New South Wales Court of Appeal - Decisions of Interest Search - Area of law: Legal Practitioners
Legal Practitioners: admission; “fit and proper person”; conflicting medical opinions regarding appellant’s mental health; refused early consideration of suitability by Legal Practitioners Admissions Board; member of Queensland Civil and Administrative Tribunal found that applicant unable to satisfactorily carry out inherent requirements of legal practice; member directed Board to make declaration of suitability; concluded that whether a person is able to satisfactorily carry out the demands of legal practice is of less concern to Board in determining “fit and proper” issue than authority considering whether to grant practising certificate Court findings: The Tribunal member erred in directing that the Board make a declaration of suitability. As admitting authority, the Supreme Court must be satisfied that an applicant is a “fit and proper person”. This is to be determined by considering each of the suitability matters in relation to an applicant. It is not for the Supreme Court to consider these matters more or less significant by virtue of the fact that they are more or less appropriate for consideration by the regulatory authority.
Legal Practitioners Admissions Board v Doolan  QCA 331
Legal Practitioners: admission; “fit and proper person”; disclosure; applicant failed to disclose all relevant matters to the Legal Practitioners Admissions Board; change of character; whether applicant should be admitted
On his initial application to the Admissions Board, the applicant disclosed that he had committed criminal offences. The first, in 2000, involved larceny when the applicant was aged 19. The second, in 2005, consisted of a series of offences under the Police Powers Act. These offences involved dishonesty. The applicant was asked to provide additional information on these offences.
After providing three supplementary affidavits providing further information, the applicant disclosed that he had been expelled from the army due to four military offences, also involving dishonesty. The applicant claimed he did not reveal this earlier as he was confused. The Board refused his application. Approximately a year after his initial application, the applicant applied again. He had several references attesting to his good character and acknowledged that he intentionally failed to disclose the full extent of his offences in his previous application.
Court findings: The Court considered the principles concerning a change of character, noting the significance of the applicant’s full disclosure and apparent repetence. It found that while there were encouraging signs that the applicant may have undergone a change, the recency of his recognition of the candour owed to the Court meant that the Court could not presently be satisfied that she should be found “fit and proper”.
Re an application for admission as a legal practitioner by JY  QCA 324
Legal Practitioners: professional misconduct and unsatisfactory professional conduct; appeal from order removing appellant’s name from roll of legal practitioners for failure to pay counsel’s fees; whether appellant denied procedural fairness in circumstances where Commissioner did not press for order for removal of appellant’s name from roll at hearing and Tribunal did not indicate intention to assess his fitness to continue in practice
Russo v Legal Services Commissioner  NSWCA 306
litigation funders; professional indemnity insurance; exclusion clause in insurance policy excluded loss arising from breach of terms of contract; firm of solicitors failed to perform professional duties to clients in conduct of litigation; litigation funders unable to recover loans; sought to recover losses from professional indemnity insurers; whether exclusion clause applied; whether loans were inherently part of solicitors’ professional practice; construction of exclusion clause
Impact Funding Solutions entered an arrangement with Barrington Support Services’ clients, providing funds to Barrington to hold on behalf of its clients and use for disbursements in the course of litigation concerning claims of industrial deafness. Barrington failed to perform its professional duties by failing to investigate its clients claims adequately and in a timely manner and by misapplying the funds provided.
Impact successfully claimed to recover its losses from Barrington. However, Barrington became insolvent and was unable to pay the damages awarded. Impact then sought to recover its losses from Barrington’s insurers, AIG.Court findings: In construing the exclusion clause, it is necessary to construe the relevant terms against their factual matrix as well as the terms of the dispersal funding agreement between Barrington and Impact, which Barrington breached, against their factual matrix. There is no basis for implying limiting words into the exclusion clause. Therefore the policy should apply to exclude Impact’s claim.
Impact Funding Solutions Ltd v AIG Europe Insurance Ltd  UKSC 57
Legal Practitioners: application under Legal Profession Uniform Law (NSW), s 23(1)(b), for removal of practitioner from Roll of Lawyers; practitioner has history of criminal conduct, principally traffic offences, between 1999 and 2013; practitioner failed to make full and frank disclosures to Legal Profession Admission Board, Law Society and Bar Association of that record and circumstances of offences; whether practitioner appreciates content and importance of obligation of candour; whether reformation of character justifying conclusion practitioner is presently a fit and proper person to practise, despite past misconduct
Prothonotary of the Supreme Court of New South Wales v Montenegro  NSWCA 409
Legal Practitioners: professional negligence; whether elements of negligence established; whether any loss suffered
Magjarraj v Firth  NSWCA 326
Legal Practitioners: Court’s inherent jurisdiction for control and discipline of local legal practitioners; application for removal from roll of local lawyers; whether respondent is guilty of professional misconduct; whether a fit and proper person to remain on the Supreme Court roll; whether a person of good fame and character; Legal Profession Uniform Law (NSW), s 22
Council of the New South Wales Bar Association v Dwyer  NSWCA 302
Legal Practitioners: application to remove name of practitioner from roll of persons admitted as lawyers; practitioner pleaded guilty to 16 criminal charges in relation to dealings with nine clients over a three year period; practitioner misappropriated clients’ funds, including funds in his practice trust account; practitioner consents to relief sought; declaration that practitioner engaged in professional misconduct and not a fit and proper person to remain on roll
The Prothonotary of the Supreme Court of New South Wales v Dimitrious  NSWCA 258
Legal Practitioners: costs; assessment; bill of costs; interest; legal practitioner’s entitlement to interest on bills of costs; whether costs assessor has power to determine legal practitioner’s claim for interest on bill of costs; s 208E, Legal Profession Act 1987 (NSW)
Coshott v Barry  NSWCA 257
Legal Practitioners: solicitor failed to pay counsel’s fees; complaint referred to the Law Society for investigation; reprimand under s 540 of the Legal Practitioners Act 2004 (NSW) issued; whether s 540 procedure was available to the Law Society; whether it was reasonably likely that the practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct; whether practitioner generally competent and diligent; whether reprimand preferable penalty
Donaghy v Council of the Law Society of NSW (No 2)  NSWCA 224