JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION : RE FATHARLY AND THE LEGAL PRACTITIONERS ACT 1893 [1999] WASCA 163
CORAM : MALCOLM CJ
HEARD : 13 AUGUST 1999
DELIVERED : 13 AUGUST 1999
PUBLISHED : 10 SEPTEMBER 1999
FILE NO/S : LPD 1 of 1999
MATTER : The Legal Practitioners Act 1893
and
Simon Peter Fatharly a practitioner of the Supreme Court of Western Australia
Catchwords:
Legal Practitioners - Solicitor - Struck off Roll of Practitioners for misconduct - Convicted on number of offences of stealing as agent - Not a fit and proper person to remain on Roll
Legislation:
Legal Practitioners Act 1893 s 29A, s30
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Result:
Practitioner struck off the Roll
Representation:
Counsel:
Legal Practitioners Complaints Committee : Mr B J H Goetze
Practitioner : No appearance
Solicitors:
Legal Practitioners Complaints Committee : Minter Ellison
Practitioner : No appearance
Case(s) referred to in judgment(s):
Clyne v NSW Bar Association (1960) 104 CLR 186
Harvey v Law Society of New South Wales (1975) 49 ALJR 362
In Re Davis (1947) 75 CLR 409
New South Wales Bar Association v Evatt (1968) 117 CLR 177
Re a Barrister and Solicitor (1979) 40 FLR 1
Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279
Case(s) also cited:
Nil
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1 JUDGMENT OF THE COURT: This was a motion to the Court pursuant to s 30(2) of the Legal Practitioners Act 1893 (WA) ("the Act") to have the name of the practitioner Simon Peter Fatharly struck off the Roll of Practitioners of this Honourable Court or be otherwise dealt with as the Court think fit. At the conclusion of submissions made by counsel for the Legal Practitioners Complaints Committee on 13 August 1999, the Court was unanimously of the opinion that this was a plain and obvious case for striking off. The Court ordered that:
1. Simon Peter Fatharly ("the practitioner") be struck off the Roll of Practitioners of this Honourable Court; and
2. The practitioner pay the costs of and incidental to the motion to be taxed.
The Court then indicated that the reasons for making that order would be published later. These are my reasons.
2 The Court has before it a report dated 24 May 1999 by the Legal Practitioners Disciplinary Tribunal pursuant to s 29A(2) of the Act. By a reference number R7/1998 dated 21 September 1998 proceedings were instituted against the practitioner in the Tribunal by the Legal Practitioners Complaints Committee. The Tribunal heard the reference on 16 April 1999.
3 The reference complained that the practitioner was guilty of illegal conduct between on or about 29 November 1994 and on or about 5 July 1995. The particulars of the illegal conduct contained 27 allegations of stealing as an agent of Mildenhall (a legal firm), separate sums of money, the property of others. Each of the 27 particulars mirrored 27 counts in an indictment presented against the practitioner in the District Court to which the practitioner had pleaded guilty on 28 July 1997. The practitioner did not file an answer, but informed the Registrar of the Tribunal by letter dated 25 February 1999 that:
"I have nothing to say in answer to the Complaint. It simply repeats the counts in the Indictment to which I pleaded guilty in the District Court in 1997.
As the result is a foregone conclusion, I wish to play no part in these proceedings and I do not wish to attend any hearing. My legal advice is that the Tribunal cannot compel my attendance."
4 Evidence was given at the hearing of the reference to the effect that the practitioner had pleaded guilty in the District Court on 28 July 1997 to
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27 counts of stealing as an agent contrary to s 378(9)(b) of the Criminal Code. The practitioner was duly convicted. On 29 August 1997 he was sentenced to imprisonment for three years and an order was made that he be eligible for parole. On this evidence, the Tribunal found that the practitioner was guilty of illegal conduct as alleged in the reference.
5 In 1992 the practitioner became a full-time consultant with a firm of legal practitioners named Mildenhall. The Tribunal accepted as fact, the findings made by the learned sentencing Judge who said, when sentencing the practitioner:
"In relation to the circumstances for these offences, by way of background you were admitted in the United Kingdom as a practitioner in 1980. You were admitted as a practitioner in this State in 1989 and in 1992 you became a full-time consultant with a firm of solicitors and remained with them until you were asked to leave in August of 1995. In October of 1994 the firm received instructions to act on behalf of an executrix in respect of a claim made by her stepdaughters against the estate.
The main asset(s) of the estate were three properties in Yunderup, Mandurah and Broome and in November of 1994 an order was made by the Supreme Court that the executrix could borrow $100,000 against the Mandurah property, that fund to be used for general living expenses. Loan repayments, legal fees and any other expenses had to be authorised by the Court or consented to by the stepdaughters.
The money was placed in a cash management trust account in the joint names of the firm and the executrix and the signatories were the two partners of the firm. The cheque book was held on the file kept in your office and the system adopted was that [a] cheque requisition had to be completed before a cheque could be drawn. The executrix would send in bills for payment and you would complete the requisition form and the cheque and bring it to the partners for authorisation with any supporting documentation, and this was the account from which money was withdrawn without authorisation. On occasions you did show the partners court orders or invoices in order to obtain payments.
Between 29 November 1994 and 5 July 1995 on 24 occasions money was withdrawn from that estate account and on three
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occasions on the firm's trust account and those proceeds were applied for your own purposes, being living expenses, rent and so on. A total of $40,352.48 was stolen."
6 In addition to finding the practitioner guilty of each of the particulars of illegal conduct the subject of the reference, the Tribunal also found that the illegal conduct was of such a serious nature that the powers available to the Tribunal to deal with it were inadequate. In the interests of protecting the public and for maintaining the proper standards of the profession, the Tribunal determined to make a report to this Court to determine whether the practitioner should be struck off the Roll of Practitioners or otherwise dealt with.
7 The Tribunal noted that the practitioner had been suspended from practice pursuant to s 31F of the Act pending the hearing of the reference. It also ordered, pursuant to s 29A(3)(a)(i) of the Act, the suspension of the practitioner from practice pending the determination of this Court and directed the practitioner to pay the costs of the complaint fixed at $750.
8 There was no appearance before this Court by the practitioner. He had been duly served with the originating motion together with a copy of the report, as appears from the affidavit of service sworn 30 June 1999.
9 In Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 at 285-286 Dixon CJ said:
"In dealing with the question whether a man should remain on the roll of barristers the special if not singular position of counsel should be borne steadily in mind. If counsel is adequately to perform his functions and serve the interests of his clients, he should be able to command the confidence and respect of the court, of his fellow counsel and of his professional and lay clients. When a barrister is justly convicted of a serious crime and imprisoned the law has pronounced a judgment upon him which must ordinarily mean the loss by him of the standing before the court and the public which, as it seems to me, should belong to those to whom are entrusted the privileges, duties and responsibilities of an advocate. There may be convictions for a crime of which this is not true, but I cannot think that the present is one of them."
10 Although these comments were made with reference to a barrister practising in New South Wales, where the profession is divided into barristers and solicitors, the comments apply in this State to any person
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who has been admitted as a barrister and solicitor of this Court. In particular, they apply to the conduct of a practitioner in carrying out the work of a solicitor as distinct from a barrister. That was the kind of work being undertaken in the present case.
11 It has been said many times that the jurisdiction to strike off for professional misconduct has nothing to do with punishment. The purpose of the power to strike off is simply to maintain a proper standard because barristers and solicitors both exercise functions in relation to the administration of justice which are both unique and indispensable: Ziems (supra) at 286 per Dixon CJ; and see Clyne v NSW Bar Association (1960) 104 CLR 186 at 201-202 per Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ; and New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184 per Barwick CJ and Kitto, Taylor, Menzies and Owen JJ. These cases all involved barristers. In Harvey v Law Society of New South Wales (1975) 49 ALJR 362, a case involving a solicitor, Barwick CJ said at 364 that the function of the Court is:
"… to examine the material proffered to it in order to determine whether that material establishes that the solicitor has failed, by action or inaction, to maintain in his conduct the standards required of him as a member of the profession. The Court's duty is to ensure that those standards of the profession are fully maintained particularly in relation to the proper relationship of practitioner with practitioner, practitioner with the Court and practitioner with the members of the public who find need to use the services of the profession."
12 In each case of this kind the question which has to be determined by the Court is whether, by reason of the conduct of which he or she has been found guilty, the practitioner is a fit and proper person to remain as a member of the legal profession: In Re Davis (1947) 75 CLR 409 at 416 per Latham CJ; Ziems ( supra) at 243 per Kitto J ; and see Re a Barrister and Solicitor (1979) 40 FLR 1 at 24-25 per Blackburn CJ, Connor and Davies JJ.
13 As stated at the conclusion of the hearing, this was a plain and obvious case for striking off. By his conduct the practitioner clearly demonstrated that he was not a fit and proper person to remain a member of the profession.