Applications for reinstatement to the roll of practitioners

Generally, if you are struck off and want to be reinstated to the roll of practitioners, it is necessary credibly to exhibit remorse for the conduct which led to your being struck off.  Pity the person struck off for something they genuinely believe they did not do: must not lie on oath about being contrite but cannot get their livelihood back without being believed on that point.

Unfolding ever so slowly before the Supreme Court of Queensland is an application for reinstatement by a solicitor who was struck off for deliberately misleading a court and attempting to suborn the evidence of a witness. She believes that the evidence of the witness in her striking off case was false.  She pursued that line on an appeal from the striking off decision to the Court of Appeal and unsuccessfully sought leave to appeal to the High Court.  Then she sued him for defamation, but discontinued, and made several complaints about him to the disciplinary bodies regulating engieers, which were dismissed.  In her reinstatement application, the solicitor sought to rely on new evidence not available prior to the High Court appeal bearing on who was telling the truth at her striking off hearing out of her or the witness.

The applicant for readmission failed to take any step in her application for two years, with the result that she had to obtain leave to take a further step in the proceeding.  (Don’t try this at home, kids: generally it would be prudent to prosecute your own application for reinstatement with a degree of vigour and in a manner calculated to avoid pissing off your opponent or the person designated to decide your future.  In this case the applicant’s solicitor shouldered the blame for not getting the affidavits done.)  In  Re Wendy Anne Wright [2011] QSC 34, the Supreme Court of Queensland had to consider the prospects of the applicant’s application.  Justice Wilson said:

‘A person who seeks readmission after having been struck off the roll of legal practitioners for professional misconduct must generally acknowledge his or her past misconduct and demonstrate genuine remorse for it.  While confession is not a necessary precondition to readmission, it is usually indicative of insight, which is in turn relevant to the Court’s assessment of whether there has been moral regeneration such that the applicant is now a fit and proper person to be admitted as a legal practitioner.  There may be cases where an applicant has no remorse because of a genuine belief that the findings of the disciplinary tribunal were wrong.  An applicant may accept the authority and binding character of the decision made by the disciplinary tribunal but nevertheless genuinely believe its findings were wrong.  Whether a particular case falls within that category depends upon an assessment of all of the circumstances.  But as Mason P observed in Zaidi v Health Care Complaints Commission[7]:

“…there is no error in concluding in a particular context that continuing vigorous challenge to clearly established guilt may be indicative of continuing unfitness on one or other of the grounds indicated in the sentence underlined.”[8]


[7] (1998) 44 NSWLR 82, 100.

[8] See also re: Alger Hiss (1975) 333 NE 2d 429, 437; Watt v The Law Society of Upper Canada (2005) (2005) CarswellOnt 7055; 205 OAC 289.

The applicant argued that she did not seek:

‘to overturn the effect of findings made against the applicant, by collateral attack.  The Court could not, and is not being asked to, conclude that any of those findings ought not to have been made.  Indeed, as the applicant’s affidavit material shows, many of the factual matters on which she relies in addressing the foregoing tasks were not presented to the Tribunal, the Court of Appeal or the High Court.  A genuine belief that a finding made by a Court is wrong does not demonstrate a lack of acceptance of those findings.’

Justice Wilson concluded the the applicant’s prospects of success were poor, but granted leave to continue with the proceedings anyway, in part because nothing would stop her from making an application afresh if the current on were struck out.  Her Honour said of the applicant’s argument extracted in the previous paragraph:

‘These are matters of fine, but, in the applicant’s submission, potentially critical, distinction.  To investigate the applicant’s belief would involve a re-litigation of many questions determined by the Tribunal [in the striking off case].  It has been estimated that the trial would take five days and 15 witnesses would be called.

While it is not for me to predetermine what attitude the Court would take to the applicant’s attempt to re-ventilate issues determined against her by the Tribunal (albeit for the purpose of explaining her lack of remorse), I think her prospects of succeeding in her application for readmission are poor.  Suffice it to say that I think there would be a powerful argument that her attempt to explain her lack of remorse would amount to a collateral attack on the findings of the Tribunal and that it should be disallowed as an abuse of process.’

 

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