Re the Legal Practitioners Ordinance 1970 and Re the Application of Clive Andreas Evatt To Be Admitted To Practise As A Barrister and Solicitor [1987] ACTSC 80 (11 December 1987)

SUPREME COURT OF THE ACT

IN THE MATTER OF THE LEGAL PRACTITIONERS ORDINANCE 1970
AND IN THE MATTER OF THE APPLICATION OF CLIVE ANDREAS EVATT TO BE ADMITTED TO
PRACTISE AS A BARRISTER AND SOLICITOR
S.C. No. 373 of 1987
Legal Practitioners

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1), Kelly(1) and Gallop(1) JJ.

CATCHWORDS

Legal Practitioners - admission to practise - whether fit and proper person - duty of full and frank disclosure - Legal Practitioners Ordinance 1970 s. 10A, Australian Capital Territory Supreme Court (Admission of Practitioners) Rules 1981.

HEARING

CANBERRA
11:12:1987

DECISION

Clive Andreas Evatt, a New South Wales barrister, applied to be admitted to practice as a barrister and solicitor of the Supreme Court of the Australian Capital Territory pursuant to s.10A of the Legal Practitioners Ordinance 1970. On 9 November 1987, after a hearing in which his application was initially opposed by the Law Society, the Court made an order admitting the applicant to practice. We stated that we would at a later date give our reasons. This we now do.

2. The application was commenced in the ordinary way by notice of motion dated 4 February 1987, supported by the affidavit of the applicant sworn 30 January 1987 and two affidavits of witnesses as to character. Such applications by interstate legal practitioners are commonplace and the affidavit in support of such an application followed a common pattern. The applicant's affidavit sworn 30 January 1987 was in these terms:

"1. I am the Applicant in these proceedings.

2. I was admitted to practise as a Barrister of
the Supreme Court of New South Wales on
16 March 1956. Annexed hereto and marked
with the letter "A" is a true copy of a
Certificate under the seal of the Supreme
Court of New South Wales certifying my
admission.

3. My right to practise in the State of New
South Wales has not been suspended or
cancelled, and no application or other
proceeding is now pending against me in
relation to my right to practise, nor do I
suspect or apprehend that any such
application or proceeding will be made, had,
or commenced against me.

4. I have never been convicted in Australia or
elsewhere of an offence.

5. I have not done or suffered anything like
(sic.) to affect adversely my good fame and
character, nor am I aware of any
circumstances which might affect my fitness
to be admitted to practice as a Barrister of
this Honourable Court."

3. The attached certificate of the Prothonotary, however, was not in the usual form. It disclosed that the name of the applicant had been removed from the Roll of Barristers on 27 April 1967 pursuant to order of the Supreme Court of New South Wales and had been restored on 15 December 1981. It also disclosed that no proceedings were pending to strike the name of the applicant off the Roll of Barristers or to suspend him from practice but that two matters relating to his conduct were then under consideration by Committees of the New South Wales Bar Association.

4. The application for admission to practise in the Territory was considered in the first instance by the Barristers and Solicitors Admission Board. As a result the Board reported to the Supreme Court that it had been unable, on the affidavits filed in support of the application, to form an opinion as to whether the applicant was of good fame and character. The report of the Board noted that the applicant had not provided any information as to the reasons for the removal of his name from the Roll of Barristers, or for the apparent failure of applications made by him to the Supreme Court of New South Wales for restoration of his name to the Roll of Barristers between 1968 and 1981. The Board further noted that the applicant had not provided any information as to the two matters outstanding and under consideration by Committees of the New South Wales Bar Association.

5. On 18 February 1987 the Law Society of the Australian Capital Territory filed a notice of intention to object to the admission of the applicant upon the following grounds:

"1. That the applicant has failed to comply with
the provisions of Rule 13 of the Australian
Capital Territory Supreme Court (Admission of
Practitioners) Rule (sic.) 1981.

2. That paragraphs 3 and 5 of the applicant's
affidavit sworn 30 January 1987 are false.

3. The applicant has failed to adequately, or at
all, disclose, bring to the attention of the
Court or explain all matters relating to his
conduct considered or now under consideration
by the New South Wales Bar Association."

6. Following a requisition from the Barristers and Solicitors Admission Board, the applicant filed a second affidavit sworn by him on 13 February 1987. In it he stated that on 27 April 1967 by an order of the Court of Appeal of New South Wales, he was suspended from practice as a Barrister for a period of two years on grounds of professional misconduct, that subsequently that order was set aside by the High Court and that that Court ordered that his name be removed from the Roll of Barristers. He further disclosed that he had made three subsequent applications to the Supreme Court of New South Wales for restoration of his name to the Roll of Barristers, and that subsequently on 15 December 1981 the Court of Appeal had found that he was fit to resume practice as a barrister and ordered that his name be restored to the roll. He further stated that he believed that the circumstances of the removal of his name and his subsequent re-admission were well known, being a matter of public record. He referred to the report of the decision of the Court of Appeal of 27 April 1967 in (1967) 67 SR 236 and the report of the decision of the High Court in [1968] HCA 20; (1968) 117 CLR 177. He said that he assumed that these matters were common knowledge within the legal profession and there had been no conscious lack of frankness on his part. He pointed out that since resuming practice he had frequently appeared in the High Court and the Federal Court as well as in the Supreme Court of New South Wales. He made no reference in that second affidavit to the matters outstanding before Committees of the New South Wales Bar Association, except to say that "the circumstances were particularised in the Prothonotary's certificate".

7. In a third affidavit sworn on 16 March 1987, the applicant expanded upon the history of his suspension from practice, the subsequent removal of his name from the Roll of Barristers, the two unsuccessful applications to the Court of Appeal for restoration of his name to the roll, and his subsequent re-admission. He gave some particulars of the matters which had been under consideration by the Committees of the New South Wales Bar Association and made some attempt to explain his omission to refer to those matters in his previous affidavits. It is unnecessary to set out the substance of those matters. It is sufficient to say that we are now satisfied that the Committees of the New South Wales Bar Association have found in the applicant's favour with regard to any complaint about the applicant's professional conduct which was current at the time of the applicant swearing his affidavit of 30 January 1987, and further that there are no proceedings of any type concerning the applicant's professional conduct before the NSW Bar Association at the present time.

8. In addition to his own affidavits and in further support of his application, the applicant filed a number of affidavits certifying him to be a person of good fame and character. These affidavits in their original form did not show that the deponents were aware, in making their assessment of the applicant's good fame and character, of his previous suspension and the previous removal of his name from the Roll of Barristers. This omission was subsequently filled by the filing of further affidavits. The affidavits were in each case, we might add, sworn by members of the New South Wales Bar, only one of whom stated that he was admitted to practise in this Territory.

9. At the hearing before us the applicant was called to give short evidence on his own behalf and was cross-examined by counsel for the Law Society. In his evidence the applicant confirmed that there were no outstanding complaints regarding his conduct which were the subject of any investigation by the New South Wales Bar Association. At the end of the applicant's evidence the Law Society, through its counsel, withdrew its opposition to the application and undertook to abide by whatever order the Court might make.

10. In deciding that the applicant who, it must be remembered, is not only a member of the New South Wales Bar but also admitted to practise in the High Court and all Federal Courts, was a fit and proper person to be admitted to practise in this Territory, we were not concerned so much with the conduct of the applicant which had led to his suspension and then to his removal from the Roll of Barristers in New South Wales, although, as we shall emphasise, those matters were clearly relevant. What caused us anxious concern was first, the applicant's failure to advert to those matters in his original affidavit and secondly, his continued assertion that he did not believe that there had been any lack of frankness on his part. We need hardly say that we were not impressed with the applicant's explanation in his affidavit of 13 February 1987 that he had assumed that his past suspension and ultimate disbarment, being the subject of reported decisions, were common knowledge in the legal profession throughout Australia. Nor would we have been satisfied with the applicant's explanation in that affidavit of his failure to refer to matters of complaint of his professional conduct which had at the time of his original affidavit been the subject of consideration by Committees of the NSW Bar Association. It was not until the applicant filed his third affidavit of 16 March 1987, confirmed as it was by his testimony before us, that he made that degree of full and frank disclosure which was necessary before the Court could adjudicate upon the question whether he was a fit and proper person to be admitted to practise as a barrister and solicitor in this Territory.

11. A person who has been admitted to practise and who currently carries on practice in the High Court or in a Court of a State or another Territory has no automatic right to be admitted to practise as a barrister and solicitor in this Court. Ordinarily the onus cast upon such a practitioner to show that he or she is qualified and thus entitled within the terms of the Legal Practitioners Ordinance to be admitted to practise in this Court will be easily discharged. In the case of an interstate practitioner against whom some finding of professional misconduct has been made, or against whom an outstanding complaint of professional misconduct remains undetermined by a competent tribunal or professional association, there can be no finding that the applicant is a fit and proper person to be admitted to practise in this Territory unless the conduct which is subject to the finding or the allegation is disclosed. We state unequivocally that it is not for an applicant to decide what is or is not relevant to place before the Court on the question of whether that person is a fit and proper person to be admitted to practise. The applicant's duty is to place before the Court any matter that might reasonably be regarded by the Court as touching on the question of fitness to practise.

12. In this regard, we are of opinion that the present applicant's failure to make proper disclosure in his first affidavit was more than, as he claimed, "clumsy drafting". He should have known that the terms of his affidavit and the accompanying certificate were contradictory and that the certificate itself suggested that there were material matters which were not disclosed. That is, in our view, a clear indication that the affidavit was drafted with not so much clumsiness as a lack of responsibility. We consider further that the applicant's initial lack of responsibility was contributed to by a lack of familiarity with the laws of the Territory and in particular with the Legal Practitioners Ordinance 1970, by virtue of which he sought to be admitted to practise.

13. Nevertheless, after consideration of the contents of the applicant's third affidavit, and having seen and heard him in the witness box, we came to the view that he now has some insight into and genuinely regrets his earlier lack of frankness. We came to the further view that he recognizes the need to acquaint himself better with the laws of the Territory in which he seeks to practise. For these reasons we saw no impediment, save as to his paying the costs of the Law Society, to his admission as a barrister and solicitor and we ordered accordingly.