising certificate held by the person; 
(c) whether the person has contravened this Act, a previous Act or a corresponding law or the regulations or legal profession rules under this Act or a corresponding law; 
(d) whether the person has contravened — 
(i)  an order of the Complaints Committee or the State Administrative Tribunal or Supreme Court (full bench) exercising jurisdiction under this Act or a previous Act; or 
(ii) an order of a corresponding disciplinary body or of another court or tribunal of another jurisdiction exercising jurisdiction or powers by way of appeal or review of an order of a corresponding disciplinary body; 
(e) without limiting any other paragraph — 
(i)  whether the person has failed to pay a required contribution or levy to the Guarantee Fund; or 
(ii) whether the person has contravened a requirement imposed under this Act about professional indemnity insurance; or 
(iii) whether the person has failed to pay other costs, expenses or fines for which the person is liable under this Act or a previous Act; 
(f) any other matters relating to the person the Board considers are appropriate. 
(3) A person may be considered a fit and proper person to hold a local practising certificate even though the person is within any of the categories of the matters referred to in subsection (2), if the Board consider that the circumstances warrant the determination. 
(4) If a matter was — 
(a) disclosed in an application for admission to the legal profession in this or another jurisdiction; and 
(b) determined by the Supreme Court or by the Board or a corresponding authority not to be sufficient for refusing admission, 
the matter cannot be taken into account as a ground for refusing to grant or renew or for cancelling a local practising certificate, but the matter may be taken into account when considering other matters in relation to the person concerned. 

[9] Section 45. Grant or renewal of local practising certificate

(1) The Board must consider an application that has been made to it for the grant or renewal of a local practising certificate and may — 
(a) grant or refuse to grant the certificate; or 
(b) renew or refuse to renew the certificate. 
(2)The Board may, when granting or renewing the certificate, impose conditions as referred to in section 47. 
(3) The Board may refuse — 
(a) to consider an application if — 
(i) it is not made in accordance with this Act; or 
(ii) the required fees and costs have not been paid; or 
(b) to grant or renew a local practising certificate if the applicant has not complied with this Act in relation to the application. 
(4) The Board must not grant a local practising certificate unless it is satisfied that the applicant — 
(a) was eligible to apply for the grant when the application was made; and 
(b) is a fit and proper person to hold the certificate. 
(5)The Board must not renew a local practising certificate if it is satisfied that the applicant — 
(a) was not  eligible to apply for the renewal when the application was made; or 
(b) is not a fit and proper person to continue to hold the certificate. 
(6)  The Board must not grant or renew a local practising certificate if it considers the applicant’s circumstances have changed since the application was made and the applicant would (having regard to information that has come to the Board’s attention) not have been eligible to make the application when the application is being considered. 
(7)  If the Board grants or renews a local practising certificate, the Board must, as soon as practicable, give the applicant — 
(a) for the grant of a certificate — a local practising certificate; or 
(b) for the renewal of a certificate — a new local practising certificate. 
(8) If the Board — 
(a) refuses to grant or renew a local practising certificate; or 
(b) imposes a condition on the certificate and the applicant does not agree to the condition, 
the Board must, as soon as practicable, give the applicant an information notice. 
(9)  The Board is taken to have refused to grant a local practising certificate if the certificate has neither been granted nor refused within 6 months after — 
(a)  if the Board has given the applicant a notice under section 75 — the applicant has complied with the notice to the Board’s satisfaction; or 
(b)  if paragraph (a) does not apply — the application was lodged. 

[10] Section 22. Suitability for admission

(1) The Supreme Court or Board must, in deciding if a person is a  fit and  proper person to be admitted to the legal profession, consider — 
(a)  each of the suitability matters in relation to the person to the extent that a suitability matter is appropriate; and 
(b) any other matter  it considers relevant. 
(2) However, the Supreme Court or Board may consider a person to be a fit and proper person to be admitted despite a suitability matter because of the circumstances relating to that matter. 

[11] Section 403. Professional misconduct

(1)  For the purposes of this Act — 
professional misconduct includes — 
(a)  unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and 
(b)  conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a  fit  and  proper person  to engage in legal practice. 
(2) For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate. 

[12] Section 20. Purposes

The purposes of this Part are as follows — 
(a) in the interests of the administration of justice and for the protection of consumers of legal services, to provide a system under which only applicants who have appropriate academic qualifications and practical legal training and who are otherwise  fit  and  proper persons  to be admitted are qualified for admission to the legal profession in this jurisdiction;
(b) to provide for the recognition of equivalent qualifications and training that make applicants eligible for admission to the legal profession in other jurisdictions. 

[13] Section 26.  Admission by the Supreme Court

(1) The Supreme Court (full bench) may admit a person as a lawyer if — 
(a) the Supreme Court (full bench) is satisfied that the person — 
(i) is eligible for admission to the legal profession; and 
(ii) is a fit and proper person to be admitted to the legal profession; and 
(b) the person takes an oath of office, or an affirmation of office, in the form required by the Supreme Court. 
(2) For the purposes of subsection (1)(a), the Supreme Court (full bench) may rely on the advice of the Board. 
(3) The advice of the Board may be contained in a compliance certificate. 
(4) The Supreme Court (full bench) may refuse — 
(a) to consider an application for admission if it is not made in accordance with the admission rules; or 
(b) to admit the person if the person has not complied with the admission rules. 

[14] Section 30. Board to advise on applications for admission

The Board must — 
(a) consider applications by persons for admission to the legal profession under this Act; and 
(b) advise the Supreme Court as to whether it considers that — 
(i)   the applicant is eligible for admission; and 
(ii)  the applicant is a  fit  and  proper person to be admitted; and 
(iii) the application is in accordance with the admission rules. 

[15] Section 31. Compliance certificates

(1) If, after considering an application for admission to the legal profession, the Board considers that — 
(a) the applicant is — 
(i) eligible for admission; and 
(ii) a fit and proper person to be admitted; and 
 (b) the application is in accordance with the admission rules; and 
 (c) there are no grounds for refusing to give a certificate of the matters mentioned in paragraphs (a) and (b) (a compliance certificate ), 
the Board must, within the time specified in or determined in accordance with the admission rules, advise the Supreme Court to that effect by filing a compliance certificate. 
(2) If the Board refuses to give a compliance certificate to an applicant, the Board must, within the time specified in or determined in accordance with the admission rules, give the Supreme Court and the applicant an information notice about the refusal. 
(3)  An applicant may apply to the State Administrative Tribunal for a review of a decision of the Board to refuse to give the applicant a compliance certificate. 
(4)  The Board is taken to have refused to give a compliance certificate if a compliance certificate has neither been given to the applicant nor refused within 6 months after — 
(a)  if the Board has given the applicant a notice under section 32 — the applicant has complied with the notice to the Board’s satisfaction; or 
(b)  if paragraph (a) does not apply — the application for admission was lodged. 

[16] Section 55.  Grounds for amending, suspending or cancelling local practising certificate

 Each of the following is a ground for amending, suspending or cancelling a local practising certificate — 
 (a)  the holder is no longer a fit and proper person to hold the certificate; 
 (b)  the holder is not, or is no longer, covered by professional indemnity insurance that complies with requirements imposed under this Act; 
 (c)   if a condition of the certificate is that the holder is limited to legal practice specified in the certificate — the holder is or has been engaging in legal practice that the holder is not entitled to engage in under this Act. 

[17] Section 63. Refusal, amendment, suspension or cancellation of local practising certificate — failure to show cause

(1) The Board may refuse to grant or renew, or may amend, suspend or cancel, a local practising certificate if the applicant or holder — 
(a)  is required by section 61 or 62 to provide a written statement relating to a matter and has failed to provide a written statement in accordance with that requirement; or 
(b) has provided a written statement in accordance with section 61 or 62, but the Board does not consider that the applicant or holder has shown in the statement that, despite the show cause event concerned, the applicant or holder is a fit and proper person to hold a local practising certificate. 
(2) For the purposes of this section only, a written statement accepted by the Board under section 62(3) is taken to have been provided in accordance with section 62. 
(3) The Board must give the applicant or holder an information notice about the decision to refuse to grant or renew, or to amend, suspend or cancel, the certificate. 

[18] Section 62 Holder of local practising certificate — show cause event

(1) This section applies to a show cause event that happens in relation to the holder of a local practising certificate. 

(2)  The holder must provide to the Board both of the following — 
(a)  within 7 days after the happening of the event — notice, in the approved form, that the event happened; 
(b)  within 28 days after the happening of the event — a written statement explaining why, despite the show cause event, the person considers himself or herself to be a  fit and proper person to hold a local practising certificate. 
(3) If a written statement is provided after the 28 days mentioned in subsection (2)(b), the Board may accept the statement and take it into account. 

[19] 439. Orders requiring official implementation in this jurisdiction

The State Administrative Tribunal may, under section 438(2)(b), make any one or more of the following orders — 
(a)  an order that the practitioner’s local practising certificate be suspended for a specified period or cancelled; 
(b)  an order that a local practising certificate not be granted to the practitioner before the end of a specified period; 
(c)  an order that — 
(i)   specified conditions be imposed on the practitioner’s practising certificate granted or to be granted under this Act; and 
(ii)  the conditions be imposed for a specified time; and 
(iii) specifies the time (if any) after which the practitioner may apply to the Tribunal for the conditions to be amended or removed; 
(d)  an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner. 

[20] 440 .  Orders requiring official implementation in another jurisdiction

The State Administrative Tribunal may, under section 438(2)(b), make any one or more of the following orders — 
(a)  an order recommending that the name of the practitioner be removed from an interstate roll; 
(b)  an order recommending that the practitioner’s interstate practising certificate be suspended for a specified period or cancelled; 
(c)   an order recommending that an interstate practising certificate not be granted to the practitioner before the end of a specified period; 
(d)  an order recommending that — 
(i)   specified conditions be imposed on the practitioner’s interstate practising certificate, or existing conditions be amended; and 
(ii)  the conditions be imposed or amended for a specified time; and 
(iii) the conditions specify the time (if any) after which the practitioner may apply to the Tribunal for the conditions to be amended or removed. 

[21] 441 . Orders requiring compliance by practitioner

The State Administrative Tribunal may, under section 438(2)(b), make any one or more of the following orders — 
(a)  an order that the practitioner pay a fine to the Board of a specified amount not exceeding $25 000; 
(b)  an order that the practitioner undertake and complete a specified course of further legal education; 
(c)  a compensation order; 
(d)  an order that the complainant pay the amount of legal costs in dispute or that the amount of legal costs be reduced by a specified amount (not exceeding the amount in dispute); 
(e)  an order that the practitioner provide specified legal services to the complainant either free of charge or at a specified cost; 
(f)   an order that the practitioner undertake a specified period of practice under specified supervision; 
(g)  an order that the practitioner do or refrain from doing something in connection with the practice of law; 
(h)  an order that the practitioner’s practice, or the financial affairs of the practitioner or of the practitioner’s practice, be conducted for a specified period in a specified way or subject to specified conditions; 
(i)  an order that the practitioner’s practice be subject to periodic inspection for a specified period; 
(j) an order that the practitioner undergo counselling or medical treatment or act in accordance with medical advice given to the practitioner; 
 (k) an order that the practitioner use the services of an accountant or other financial specialist in connection with the practitioner’s practice; 
 (l) an order that the practitioner seek advice in relation to the management of the practitioner’s practice from a specified person; 
 (m)   an order that the practitioner not apply for a local practising certificate before the end of a specified period. 

[22] ZIEMS v. THE PROTHONOTARY OF THE SUPREME COURT OF N.S.W. [1957] HCA 46; (1957) 97 CLR 279 per Kitto J at para. 4.
Yet it cannot be that every proof which he may give of human frailty so disqualifies him. The ends which he has to serve are lofty indeed, but it is with men and not with paragons that he is required to pursue them. It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self-respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily co-operation which the satisfactory working of the courts demands. A conviction may of its own force carry such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails. But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar; and to draw the dividing line is by no means always an easy task. (at p298)
[23] Lord Lane, the Lord Chief Justice in R E G I N A-v- DEB BARAN GHOSH BAILII Citation Number: [1982] EWCA Crim  found at: http://www.bailii.org/ew/cases/EWCA/Crim/1982/2.html quoting Viscount Dilhorne in Scott v. Metropolitan Police Commissioner (1975) A. C. 819 at 836 said:
"As I have said, words take colour from the context in which they are used, but the words 'fraudulently' and 'defraud' must ordinarily have a very similar meaning. If, as I think, and as the Criminal Law Revision Committee appears to have thought, 'fraudulently' means 'dishonestly', then 'to defraud' ordinarily means, in my opinion, to deprive a person dishonestly of something which is his or of something to which he is or would or might but for the perpetration of the fraud be entitled. "
[24]. Ibid: Lord Lane continued:
Nor is there anything in R. v. Landy itself which justifies putting theft and conspiracy to defraud into different categories. Indeed the Court went out of its way to stress that the test for dishonesty, whatever it might be, should be the same whether the offence charged be theft or conspiracy to defraud. This is clear from the reference to R. v. Feely (1973) Q. B. 530, which was a case under section 1 of the Theft Act. Having set out what we have for convenience called the subjective test, the Court in R. v. Landy continue:
"In our judgment this is the way the case of Feely should be applied in cases where the issue of dishonesty arises. It is also the way in which the jury should have been directed in this case..... "

[25] The website at http://ctlablog.org/if-you-are-a-lawyer_7588.html of the The News Blog of the Connecticut Trial Lawyers Association

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