Burden of proof in actions to cancel a practising certificate or strike a lawyer off the roll of practitioners

In Stanoevski v Council of the Law Society of NSW [2008] NSWCA 93, Justice of Appeal Campbell, with whom Justice of Appeal Hodgson and Acting Justice of Appeal Handley agreed, has provided important guidance on who bears which burdens of proof in cases where a legal regulator seeks to cancel a practising certificate or have a lawyer struck from the roll. (Cancellation by a legal regulator of a practising certificate lasts only as long as the practising certificate (i.e. until the end of the financial year), whereas striking off the roll lasts until an application for readmission succeeds, at which point, an application may be made for a practising certificate. To complicate things, though, cancellation of a practising certificate as a result of a disciplinary hearing by VCAT may result in a condition that the lawyer not reapply for practising certificate for a specific period. Being struck off the roll and having your practising certificate cancelled are not all that different really.) In summary, the situation is as follows:

• applicants for admission have the burden of establishing that they are fit and proper persons to be admitted to practice and enrolled by signing the roll of practitioners: Re B [1981] 2 NSWLR 372 at 403; Wentworth v NSW Bar Association (Court of Appeal, 14 February 1994, unreported) at 5;
• legal regulators who apply for an order cancelling a practitioner’s practising certificate have a civil onus of proving on the Briginshaw standard that the practitioner is not, at the time of the hearing, a fit and proper person to practise;
• legal regulators who apply for an order striking off a practitioner, that is, for an order that their name be struck off the roll of practitioners, have a civil onus of proving on the Briginshaw standard that the lawyer is not a fit and proper person to practise, and that the likelihood is that they will continue not to be for the indefinite future;
• lawyers who have either been struck off, or who have been found guilty of misconduct but rely on remediation during the time between the misconduct and the hearing so as to argue that they are now fit to engage in practice bear the burden of proving that the new leaf they have turned over is as green and shiny as they claim.

The ultimate issue in a case about being on the roll or having a practising certificate is whether the lawyer is at the time of the hearing a fit and proper person to engage in practice: Cambell JA at [56], referring to A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 at [15], Ex parte Brounsall (1778) 2 Cowp 829 at 830, 98 ER 1385 at 1385 per Lord Mansfield LCJ; Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 441-442.

The difference between whether a person is a fit and proper person to hold a practising certificate and whether they are fit and proper to stay on the roll is a question only of degree. In New South Wales Bar Association v Murphy [2002] NSWCA 138; (2002) 55 NSWLR 23, Spigelman CJ said at [21] that the difference ‘may not be great in many cases’, but should not be overlooked. The difference is that an order to strike the lawyer off the roll should be made only where, at the time when the decision is made, the decision maker is satisfied of the likelihood that the lawyer will be unfit to practise for the indefinite future. (That is what cases like these ones mean: Re Evatt; Ex parte NSW Bar Association (1967) 67 SR (NSW) 236; New South Wales Bar Association v Maddocks (Court of Appeal, 23 August 1988, unreported) per Kirby P at 1 and 38, per McHugh J at penultimate para; Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 at [17]; Ex parte Lenehan (1948) 77 CLR 403 at 422; Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal, 31 July 1987, unreported) at 4 per Kirby P, 38 per McHugh JA; and NSW Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [25]-[28] per Spigelman CJ (with whom Mason P and Handley JA agreed).)

Campbell JA said at [54]:

‘If the [decision maker] is of the view that a person is presently unfit to practice, but after a particular period of time will be once again fit to practice, then suspension for that period of time is the appropriate order. Suspension is achieved by orders under [the relevant statute]. Removal from the roll is appropriate only when a legal practitioner is unfit to practice, and suspension for a particular period is not appropriate.’

Later, Campbell JA explained the law behind giving to the legal regulator the burden of proof in establishing the facts from which inferences in support of the ultimate issue may be drawn, but giving to the lawyer the burden of establishing that things are different now from how they were when the conduct in question occurred. He did so by reference to the presumption of continuity (or ‘continuance’, as he put it). Once it has been established that there has been wrongdoing by a lawyer, the presumption of continuity kicks in. The law says experience teaches us that, in some situations, the existence of a state of affairs is prospectant circumstantial evidence of the same state of affairs existing at a later date. So, a person’s theological beliefs are assumed in the absence of contrary evidence to be the same 4 years later, and a person’s state of mind is presumed to be constant in the absence of contrary evidence: see Cross of Evidence (Lexis Nexis, looseleaf) at [1125] and [7255]. So too, Campbell JA tells us in this case, is a person’s unfitness for practice presumed to continue in the absence of contrary evidence:

‘the subject matter to which the presumption of continuity is applied in the present case is the character of a person. It is not at all uncommon for aspects of the character of a person to persist over decades, frequently for someone’s entire life. In my view, a tribunal of fact would be justified in using the extremely serious acts of professional misconduct in which the Appellant engaged in the period 1991 to 1993 as a basis for inferring that she was then unfit to practise, and that it was likely, notwithstanding that 15 years had passed, that she was still unfit to practise, unless the Appellant could produce evidence that gave reason for believing the situation had changed.’

But the presumption is not a legal presumption, but rather a shorthand for a synthesis of experience of considering what inferences may be drawn from particular types of circumstantial evidence, and his Honour indicated at [65] that a time will come when past wrongdoing which rendered, or demonstrated, a person to be unfit to practise at the time of the wrongdoing is no longer circumstantial evidence of present unfitness:

‘[65] There may be some subject matters concerning which the strength of an inference arising from a presumption of continuity attenuated with time until it totally disappeared.’

Another way of discussing the fourth bullet point above, consistently with the reasoning in Stanoevski’s Case is that the legal regulator is entitled to rely on the presumption of continuance to discharge the burden of proof which remains on it, and the lawyer is required to adduce evidence if he or she needs to rebut the presumption. And this is the better way of looking at it, because whether or not the presumption kicks in depends not on any universal law of evidence, but on the usual rules which govern whether one thing is circumstantial evidence of another, a question analysed in Associate Professor Palmer’s iconoclastic text Proof. It all depends on what the legal regulator has put into evidence. Scandalous wrongdoing established by judgment and proved by the legal regulator may be combined with a formal admission by it as to the truth of the contents of a medical report indicating that psychiatric factors which have since abated explained the earlier aberrant conduct. In such a case, there would be no room for the operation of the presumption of continuance, and the onus would never shift to the lawyer. That is what this passage from Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 (a case which had nothing to do with lawyers, but adopted by Campbell JA), says:

‘Before an evidential onus shifts from a plaintiff, the plaintiff must have adduced enough evidence for the court to infer, if the evidence that the plaintiff adduced was accepted by the court and was the only evidence on that topic in the case, that the proposition concerning which the plaintiff had the onus of proof was more likely than not true. In that situation, one says that an onus of adducing evidence shifts to the defendant because the defendant is then in a situation in which, if the defendant does not adduce evidence concerning that proposition, the plaintiff might succeed in establishing that proposition. Counsel for a defendant has to decide whether to adduce evidence on a topic at a time in the course of the trial when counsel necessarily cannot be absolutely sure of two matters that are of critical importance to whether the onus of adducing evidence has actually shifted – will the judge accept the plaintiff’s evidence on the topic, and if so will the judge regard that evidence, if no other evidence is adduced, as enough to make it more likely that the plaintiff’s contention concerning that topic is correct. The type of “onus” that the defendant is then under is one of practical necessity – either adduce evidence, or risk losing on that issue. But before a defendant is in that situation, the evidence that the plaintiff has put forward on the topic must be such that, if accepted and the only evidence on the topic, it would justify the court in deciding it is more likely than not that the proposition for which the plaintiff bears the onus of proof is true. If the evidence that a plaintiff adduces is equally consistent with that proposition being true, or that proposition not being true, so that the plaintiff would fail to discharge its onus of proof if that were the only evidence on the topic, the defendant does not come under the sort of practical compulsion that I have been describing.’

Stanoevski was a case where, in the hearing which was the subject of the appeal, there was no question that a substantial period beforehand, the lawyer had engaged in misconduct which demonstrated her unfitness to practise at that earlier time. The decision appealed from was itself a remission after a successful appeal of the discrete question of the appropriate penalty. In other words, the hearing of whether the misconduct was engaged in was not the same hearing as the one in which the order appropriate for the protection of the public was engaged in. The case where the question of whether the lawyer was unfit to practise some time ago falls for determination after the same hearing as the question of whether he or she is presently so unfit is more difficult. Whether or not it would be open to the lawyer, before going into evidence, to seek a ruling as to whether the legal regulator had made out a sufficient case to shift the burden of proof is an interesting question. Applications to strike off lawyers are proceedings for a penalty after all: Rich v ASIC (2004) 209 ALR 271; [2004] HCA 42, which means that respondents to such proceedings are entitled to put the legal regulator to their proof. Of course the question will not arise where, as often happens, the tribunal reserves on the question of whether the lawyer engaged in the alleged wrongdoing, and then invites argument on the disposition of the matter after handing down reasons for its initial finding.