PARTIES:	ROGERSON, Andrew Gordon

TITLE OF COURT: JURISDICTION: FILE NO: DELIVERED: HEARING DATES: JUDGMENT OF:

V

THE LAW SOCIETY OF THE NORTHERN TERRITORY
SUPREME COURT {NT) SUPREME COURT (NT) No 275 of 1992
Darwin 22 October 1992
12, 22 October 1992
Martin, Mildren & Thomas JJ.

CATCHWORDS:

Legal Practitioners - Misconduct, unfitness and discipline - Application to Court for order revoking Law Society's cancellation of practising certificate - Original jurisdiction conferred on Court - To be exercised by Full Court -
Legal Practitioners Act, s29 -
re Peebles (1986) 40 NTR 15, applied.
Legal Practitioners - Misconduct, unfitness and discipline - Application to Court for order revoking Law Society's cancellation of practising certificate - Exercise of Court's jurisdiction not to be constrained - To review circumstances of cancellation -
Legal Practitioners Act, ss27,29.
Legal Practitioners - Misconduct, unfitness and discipline - Cancellation of practising certificate by Law Society - Application to Court for order deeming applicant to hold unrestricted practising certificate - Application to Court for revocation of cancellation pending - Court to be satisfied of sufficient reason for grant of such order - To weigh up competing public interests -
Legal Practitioners Act, ss27,29,30 -
re Peebles (1986) 40 NTR 15, applied.
Legal Practitioners - Misconduct, unfitness and discipline - cancellation of practising certificate by	Law Society - Based on finding of contempt against practitioner - Appeal against

finding pending - Practitioner's application to have cancellation revoked - Court to be satisfied finding of contempt clearly wrong -
Legal Practitioners Act, s27,29,30 -
O'Reilly v Law Society of NSW (1988) 24 NSWLR 204,
applied.
REPRESENTATION:
Counsel:

Applicant: Respondent:
Solicitors:

J McCormack GE	Hiley QC

Applicant: Loftus and Cameron Respondent: Law Society
Judgrnent category classification: B Court Computer Code:
Judgrnent ID Number: mar920028 Number of pages: 20

DISTRIBUTION:	LOCAL

mar920028

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No.	of 1992

BETWEEN:
ANDREW GORDON ROGERSON
Applicant

AND:

THE LAW SOCIETY OF THE NORTHERN TERRITORY
Respondent

CORAM:	MARTIN, MILDREN & THOMAS JJ.

REASONS FOR JUDGMENT
(Delivered 22 October 1992)

On 12 October this Court refused an application made by the applicant for an order that he should, until determination of an application made under s29{2) &  (5)	of the Legal Practitioners Act, be deemed to be a person who holds an unrestricted practising certificate (s30{1)).
These are the reasons for that decision.	The important provisions of the Act are as follows:

"27. (1)		The Law Society may refuse to issue a practising certificate, or may cancel a practising certificate or suspend it for a specified period, if the applicant for or holder of the certificate -

(k}		has in the op1n1on of the Law Society shown by his conduct in relation to his practise of the law (whether conduct in respect of a particular matter or a pattern of conduct) that he is not a fit and proper person to practise as a legal practitioner on his own account or in partnership.
(2)		A person whose practising certificate has been cancelled or suspended by the Law Society may apply to the Court for an order under sub-section (5).
(5)	Where, on an application under sub-section
(2) the court is satisfied that the circumstances are such that the cancellation or suspension of the applicant's practising certificate ought to be revoked, the Court may, subject to such terms and conditions (if any) as it thinks fit, by order revoke the cancellation or suspension of the applicant's practising certificate.
(1)		Where the Law Society has refused to issue a practising certificate to a person or has cancelled or suspended a practising certificate held by a person, and the person has made application to the Court for an order under section 29(4) or (5), the Court, on an application made by the person for an. order under this section, may in its discretion, order that that person shall, until the determination of that first­ mentioned application, be deemed to be a person who holds a practising certificate of the kind specified in the order.
(2)	The Law Society shall be respondent to an application under this section."

On 9 October Angel J. ordered that the applicant be judged to be guilty of contempt of Court in that at or about 10.30am on 2 September 1992, in breach of an order of the Supreme Court made on 1 September 1992 not to do so, the applicant, by his agent Raymond Thomas Reilly contacted Adolphe Tchia and Skykym Pty Ltd other than through the solicitors named in the order.	He was further ordered to

pay a fine of $5,000 within 28 days from 9 October.	In the course of reaching the conclusion that the applicant had acted in breach of the injunction in the manner specified in the order, his Honour made findings concerning the applicant's honesty as a witness in the proceedings.		For example, his Honour said that he did not accept the applicant's evidence of what had occurred in his office when service of the injunction and accompanying documents was effected nor a- to his state of mind at that time; his denial of his knowledge of the injunction until a particular time was not accepted; he was found to have been deliberately evasive concerning the locking of the doors to his office during ordinary business hours; his evidence as to his knowledge of when the facsimile machine in his office was on or off was rejected; his Honour found he deliberately locked his office and turned off the facsimile machine in a deliberate attempt to avoid service in the misguided belief that he had not already been served with the injunction; most seriously his Honour found he had deliberately attempted to mislead the Court and given false evidence.	As to these last findings, in particular, his Honour said that he reached that "regrettable conclusion beyond reasonable doubt and after a careful consideration of the evidence, and I have steadily borne in mind that such conclusion is not to be reached lightly"; he referred to what was said by Clarke JA. in O'Reilly v Law Society of New South Wales (1991) 24 NSWLR 204 at 230.	Later his Honour said: "I regret to say that in the present case I think the defendant has

deliberately lied and consciously sought to mislead the court".	His Honour was satisfied that the breach of the injunction was brought about by the applicant in a desperate effort to resecure the plaintiffs in that action as his clients to the exclusion of another firm of solicitors, and in so doing "the defendant acted out of self-interest and contrary to his duty as a legal practitioner to the plaintiffs as his former clients and to his fellow legal practitioners and contrary to the injunction".

By letter of 9 October the respondent wrote to th· applicant advising him that the Council of the respondent would meet at 4pm that day to consider whether it should exercise its powers under s27 of the Act in respect of his practising certificate.	He was invited to appear, be represented, or make written submissions at that time.	The applicant's written reply stated that he would be in Court all that afternoon, asked that the meeting be rescheduled for the following week and requested that he be consulted prior to the fixing of the date and time as, he said, he hag a number of Court commitments.	The response from the respondent was that the meeting would proceed as scheduled whereupon the applicant sought particulars of the grounds founding the exercise of any power under s27 and "reasonable opportunity to respond to the same before the Council reaches any decision concerning my practising certificate". The Council of the Law Society apparently met on 9 October and resolved to adjourn consideration of the matter until

8.30am on Monday 12 October and invited the applicant in writing to attend on that occasion.	As to the request for particulars, the President advised that the Council proposed to consider the exercise of its powers, particularly under s27(1)(h) & (k), "in the light of the decision of Justice Angel delivered on Friday 9 October 199211 •	The applicant made a written submission to the Law Society.	In it he said that the decision of Justice Angel would be subject to appeal, the prime basis for which being that the Court reached adverse determinations against his integrity by erroneous application of the requisite standard of proof and had misdirected itself concerning proof of service upon him of the order in respect of which he had been found in contempt.	He went on to argue that he did not believe that the Council could rely on the Court's findings as a basis for application of its s27 powers, submitting that:

111.		Any finding by the Council against me that I have deliberately given false evidence to the Court must come from the Council not the Court, and allowance must be made for the possibility that the evidence was not deliberately false but rather, for example, the product of an honest difference of recollection or opinion.

While any finding that I gave false evidence was serious it did not necessarily involve a consequential finding that I am unfit to practise.

Any allegation of professional misconduct should be specified with particularity ...

	it would be a denial of natural justice for the Council to use any conclusions of the Court before the appeal is adjudicated."

In conclusion, the applicant indicated he was going to make "an appropriate urgent application to the court.	This will depend upon availability of the full court".		He concluded by apologising that neither he nor hi: counsel were able to appear before the Council at the appointed time as both were committed before a Court.	The Council received that letter and proceeded to pass the following resolutions:

"1 •••. that the Law Society is of the opinion that Andrew Gordon Rogerson has shown by his conduct in relation to his practise of the law that he is not a fit and proper person to practise as a legal practitioner on his own account or in partnership, and in particular the Law Society relies on the findings of fact of Justice Angel delivered on
9 October 1992 in Supreme Court action number 226
of 1992.

2.	... that the Law Society, having formed the opinion that Andrew Gordon Rogerson is not a fit

and proper person to practise as a legal practitioner, pursuant to section 27(1)(k) of the Legal Practitioners Act, cancel Mr Rogerson's practising certificate forthwith."

It was explained in a letter conveying those resolutions to the applicant that the basis of the Council's decision was the findings of fact made by his Honour, and "included, but was not confined to, His Honour's finding that you had deliberately attempted to mislead the Court and given false evidence.	Council also bore in mind the comments of Clarke JA in O'Reilly v Law Society of New South Wales referred to in Angel J's decision."

On the understanding that there was no other holder of an unrestricted practising certificate involved in the legal practice conducted by the applicant, the Society advised Mr Rogerson that it had recommended to the Master that a Receiver be appointed to the trust property of the practice pursuant to sl03 of the Act.	It went on to assert that since it would be apparent that neither Mr Rogerson nor the firm were entitled to continue in practice he should advise clients to make alternative arrangements as a matter of urgency.	The letter concluded: "Should any of those clients find themselves in particular difficulty by reason of imminent Court commitments, they should contact either the Law Society office or the Legal Aid Commission for advice, and we expect that alternative arrangements will be

able to be made".

Late on the afternoon of 12 October, application was made by the Master for the appointment of a receiver of the trust property of the applicant upon the grounds that through the cancellation of his unrestricted practising certificate a person to whom trust monies was payable was unable to obtain payment (sl03(1)(c)(iii)).	That application was dealt with by the Full Court at a sittings commencing at 7pm on that day consequent upon its granting an application for a short adjournment made by the applicant in those proceedings so that his counsel could be properly instructed and have time to consider the application by the Master.	The Court found the appropriate facts going to the jurisdiction for the appointment of a receiver proved and made an order accordingly: only a legal practitioner who holds an unrestricted practising certificate is empowered to conduct a trust account.	(s103(3) of the Act required this application to be made by the Master).	Given that the Master is a member of the Court it would be appropriate to now empower the Law Society to make applications for the appointment of a receiver of trust property.

During the course of the hearing of that. application it was indicated by counsel representing the applicant that he wished to apply then and there for an order pursuant to s30 of the Act.	An appropriate form of originating motion was handed up together with an affidavit

sworn by the applicant in support thereof, and the Court agreed to accept the documents upon counsel for the applicant undertaking that they would be filed in the Registry the following day.	Senior counsel for the respondent indicated his willingness to have that matter dealt with without delay and the Court proceeded accordingly, by consent, without regard to procedural formalities.

The regulation of the legal profession in the Northern Territory is for the most part governed by and under the Act.	The first step involves an applicant, who wishes to practise law in this Territory, applying to be admitted to practice by the Supreme Court.	It looks to the applicant's qualifications required by the Act and the applicant's good fame and character.	If the statutory requirements are met, then upon procedural requirements including public advertising of a notice of intention to apply for admission being met, consideration and report by the Legal Practitioners Admission Board and hearing any objections by the Law Society, the Court may order that the applicant be admitted to practise and his or her name be entered upon the Roll of Legal Practitioners.	Before being admitted to practise however, the successful applicant must also take or make before the Court an oath or affirmation of allegiance to Her Majesty the Queen and also an oath or affirmation that "I will well and honestly conduct myself in the practice of a legal practitioner of the Supreme Court of

the Northern Territory according to the best of my knowledge and ability" (s17).

Subject to the Act, a person whose name is upon the Roll is entitled to practise in the Territory as a barrister and solicitor or barrister or solicitor and has the right of audience in any Court of the Territory (s19). Disciplinary proceedings may be instituted against a legal practitioner in the Court which, inter alia, may suspend the right of the legal practitioner to practise the profession of the law for a specified period or until further order of the Court, order that the legal practitioner shall not practise the profession of the law otherwise than in accordance with conditions specified in the order or order that the name of the legal practitioner be struck off the Roll, (s52(2)).	However, that is not the only way in which a legal practitioner's right to practise may be effected or terminated.	The legislature has conferred upon the profession, through the respondent, considerable powers going to the ability of persons, admitted as practitioners by the Court, to practise law in the Northern Territory by, for example, the grant of practising certificates of various kinds to persons whose name are on the Roll, and to discipline any such person.	As to the grant of the opportunity to practise, the Law Society has the power to grant a variety of practising certificates, the most valuable of which is clearly the unrestricted certificate entitling a holder to practise in the Territory on his own

account or in partnership with another legal practitioner. It is an offence for a legal practitioner to practise on his own account without an appropriate current unrestricted practising certificate (s22(1) and s138A).	A person cannot be employed as a legal practitioner unless he holds a current unrestricted practising certificate or a restricted practising certificate class 1 and there are two other classes of restricted practising certificate which are of no concern here.	Practising certificates take effect on the date on which the certificate is expressed to take effect and expire on 30 September next following that date (s31(1) and (2)).	Thus, the Law Society can, and does, periodically review the entitlement of legal practitioners in the Territory to continue to hold a particular class of practising certificate, and as part of that process, is obliged to take into account compliance or non-compliance with various provisions concerning trust accounts and compulsory contributions to the fidelity fund in appropriate cases.

The Law Society has extensive powers in relation to discipline contained in Part VI of the Act.	Upon complaint, it has limited powers of punishment, but may refer matters to the Legal Practitioners Complaints Committee, to whom a legal practitioner may also appeal should he have been punished by the Society under Part VI. That Committee has more extensive powers of punishment including a limited power to suspend the right to practise,

the power to impose conditions upon the right to practise and to recommend disciplinary proceedings be commenced in the Court.	None of those powers, either in the Law Society, the Committee or the Court, expressly extend	to the cancellation or suspension of a practising certificate as such.	The jurisdiction for the exercise of those powers are found in s27.	For the most part, they relate to situations arising from specific provable facts such as when the practitioner has been imprisoned, convicted, become bankrupt, failed to comply with the provisions in respect of trust accounts or failed to produce books or comply with orders of the Court or the Complaints Committee or Law Society.	But the circumstances go wider than those specific matters, in that the power to cancel or suspend a certificate for a specified period may be exercised if the practitioner has contravened or failed to comply with, or is in any respect in default under, a provision relating to his practise as a legal practitioner contained in the Act or any other Act, in any regulations, or in the professional conduct rules, or if the practitioner has failed to comply with an order of the Court, the Complaints Committee or the law Society.

Furthermore, s27(1)(k) provides that those powers may be exercised by the Society if the holder of the certificate "has in the opinion of the Law Society shown by his conduct in relation to his practise of the law (whether conduct in respect of a particular matter or a pattern of

conduct) that he is not a fit or proper person to practise as a legal practitioner on his own account or in partnership".

The Society thus has a wide armory of powers which, if exercised, can have an adverse effect upon a legal practitioner ranging from an admonition through to depriving the practitioner of the opportunity granted by the Court and the Society to practise the profession of the law in the Territory.	Paying due regard to the rules of natural justice and the Act, it has a wide range of options available, the choice of which may depend upon the urgency of the need to deal with the matter and the remedy thought appropriate.

In this case the Society has chosen to exercise a power to promptly cancel the applicant's unrestricted practising certificate, and could only have done so on the basis of having formed an opinion that he was not a fit and proper person to practise as a legal practitioner on his own account or in partnership.	A person whose practising certificate has been cancelled by the Law Society may apply to the Court for an order under subs(S) of s29.	That application is pending.	It provides that where on such an application the Court is satisfied that the circumstances are such that the cancellation of the practising certificate ought to be revoked, the Court may, subject to such terms and conditions (if any) as it thinks fit, by order revoke

the cancellation of the practising certificate.	It is further provided, in s30, that where such an application is made the Court may, in its discretion, order that that person shall, until the determination of the application that the cancellation be revoked, be deemed as a person who holds a practising certificate of the kind specified in the order.	It was upon this provision that the applicant relied, his application being that the kind of practising certificate to be specified in the order be an unrestricted practising certificate.

Section 27 is in a quite different form now to when it was considered by the Full Court of this Court in re Peebles (1986) 40 NTR 15, but s29 is not.	Notwithstanding the changes to s27, subss(2) and (5) of s29 still confer upon the Full Court an original and not appellate jurisdiction (Peebles p22).	It requires the Court to take into account all relevant circumstances including those giving rise to the cancellation of the practising certificate, any which have arisen since, and of the fitnes of the person concerned to hold the certificate sought, in this case, an unrestricted practising certificate.	The words of the subsection are very wide, requiring only that the Court be satisfied that circumstances are such that the cancellation of the practising certificate ought to be revoked.	Bearing in mind the very serious consequences which a revocation of such a certificate, particularly an unrestricted practising certificate, may have upon the

former holder of it, it could not have been the intention of the legislature that the exercise of that jurisdiction should be constrained.	The words are wide enough to encompass a review of the circumstances surrounding the cancellation of the certificate together with any additional circumstances which the Court considers relevant.	It would be open to the Court for example, to revoke the cancellation upon the grounds that the applicant had been denied natural justice, the Council had proceeded without jurisdiction or fresh circumstances had arisen justifying the order sought. That application will be dealt with in due course.

The considerations which should be brought to bear upon an application under s30(1), that is, that an order be made deeming the applicant to be a person who holds an unrestricted practising certificate until the application under s29(5) has been dealt with, obviously depend on the circumstances of each case, but the order is not to be made as a matter of course.	In our opinion the applicant for such an order must satisfy the Court that there is sufficient reason for the grant of the relief sought.	An analogy was sought to be made in this case with the circumstances pursuant to which a Court might order an
inter-locutory injunction.	In our opinion, no such analogy is possible.	All that has to be shown is a sufficient reason for the grant of relief.	The reason is not constrained by		or analogous to the grant of considerations which apply to interlocutory injunctions.

The circumstances which the applicant says demonstrate an appropriate case for the making of an order that he be deemed to hold the unrestricted practising certificate pending the outcome of his application under s29(5) are basically threefold.	Firstly, that he had not been given sufficient particulars of the grounds upon which the Law Society intended to proceed, and associated with that, that it strayed outside the particulars with which he had been provided; secondly, that the decision of Justice Angel is the subject of appeal so that if the appeal was successful the foundation for the opinion formed by the Society would be gone and, thirdly, that if the certificate were not restored to him during the interim period he and the legal practice which he conducted would suffer loss and clients may have to go elsewhere and be otherwise inconvenienced.	It is undesirable that the Court rule on any issue which it is likely to be called upon to decide in due course upon the hearing of the application under s29(5). This is a Court constituted by a small number of Judges and the jurisdiction now being exercised must be exercised by the Full Court (see s22 of the Supreme Court Act and Peebles p23).	Any view which might be expressed as to the eventual outcome of that application must therefore be taken as being tentative at best; the prospect of any reasonable apprehension of bias upon the hearing must be avoided.
Furthermore, the circumstances in which this application was heard and which typically apply to this type of application were rushed, and counsel for neither side had had any great

opportunity to prepare their respective cases. Nevertheless, if it appeared to us that the applicant had a strong case on those issues, that the Law Society had
plainly failed to accord natural justice, or that Angel J.'s decision was plainly wrong, we would regard that as a sufficient reason.	But such a decision must be so obvious that this Court is able to be persuaded that a wrong decision has probably been reached upon a perusal of the relevant material and without extensive argument.	The mere fact that an appeal has been lodged is not enough.		As to the question of particularity, the applicant was informed that the respondent proposed to consider the exercise of its powers pursuant to s27 "in light of the decision of Justice Angel delivered on Friday 9 October 1992".	That decision and the reasons therefor were well known to the applicant.
It was not contended on his behalf that he did not have a
copy of them.	We are not persuaded that the Law Society plainly failed to provide proper particulars or plainly strayed from those particulars.	As to the question of the appeal, which lies to the Court of Appeal, it is not open to this court to go into his Honour's findings and reasons for them, the judgment stands and is entitled to the presumption that it is correct.	The Law Society was, and is, entitled to rely upon the judgment, and in a matter of such grave importance there must be sound reasons sufficient to justify the Court in effectively reversing the decision of the Society based upon its opinion formed in the light of that judgment.	This Court should not speculate upon the

applicant's prospects of success upon the appeal from the decision of his Honour Justice Angel.	The bulk of the grounds of appeal go to alleged errors in the exercise of discretion in matters of procedure, findings of fact made on conflicting evidence and findings reflecting adversely upon the applicant's credibility.	Upon the hearing in relation to contempt before Angel J., his Honour was directed to O'Reilly v Law Society of New South Wales (1988) 24 NSWLR
204.	At p230 Clarke JA. warned of the care that must be taken in reaching a conclusion that a solicitor has lied or deceived the tribunal and pointed to the need to be satisfied to that degree of persuasion which is necessary to satisfy the Briginshaw test (1938) 60 CLR 336, before it can properly make such a finding.	It cannot be doubted that his Honour was aware of the need to proceed with caution, and it should be noted that earlier, on p230, Clarke JA. said: "It should be said at once that a finding that a solicitor has deceived a court or tribunal provides compelling evidence of his unfitness to practise.		The profession is an honourable one and nothing less than complete honesty and candour in all circumstances is acceptable.	The client should be entitled to rely on the truthfulness of all that he is told. The Courts should likewise be entitled to accept without question assertions made by a solicitor.	If a solicitor is found to have deliberately lied to a client or to the court then he has failed, in a fundamental respect, to adhere to the required st ndards".	Numerous authorities are cited for those propositions.	We are not persuaded at this stage that

Angel J. was plainly wrong in the conclusions that he reached or that the Law Society was plainly wrong in reaching its conclusion that, by reason of the matters of fact found by his Honour, the applicant was not a fit and proper person to practise as a legal practitioner.

This Court must on an application of this type, and in the circumstances surrounding it, weigh up competing interests.	The primary and dominant consideration must be the protection of the interests of the public, the Court, and other members of the profession from a legal practitioner whose conduct in relation to his practise of the law is called in question by a decision of the Supreme Court in a way which casts grave doubt upon his professional character, his understanding of the precepts of honesty in his relationship with the Court and, who in accordance with findings of the Court deliberately flouted an order of the Court designed to protect a former client and member of the public.	The Law Society and the Court have a duty to supervise the conduct of legal practitioners and to discipline any of them whose conduct is of such a nature as to tend towards or to defeat justice, the very cause in which legal practitioners are admitted and licensed to practise their profession.	Against that interest is the interest of the applicant in this case who will suffer loss as a result of his not being able to practise in the Territory as a legal practitioner on his own account or in partnership, or indeed at all, until the Court hears and

determines the application that the cancellation of his unrestricted practising certificate be revoked.		The decision of Justice Angel is not to be treated as merely contingent upon the outcome of the appeal, and nor should the decision of the Law Society based upon it.	There may be cases where it can be seen at once that an erroneous decision has been made leading to the cancellation or suspension of a practising certificate, but his is not one of them.	The applicant's interest is outweighed by the wider public interest.

We also took into account the interests of clients of the practice, but recall that a receiver was appointed to the trust property, the offer made by the respondent for those requiring urgent assistance and that there was no evidence from the applicant that any particular client or group of clients would be especially adversely effected.
Further, there was evidence before us that the applicant has taken steps for other practitioners involved in his practice to obtain unrestricted practising certificates from the Law Society.	Nothing was put to us to suggest that both of those applications are unlikely to succeed.

In the final analysis, we were not persuaded that any sufficient reason had been shown for the grant of relief pursuant to s30 of the Act, and accordingly the application was dismissed.