SUPREME COURT OF NORFOLK ISLAND

Registrar, Supreme Court of Norfolk Island v Walsh (No 5) [2018] NFSC 1

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s name be removed forthwith from the Register of Practitioners of the Supreme Court of Norfolk Island.

2.    The respondent’s right to practise in Norfolk Island as:

(a)    a barrister;

(b)    a solicitor; or

(c)    a barrister and a solicitor,

be suspended for a period of ten years, such period commencing on the date of this order.

3.    Within 28 days of the date of these orders, the applicant give to:

(a)    each of the bodies responsible for professional disciplinary oversight of legal practitioners in Australia;

(b)    the International Bar Associations; and

(c)    the South Pacific Lawyers Association,

a copy of:

(d)    these orders;

(e)    the Court’s order made on 22 December 2017; and

(f)    the Court’s reasons for judgment delivered, respectively, on 22 December 2017 and at the time of making these orders.

4.    Within 28 days of the date of this order, the respondent reimburse Dr Ping-Fat Sze the sum of AUD 200, with interest payable from 1 July 2007 calculated in accordance with sch 2 to the Court Procedures Rules 2006 (ACT).

5.    Parties are to file and serve minutes of proposed order as to the amount of interest payable under order 4.

6.    The respondent pay the applicant’s costs of and incidental to the proceeding, such costs to be taxed if not agreed.

REASONS FOR JUDGMENT

GILMOUR J:

1    A judgment in this matter was delivered on 22 December 2017 (Judgment), which included findings that the respondent was guilty of unsatisfactory professional conduct and professional misconduct in various respects, for the purposes of s 18A(1) of the Legal Profession Act 1993 (NI) Registrar, Supreme Court of Norfolk Island v Walsh (No 4) [2017] NFSC 7. Declarations to that effect were made. Orders were also made programming the matter for further hearing as to further orders, including the question of costs, consequent upon the declarations.

2    The applicant (Registrar) was required to file and serve a written outline of submissions together with a minute of proposed orders by 22 January 2018. The respondent was required to file and serve a written outline of submissions in reply together with a minute of proposed orders by 29 January 2018.

3    The further hearing took place on 5 February 2018 in Perth. Counsel for the Registrar and the respondent appeared by way of videoconference from the Court’s Melbourne Registry.

4    The respondent, by then, had not complied with the order.

5    Counsel for the Registrar put before me an email to which were attached unsealed copies of the Registrar’s submissions and minute of proposed orders. This email was sent to the respondent on the evening of 22 January 2018. My chambers was also in receipt of an email on that date from the Registrar’s solicitors, copied to the respondent, also attaching the Registrar’s submissions and minute of proposed orders, which were lodged for filing that day.

6    The respondent replied to the latter email on 23 January this year, copied to my chambers, in which he stated:

Thank you for your email. I am unable to respond to or even read your attachments as I am leaving shortly for the first of four eye surgery operations scheduled over the next six weeks to prevent me from losing my sight from severe acute glaucoma.

7    The Registrar submitted at the hearing, and I accept, that the respondent clearly received the email and the attached submissions and orders.

8    At first, the respondent said that he did not receive the email. Then, the respondent stated that he was unable to open the attachments as they required a code to access them. I do not accept the respondent’s explanations. The Registrar said that there was no code applied in the email. The respondent, in his reply email, made no mention of being unable to open the attachments, whether by reason of a code or otherwise. His explanation, in his responsive email to which I have referred, was that he could not ‘read’ them owing to his eye problems. Further, my chambers did not encounter any request for a code when opening the attachments.

9    In any event, at the hearing, counsel for the Registrar provided a copy of the Registrar’s outline of submissions to the respondent before he made oral submissions.

10    The respondent confirmed that he had read the Judgment. The hearing then proceeded.

The Court’s jurisdiction

11    At [6]–[12] of the Judgment, I set out the basis of this Court’s inherent and statutory jurisdiction to discipline legal practitioners.

12    As the Superior Court of Record of Norfolk Island (s 52 of the Norfolk Island Act 1979 (Cth)), the Court maintains the inherent jurisdiction to discipline legal practitioners: Barwick v Law Society of New South Wales (2000) 169 ALR 236; Law Society of Tasmania v A (a practitioner) [2002] TASCC 9 at [41], citing Weaver v Law Society of New South Wales (1979) 141 CLR 201.

13    In addition to its inherent jurisdiction, this Court derives power from the provisions of the Legal Profession Act 1993 (NI) (LPA). Section 21 of the LPA provides that the powers there contained in the Act are in addition to the Court's inherent power in relation to the control and discipline of practitioners.

14    Section 18A(1) of the LPA, which confers disciplinary powers on the Court, states that:

If, on a report under section 18 or otherwise, the court is satisfied that a legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct, the court may, by order, do all or any of the following:

(a)    direct that his or her name be removed from the Register of Practitioners;

(b)    suspend for such period as the court considers appropriate his or her right to practise in Norfolk Island as a barrister, as a solicitor or as a barrister and solicitor; or

(c)    impose on him or her a fine not exceeding 500 penalty units.

15    The Registrar seeks the following orders:

(1)    that the respondent’s name be removed from the Register of Practitioners of this Court;

(2)    that the respondent’s right to practice in Norfolk Island as a barrister, a solicitor, or a barrister and a solicitor be suspended for a period of 5 years;

(3)    that, within 28 days, the Registrar give a copy of any new order, the Court’s order of 22 December 2017 and reasons for judgment for both orders to each of the bodies responsible for professional disciplinary oversight of legal practitioners in Australia, the International Bar Association, and the South Pacific Lawyers Association;

(4)    that, within 28 days, the respondent reimburse Dr Ping-Fat Sze the sum of AUD 200; and

(5)    that the respondent pay the Registrar’s costs of this proceeding.

General principles

16    The purpose of disciplinary proceedings against a legal practitioner is to protect the public by preventing persons who are unfit to practice from practising: Khosa v Legal Profession Complaints Committee [2017] WASCA 192 at [37] per Buss P. It is well accepted that the Court’s power to discipline a practitioner is ‘entirely protective’ with no element of punishment involved: New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184; see also Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201–202. This is the case even though punishment or the imposition of a penalty may be the practical outcome of subsequent disciplinary action.

17    An order for suspension of a legal practitioner must be based upon a view that at the end of the period of suspension the practitioner will be fit to practice: Law Society of New South Wales v McNamara (1980) 47 NSWLR 72 at 76 (Reynolds JA). In Re a Practitioner (1984) 36 SASR 590, King CJ (Zelling & Jacobs JJ agreeing) at 593 said of suspension orders that:

[t]he proper use of suspension is…for those cases in which a legal practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner.

18    Further, as Giles JA (Spigelman CJ and Ipp AJA agreeing) stated in New South Wales Bar Association v Murphy [2002] NSWCA 138 at [113]:

[f]itness to hold a practising certificate is to be assessed having in mind the high standards required of legal practitioners in the practice of their profession. The standards are required because the relationship between legal practitioner and client, between legal practitioners, and between legal practitioner and court is one of trust in the performance of professional functions, and because there must be confidence in the public and in those engaged in the administration of justice that legal practitioners will properly perform those functions.

19    As a result, the consequences for a legal practitioner in disciplinary proceedings may be more or less severe than they would be if punishment was the object of the proceedings: The Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211 at [19].

20    However, as Kirby P noted in The Council of the Law Society of New South Wales v Foreman (1994) 34 NSWLR 408, in the end the Court (there, the NSW Court of Appeal) must make its own orders in the light of its findings and the impressions it derives from the evidence, including that of the legal practitioner in question.

21    In determining whether or not to exercise the power to prohibit a person from engaging in legal practice in Norfolk Island, and the duration of any such prohibition, the Court will have regard to what protection of the public reasonably requires. This is often gauged by measure of the person’s fitness and propriety to engage in legal practice.

22    In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Toohey and Gaudron JJ stated, at 380:

The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

23    Further, at [63] in Bond, Mason CJ said of the concept of a person being “fit and proper”:

The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.

24    In Taylor v Law Society of New South Wales [2017] NSWSC 948, Fullerton J considered the above extracts from Bond to state at [33]:

Consistently with the extract of the decision of the High Court in Australian Broadcasting Tribunal v Bond, the question whether the plaintiff is currently a fit and proper person falls to be decided referable to what the evidence reveals about a range of matters, including whether improper conduct has occurred (as to which there is no dispute in these proceedings); what motivated that course of conduct; whether there is likely to be a repetition of the misconduct or whether it can be assumed that it will not recur such that the community can have confidence that it will not be repeated in the course of the plaintiff discharging her duties and obligations as a legal practitioner.

(emphasis added)

25    In Lashansky [2007] WASC 211 the Supreme Court held at [35] that:

… a practitioner’s failure to understand the impropriety of his [or her] conduct, may be a factor of very great importance in determining whether he or she is permitted to remain on the Roll.

26    In summary, the Court may consider the following, among other things:

(a)    the nature, extent and seriousness of the professional misconduct and unsatisfactory professional conduct of the person; and

(b)    the person’s insight into his or her professional misconduct and unsatisfactory professional conduct and any remedial action undertaken by the person.

27    Further, the Court might consider, in assessing the nature, extent and seriousness of the conduct:

(a)    whether it was deliberate or merely inadvertent;

(b)    whether it involved dishonesty;

(c)    its duration; and

(d)    its consequences.

Findings as to conduct

Professional misconduct

28    Earlier, I found that Mr Walsh’s professional misconduct was constituted by his knowingly making false representations to Dr Ping-Fat Sze, the Court, the International Bar Association, the South Pacific Lawyers Association, and members of the general public. This misconduct was dishonest, egregious and of grave impropriety: Judgment at [29], [58] and [93].

29    I found that this misconduct occurred over a considerable period of time, starting with the respondent’s application, in or around 1994, for the Norfolk Island Bar Association (NIBA) to become a member of the International Bar Association, and continuing with the NIBA’s annual renewal of its IBA membership until at least 2016: Judgment at [75]–[78]. In applying for membership, I found that the respondent had made false representations that NIBA was a representative body for lawyers on Norfolk Island: Judgment at [74]. I further found that false representations about the NIBA were also made by the respondent to other professional associations, such as the South Pacific Lawyers Association, and to Dr Sze and the general public: Judgment at [79]–[81].

30    In relation to Dr Sze, I found that the respondent induced Dr Sze into paying AUD 200 into an account nominated by the respondent, purportedly for ‘life membership’ of the NIBA, by representing to Dr Sze that membership of the NIBA was a requirement for obtaining a practising certificate on Norfolk Island: Judgment at [42]–[58]. In fact, as I found, the nominated account was controlled by the respondent for his own benefit: Judgment at [54].

31    I also found that the respondent knowingly made false representations about matters other than the status of NIBA, which were that:

(a)    he had been appointed to judicial office made to the Registrar and the general public, constituting dishonesty on his part: Judgment at [87]–[94]; and

(b)    he was entitled to recognition as a Knight under the Australian or Imperial honours system and, as such, was entitled to use the honorific ‘Sir’ in his name: Judgment a [95]–[103].

Unsatisfactory professional conduct

32    Further, I found that the respondent unsatisfactory professional conduct was constituted by his breach of:

(a)    his duty to respond personally and within a reasonable time to the Registrar’s request for his response to a complaint about him: Judgment at [104]–[105]; and

(b)    his professional obligations as a legal practitioner by making offensive, reckless, discourteous and inflammatory statements about the conduct of other legal practitioners on Norfolk Island: Judgment at [106]–[108].

The Registrar’s submissions

33    The Registrar submits that the respondent’s professional misconduct and unsatisfactory professional conduct should be viewed very seriously. Much of that conduct has involved deliberate acts on the part of the respondent over a prolonged period of time. Those acts, the Registrar submits, had the capacity to adversely affect public confidence in the administration of justice. For example, he made false representations to the general public about his status as a judicial officer. His misconduct was not only related to the NIBA but also concerned other matters. He has demonstrated a lack or very serious lack of candour and integrity in a number of ways and over a very long period of time.

34    The Registrar further submits that the respondent has never admitted that representations made by him about the nature and status of the NIBA, his appointment to judicial office and his entitlement to use the honorific ‘Sir’ were false or misleading or otherwise inappropriate. In this regard, the respondent is said to have shown no insight into his past professional misconduct and its dishonest nature. He has failed to demonstrate any awareness of, or even to acknowledge, the way in which his past misconduct may undermine public confidence in the administration of justice. That failure, the Registrar submits, has been longstanding and is ongoing.

35    The Registrar submits that the Court can have no confidence that the respondent will not engage in similar professional misconduct in future, and should therefore make orders prohibiting him from engaging in legal practice on Norfolk Island for a period of no less than 5 years. At the hearing, counsel for the Registrar stated that a 5 year reflected the minimum time that the respondent ought to spend without an entitlement to practise in the jurisdiction, given the gravity of his conduct and the apparent lack of insight into the failings represented by that conduct.

36    The Registrar submitted that the Court’s protective function in its disciplinary action made it appropriate for an order to be made requiring the Registrar to inform the relevant professional bodies and organisations of the outcome of this proceeding.

37    Furthermore the Registrar submitted that my findings as to the AUD 200 paid by Dr Sze, set out at [33] above, make it appropriate for an order to be made requiring the respondent to reimburse Dr Sze the sum of AUD 200, given that Dr Sze paid it for a particular purpose for which it was not used.

38    The Registrar also submitted that, as the respondent has been wholly unsuccessful in this proceeding, there is no reason why the Court should not make the usual order as to costs and require the respondent to pay the Registrar’s costs of, and incidental to, the proceeding.

The respondent’s submissions

39    The respondent made no relevant submissions as to the disposition of this matter, having regard to the judgment, other than that it was unfair and involved false assumptions.

40    The respondent in his oral submissions repeatedly sought to impugn the Court’s findings contained in the Judgment. Having attempted to restrict him from making such submissions, but rather to make relevant submissions, on five occasions, the Court declined to hear the respondent further as he was intent on engaging in a de facto appeal rather than the matter before the Court. He has demonstrated no contrition but is resolute in his view that he has done nothing wrong.

Consideration

41    The respondent is a man of 78 years of age with considerable experience in legal practice. His complete lack of contrition or any insight into his conduct is of considerable concern and bears on the disposition of this matter. These matters, taken together with the long duration of the respondent’s conduct and the other aggravating elements discussed above, render disciplinary action of the kind proposed by the Registrar appropriate.

42    Knowingly making false representations to others is a very serious contravention of the high professional standards required of legal practitioners. The administration of justice depends in large measure on the trust that courts and the public place in those who practise the law: Judgment at [28]; New South Wales Bar Associations v Cummins (2001) 52 NSWLR 279 at [20]; Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 298.

Conclusion and Orders

43    The respondent is not a fit and proper person to practice law in Norfolk Island for the reasons I have articulated having regard to my findings and declarations made in the Judgment. His name ought be removed from the Register of Practitioners in Norfolk Island.

44    There might seem to be a tension between an order for removal of the respondent’s name from the Registrar of Practitioners and an order for suspension. Ordinarily the second of these would not be necessary where the first order is made. However, as was explained by the Registrar, both are needed, as even if the respondent’s name were removed from the Register he might, as a legal practitioner be entitled, pursuant to LPA s 10, to seek registration as a practitioner if he were able to satisfy any of the qualifying criteria under LPA s 7, which provides that a person is entitled to practise as a practitioner in Norfolk Island if their name is on:

(a)    the roll of barristers and solicitors of the High Court referred to in paragraph 55D(1)(a) of the Judiciary Act 1903 of the Commonwealth; or

(b)    the roll of barristers, solicitors, barristers and solicitors or legal practitioners of the Supreme Court of a State or Territory.

The suspension order, by virtue of LPA s 8, will disentitle him from doing so.

45    I do not consider 5 years to be an adequate period for such a suspension. Ultimately, the length of time set is a matter for the Court. All of the cases that I have considered above support the conclusion, in light of the seriousness of his conduct with his lack of insight into his behaviour, that it is necessary for the protection of the public that his right to practise as a solicitor, barrister, or solicitor and barrister in Norfolk Island be suspended for a period greater than five years. I will suspend his right to practice for a period of 10 years.

46    I will make an order that the respondent repay the AUD 200 to Dr Ping-Fat Sze together with interest, calculated on an annual basis. Ordinarily, in a case such as this where a money judgment is entered, interest is included. Dr Sze has been held out of the sum of AUD 200 for a number of years, having first paid it in June 2007 in return for a certificate of ‘life membership’ of the NIBA: Judgment at [43]. It is appropriate that he be paid interest on that amount. I will order the parties to file minutes of order as to the amount of pre-judgment interest by 4:00PM AEDT on Thursday 1 March 2018.

47    Section 39 of the Supreme Court Act 1960 (NI) (Supreme Court Act) provides that:

A judgment debt carries interest at the rate of $10 per centum per annum from the date on which the judgment is entered.

48    The Supreme Court Act does not, however, provide a pre-judgment interest rate. There are no applicable rules for determining costs payable by a party, and recourse is instead to be had to the Court Procedures Rule 2006 (ACT) (Rules): ss 6(2A) and 19(4) of the Supreme Court Act.

49    Regulation 1619 of the Rules states that interest on a sum up to judgment is to be accrued at a rate prescribed in sch 2, which is not necessary to set out here. The amount was paid in June 2007 but there is no evidence as to the precise date upon which it was paid. Accordingly, it is appropriate that the sum payable by the respondent be calculated by reference to the rate in sch 2 from 1 July 2007.

50    Further it is appropriate, for Dr Ping-Fat Sze to be included in those persons to whom a copy of the Judgment and this judgment and orders should be provided so that he knows he is the beneficiary of the order for payment of monies to him. I will so order.

51    I note also that although it is open to the Court to impose a fine on the respondent. However, I am satisfied that the orders I propose to make are sufficient.

52    Finally, it is appropriate to make the order as to costs proposed by the Registrar. This Court has jurisdiction to award costs in all matters: s 6(1) of the Supreme Court Act. The usual order for costs in disciplinary proceedings is that a practitioner against whom a finding of misconduct is made to pay the applicant’s costs on a solicitor and client basis: Re Law Society of the Australian Capital Territory v Chamberlain (1993) 116 ACTR 1 per Miles CJ at 18. The respondent made no submission to the effect that any different order should be made. The respondent should pay the Registrar’s costs of the proceeding, to be taxed if not agreed.

Associate:

Dated:    23 February 2018