Re the Legal Practitioners Act 1970 and Re An Application By Michael Alexander Gordon Emmett To Be Re-Admitted To Practise As A Barrister and Solicitor [1996] ACTSC 6 (22 February 1996)

SUPREME COURT OF THE ACT

IN THE MATTER OF THE LEGAL PRACTITIONERS ACT 1970
AND IN THE MATTER OF AN APPLICATION BY MICHAEL ALEXANDER GORDON EMMETT TO BE
RE-ADMITTED TO PRACTISE AS A BARRISTER AND SOLICITOR
No. SC 488 of 1992
Number of pages - 7
Legal Practitioner

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ, GALLOP AND HIGGINS JJ

CATCHWORDS

Legal Practitioner - application for re-admission to practise - previously removed from the Roll due to dishonest conduct - whether the applicant has displaced the original finding of unfitness to practise - need for solid and substantial grounds for displacement

Re Giles, unreported, 17 June 1994

HEARING

CANBERRA, 31 January 1996
22:2:1996

The Applicant appeared in person

Counsel for respondent: Mr D.C. Harper

Solicitor for respondent: Abbott Tout Harper Blain

ORDER

THE COURT ORDERS THAT:
(1) The application be refused.

(2) The applicant pay the costs of these proceedings on
a solicitor/client basis.

DECISION

MILES CJ, GALLOP AND HIGGINS JJ By notice of motion dated 14 July 1992 Michael Alexander Gordon Emmett (the applicant) applied for his name to be restored to the Roll of Barristers and Solicitors. The application was opposed by the Law Society of the Australian Capital Territory.

2. The applicant was originally admitted as a solicitor in the Supreme Court of New South Wales on 9 July 1965. He practised as a solicitor in Sydney and moved to Canberra to practise as a solicitor from July 1967. In accordance with the requirements of the Legal Practitioners Ordinance 1970 his name was entered on the Roll of Barristers and Solicitors of the Australian Capital Territory on 8 January 1971.

The 1979 Proceedings
3. By order of this Court made on 26 October 1979 his name was removed from the Roll of Barristers and Solicitors of the Australian Capital Territory following a report to the Court by the Disciplinary Committee on inquiry into a complaint made by the Council of the Law Society. On that occasion the Court inquired into various allegations of his conduct alleged to justify the removal of the applicant's name from the Roll of Barristers and Solicitors and made findings of professional misconduct against the applicant. Those findings are published in the reasons for judgment delivered 26 October 1979. It is necessary to state in abbreviated form the findings adverse to the applicant and which resulted in the removal of his name from the Roll of Barristers and Solicitors.

(a) The applicant committed a breach of s.57(2) of the
Legal Practitioners Ordinance 1970 in 1971 by appropriating to
himself the sum of $1,000 which was the property of his client,
Mr D.H. Gault, and subsequently in 1974 joined with Mr Gault in
deceiving the Law Society and his own auditor about the true
nature of the 1971 transaction. The Court held that such
conduct would be regarded as disgraceful and dishonourable by
practitioners of good repute.

On the hearing before the Court in 1979 the applicant gave
evidence on his own behalf seeking to exculpate himself in
relation to the misappropriation and his subsequent explanations
to the auditor and the Law Society. The Court did not accept
the applicant's evidence.

4. On the hearing of his application for re-admission, the applicant accepted the Court's finding that he had given false evidence.

(b) The Court found that the applicant misappropriated
$1,294.19 from the Estate of the late Mikolaj Szelestowicz in
June-July 1972. He had the use of the money for about four
years before repaying it. He prepared fabricated documents
purporting to verify that the money had been lent to him by the
client at interest. He knew that the signatures on the
documents purporting to be those of the executor, Mr E.C. Cundy,
were forgeries at the time he misappropriated the money and at
the time that he showed the documents to his accountants for
audit purposes. He created a carbon copy of a letter differing
in a material respect from the letter actually sent and he gave
false evidence that a letter in identical terms to the carbon
copy had been sent to Mr Cundy. He gave false evidence to the
effect that Mr Cundy had signed letters of acknowledgment of
loan when he knew that the signatures were forgeries, and that
Mr Cundy had not made or agreed to make any loan.

The Court did not accept the applicant's evidence as to any
matter of substance in relation to the Cundy transactions.

5. On the hearing of his application for re-admission, the applicant accepted the Court's finding that he knew that the documents purporting to be those of the executor Mr Cundy were forgeries at the time he misappropriated the money and at the time that he showed the documents to his accountants for audit purposes. Further, he accepted that he gave false evidence to the Court about those matters but denied that he had forged Mr Cundy's signatures. He said that he could not remember whether he had forged those signatures or someone else had done so, and that if he could remember that he had done it himself he would say so. He could not suggest anyone else who might have done it. He further accepted that he had presented to the Court a letter which was not a carbon copy of the letter actually sent to Mr Cundy.

(c) The applicant had been instructed to act for Mr Gault
as defendant in a motor vehicle property damage claim. The
Court found that he had falsely told the client that the matter
was under control. In fact he had done nothing and had failed
to appear at a court hearing when judgment was entered against
Mr Gault. The Court found that the statements to the client
were the reverse of the truth and that the applicant had
deliberately deceived the client.

6. On his application for re-admission, the applicant admitted those matters.

(d) Mr Gault had instructed the applicant to bring
proceedings for the return of certain chattels. The applicant
told Mr Gault falsely on a number of occasions that process had
been issued and that it was only a matter of time before the
matter would come before the Court. In fact no process had ever
issued.

7. On the hearing of his application for re-admission, the applicant admitted the allegation found proved by the Court.

(e) Mr Gault had instructed the applicant to take proceedings
against his trustee under a deed of arrangement. On countless
occasions the applicant informed Mr Gault that proceedings had
been commenced. No proceedings had ever been commenced.

8. On the hearing of his application for re-admission, the applicant admitted the allegation found proved by the Court.

9. The Court took into account character evidence tendered on behalf of the applicant but concluded that there was only one possible order on the facts accepted by it. It noted that the applicant had often given care, compassion and generosity to the task of dealing with the affairs of poor and otherwise disadvantaged clients. It directed that the applicant's name be removed from the Roll of Barristers and Solicitors and ordered that the applicant pay the Law Society's costs which were subsequently taxed at about $12,000.

The Present Application
10. His application for re-admission was based upon his own affidavit and oral evidence, affidavits and oral telephone evidence from his medical practitioner and character evidence.

11. By his own evidence the applicant expressed his regret and apology to the Court, his former colleagues, former clients and the community for his dereliction of duty to the Court and the community. He attributed his misconduct and the failure of his first marriage and problems with his second marriage to his sustained alcoholism, which was well established when he moved to Canberra in 1967.

12. He was declared bankrupt on 7 September 1981 and was discharged on 7 September 1986. The Law Society lodged a proof of debt for its costs, but has not received any amount in the administration of the applicant's estate or otherwise.

13. After being struck off in 1979 he was unemployed until December 1981 when he was given a clerical position with a solicitor practising in Canberra. His drinking habits had not changed and his services were dispensed with in July 1983. He left Canberra in late 1983 but, as he said, his "excessive drinking continued unabated".

14. In June 1985 he obtained employment in the Commonwealth Public Service which he maintained until 31 October 1990. He was managing his working life reasonably satisfactorily but his personal life with his new wife and daughter, born 9 September 1984, had become unmanageable because of his drinking. On 28 June 1990 he admitted himself to the St John of God Hospital at North Richmond, New South Wales, and undertook a 21 day treatment program based on the principles of Alcoholics Anonymous. Since that time he has been a member of Alcoholics Anonymous, attending meetings in and around the Wollongong area. It seems that he lapsed into alcoholism again and was re-admitted to the St John of God Hospital for 10 days in October/November 1990.

15. For some time commencing September 1992 he undertook legal support work for a firm of solicitors in Wollongong but there were difficulties over this employment because it was without the knowledge or permission of the Law Society of New South Wales.

16. He relapsed again into alcoholism - it is not clear for how long - and on 15 March 1993 he admitted himself to Orana House Detoxification Unit at Wollongong Hospital, then to a recovery centre and to a half-way house. This relapse appears to have been responsible for this application for re-admission to practise, which was otherwise ready to be heard, being stood out of the list.

17. He does not claim to be cured of his alcoholism but expressed his determination to live each day at a time and not to resume drinking alcohol at all. He lives separately from his wife and daughter, who live close by. He supports them to the best of his ability both financially and otherwise. He claimed that his wife is fully and loyally supportive of him in his dealing with his alcohol problem. In her affidavit sworn 7 July 1992 she detailed their marital problems caused by his alcoholism and her confidence that eventually he will succeed.

18. He asserted that the fact that he does not hold a practising certificate has been the principal reason for his many applications for employment being unsuccessful. He has been placed with various legal firms for work experience under the Commonwealth Employment Service "Jobtrain" Scheme where he has worked under supervision on various types of legal work, apparently to the satisfaction of the principals of those firms.

19. In his affidavit sworn 7 July 1992 Dr Luciano Anthony Diana, medical practitioner, gave evidence that he had been treating the applicant since 1986. He stated, having observed the applicant closely for the past five years, that the applicant had exhibited a strong desire and determination to change and improve himself, especially over the past two years.

20. In his oral evidence by telephone, Dr Diana expressed the opinion that hopefully the applicant will maintain his present state of abstinence and in that respect ought to do well.

Principles as to re-admission
21. In the most recent case of an application for re-admission by a practitioner (Re Giles, unreported, delivered 17 June 1994) this Court summarised the principles governing an application for re-admission:

"As previously stated, the issue for determination by this
Court is whether the applicant is now a fit and proper person to
be admitted as a barrister and solicitor of the Court, bearing
in mind that he was struck off the Roll (Re S, supra). The
principles governing an application for re-admission may be
summarised as follows :
(1) When a solicitor who had been on the Roll and was struck
off the Roll applies for reinstatement he is in a more
disadvantageous position than an original applicant because he
must displace the decision as to probable permanent unfitness
which was the basis of his removal (Ex parte Lenehan [1948] HCA 45; (1948) 77
CLR 403 at 422; Ex parte Munro; re Legal Practitioners Act
(1989) 71 SR 448 at 454; Kotowicz v Law Society of New South
Wales (No 2) (Court of Appeal, 7 August 1987, unreported, per
Kirby J at 19 and 20, and per Samuels JA at 3).

(2) A solicitor may be restored to the Roll after he has been
struck off but the power to reinstate should be exercised with
the greatest caution and only upon solid and substantial grounds
(Incorporated Law Institute of New South Wales v Meagher [1909] HCA 87; (1909)
9 CLR 655).

(3) The Court should act upon its own assessment of the
applicant's character, uprightness, honour and trustworthiness
(Incorporated Law Institute of New South Wales v Meagher, supra,
at 692).

(4) Where a practitioner who had been on the Roll and was
struck off applies for re-admission, the findings of the Court
which ordered the removal of the practitioner's name from the
Roll must be taken as correct and immutable. An application for
restoration must fail if the applicant has never accepted the
validity of those findings. Acknowledgment of error is an
indispensable starting point (Application of Dennis (Court of
Appeal of NSW, 23 December 1988, per Samuels JA at p.2, 11 and
13)).

(5) In discharging its responsibility to supervise the
discipline of practitioners, the court is not exercising a
punitive, but a protective role, having primary regard to the
protection of the public interest and the interest of the
profession (Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104
CLR 186 at 201-2; New South Wales Bar Association v Evatt [1968] HCA 20; (1968)
117 CLR 177 at 183; Law Society of New South Wales v Bannister
(Court of Appeal of NSW, 27 August 1993, unreported))."

22. It was submitted on behalf of the Law Society that certain additional principles should govern the present application:

(1) An applicant's intrinsic character is a crucial
consideration in determining fitness (Incorporated Law Institute
of New South Wales v. Meagher [1909] HCA 87; (1909) 9 CLR 655 at 692.

(2) Intrinsic character does not readily change (Re B (1981) 2
NSWLR 372 at 381-382).

(3) The Court must be satisfied that an applicant for
re-admission would, upon re-admission, act with a proper
appreciation of his professional duties even, and especially,
when unsupervised:
(a) the Court must be able to have confidence that the
applicant will perform his duties unsupervised (Re B at 382);
(b) the Court must be satisfied that the applicant will act
with reliability and integrity (Re Giles, unreported, 12 October
1988, p.21).

What Course Should This Court Take?
23. It is now 16 years since the applicant's name was removed from the Roll of Barristers and Solicitors. As he himself acknowledges, that was a harsh punishment but unavoidable in the interests of the public and the maintenance of proper professional standards. He urged the Court to accept that when he is drinking alcohol he is a different person from the person he is when he is not drinking alcohol. He does not seek a re-admission which would be of an unrestricted nature. If re-admitted he would expect restrictions to be placed upon his right to practise and would welcome supervision. He maintains that he has some skills to use and some service to offer to the public. He assured the Court that he will be honest with the courts and clients in the future. By this application he is not seeking to be let loose on the public, but he wishes to be restored to the profession for the benefit of his family and his own self-esteem.

24. As was said in Giles (at p.14 of Gallop J's roneoed judgment delivered 17 June 1994), it is usual in cases of application for re-admission for the applicant to demonstrate by credible evidence that there is a career path open to him to participate in the practice of the law under suitable supervision. Such evidence might persuade a court to re-admit the applicant to practise subject to conditions and even undertakings. This applicant has not advanced any such proposal. He does not even claim to have demonstrated fitness to practise without supervision.

25. Although he is 62 years of age and may not have a good many years remaining before him, we are of the opinion that this application is premature. We do not doubt his sincerity in his acceptance of his past misconduct and his determination not to succumb to his alcoholism again. We accept that his alcoholism was and is the source of his unfitness to practise. In the light of his commendable and proper attitude towards his condition, he should be encouraged to seek legal employment in the public or private profession. We know that is difficult with his present status, but if he can do so and if he can then demonstrate, after a real and substantial period of time, that not only has his present resolve been maintained, but under supervision he is capable of engendering some confidence in his performance as a re-admitted barrister and solicitor, he may then apply again for re-admission much better armed to displace the finding of unfitness which was the basis of his removal and which he must displace on solid grounds before he can be re-admitted.

26. The present application must be refused, with the usual consequence as to costs, which are to be paid by the applicant on a solicitor and client basis.