Update, 9 August 2010: The Bureau briefed silk and an affidavit from the informant in the child pornography offences made all the difference. The solicitor again did not turn up, and the Chief disbarred him, ordering him to pay the Board’s costs, though not those of the hearing at which the Bureau failed because of the inadmissibility of its evidence: Legal Services Board v FMcG (No 2) [2010] VSC 332.
Original post: In an amazing segue from my long post about Ziems v The Prothonotary of the Supreme Court of NSW the other day:
There will be a few red faces down at the Bureau de Spank after an unopposed application to have a convict struck off the roll failed: Legal Services Board v FMcG [2010] VSC 266. The Bureau employee’s affidavits by which it was sought to prove the conviction were inadmissible, and the evidence which would put into context the possession four and a half years ago of child pornography wholly absent. So ruled the Chief Justice, and she gave the Bureau some advice:
’34 Before concluding I would wish to make some comments about the plaintiff’s approach to this issue from early 2008 to the present. The plaintiff has a statutory right to bring these types of applications, provided it has complied with the statutory obligations which activate that right, and must be aware of the obligations which that right imposes upon it.
35 Convictions for offences involving child pornography have, in recent years, been the precipitating cause for removing practitioners’ names from the rolls kept by the Supreme Courts of various states. In some cases, this has been done by consent.[27] Offences related to child pornography have been held to justify the revocation of tax agent’s registration for lack of fitness and proprietary.[28] They have also arisen in disciplinary proceedings against medical professionals.[29]
36 In cases of this type, especially where the application is not consented to, the court deciding the application should always provide reasons for its decision and record its findings.[30]
37 Courts approach applications of this type with caution and meticulous care. For that reason, the applications themselves should be prepared with the same level of care and foresight. There appears to have been a level of carelessness and unseemly haste in the plaintiff’s approach to this case. Upon becoming aware that the defendant had been charged with child pornography offences in early 2008, the defendant immediately suspended his Practising Certificate for 56 days. This decision, subject to certain undertakings by the defendant, was overturned by the Victorian Civil and Administrative Tribunal a few months later.[31]
38 The plaintiff has not made sufficient effort to relate the conduct in question to the defendant’s unfitness. It is not simply a matter of asserting that certain conduct is wrong or criminal. The conduct in question must go to the ultimate question of whether the defendant is a ‘fit and proper person’ and should be particularised as such with supporting evidence. This is especially so, when the alleged misconduct is personal rather than professional. The Australian Law Reform Commission noted, in respect of allowing the evidence of convictions to be admitted into subsequent civil disputes in their report on the Uniform Evidence Law, that:
The proposal is designed to assist plaintiffs to fill gaps in evidence but should not encourage them to become complacent about discharging the overall onus of ‘he who asserts must prove’.[32]
[27] Council of the New South Wales Bar Association v Power [2008] NSWCA 135; [2008] 71 NSWLR 451; Legal Services Board v Neil James Williams [2009] VSC 561. Also note, Legal Services Commissioner v Richard Francis Quinn [2008] LPT 19, in which the practitioner did not appear to oppose the application to strike his name from the roll. Fryberg J consequently made the orders sought without providing any reasons for doing so
[28] Sargent v Tax Agents’ Board of Victoria [2009] AATA 219.
[29] Healthcare Complaints Commission v Wingate [2007] NSWCA 326.
[30] New South Wales Bar Association v Cummins [2001] NSWCA 284; [2001] 52 NSWLR 279, 285.
[31] McGrath v Law Institute of Victoria Ltd (Legal Practice) [2008] VCAT 692 (Unreported, Senior Member Howell, 29 April 2008).
[32] ALRC, 26 Evidence (Interim) (1985) [778].’
