Thomas v Legal Practitioners Admission Board
[2004] QCA 407
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Thomas v Legal Practitioners Admission Board[2004] QCA 407
- Add to List
Thomas v Legal Practitioners Admission Board[2004] QCA 407
Reported at [2005] 1 Qd R 331
Thomas v Legal Practitioners Admission Board[2004] QCA 407
Reported at [2005] 1 Qd R 331
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | |
DELIVERED EX TEMPORE ON: |
|
DELIVERED AT: | Brisbane |
HEARING DATE: | 28 October 2004 |
JUDGES: | de Jersey CJ, McMurdo P and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Appeal dismissed |
CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – QUALIFICATIONS AND ADMISSION – QUEENSLAND – ARTICLES OF CLERKSHIP AND STUDENTSHIP AT LAW – where the respondent Board found the appellant unsuitable for service under articles because of his “lack of candour with the Board and premeditated dishonesty over an extended period” – where the appellant appeals against the decision of the respondent Board to oppose his application for consent to enter into articles of clerkship – whether the appellant “is of good character and is fit and suitable for service under articles” under Rule 29 of the Solicitors’ Admission Rules 1968 (Qld) Re Hampton [2002] QCA 129; Appeal No 10413 of 2001, 5 April 2002, cited A Solicitor v Council of the Law Society of New South Wales (2004) ALJR 310, cited |
COUNSEL: | J P Murphy for the appellant J C Bell QC for the respondent |
SOLICITORS: | Porter Davies Lawyers for the appellant Legal Practitioners Admission Board for the respondent |
THE CHIEF JUSTICE: The appellant appeals against the decision of the respondent Board to oppose his application for consent to enter into Articles of Clerkship. The Board communicated that decision by a letter to the appellant dated the 7th of July 2004. The ground of its decision was the appellant's unsuitability for service under Articles because of his:
"Lack of candour with the Board and premeditated dishonesty over an extended period."
He appeals under section 25 of the Supreme Court (Legal Practitioner Admission) Rules 2004. It is accepted that the appeal is by way of rehearing in the strict sense, so that the principles expressed, for example, in House v. The King (1936) 55 CLR 499 apply. Accordingly, if the Board's conclusion was reasonably open on the material before it, this Court should not interfere with that determination.
The appellant applied for the Board's consent under rule 29 of the Solicitors' Admission Rules which obliged the Board to refuse consent unless satisfied that the appellant "is of good character and is fit and suitable for service under Articles". In his application to the Solicitors' Board lodged on or about 23rd February 2004 the appellant disclosed, in addition to his traffic history, that he had, in his terms,
"Pleaded guilty to a debt charge in 1995/6 in the Inala Magistrates Court at which time no conviction was recorded. No probation or community service was issued either."
The requisite form 1 required the following detail in its proforma presentation, that is a response consistent with this specification:
"Prior to the date of this statement I have not been convicted of, pleaded guilty to or been found guilty of any criminal or quasi criminal offence whether in Queensland or elsewhere, even though a conviction may not have been recorded."
The form goes on to specify that if that is not so the applicant:
"Must furnish full details thereof".
Contrary to that clear direction the appellant failed to disclose full details of his convictions. In particular he failed to disclose that they were charges of fraudulent misappropriation, that he had pleaded guilty in the year 1998 at a time, significantly, when he was almost 21 years of age and that he had been fined the not insubstantial sum of $2,500.
Having received that deficient form the Secretary of the Board requested the appellant to furnish relevant documentation, including Court documents concerning that "debt charge". On the 9th of March 2004 the appellant advised that he had requested the documents from the Court but that they may not be available for up to three days, and he concluded his fax saying:
"Please confirm your receipt of this fax and notify me if there will be any issues in my Articles proceeding from tomorrow."
The Board did meet the following day, 10th March, and determined then to refuse the application because the requisite further information had not yet been furnished. The Board advised the appellant of that decision on the 18th of March.
On about the 26th of May 2004 the appellant lodged with the Board a further application for consent accompanied this time by a statement setting out the details of a 1998 offence and a Certificate of Order. That certificate disclosed that the appellant had been charged in the Inala Magistrates Court on nine counts of dishonestly obtaining property over a period of almost three months and that the Magistrate had fined him $2,500 with no convictions being recorded.
At its meeting on the 9th of June 2004 the Board reconsidered the appellant's application and determined to refuse it on the basis that, as to the 1995-6 and 1998 offences, the appellant had not, to that stage, yet provided a proper explanation for them, whether one or more of them, including information as to when they occurred and also a copy of both a police report and a criminal record. The Board informed the appellant of that decision by letter dated 16th June 2004.
Apparently just before that time the appellant provided a three page document from which I will quote shortly. Also on 25th June 2004 the appellant provided the Board with a copy of his criminal history and the Queensland Police Service Court brief. That brief showed that although the appellant declined to participate in a formal interview he had admitted fraudulently obtaining money amounting to $8,640, which he had repaid. In that letter to the Board the appellant inaccurately stated:
"There has only been one offence committed on 10th August 1998."
The Board then on 7th July 2004 made the decision which is the subject of this appeal. In the three page document to which I referred earlier, the appellant disclosed the following details of the offences and surrounding circumstances:
"In mid 1997 I was approached by Fowles management to see if I was interested in accepting a position as a junior auctioneer in their Brisbane facility. I was assured that I would have time to finish my studies and be trained as an auctioneer. I signed an employment contract for $18,000 per annum and moved to Brisbane some weeks later.
During the months of my employment I found it difficult to make ends meet and I found the offer of making extra money by one of my work colleagues, a necessary requirement, even though I knew that it was illegal and I had always condoned those sorts of actions. My work colleague assisted me in misappropriating funds from Fowles with the assistance of tow truck drivers who we paid for delivering cars to sites that were not actually delivered. The drivers then returned payment to us in the form of cash.
I was approached by Fowles' management in January 1997 and questioned regarding my involvement in the misappropriation. I made a full admission to both Fowles and the police at Acacia Ridge. My father assisted me in obtaining a mortgage on his house to repay the moneys immediately, which I repaid back to my father in a matter of months after."
As to lack of candour the Board had in mind the following observations made in Re Hampton [2002] QCA 129 paragraphs 26-28:
"Of considerable concern is the feature that the applicant did not initially disclose these significant matters to the Board when making his application. He certainly should have been aware of the seriousness of the Board's approach to such applications and the seriousness of the Court's ultimate determination of them.
An applicant for admission is obliged to approach the Board and later the Court with the utmost good faith and candour, comprehensively disclosing any matter which may reasonably be taken to bear on an assessment for fitness to practise ... in these situations the Court cannot allow the legitimacy of its endorsement or otherwise of a person as sit to practise to depend on such intervention. By taking a strong line in a case like this the Court must take the opportunity to emphasise the primacy of the proactive obligation of an applicant to make candid, comprehensive disclosure. If it emerges an applicant has not, in some significant respect, been frank with the Court, then the application should ordinarily be rendered doubtful at least ... the applicants either having failed to appreciate that or having determined not voluntarily to place those matters before the Board provides further confirmation that he is not a person who should at this stage be held out by the Court as fit to practise as a solicitor."
That approach, I say, is as relevant to the precedent stage of securing Board consent to Articles of Clerkship as it is at the point of admission. Granting that consent involves a judgment that the applicant would, upon completion of the Articles, be fit to practise, absent the intervention of other relevant circumstances.
In support of its determination, the Board has pointed to the inaccuracy in the appellant's initial application of 23rd February 2004. The description "a debt charge in 95/96" was apt to refer to only one offence, whereas there were nine.
Further, the words "debt charge" were meaningless and inappropriate to refer to a fine imposed by way of criminal sentence. It was noted that at the time he proffered that expression the appellant was a 26 year old law student employed in a legal office.
Further, there was nothing disclosing the nature of the offences: dishonestly obtaining property. In addition, the appellant contended they occurred at a time earlier than the actual time of commission of the offences. Comprehensive details of the offences were not provided until after two more requests had been made by the Board and even then under cover of a letter dated 29th June 2004 in which he asserted that only one offence had been committed.
As to the dishonest character of the offending the Board relied on:
"A systematic and premeditated course of dishonestly obtaining money from (the appellant's) employer over almost three months."
The offences were committed with the assistance of others and, although they were committed some six or seven years ago, the appellant's lack of candour in dealing with the Board was nevertheless significant.
As to the issue of lack of candour, counsel for the appellant submitted that the only purpose of requiring candid disclosure in these situations can be:
"To ensure that the Board has all the information it requires to make a fully informed decision in the public interest."
That is not so. By making candid and comprehensive disclosure of relevant information an applicant demonstrates a proper perception of his or her duty and will thereby seek to demonstrate his or her good character. It is not a sufficient answer to say, as was said, that the Board ended up with all relevant information. The significant feature is that it was furnished only gradually and then only in response to express and repeated requests from the Board.
Reference was made to non-disclosure of convictions for indecent dealing in A Solicitor v The Council of the Law Society of New South Wales(2004) 76 ALJR 310. While the High Court took the view that in the particular circumstances of that case offending of that character did not amount to professional misconduct, the Court concluded that that appellant's failure to disclose his convictions in the year 2000 amounted to a breach of his duty of candour to his professional association and amounted to professional misconduct, notwithstanding that those convictions were ultimately quashed.
As to the nature of this offending, the counsel for the appellant characterised it as "at the very lowest end of the scale", submitted that two and a half months was "hardly an extended period", and that:
"The offences clearly constituted components of a single course of conduct, limited to that period and never repeated."
On the other hand there were as many as nine separate offences committed over the period 15th September 1997 to 3rd December 1997 involving the misappropriation of a total of $8,640 of the appellant's employer's money.
Fraudulent misappropriation on that scale, albeit committed six to seven years ago, suggests present unsuitability to practise in a profession in which absolute trust must be of the essence.
Counsel for the appellant pointed to a number of other relevant considerations: that the appellant was just 20 years of age at the time of the offences; that he was then subject to financial pressure; that the offences occurred seven years ago; that they constituted "the only stain on an otherwise unblemished character"; that the appellant cooperated with the police, repaid the monies and pleaded guilty; that the appellant has been employed and has conducted businesses involving the handling of money subsequently, and has not succumbed to any temptation to re-offend; and that he has had the benefit of testimonials from others as to his good character. It was also emphasised that, as an Articled Clerk, the appellant would be under his master's control and supervision with minimal opportunity to deal in financial matters.
My view is that the aggregation of those plainly relevant considerations was nevertheless insufficient to outweigh the significance of the grounds articulated by the Board in determining to refuse the application. I consider the Board's decision to have been the correct decision in all of the circumstances, although I repeat that that is not the present test. The present test is whether it was a decision to which the Board could reasonably come and I believe it was.
Although the criminal offences were committed some years ago, the manner of the applicant's disclosure of them constitutes very recent evidence of his unsuitability to practise, for want of appreciation of the need to arm the Board with all the information relevant to the performance of its publicly important role.
Unless some further significant feature intrudes, that the appellant committed those offences should not forever bar him from taking steps prerequisite to admission to the legal profession. He was on the way to demonstrating fitness, nevertheless.
It is, however, the intervention of this new feature, the absence of candid and forthright disclosure, which has set back that progression. High standards of probity and openness are expected of practitioners and those who seek to be practitioners, including those at the very early stage of setting Articles in place. In this case those standards were not met.
I would order that the appeal be dismissed.
THE PRESIDENT: I agree that the appeal should be dismissed. The appellant has not demonstrated that the Board's decision was outside a sound discretionary exercise.
The Chief Justice has set out the relevant facts and issues and I will only briefly repeat those necessary to place my own emphasis on this matter.
The offences committed by the appellant occurred when he was 19 and 20 years old in 1997. He was dealt with for them in 1998. It is now seven years since he committed the offences.
Material placed before this Court suggests he has made promising efforts to rehabilitate himself. His referees in his application for Articles, including his master, know now of his commission of these offences, and continue to recommend him for Articles.
The difficulty for the appellant is that the disclosure he made to the Board of the details of these offences was incomplete. He was, to say the least, cavalier in that disclosure, referring to having pleaded guilty to a matter in 1995/1996, instead of 1998, and dismissing it as a "debt charge" when it was a significant fraud committed on his employer involving $8,640. He did, however, rightly disclose that "no conviction was recorded, no probation or community service was issued either". He did not disclose that a significant fine was imposed. It made clear that he had been involved in criminal behaviour so that it was inevitable that the Board would investigate this matter fully before deciding whether to accede to his application to enter into Articles of Clerkship. This makes his lack of candour, though unfortunate, not nearly as serious as that in Re Hampton [2002] QCA 129; SC No 10413 of 2001, 5 April 2002. His lack of disclosure does, however, demonstrate a lack of insight into his serious past misconduct and a lack of understanding of his duty to make full and accurate disclosure to the Board. It may be that this is contributed to by the fact that he is only in the first year of his Law Degree.
In the circumstances, it cannot be said that the Board's decision to refuse to allow him to enter into Articles is outside a sound exercise of that discretion. The appellant may, of course, reapply to enter into Articles of Clerkship when he has completed more of his Law Degree, this time making full and detailed disclosure, showing appropriate insight into his offending, and with appropriate references.
MULLINS J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.
THE CHIEF JUSTICE: The appeal is dismissed.