In the matter of the Legal Practitioners Act 1970 and in the matter of an application by Giles [2005] ACTSC 128 (2 December 2005)

Last Updated: 7 February 2006

In the matter of the Legal Practitioners Act 1970 and in the

matter of an application by Charles Filgate Giles

[2005] ACTSC 128 (2 December 2005)

EX TEMPORE JUDGMENT

LEGAL PRACTITIONERS - application for readmission - previously removed from Roll due to dishonest and incompetent conduct - whether applicant has displaced original finding - Court positively convinced of applicant's skills and personal qualities.

Re Legal Practitioners Ordinance 1970; Ex parte Law Society of the Australian Capital Territory; Re Giles (1985) 61 ACTR 1

In the Matter of the Legal Practitioners Ordinance 1970 and In the matter of the application of Charles Filgate Giles (unreported, Supreme Court of the Australian Capital Territory, Miles CJ, Kelly and Wilcox JJ, 12 October 1988)

In the Matter of the Legal Practitioners Act 1970 and In the matter of the application of Charles Filgate Giles (unreported, Supreme Court of the Australian Capital Territory, Miles CJ, Gallop and Sheppard JJ, 17 June 1994)

Ex parte Lenehan (1948) 77 CLR 403

Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655

Clyne v New South Wales Bar Association (1960) 104 CLR 186

No SC 322 of 2005

Judge: Higgins CJ, Connolly and Marshall JJ

Supreme Court of the ACT

Date: 2 December 2005

IN THE SUPREME COURT OF THE )

) No SC 322 of 2005

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER of the Legal Practitioners Act 1970

AND

IN THE MATTER of the Application of Charles Filgate Giles to be restored to the

Roll of Legal Practitioners

ORDER

Judges: Higgins CJ, Connolly and Marshall JJ

Date: 2 December 2005

Place: Canberra

THE COURT ORDERS THAT:

1. The name of Charles Filgate Giles be restored to the Roll of Legal Practitioners.

1. IN THE SUPREME COURT OF THE )

) No SC 322 of 2005

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER of the Legal Practitioners Act 1970

AND

IN THE MATTER of the Application of Charles Filgate Giles to be restored to the Roll of Legal Practitioners

Judges: Higgins CJ, Connolly and Marshall JJ

Date: 2 December 2005

Place: Canberra

REASONS FOR JUDGMENT

THE COURT:

1. I am delivering these reasons on behalf of myself and Connolly and Marshall JJ.

2. This is an application by Charles Filgate Giles to be readmitted as a legal practitioner of this Court. The applicant was admitted as a barrister and solicitor of this Court in January 1975, but his name was removed from the roll by order of the Full Court in February 1985 (Re Legal Practitioners Ordinance 1970; Ex parte Law Society of the Australian Capital Territory; Re Giles (1985) 61 ACTR 1). He has made two previous unsuccessful applications before a Full Court for his name to be restored to the roll, in 1988 and 1994 (In the Matter of the Legal Practitioners Ordinance 1970 and In the matter of the application of Charles Filgate Giles (unreported, Miles CJ, Kelly and Wilcox JJ, 12 October 1988) and In the Matter of the Legal Practitioners Act 1970 and In the matter of the application of Charles Filgate Giles (unreported, Miles CJ, Gallop and Sheppard JJ, 17 June 1994). On both prior occasions his application was opposed by the Law Society. On this occasion, his application is not opposed.

3. The applicant graduated from the University of Western Australia with the degree in Bachelor of Laws in 1974, and completed a course of legal professional training at the Legal Workshop at the Australian National University before being admitted to practice in this Court on 20 January 1975. He was employed from 1975 to 1978 with the Commonwealth Crown Solicitor's office in the Trade Practices sub-office in Canberra, and then worked for six months as a lecturer at the College of Law in Sydney. He was a partner in a small Canberra firm from December 1978 to April 1980 and then worked for a year as an employed solicitor for a Building Society. From April 1981 until April 1985 he practiced as a sole practitioner.

4. It was during this period that the applicant got into difficulties with the proper management of his trust account. An application by the Law Society to remove his name from the roll was brought before the Court for hearing in February 1985, and on the fourth day of that hearing the applicant, while still under cross-examination, the applicant consented to an order that his name be removed from the roll. The Court ordered accordingly.

5. In 1988 he made application for his name to be restored. The application was opposed by the Law Society, and on 12 October 1988 the Full Court (Miles CJ, Kelly and Wilcox JJ) dismissed the application with costs. In its reasons for decision, the Full Court found that the applicant had failed to appropriately provide quarterly trial balances for his trust account from the September quarter of 1981, despite being appropriately warned and advised by his accountant and the Law Society. Moreover, there were irregular dealings with certain sums in the trust account, in the order of about $6,000. In its reasons, the Full Court said (at 22) -

... we think that it is only fair to say that we are not persuaded that the various misappropriations were made with the intention of permanently depriving the persons entitled to those moneys. The amounts involved were comparatively small and they were repaid without the necessity of legal action. Mr Giles admitted under cross-examination that, throughout the whole of the relevant period, he was under considerable financial pressure. It seems to us likely that, from time to time, he decided to "borrow" trust monies in order to relieve that pressure.

6. The Full Court went on to say (at 22) that -

... we think that he did so with the intention of repaying the money when he could.

7. The Full Court on that occasion appropriately set out the test to be applied in considering an application for a person to be readmitted to legal practice. They said (at 17) -

The principles to be applied by the Court in considering an application for the readmission of a legal practitioner were summarized by Kirby P of the New South Wales Court of Appeal in Kotowicz v Law Society of New South Wales (7 August 1987, not reported). In that case his Honour dissented upon the application of those principles to the facts of the case. But the principles themselves were not in contest. The following points are relevant:

(a) The jurisdiction to refuse an application for readmission because of past conduct of the applicant is not exercised for the purpose of the punishment of the solicitor, but rather to protect members of the public who deal with solicitors "on the basis that they are members of an honourable profession who can be expected, without reservation, to conduct the affairs of their clients with honour and in whom the clients can place unbounded confidence".

(b) A claimant for readmission bears the onus of establishing his fitness to be reinstated to the roll. That onus is a heavy one. There must be solid and substantial grounds for displacing the earlier judgment of unfitness.

(c) The decision to be made in each case depends ultimately on the facts of that case. The Court must be able to conclude that the applicant is now a fit and proper person to be involved in the work of the profession. What is at stake is "not so much the reputation of the applicant but the Court's assessment of his character, uprightness honour and trustworthiness".

(d) Nonetheless, evidence of reputation and of any activities in which the applicant has engaged are relevant to the application. They may indicate the rehabilitation of the applicant, so that his or her previous unfitness no longer exists.

(e) In the case of some offences, committed over an extended period and with deliberate intent and resulting in severe losses by clients, it will be difficult to contemplate any circumstances in which the offender will be restored to the roll. The position is otherwise in the case of isolated offences, without deliberate conduct and where any losses have been made good to the fullest extent practicable. In such a case it may be in the public interest to restore the offender to the roll; there being no advantage in denying to the public the training and skills of that person.

8. The Full Court in 1988 was not satisfied that the applicant had met this test, based on his apparent lack of full understanding of the nature of his past conduct, and also on certain criticisms that appear in the judgment about his candour at the hearing. They said, however (at 26):

In rejecting this present application, the Court does not intend to suggest that there can never be a time when it will be appropriate to restore Mr Giles' name to the roll. This is not a case of offences, to use the words of Kirby P in Kotowicz, "committed over an extended period, with deliberate intent and resulting in severe losses by clients". The sums appropriated by Mr Giles were relatively small, and they have all been repaid. Mr Giles is still a relatively young man. It is possible that, in the course of time, he will be able to demonstrate that he can be trusted not to offend again. But two things must happen before this will be possible. Firstly, Mr Giles must make genuine self-acknowledgement of the wrongness of the conduct with caused him to be disbarred. There can be no confidence in the future conduct of a person who seeks to justify, or to avoid the implications of the actions and omissions revealed [by the past conduct]. Secondly, Mr Giles will need to demonstrate, probably by reference to business or community activities over a period of some years, both his personal integrity and a long term competence to manage money; not merely honestly, but in a careful and efficient manner.

9. The applicant next made application for readmission in 1994. The application was again opposed by the Law Society, and was unsuccessful. On that occasion Miles CJ said (at 3) -

In my view, it is abundantly clear that the applicant's dishonesty in his handling of trust account transgressions had its origins in his incompetence, which in turn stemmed from his lack of relevant experience. At the time of his original admission he had the necessary educational qualifications as well as the reputation of a person of good character. But the few years immediately after admission spent as an employed legal officer in the Trade Practices sub-office of the Commonwealth Crown Solicitor and as a senior lecturer at the College of Law in New South Wales, did not equip him with the practical skills and professional sense necessary for the proper conduct of the practice of a solicitor, particularly a sole practitioner. From the time the applicant commenced practice on his own he failed to keep proper trust accounts and, despite the warnings and efforts of his accountant and the Law Society, he repeated his failures for a period of some six years. The present application itself suggests that the applicant has recognized only recently the need for hard experience and training of a relevant kind before he can be permitted to take up the responsibilities of legal practice. Although in the interim he has worked in positions involving some handling of monies and the organization of the affairs of other people, and has attended legal education courses and seminars, he has not been able to call upon anyone associated with the practice of the law to vouch for his new-found sense of professional integrity and competence.

10. Gallop J agreed that the applicant on that occasion demonstrated a better understanding of his prior misconduct, but said (at 15) -

He has not been able to demonstrate on solid and substantial grounds his fitness, notwithstanding his commendable and proper attitude to the responsibilities of legal practice. He should be encouraged to seek legal employment in the public or private profession. If he can do so, and if he can demonstrate after a real and substantial period of time that, not only has his present resolve been maintained, but that his performance as a law clerk under supervision is capable of engendering some confidence in his performance of his duties as a readmitted barrister and solicitor, he may then apply again for readmission much better armed to displace the finding of unfitness which was the basis for his removal.

11. Sheppard J, in his reasons (at 2-3), also expressed concerns about -

the inexperience of the applicant and his apparent unwillingness to seek, or inability to obtain, employment in a legal office or in an organisation, for example, a government department, engaged, if not in legal practice, then in some legally related activity. If he had obtained such employment, he would have been able to keep in touch with the law and have been supervised by persons who could have expressed to the Court their views of the applicant's professional competence as well as upon his integrity in a relevant context.

12. Sheppard J also expressed some concerns about the applicant's bankruptcy of September 1991.

13. Each member of the Full Court on that application noted that the Law Society had indicated, through its counsel, that it would not stand in the way of any application by the applicant to obtain supervised employment as a law clerk.

14. In July 1996 Mr Mark Tiirikainen, partner in the firm of Sutherland & Tiirikainen, sought and obtained the approval of the Law Society to employ the applicant as a law clerk. This permission was based on clear conditions that the applicant not be permitted to hold himself out as a solicitor, but that he be able to perform drafting, office management and taking of instructions, under the close supervision of Mr Tiirikainen.

15. The applicant has been so employed since July 1996, and in his present application he has been able to file affidavits from a number of legal practitioners, both barristers and solicitors, in practice in Canberra and Sydney, going to their observations of his conduct of legal practice. Importantly, all of these affidavits make reference to the deponent's knowledge of the applicant's previous conduct.

16. It seems to us that, although the applicant has on two previous occasions been unsuccessful in his application for readmission, on this application it is clear that he has carefully considered and acted on the deficiencies identified by the Full Court on those earlier applications. He has obtained closely supervised employment in a law firm, and is able to provide to the Court an impressive array of statements by practitioners going to his present professional conduct. In his own affidavit he has frankly set out the relevant extracts of the prior Full Court decisions setting out his previous misconduct, and stated -

I am fully aware that my conduct, as disclosed in this summary, was disgraceful and dishonest and that I let down my clients, my profession and myself. Re-reading these pages makes me understand how difficult it will be for a Court to accept that I have rehabilitated myself since my name was removed from the Roll of Barristers and Solicitors on 28^th February 1985.

Thankfully, the Law Society has been kind enough to give me the opportunity to occupy a limited role in the local legal community. Through that, I have been able to further reconsider the impact and the stresses that my past transgressions have caused the legal community and the public at large. I am profoundly sorry for the suffering and hardship that my misconduct has caused so many good people. I cannot and will never allow myself to engage in such conduct again.

For the past 8 years I have worked under the close supervision of Mr Sutherland and Mr Tiirikainen, as a clerk, in the conduct of their legal practice. This has enabled me to develop a professional sense appropriate to a legal practitioner. The daily exposure to the difficulties, the pressures and challenges of conducting a law practice, under their tutorage, has been a valuable experience. In my earlier, limited career in law, I had not acquired or developed this professional sense appropriate to a legal practitioner.

17. It seems to us that the applicant has now clearly demonstrated the understanding of his past misconduct that had been lacking in his previous applications. Tellingly, he says in his affidavit that -

When I commenced as a clerk for Mr Sutherland and Mr Tiirikainen, I sincerely believed that I had an adequate grasp of the high sense of duty and responsibility necessary to enable me to properly discharge the duties of a legal practitioner of this Court. However, with the benefit of having had the solemn experience of working with and being supervised by Mr Sutherland and Mr Tiirikainen, I now realise how much more I had to learn with respect to the practical application of those responsibilities in the daily conduct of a legal practice. In particular, one of the most fundamental aspects of the successful practical application of those responsibilities is having the sense to be quick to seek guidance on important issues, such as potential conflicts of interest, from a fellow practitioner.

18. The applicant says in his affidavit, and this is supported by affidavits from Mr Tiirikainen and Mr Sutherland that, if readmitted, he will be employed in their practice as an employed solicitor.

19. An applicant who has been struck off the roll and who applies for reinstatement faces a more difficult task than an applicant for first admission, as they must displace the decision going to the original unfitness to practice (Ex parte Lenehan (1948) 77 CLR 403 at 422). The power to restore to the roll a previously struck off practitioner should be exercised "with the greatest caution and only upon solid and substantial grounds" (Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655). In discharging this responsibility, the Court is not exercising a punitive role, but must primarily be concerned for the protection of the community (Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201).

20. In the present case, the applicant has clearly acted on the recommendations of the earlier Full Court decisions. He has demonstrated a full understanding of the cause of his earlier misconduct and, by obtaining closely supervised employment as a law clerk, has been able to demonstrate over a long period of eight years diligent and proper conduct as an employee of a legal practice, which can give the Court confidence that he will be able to properly conduct himself in future as an employed solicitor. He has, it seems to us, demonstrated the "solid and substantial grounds" that would justify this Court in permitting him again to practice law as an employed solicitor.

21. The Court orders that the name of Charles Filgate Giles be restored to the Roll of Legal Practitioners.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 2 December 2005

Counsel for the applicant: Mr. G. Stretton

Solicitor for the applicant: Higgins Solicitors

Counsel for the respondent: Mr AS Kidney

Solicitor for the respondent: Mr AS Kidney

Date of hearing: 2 December 2005

Date of judgment: 2 December 2005