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:
- 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).
- 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:
- 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).
- 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:
- 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).
- 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 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:
- 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?:
- 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?:
- 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
(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
“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.”
- 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?:
- 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:
- 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
12.4. Protection of the public from similar defaults by other
practitioners: Harvey v The Law
Society of New South Wales
12.5. Failure to be honest with the Court or with
fellow practitioners: Incorporated Law Institute of New South Wales
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:
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
http://justgroundsonline.com/forum/topics/read-my-blogs-and-sign-my-petitions-to-protect-the-public.
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
F.3. I Saw Him At That Miracle In Philadelphia
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
F.6. I Saw Him At Gettysburg
F.7. I Saw Him, An Elemental Man, Fighting For
One Cause Or Another In Dayton ,
Tennessee
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
ONLY A THOUGHT LIVES
F.10. And I Thought Of The Precious Monuments
hey Had Left To Their Lives And Of Milton
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.
2) The FIRST JUDGMENT in SAT
Website at http://decisions.justice.wa.gov.au/SAT/SATdcsn.nsf/PDFJudgments-WebVw/2012WASAT0077/
$FILE /2012 WASAT0077.pdf
3) The
RESPONDING SUBMISSION of the RESPONDENT to the FIRST JUDGMENT at his Website
at: http://wwwnicholasnchin.blogspot.com.au/2012/05/in-thematter-of-legal-profession-act.html.
4) The FINAL JUDGMENT in SAT
Website at http://decisions.justice.wa.gov.au/SAT/
SATdcsn.nsf/PDFJudgments-ebVw/2012WASAT0077(S)/$FILE /2012WASAT0077 (S).pdf
5) REQUEST FOR TRIAL BY JURY REFUSED: http://wwwnicholasnchin.blogspot.com.au/2012/09/my-request-for-trial-by-jury-by-five.html?show Comment=1348142023278#c6421774982242333034
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:
8.3. http://justgroundsonline.com/forum/topics/read-my-blogs-and-sign-my-petitions-to-
protect-the-public
TEXT BOOKS:
1.
Steele, Jenny: Professor of Law at University of Southampton
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
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
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;
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
[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.
[4] http://wwwnicholasnchin.blogspot.com.au/2012/09/my-request-for-trial-by-jury-by-five.html?show Comment=1348142023278#c6421774982242333034.
See also: http://wwwnicholasnchin.blogspot.com.au/2012/09/email-to-legal-practice-board-regarding.html.
[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 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
…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 —
(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 —
(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 —
(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. "
“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]
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