THE ‘GOOD TRIBUNAL MEMBER AN ARETAIC APPROACH TO … · 2020. 10. 22. · 2 Lawrence Solum, ‘Virtue Jurisprudence: A Virtue-Centered Theory of Judging’ (2003) 34(1-2) Metaphilosophy

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THE ‘GOOD’ TRIBUNAL MEMBER – AN ARETAIC APPROACH TO ADMINISTRATIVE TRIBUNAL PRACTICE

ALISON CHRISTOU*

[A]s tribunal members we are the keepers of a rare commodity in this world – a

reservoir of public trust and confidence …The question for us today is how do we fulfil our role as guardians of this valuable national asset?1

I INTRODUCTION

The last 34 years of administrative law practice in Australia have been characterised by the proliferation of administrative and other tribunals. Despite this rapid growth – or perhaps as a result of it - a clear articulation of the aspirational goals of tribunals has yet to occur in any coherent fashion. Some formal parameters currently exist to assist tribunal members in their work, including legislative and ethical guidelines. What is missing from tribunal theory, however, is a sustained examination of the normative excellences of the tribunal member’s role. A stance from virtue ethics is adopted as a starting point for this endeavour, on the basis that improved decision-making commences with the promotion of ‘practical wisdom’ or phronesis for individual members. The recent work of virtue jurisprudence scholars is adjusted to reflect the unique tribunal environment, with the approach to judicial virtues adopted by Solum2 forming the basis of analysis. The Australian tribunal sector is generally seen to have operated adequately to date, however a more normative approach to practice principles within the tribunal field is required, in order enhance the integrity, functioning and reputation of the sector.

II POWER, RESPONSIBILITY AND OPERATIONAL AMBIGUITY Tribunals inhabit an uneasy zone between the judiciary and the bureaucracy,

two professions that are fortunate enough to have well-documented parameters for practice.3 When analysing the decision-making mandate of tribunals, regulatory bodies, and quasi-judicial commissions, appropriate approaches to practice are far from clear. These entities tend to be part judge/part administrator and the tension between these roles can be significant. The tensions arise from a variety of sources, including disparate requirements for formality, varying levels of accountability and an unclear mandate in the context of existing laws and policies.

* Alison Christou is a Research Scholar with the Centre for Public, International and

Comparative Law at the TC Beirne School of Law, University of Queensland. She is a current Committee Member of the Australian Institute of Administrative Law (QLD Chapter), a Legal Member of the Queensland Mental Health Review Tribunal, and a former Legal Member of the federal Social Security Appeals Tribunal.

1 Murray Chitra, ‘Ethics, Values and Vision: The Tribunal Community as the Guardian of Its Own Integrity’ (Paper presented at the Conference of the Council of Canadian Administrative Tribunals, 2000) 2.

2 Lawrence Solum, ‘Virtue Jurisprudence: A Virtue-Centered Theory of Judging’ (2003) 34(1-2) Metaphilosophy 178.

3 See, eg, Terry Cooper, The Responsible Administrator: An Approach to Ethics for the Administrative Role, (4th ed, 1998); Justice J Thomas, Judicial Ethics in Australia, (2nd ed, 1997).

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Despite such an uneasy operational premise, tribunals affect the lives of individuals and organisations in often-profound ways through the decisions they make.4 A decision at this level, whilst not judicial, can have far-reaching economic, social and legal effects on system users. As the number and powers of tribunals increase, an obligation rests with members to identify and articulate the underlying theory and principles relevant to their practice. As the Canadian Bilson stated at the turn of the millennium: ‘To prepare for the future, administrative tribunals need to look deep into their souls and to consider whether they are doing all they can to meet the objectives which prompted the original rationale for their creation’.5 Complete reliance upon neat ‘best practice’ packages being delivered from organisations such as the Administrative Review Council (ARC) and the Council of Australasian Tribunals (COAT)6 down to the vast number of tribunals across the nation will not, in themselves, suffice as a means of developing member excellence on a day-to-day basis. An ongoing, peer-motivated conversation regarding the challenges and aspirations of tribunal members is also required. This will ideally promote and inform the development of something akin to a discernible jurisprudence for the tribunals sector. Rather than focussing upon the ‘don’ts’ of tribunal practice, such as the myriad guidelines regarding bias, inappropriate formality and potential conflict, there is a need to actively develop the excellences – or the ‘do’s’ – of the tribunal member’s role. Such an approach correlates with the increasingly popular regulatory approach to administrative law, which emphasises the ability of the administrative justice system to influence and guide the future behaviour of decision-makers7. This normative, aspirational focus requires more from administrative law than the mere delineation of legal limits: ‘The emphasis in the regulatory approach is on the future’.8 An aretaic approach to tribunal decision-making, which details the desirable characteristics of a ‘model’ tribunal adjudicator, coexists comfortably with the forward-looking ideals of the regulatory paradigm.

The greatest challenges facing the development of a cohesive tribunal philosophy arise from the very framework within which tribunal decision-makers practice in Australia. These systemic challenges are invariably connected with the uneasy socio-political position of such bodies within the justice system. A well-defined profession or organisation tends to display similarly well-structured membership requirements, funding arrangements, membership regulation and decision-making procedures9. Such is not the case with administrative tribunals, where an ambiguous yet unavoidable placement between the executive ‘proper’ and the judiciary tends to create a lack of intra-sector cohesion. On the one hand,

4 For various accounts of these effects, see, eg Robin Creyke (ed) Administrative

Tribunals: Taking Stock (1992); Bedford & Creyke, ‘Inquisatorial v Adversarial Processes in Australian Tribunals’ in C Finn (ed), Shaping Administrative Law for the Next Generation (2005); John McMillan, ‘Administrative Tribunals in Australia – Future Directions’ (paper presented at the International Tribunals Workshop, Australian National University, 2006).

5 Beth Bilson, ‘Singing the Millennium Blues: The Future Direction of Administrative Tribunals’ (paper presented at the Conference of the Council of Canadian Administrative Tribunals, 2000) 5.

6 Relevant documents include the ARC’s A Guide to Standards of Conduct for Tribunal Members and the COAT’s Practice Manual for Tribunals.

7 For an excellent discussion of legal versus regulatory approaches to administrative law, see, Cane and McDonald, Principles of Administrative Law: Legal Regulation of Governance (2008) 7-12.

8 Ibid 9 9 For a general overview of professions and ‘professionalization’, see, Keith Macdonald,

The Sociology of the Professions (1995).

341 The University of Queensland Law Journal 2009

tribunals are provided with operational guidance in the form of laws, policies and codes formulated by the legislative and executive arms. Yet they are also charged with the duty to act impartially – in some cases with quasi-judicial aloofness – in the application of these rules. Against this backdrop of uncertain mandate, tribunals are also challenged by disparate membership requirements, institutional ‘newness’ on the legal landscape and perennial resource constraints. At least in terms of numbers, tribunals are predominantly inquisitorial, with only the larger generalist bodies such as the Administrative Appeals Tribunal displaying a more adversarial sensibility. Thus the prevailing investigative mode in itself limits the extent to which tribunal practice can be meaningfully informed by judicial example; adversarial tactics and passive adjudication are generally inappropriate in the tribunal setting. The noted challenges exist both within individual tribunals and across the quasi-judicial sector generally. Thus, some of the greatest operational and philosophical hurdles for individual tribunal members arise from the very adjudicative structures within which their decisions are made.

Further, identifying exactly – or even approximately – how many tribunals or tribunal-like bodies currently exist in any given jurisdiction has proved elusive in the Australian experience.10 That a taxonomy of Australian tribunals is urgently required is not in dispute. As Curtis notes:

Considering the practical importance of tribunals in the administration of justice in state and territory administrations, they have been paid remarkably little attention in the academic literature. … Any projected study of State and Territory tribunals is therefore immediately confronted with the question ‘what is to be regarded as a tribunal?’ for the purpose of the study. Much of the academic discussion of tribunals in Australia assumes that the term is well defined. Unfortunately that is a mistaken assumption…11

Tribunals and other merits review bodies also commonly operate in an isolated

manner from one another, both technically and physically.12 The need for separation from ‘parent’ departments is well established, yet tribunals are often unnecessarily divided from one another for the purposes of professional development and resource sharing. In some cases individual tribunals justify procedural peccadilloes on the basis of the highly specific subject matter, however inconsistency of standards between tribunals has been identified as a major concern for the sector .13 If a lack of unification in tribunal practice persists, political and social pressure may lead to an increase in uncomfortably proscriptive standards upon tribunals as a whole.14 It is

10 Council of Australasian Tribunals, Minutes of Inaugural Meeting (2002), COAT 34. 11 L Curtis, ‘Agenda for Reform: Lessons from the States and Territories’ in R Creyke

(ed), ‘Administrative Tribunals: Taking Stock’ (1992) 35. 12 Professor Gianni elucidated these phenomena in his presentation – ‘Online Learning

and Tribunals’ (Speech delivered at 10th Annual Tribunals Conference, Australian Institute of Judicial Administration, 2007). A studied response from M Barker, ‘Reply to Professor Gianni’s Presentation’ at the same colloquium, confirmed that the ‘tyranny of distance’ that effects communication between tribunals in Canada correlates with the Australian experience.

13 See, B Cotterel, ‘Presentation to the 7th Annual AIJA Tribunals Conference’ (2004) Australian Institute of Judicial Administration, 6.

14 See, eg, the calls for change made by stakeholders in the business and community sectors, exemplified in P Kell, ‘The 30th anniversary: challenges for administrative law – a consumer perspective’ (2007) 58 Administrative Review; K Lahey, ‘The 30th anniversary: what business needs from the law and decision makers’ (2007) 58 Administrative Review.


preferable that change is generated from within the sector.15 Pausing regularly to examine, share and develop core member excellences will be a crucial part of the sector’s future development.

Articulation of the ‘goods’ of tribunal membership will improve both the sense of unity felt by members and the esteem within which stakeholders hold the sector. Whilst the promulgation of legislative, procedural, policy and ethical parameters for individual tribunal members is important for the system of administrative law, it is equally important that a theoretical discussion of Aristotle’s arete or ‘goods’ of tribunal practice commence, in order to combat the systemic challenges of distance, newness, ambiguous mandate and disparate subject matter that bedevil the sector in its current form.

III APPROACHING TRIBUNAL PHILOSOPHY

…it is increasingly evident that given the complexity of contemporary societies, the practices of public administration, legislation and commerce demand education and training in certain skills and knowledge, together with structured opportunities to reflect on the principles which underpin these practices.16 (emphasis added)

Ethical codes, legislative guides, policy pronouncements and procedural maps

for administrative review practitioners have all been produced, yet the actual philosophy and normative ‘dreams’ of Australian tribunal work have not received adequate attention. After almost 35 years of relentless and fast-paced tribunal practice, surely some philosophical reflection is called for? Internationally, and particularly in Europe, there is an acceptance that judicial officers must have specialist training in the nuances of their role, both at induction and during the course of their career. Correlating requirements within the tribunal community will undoubtedly follow. The Consultative Council of European Judges has stated: ‘The trust citizens place in the judicial system will be strengthened if judges have a depth and diversity of knowledge which extend beyond the technical field of law to areas of important social concern…’17

The Council goes on to recommend essential training for all new judges including those from common law countries where, traditionally, advocacy experience alone has been viewed as sufficient preparation for the judicial role.18 This move towards role-specific training and reflection for judges has begun to be mirrored in the tribunal community, at least to some extent.19 On-the-job training with no supportive contextual theory is increasingly a thing of the past; the judicial trend in Europe whereby ‘these theoretical and practical programmes should not be limited to techniques in the purely legal field but should also include training in ethics and an introduction to other fields’ and ‘the training should be pluralist in order to guarantee and strengthen the open-mindedness of the judge’,20 reflects a growing expectation that adjudicatory institutions will be peopled by individuals

15 This point was emphasised at the inaugural meeting of COAT in 2002 at 37. 16 Noel Preston, Understanding Ethics (1996), 174 (my emphasis). 17 Consultative Council on European Judges, ‘Opinion No 4- On Appropriate Initial and

In-Service Training for Judges at National and European Levels’ (2003) 2. 18 Ibid. 19 See, eg, C O’Connor, ‘Professional Development of Tribunal Members’ (paper

presentation at the 10th Tribunals Conference of the Australasian Institute of Judicial Administration, Melbourne, 2007).

20 Consultative Council on European Judges , see above n 17, 5.


with a well-rounded character and a better awareness of their professional role in society.

Virtue, as an aspect of moral philosophy, will be demonstrated as just one point of possible commencement for the development of an enduring ‘tribunal jurisprudence’. It is the author’s hope that competing thoughts towards, let us say, a teleological, a deontological, a positivist or even a post-modern tribunal philosophy might also arise; the debate is indeed welcome. Of crucial importance is the need to examine and broaden the theory underlying tribunal practices, including the social context of decision-making by members. For present purposes, ‘virtue’ is not used herein in the lay sense of a pious cleanliness or moral high ground. Within this analysis, the central focus of virtuous practice is taken to signify an articulation of normative excellence for individual professionals. Virtue is synonomous with the Greek arete or ‘excellence’ – an aretaic view is thus an examination of excellent individual characteristics in a particular setting.

Virtue ethics, as a sub-category of ethical discourse has a long pedigree of relevant academic discussion.21 As Aristotle has stated: ‘…we call “virtues” those dispositions which are praiseworthy’.22 Neo-Aristotelian approaches to virtue ethics hold that the possession of certain personal characteristics is essential for the achievement of a ‘good’ or ‘flourishing’ life (eudaimonia). Transferred into professional life, virtue ethics requires that a role can only be carried out appropriately by an individual in possession of certain characteristics that are employed in a situation-appropriate manner. Thus, when viewing a role such as that of the tribunal member through the lens of virtue ethics, it is possible to commence the articulation of those characteristics that are desirable for professional practice in the sector. The normative dimension of virtue ethics reveals itself to be of particular significance to a ‘young’ sector such as the Australian tribunals community. A key question arises: what sort of person does either the new or experienced tribunal member seek to become? Applications of virtue ethics have been made successfully in the areas of administration23 and the judiciary24 yet almost no discussion is available on the very useful applications of virtue ethics to tribunal practice.

Tribunal work is reliant upon common sense above all and, for this reason, the Aristotelian requirement of phronesis or ‘practical wisdom’ in the application of personal virtues becomes centrally relevant. Practical wisdom, in the context of tribunals, acknowledges adjudication on the ground, sometimes on the run, with an eye to the clock, to the tribunal secretariat and to an often ill-defined group of stakeholders. Acknowledging this reality marks an initial step in the characterisation of tribunal work, as well as the core excellence in tribunal membership. Tribunal work can be described as ‘grass roots’ justice whereby the limited resources available to members tend to breed innovative and community-focussed approaches to the extraction of relevant data and the formation of just decisions. For this reason, the practising or ‘habit forming’ of certain excellences by such practitioners is integral to the delivery of justice in this arena.

In analyses of adversarial practice, the standard conception of law stipulates that the advocate’s loyalty to their client will assist in an accurate and impartial

21 See, eg, Aristotle, The Nicomachean Ethics (HG Apostle translation, 1975); G

Anscombe ‘Modern Moral Philosophy’ (1958) Philosophy 33, 1-19; R Crisp & M Slote (eds) Virtue Ethics: Oxford Readings in Philosophy (1997).

22 Aristotle, ibid, 20. 23 See, Terry Cooper, An Ethic of Citizenship for Public Administration (1991); Terry

Cooper, The Responsible Administrator: An Approach to Ethics for the Administrative Role (1998); Preston, see above n 16, 158.

24 A recent and comprehensive overview of the field of virtue jurisprudence can be found in: L Solum and C Farrelly (eds), Virtue Jurisprudence (2008).


application of the law. That is, two advocates methodically dissecting the facts and law will undoubtedly reveal the correct outcome in any given matter. Yet if we remove adversarial practice – and most specialist tribunals are indeed inquisitorial by nature – the adjudicator personally becomes central to the articulation of the law and thus more acutely a prisoner to her or his own fallible discretion. It is, in fact, impossible for the non-adversarial adjudicator to operate in a passive manner. Their own thoughts and predilections must come into play, as competing advocates with case-specific knowledge are often absent. At this point, normative guidance becomes crucial. Analysis of the character of the adjudicator is essential to tribunal theory, hence casting doubt upon the standard conception as a worthwhile explanatory or normative paradigm for this non-adversarial realm. Some theorists propose that the more strident aspects of adversarial tactics can be tempered by a ‘moral dialogue’ between lawyer and client,25 yet guidance regarding the nature of this dialogue is not defined for tribunal members, who must ‘converse’ with all relevant stakeholders equally. The judiciary has itself noted from time to time that even in adversarial proceedings, available law can sometime ‘run out’, leaving the judge with a dilemma requiring personal insight and moral questioning based upon prevailing public policy.26 Tribunal members, particularly those in smaller state-based agencies, must call upon this individual discretion on a daily basis and cannot ‘hide’ behind any prevailing onus of proof. Crucially, they are not bound by the rules of evidence. Questions of both fact and law arise continually in a time-poor environment, requiring cogent, humane and practical thought processes. The ability to prioritise and address competing issues of law and fact remains one of the greatest challenges for tribunal members. Certainly, government policies will provide a skeletal framework within which to manage particular issues, such as the emphasis to be given to medical information or expert testimony27 yet, at the end of the day, the tribunal adjudicator is left with a vast collection of variables that require individual assessment in each presented matter. Further, as noted by Edgar, the interpretation of government policy by tribunals is a complex problem, coloured by the particular regulatory environment within which each body sits.28 The ability to practically contextualise competing policies is certainly aided by tribunal members with requisite phronesis.

Tribunals, it can be seen, are faced with the limited usefulness of available law and policy on a daily basis and must employ often extremely practical measures to arrive at the correct outcome as applicable to the given circumstances. One need only peruse the storyboards and other colourful aids used by the Victorian Intellectual Disability Review Panel for the purposes of information retrieval from intellectually disabled applicants,29 to see an illustration of the need for practical wisdom in the tribunal room. Whilst this might appear to be simply a matter of differing evidentiary

25 See, eg, Stephen Pepper, ‘Lawyers’ Amoral Ethical Role: A Defence, A Problem and

Some Possibilities’ (1986) 4 American Bar Foundation Research Journal 613. 26 The debates between Dworkin and Hart highlight the enduring tension between pure

judicial application and necessary interpretation of the law. On this point, see Suri Ratnapala, Jurisprudence (2009) 178-182.

27 For example, in fields such as workers’ compensation and social security quite comprehensive policy guidance is available regarding certain fact scenarios (see version 1.151 of the Guide to Social Security Law published by the Australian Government), yet this must still be applied to the individual nuances of each case.

28 Andrew Edgar, ‘Tribunals and Administrative Policies: Does the High or Low Policy Distinction Help?’ (2009) 16 Australian Journal of Administrative Law 143.

29 See, Lynn Coulson Barr’s illuminating work presented at the 10th Annual AIJA Tribunals Conference (2007) particularly slides 5-15 – available at: <http://www.aija.org.au>.


requirements, the ability to personally interpret such data in an appropriate manner is a skill of unique importance to the inquisitorial forum. As stated, tribunals often do not have the luxury of relying on the onus of proof, stricto senso, to deny an application. The non-adversarial role of tribunal members is necessarily active and involved in the matter, via means that might arguably be unacceptable in the adversarial arena.

Aristotle’s conviction that beneficial virtues can be learned through habit bodes well for those involved in the recruitment and training of tribunal members. In searching for justice in the quagmire of a dense, highly technical caseload whilst simultaneously utilising limited resources of time and support, the tribunal member’s role can be strengthened by training and mentoring structures focussed upon the development of excellence, rather than mere proscription against professional vice. Tribunal work is a messy, pressured, deeply human endeavour and should accordingly be pursued from a normative desire to reach the best practical outcome in challenging circumstances. Virtue ethics will be seen to provide a useful starting point for the development of aspirational principles for both members and tribunals as a whole.

IV IDEAS FROM VIRTUE JURISPRUDENCE An increasing focus on the ethics and practices of the judiciary has become an

indisputable reality30 and will inevitably flow through to other bodies involved in the resolution of disputes, including tribunals. In Canada, the move towards the enhancement of judges as members of a ‘community of education’ is an excellent example of attempts to unify the approaches taken by judges to their daily tasks.31 This involves judges engaging in a steady dialogue during and between cases, regarding their approaches to various questions of law and fact. In doing so, best practices tend to emerge, reflecting the aretaic notion of forming habits of excellence. The need to establish the virtues of practice will also invariably infiltrate the emerging ‘integrity arm’ as a whole, of which tribunals form a critical part. The integrity arm is recognised by many as a necessary overseer of governmental activities32 and generally includes those institutions charged with ensuring consistency and transparency within the traditional three arms of government, such as ombudsmen and assorted commissions. The character of those individuals peopling this newly recognised arm will become of increasing importance as the fourth arm strives for broad community acceptance. Aretaic approaches provide a useful corollary to this development, as well as a meaningful starting point for training of both tribunal members and the integrity branch of government as a whole.

Virtue jurisprudence essentially examines the characteristics and human excellences necessary for the successful application of the law by judges and is a useful blueprint for tribunal practice principles. The acknowledgement and discussion of the personal characteristics of a ‘good’ judge have become an increasingly relevant and indeed necessary endeavour.33 As Stone states: ‘…any

30 See, eg, J Thomas Judicial Ethics (1997); C Einstein, ‘Judicial Ethics [In Court

Perspective]’ (paper presented to National Judicial College, 2004); Andras Sajo (ed), Judicial Integrity (2004); Gianni, see above n 12.

31 Gianni, see above n 12. 32 The leading Australian commentators on the fourth arm of government are Professor J

Macmillan and Justice J Spigelman. For a useful overview see, Justice Spigelman, ‘The Integrity Branch of Government’ (speech delivered at AIAL National Lecture Series on Administrative Law No 2, Australian Institute of Administrative Law, ACT, 2004).

33 Solum and Ferrelly, see above n 24.


Judge's performance depends not only on his legal knowledge or skills, but also on the adequacy of his own life experience and social knowledge’.34

Virtue jurisprudence is a relatively new field of scholarly enquiry. Prominent United States legal theorist Solum focuses upon five core judicial virtues in his in depth discussion on this model, which are intrinsically Aristotelian.35 These are:

• Judicial courage • Judicial wisdom • Judicial intelligence • Judicial temperament • Judicial temperance

The virtues are contrasted with what Solum terms the judicial vices, noted to

be: • Judicial cowardice • Judicial foolishness • Judicial incompetence • Judicial bad temper • Judicial corruption

Solum’s analysis is by no means the only example of the application of virtue ethics to legal theory and practice. Prominent scholars in law and philosophy currently examining virtue and the law include Professors Sherry, Duff, Huigens and Hursthouse, to name a few.36 Whilst some restrict their discussion to particular legal areas such as torts or criminal law, Solum presents a useful and recent account of virtue and the practice of judging, which has particular resonance for tribunal adjudication.

V ‘GOOD’ MEMBERS – TOWARDS ARETAIC TRIBUNAL JURISPRUDENCE In examining the applications of virtue jurisprudence to administrative

tribunals, one might question the need to develop decision-making theories of any depth in this context. Yet the increasing prominence of tribunals requires that the theory and principles underpinning their work be further explored, articulated and developed. Adopting an Aristotelian or virtue-based approach to tribunal work is particularly prudent due to the varied nature of tribunal endeavours, the challenges of resource constraints and the myriad of disgruntled clients with divergent claims on multitudinous subject matters. As Kingham notes, procedural reform is long overdue in tribunal practice and must reflect the increasing numbers of self-represented clients.37 Aretaic ethics, in concerning themselves principally with ‘practical wisdom’, require that a certain level of common sense imbue the work of a ‘good’ tribunal member. How can a member adequately carry out her duties without the

34 J Stone, Social Dimensions of Law and Justice (1996) 686. 35 Solum, see above n 2. 36 These writers and others can be found in the anthology collated be Farrelly and Solum,

see above n 24. 37 Fleur Kingham, ‘Reforming Queensland’s Tribunals: Procedural Reform to Realise the

Rhetoric’ (2004) 14(1) Journal of Judicial Administration 31. See also the recent accesscourts initiative in Queensland, coordinated by the Public Interest Law Clearing House and designed to enhance the experience of self-represented litigants.


ability to bring a deeply practical approach to the maelstrom of everyday tribunal cases? Phronesis requires a practical tribunal member, with, it might be described, her or his ‘feet on the ground’ in the face of a large and varied caseload. Phronesis deals with the particular and the changing38 and requires, beyond intellectual wisdom, a certain amount of ‘street smarts’. Yet intellect must also remain a key feature of this jurisprudence, as a deep understanding of the subject matter is crucial to good tribunal work. A legal member on a scientific tribunal, for example, might have all the necessary understanding of natural justice and general administrative law tenets possible, yet fail to understand the complexities of the chemical engineering problem before him or her. Phronesis, or ‘practical wisdom’ calls on members, for example, to discern a one-sided take-over by a vexatious applicant (individual or otherwise); to help a party understand jargon without becoming their advocate; to be mindful of the limits of appropriate inquisition. In non-adversarial practice, practical wisdom is vital to a fair outcome.

In the aretaic paradigm, courage is also raised as an important trait for judges and is equally necessary for tribunal members – the ability to pull the socially influential yet bullying advocate into line, to raise the inquiry that might open a Pandora ’s Box within a case, despite calls from tribunal management to streamline practices.

Technical intelligence regarding the subject matter is crucial, yet it can be queried whether this is currently recruited for in the Australian tribunal community. It may seem like an obvious requirement, yet in the tribunal context this characteristic must be actively sought due to the non-adversarial nature of tribunal work. In the judicial parallel, commentators point to the need for intellectual honesty, being a thorough analysis of all issues and law, followed by ownership of the resultant decision.39 It is insufficient to ‘outsource’ one’s decision to subordinates or otherwise and the same premise must be applied to tribunal members. This is particularly so for non-legal members who might feel influenced by their tribunal president or other legally trained members in the formation of their opinion. Here, intellectual honesty combines the virtues of both intelligence and courage; a thorough grasp of pertinent concepts combined with the courage of the tribunal member to make and defend her or his own decision. Intelligence and competence regarding the material before the tribunal is arguably of greater importance than in the judicial equivalent. This is due to the fact that in the non-adversarial tribunal, the member must deduce all relevant material personally, often without the assistance of representatives as in the adversarial model. Ignorance is inexcusable, particular as there is often no counsel to ‘feed’ the decision maker relevant information.

Good temperament is also an essential excellence for tribunal members. Temperament roughly amounts to a person’s outward personality and includes their manner, voice and mood as experienced by others. Good temperament is essential to justice delivery in tribunals, yet often overlooked as a requisite personal characteristic. There is currently little practical guidance, for example, on reducing aloofness with non-represented parties, on being approachable by all members of the community and on not letting resources constraints shorten one’s patience in the tribunal room. When we examine the corollary vice of bad temper, it is easy to imagine how the lack of good temperament might serve to intimidate and otherwise thwart an applicant, particularly one who is unrepresented. It is inexcusable for the tribunal member to bring her or his bad mood or gruff manner to the hearing table, particularly in those circumstances where counsel is not available to navigate the

38 These traits are explored further by, Costas Douzinas and Adam Gearey, ‘Critical

Jurisprudence: The Political Philosophy of Justice’ (2005) 120. 39 Einstein, see above n 30, 18-25.


substance of the proceedings on behalf of a timid tribunal client. As the Honourable Justice John Byrne has quite rightly stated, ‘nobody needs grumpier judges’40 and the same applies to tribunal members. Further, if bad temperament leads to an erroneous decision, clients often have no recourse to the courts for financial reasons. The practical value of virtuous temperament in tribunal practice work cannot, therefore, be overstated.

Temperance – the resistance to temptation – might well be called the well-documented virtue. It is the author’s opinion that temperance is amply dealt with in current codes of conduct and legislation. As previously discussed, the literature concerning what judicial and quasi-judicial officers should not do is extensive41 and includes the rule against bias, the necessity of a fair hearing and the need for arbitrators to refrain from excess or delinquency in their private and professional lives. As noted, this proscriptive documentation does little to assist our understanding of excellences in the normative sense. Thus, whilst certainly essential, the virtue of temperance does not require specific expansion in the current work. In short, there is much already written on the ‘don’ts’ (such as enacting legislation and codes of conduct) and not a lot on the ‘do’s’ of tribunal practice, meaning the excellences to which the sector aspires.

If a case reaches court following hearing by a tribunal, any legal anomaly at the administrative stage will hopefully be detected. But getting to court in the first instance can be an insurmountable hurdle for many an applicant, for inescapable socio-economic reasons. It is all too common that a person’s need to access justice in the courts is circumvented by the barriers imposed by culture, structure and history. ‘The cost and inconvenience of judicial review, whether by special or general courts, deter recourse to it by some whose causes may be just’.42 Thus the onus placed upon tribunal members to imbue each decision with the aretaic excellences at the tribunal level is both significant and necessary.

Transmuting Solum’s classification, the key virtues or excellences attaching to the tribunal role would ideally include:

• Member courage • Member wisdom (practical) • Member intelligence (technical) • Member temperance • Member temperament

It is not intended that a complete exposition of moral theory be made, nor an

exhaustive analysis of alternatives to virtue theory. Such activities are beyond the scope of the present work. It is contended, however, that the centrality of character and habit within aretaic theory provide useful platforms for the development of both tribunal practice principles and an enduring tribunal jurisprudence.

40 J Byrne, ‘The Future of Litigation: The Queensland Perspective’ (2009) Hearsay. 41 See, eg, Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 90 per Deane J,

R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256, 259 per Lord Hewart CJ; Webb v R (1994) 181 CLR 41, 61; R v Watson; ex parte Armstrong (1976) 136 CLR 248, 263; R v Gough [1993] AC 646, 659 per Lord Goff of Chieveley, Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505, 555 per Burchett J, to name just a few classic cases of the need for restraint in judges.

42 W Gellhorn Ombudsmen and Others (1967) 421.


VI RECRUITING AND TRAINING FOR EXCELLENCE The ability to form and develop positive habits occupies the core of Aristotle’s

Nichomachean thesis.43 To develop appropriate habits in the tribunal room, members should have access to adequate guidance and discussion forums regarding what characteristics to foster and develop for effective tribunal practice: ‘Just as the ability to run a marathon develops through much training and practice, so too does our capacity to be fair, to be courageous, or to be compassionate. Virtues are habits.’44

Human resource limitations can be central to the challenge of recruiting for and inculcating the noted virtues of tribunal practice.45 Increasingly, merits review bodies are finding themselves under pressure to perform within limited financial and time constraints. The idea of taking further time and energy out to ‘learn’ ethics or principles of best practice may seem rather unattractive to members of these bodies and their secretariats. One of the reasons that cultivation of core tribunal principles is so important, however, is that the perception of a professional, unified and consistent sector of decision makers will contribute significantly to improving the level of respect directed towards tribunals from all levels of government and the community. They will be seen as more than ‘just another section of the department’ or, in the alternative, a forbidding court-like structure and, one would hope, be trusted for their integrated approaches to decision-making. Developing theoretical frameworks and discussion within the merits review community has the two-fold effect of improving operations and reinforcing the points of similarity between such bodies across the globe.

In line with the Aristotelian concept that virtue is acquired through habit, one might well ask – on what issues do tribunal members most need ongoing training and advice? What practice habits should they be seeking to acquire? Many advocate that in querying the quality of an institution, it is necessary to confer with the external users of the services provided. Mitchell succinctly notes in relation to the improvement of administrative tribunals: ‘Looking at the needs of users might ensure that we don’t put the cart before the horse’.46 Training forms an essential ingredient in the maintenance and development of integrated tribunal practices. Consumer and industry groups continually seek to have input into Australian administrative review processes and this interest is to be encouraged.47 Recently there has been some move away from mere codes of conduct and an increase in the issues of character noted above. Dwyer, for example, has mentioned the need for continuing training of tribunal members beyond the bounds of the adversarial system. She nominates such skills as ‘flexibility to undertake new enquiries or change procedures’, ‘willingness to share…experience and learning’, ‘working with the parties’ and perhaps most importantly ‘a willingness to acknowledge that the adversarial system is not the only effective way of resolving disputes between parties’.48 Elements of temperance, practical wisdom and courage are all in evidence in these thoughts presented by one of Australia’s most senior tribunal practitioners and may well inform the kernel of normative Australian practice principles.

43 See above n 21. 44 Ibid at 6 45 Kingham, see above n 37, 422 for the judicial equivalent. 46 Bill Mitchell, ‘Administrative Review in Queensland in 2006’ (2006) 51 AIAL Forum

13, 24. 47 See above n 14. 48 J Dwyer, ‘Smoothing the Sharp Corners of the Adversarial System – The Experience of

the Administrative Appeals Tribunal’ in Sampford et al (eds), Educating Lawyers for a Less Adversarial System, (1999) 41.


As with all theory, the concept of ethical tribunal practice must be bedded down in practical structures in order to be viable. As Cooper notes, it is important for people to learn how to brainstorm solutions, to avoid ‘either/or’ thinking and to become comfortable to working with complex ideas: ‘Use whatever methods or techniques are necessary to move beyond either-or thinking, because until at least the most significant alternatives are acknowledged, we risk overlooking the best solution’. Resistance to such black-and-white determinations is well served by the aretaic approach of phronesis, which demands a balanced, humane and insightful approach to decision making. In developing such training and decision-making systems, a central motivation should be the development of integrity in the solutions and outcomes that the organisation generates. Coherency in values training will assist in the development of coherent organisational outcomes. As Wilenski notes, the attainment of a consistent ethical approach to public work is not only desirable, but indeed necessary: ‘The need for administrators to exercise value judgements is integral to our system of government, and the conflict between the different legitimating principles is irreconcilable. We need to develop a coherent theory to accommodate this reality’.49

How human resource practitioners can best recruit for the noted tribunal excellences is an area for much deeper investigation. Minogue notes also that appropriate human resources are the cornerstones of a tribunal’s knowledge base: ‘…an understanding of the importance of acting fairly and rationally, and understanding the role and jurisdictional limits of a tribunal member, are matters best dealt with through the appointment of members with appropriate skills and knowledge’.50

Yet in Minogue’s analysis, we are once more faced with a description of role that is easily met by prescriptive legislation. How to recruit and train for member excellence in the normative and practical sense within the parameters of a particular tribunal’s mandate and subject area might be more difficult to articulate. In the Canadian experience, judges have found significant benefit in the introduction of on-line learning resources, developed recently by the National Judicial Institute. For the past several years, the Institute has made available web-based, self-paced and trainer-led programs for judicial officers, in both synchronous and asynchronous formats. This has provided an excellent means by which judges in the various provinces of Canada can meet in an online ‘community’ for the purposes of discussion and professional development.51 Member-only chat-rooms provide a forum for the dissemination of role- specific guidance amongst peers in a very immediate and practical manner. The potential for judges and tribunal members to ‘get online’ with one another in a strictly members-only forum in order to workshop problems of practice and ethics is considerable. For example, being able to query a policy’s relevance in a particular medical tribunal and to receive immediate feedback from relevant, experienced peers, provides an example of the excellent uses to which such on-the-spot systems might be applied. The essential benefit of any e-learning or online community model is the reduction in constraints traditionally provided by time and travel. As noted by one Australian commentator, the Canadian example provides an excellent template for Australian training of arbitrators, who face similar geographical constraints when attempting to discuss professional issues with peers.52

49 Peter Wilenski, Public Power and Public Administration (1986) 63. 50 Matt Minogue, ‘Principles of Conduct for Members of Merit Review Tribunals’ (2001) 54

Administrative Review 46. 51 See above n 12. 52 Ibid.


It is proposed that a combination of minimum annual hours for continuing professional education of tribunal members is essential, whether undertaken in the modes of e-learning, static academic courses or face-to-face conferences. A portion of such training would necessarily be devoted to the development of the key excellences of the tribunal member’s role. There are presently some training opportunities for new Australian tribunal members;53 it remains to be seen if these will concentrate merely upon the limitations of the role, or whether discussion of tribunal ethics and aspirational practice principles will be included. It is proposed that ongoing professional education be offered and monitored by bodies such as COAT, and that lively discussion of normative ideals be encouraged among appointed tribunal members. State branches of COAT can go a long way to establishing and championing the needs of smaller tribunals, as well as keeping them in touch with national developments. If the United Kingdom model of the Council of Tribunals is followed, COAT might well find itself at ‘the hub of the wheel of administrative justice’54 in Australia.

VII CONCLUSIONS – TOWARDS COHERENT TRIBUNAL PRACTICE PRINCIPLES All tribunal members have gains to make in studying and adopting a robust

tribunal philosophy within their deliberations. Prior technical knowledge or professional affiliations neither replace nor necessarily prepare the tribunal member for her or his specific adjudicatory role. The strengths and weaknesses of tribunal members will vary and must necessarily be addressed at the individual level of professional development. As Raban describes in relation to the interpreters of the law generally: ‘Whilst some may master the principles of proper practice intuitively…others may need explicit guidance in order to perfect their performance’.55 Internal ownership of tribunal practice norms is increasingly required. It is not sufficient to draw only upon common law to delineate one’s mandate; this only tends to cover boundary issues and does not provide sufficient description of the central virtues of tribunal work. Nor can tribunal officers rely upon legislation and policy alone to define what it is that they are able to do in practice: ‘…legislation dealing with tribunals deals inconsistently with important elements concerning the constitution, jurisdiction, governance or powers of the tribunal. These defects expose stakeholders – those people who use our tribunals – to the risk of appeal or undeserved loss’.56

Examining one’s faults and weaknesses is a challenge in any professional context, yet the endeavour is crucial to ensure integrated, just outcomes from tribunal officers. A three-fold approach to developing tribunal practice principles in Australia would be preferable. Firstly, ARC, COAT and the Australasian Institute of Judicial Administration could look to providing more normative, organic and consistent opportunities for member development. Such opportunities, whether in the form of guidelines, symposia or online training tools will ideally be easily accessible, open to critique and able to inspire tribunal members to question issues of character and habit. Secondly, individual tribunals need to self-assess and train from within in order to develop codes and other tools pertinent to the particular types of decisions made within that institution. Induction and training programs will ideally contain an

53 See above n 19. 54 L Newton, ‘The 30th anniversary: an international perspective’ (2007) 25

Administrative Review 37. 55 Ofer Raban, Modern Legal Theory and Judicial Impartiality (2003) 112. 56 Renee Leon, ‘ACT Tribunals: Options for Structural Change’ (2006) 51 AIAL Forum.


element of ethical inquiry, in particular the issues surrounding what makes a ‘good’ tribunal member. Thirdly, communication among the various bodies themselves would be vital for ongoing discussion related to these unifying principles. This is particularly so in light of the geographical and sometimes social distances between various tribunals. The practice principles need to be centrally administered but universally developed in order to maintain currency and validity. E-learning and interactive discussion will ensure that the articulation of these principles remains alive as tribunal members continue their important work.

Australian tribunals find themselves at an exciting crossroads after more than three decades of practice on a largely unstructured basis, particularly in specialised state and territory jurisdictions. It is timely to begin an articulation of the excellences underlying the tribunal member’s role, rather than relying upon either proscriptive rules or the practice principles of related governmental or judicial sectors. Aretaic principles form a useful starting point for this endeavour, primarily due to their aspirational and character-centred nature. Debate regarding this stance will no doubt be considerable. Yet such debate on the philosophical principles of the sector is to be invited, to ensure the development of a robust and vital theory to which tribunal practitioners can refer and which they themselves can help to develop. It is not sufficient to rely upon those governing principles that underpin the more general work of either the executive or the judiciary; for better or worse, tribunals are hybrid organisations that occupy a unique position between the public sector proper and the judiciary.57 The ongoing challenges of constitutional placement and resource constraints can in part be alleviated by regular articulation and examination of the excellences of tribunal work – the ‘dos’, rather than the ‘don’ts’. Aristotle’s virtues, albeit modified for modern experiences, are of immediate use to tribunal members and are worthy of consideration in any discussion of appropriate tribunal practice. This is largely due to the importance in aretaic theory of phronesis, which is particularly useful to tribunal members as an explanatory and normative tool. The aretaic stance provides an excellent platform from which to commence a philosophical journey for tribunal professionals. As stated, this does not preclude tribunal theory from being approached from alternate philosophical camps. In fact, rigorous debate in this arena would be a welcome development as the sector inevitably continues to grow in stature, reach and responsibility.

57 For an earlier discussion of this hybrid nature in the context of ethical discourse, see,

Christou, ‘A Moveable Feast; Identifying Ethical Norms within Quasi-Judicial Practice’ (speech delivered at AIJA Tribunals Conference, 2004).

353

LAWYERS, LANGUAGE AND LEGAL PROFESSIONAL STANDARDS: LEGAL SERVICES COMMISSIONER v TURLEY

[2008] LPT 4

NICKY JONES∗

I INTRODUCTION Lawyers have a duty to cooperate with other legal practitioners, with clients

and with others they deal with in practice, and to treat them with courtesy. The duty includes the expectation that a practitioner will not use irresponsible, provocative, offensive or intimidatory language during court proceedings or in any other public forum. The Roman poet Horace is said to have noted that ‘lawyers are men who hire out their words and anger’. The modern lawyer too will get angry. Sometimes it is feigned, but genuine anger is still inevitable in a role that necessarily involves conflict. But what the lawyer does with his or her anger or how the lawyer gives expression to it is, as it is for any person, a matter for ethical evaluation.

The use of poor or aggressive language is an area where discipline applications seem to be on the rise. As is evident from the analyses of courts and tribunals, this is much more than a simple question of decorum. It can raise significant questions regarding the place of the lawyer in the administration of justice. This became evident in the decision of the Legal Practice Tribunal in Legal Services Commissioner v Turley,1 in which a solicitor was charged with making ‘scandalous and offensive submissions’ during court proceedings and using an intimidatory approach to a judicial officer. Drawing on the principles expressed in disciplinary proceedings case law in this area, the article will consider some of the issues arising in relation to a legal practitioner’s use of offensive language or intimidatory conduct.

II LEGAL SERVICES COMMISSIONER V TURLEY

A Charges against the legal practitioner In this case, the respondent solicitor, Mr Turley, was charged with two

breaches of professional standards. The first charge was based on comments made by Mr Turley in the course of

representing a mother in child protection proceedings in the Magistrates Court at Gladstone. In his first comment, Mr Turley described the service of an affidavit upon his client, presumably by the Department of Child Safety, as ‘the lowest act of any department that this office has seen. Certainly the lowest act I have seen in 35 years by the department’. He further commented that ‘one cannot trust the department. It is almost staffed by animals’. Next, Mr Turley described an order that his client’s children undergo psychological treatment as one which asked ‘the client, my client, to let her children be killed or destroyed by’ the relevant doctor. Finally, he stated that ‘the children should be returned to my client and not put in the hands of these people who are almost like a (coven) of witches’.2

∗ BA(Hons), LLB(Hons) (UQ), Licence ès Lettres Modernes (Mention FLE) (Orléans),

PhD (UQ), Lecturer in Law, University of Southern Queensland. 1 [2008] LPT 4. 2 Legal Services Commissioner v Turley [2008] LPT 4, 2.

Vol 28 (2) Lawyers, Language and Legal Professional Standard 354

The second charge concerned a letter written by Mr Turley and sent to the presiding magistrate three days after the hearing. During the hearing, the magistrate had warned the solicitor, saying ‘If you continue using language like that I will report you to the Law Society’. Mr Turley claimed in his letter that he was concerned by ‘threats’ that had been made by the magistrate during the hearing and considered that the threats constituted ‘a threat with menaces not only arising in this case but in other matters into the future’. Moreover, he stated in the letter, ‘such was the degree of impropriety of that threat that you should disqualify yourself from further conduct of this matter’.3

B Tribunal reasons and orders

The Legal Practice Tribunal found that ‘[t]he use of grossly offensive language

in the course of Court proceedings and an intimidatory approach to a judicial officer based on an untenable interpretation of what had occurred in the Court proceedings [were] matters of some gravity’.4

In relation to the second charge, the Tribunal confirmed that Mr Turley’s letter was ‘an improper ex parte communication with the Bench’ and that his contention was untenable: the magistrate had made a ‘reasonable attempt to pull [Mr Turley] into line’ and should not have been subjected to the implied intimidation in the letter nor to pressure to disqualify himself when there was simply no justification for him to do so.5

The Tribunal ruled that each of the breaches surpassed unsatisfactory professional conduct and amounted to professional misconduct.

III ISSUES FOR THE COURT TO CONSIDER

A Professional privilege and responsibility

An important issue arising in this case concerns the lawyer’s role as an officer of the court. Although a legal practitioner has a clear duty to represent and advance a client’s interests,6 the courts have cautioned that that this duty is subject to the practitioner’s duty to the court to act with fairness, honesty and candour.7 As an officer of the court, a legal practitioner must not cast baseless aspersions on other parties, witnesses or third parties. The professional privilege and immunity from prosecution which advocates enjoy in relation to their court work impose on them a commensurate professional responsibility not to make allegations without a sufficient basis or reasonable grounds.

The issues of professional privilege and responsibility were discussed in Clyne v NSW Bar Association,8 in which the High Court considered the conduct of a barrister who deliberately used court proceedings ‘to make a savage public attack on

3 Ibid 3. 4 Ibid 4. 5 Ibid 3. 6 See comments by Lord Reid in Rondel v Worsley [1967] 3 All ER 993, 998; see also

rule 12.1 of the Law Council of Australia’s Model Rules of Professional Conduct and Practice, rule 16 of the Legal Profession (Barristers) Rule 2007 (Qld) and rule 12.1 of the Legal Profession (Solicitors) Rule 2007 (Qld).

7 Clyne v NSW Bar Association (1960) 104 CLR 186, 200-1; Giannarelli v Wraith (1988) 165 CLR 543, 555-7.

8 (1960) 104 CLR 186.


the professional character’ of a solicitor who was the subject of the proceedings.9 The court affirmed the earlier decision to disbar the barrister and noted that ‘from the point of view of a profession which seeks to maintain standards of decency and fairness, it is essential that the privilege, and the power of doing harm which it confers, should not be abused. Otherwise grave and irreparable damage might be unjustly occasioned’.10 The court observed that the disbarring order was made ‘from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege’.11 This principle was cast as rule 37 of the Legal Profession (Barristers) Rule 2007 (Qld), which states that a barrister must take care to ensure that any decisions to make allegations or suggestions under privilege against any person are reasonably justified or appropriate and are not made principally in order to harass or embarrass the person or to gain some collateral advantage.12

In line with the Law Council of Australia’s Model Rules of Professional Conduct and Practice, legal practitioners ‘in all their dealings with the courts [...] should act with competence, honesty and candour’.13 Rule 13.3 further provides that a practitioner must not ‘express views to a court on any material evidence or material issue in the case in terms which convey or appear to convey the practitioner’s personal opinion on the merits of that evidence or issue’. This prohibition has been incorporated into rule 13.3 of the Legal Profession (Solicitors) Rule 2007 (Qld) and rule 22 of the Barristers Rule.

In view of these principles, Mr Turley’s comments on which the first charge was based clearly constituted an unbalanced and emotive attack on the Department of Child Safety. In terms which were neither measured nor moderate, he conveyed to the court his apparent personal opinion of the actions, staff and professionalism of the department. The suggestion that either the opposing side or the court were asking his client ‘to let her children be killed or destroyed’ by allowing them to undergo psychological treatment was plainly ridiculous and indeed insulting.

B Offensive language

Further reinforcing the requirement to act with ‘honesty, fairness and courtesy’,

rule 21 of the Solicitors Rule (based on rule 21 of the Model Rules) also stipulates as follows:

A solicitor, in all of the solicitor’s dealings with other legal practitioners, must take all reasonable care to maintain the integrity and reputation of the legal profession by ensuring that the solicitor’s communications are courteous and that the solicitor avoids offensive or provocative language or conduct.

Mr Turley’s comments in his letter sent to the presiding magistrate after the

proceedings, in which he stated that he regarded the magistrate’s mild admonition as ‘a threat with menaces not only arising in this case but in other matters into the future’ and that the threat constituted a strong degree of impropriety, were unnecessarily belligerent. They were also arguably imprudent. Although no legal

9 Ibid 188. 10 Ibid 200-1. 11 Ibid 201-2. 12 More recently, in NSW Bar Association v di Suvero [2000] NSWADT 194, a barrister

whose ‘hostile exchanges’ with a prosecutor and ‘angry remarks’ to the presiding judge were found to constitute unsatisfactory professional conduct was suspended from practice for three months.

13 Law Council of Australia, Model Rules of Professional Conduct and Practice, 12.


professional rules specifically address the issue of a practitioner’s relationship with the bench and there is no rule expressly prohibiting practitioners from advising the bench of their concerns regarding any disadvantage that they believe might flow from judicial conduct, ordinary professional prudence would suggest that the latter course be undertaken only where strictly necessary: where great disadvantage to their client might result or where clear judicial bias had been demonstrated. In the present case, the magistrate’s mild warning to Mr Turley that his continued use of unsatisfactory language might result in a possible report to his professional association does not appear to fall into either of those categories.

Six months after Turley, the Legal Practice Tribunal again considered the question of improper language used by a solicitor in court in Legal Services Commissioner v Winning.14 In this matter, Mr Winning had referred to the Director of Public Prosecutions (‘DPP’) as ‘this stupid woman’ and ‘this silly woman’ during his submissions to the magistrate. Although Mr Winning apologised to the DPP nearly two years after making the comments, the tribunal found that his language was ‘grossly offensive and insulting’, was highly discourteous to both the DPP and the court and ‘had the potential or tendency to bring the legal profession and criminal justice system into disrepute’. Accordingly, the tribunal held that Mr Winning’s comments constituted professional misconduct.15

In a comparable Western Australian case – Legal Practitioners Complaints Committee v Quigley16 – the State Administrative Tribunal considered complaints that a legal practitioner had engaged in ‘intimidatory and threatening behaviour’ by making numerous claims in letters sent to the Legal Practitioners Complaints Committee and its Law Complaints Officer in relation to disciplinary proceedings initiated against him, including that the Committee and Complaints Officer were guilty of ‘serious impropriety’, ‘arrogance and foolishness’, ‘invention and misrepresentation’, ‘unprofessional conduct’, ‘deceit and malice’ and ‘perjury’. The tribunal noted that these were ‘allegations of the most serious nature’ which had not been supported by any evidence. Accordingly, the tribunal found Mr Quigley guilty of unprofessional conduct consisting of ‘conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence’.17

Another recent case on point was Council of the New South Wales Bar Association v Slowgrove.18 In this matter, Mr Slowgrove had sent several letters to the magistrate presiding over proceedings in which he was appearing, including one in which he stated that he expected the magistrate to recuse himself immediately from the proceedings, indicated that he regarded the magistrate as personally liable to his client for exemplary damages and suggested that the magistrate could be liable for breaches of international law. The Administrative Decisions Tribunal considered that the letter contained inflammatory and ‘inappropriate language’ and a ‘threatening tone’ which was clearly intended to intimidate. Accordingly, Mr Slowgrove’s conduct was found to constitute professional misconduct, ‘namely, conduct occurring in connection with the practice of law that would justify a finding that he is not a fit and proper person to engage in legal practice’.19

14 [2008] LPT 13 15 Ibid [62]-[64]. 16 [2005] WASAT 215. 17 Ibid [148]-[149]. 18 [2009] NSWADT 150. 19 Ibid, [18]-[19].


C Mitigating factors

1 Medical conditions Although a solicitor may plead medical illness or substance addictions in an

attempt to justify or mitigate the seriousness of his or her misconduct, evidence of such conditions will not necessarily carry any weight since it does not address the protective function of disciplinary proceedings. This is all the more so where the solicitor’s misconduct has involved dishonest behaviour.20 A review of Australian case law confirms that courts will be reluctant to accept mental illness or addictions as factors mitigating a lawyer’s liability for breach of professional standards.21 However, if a court is convinced that a solicitor’s misconduct is indeed attributable to a mental illness or other condition, it may order that the solicitor be suspended from practice for a period of time in order to address and recover from or control the condition. If the court allows the solicitor to remain in practice, such practice may be subject to certain conditions.22

In Turley, the Legal Practice Tribunal noted that Mr Turley had been suffering from depression and other medical problems at the time the events took place but was now receiving ‘proper treatment’ for these conditions. The tribunal took into account these ‘personal circumstances’, as well as his previously unblemished record, and ordered that he receive a public reprimand.

However, the tribunal also noted that it had the opportunity to ‘mould an order which will assist the [solicitor] to avoid the recurrence of these sorts of problems’. Accordingly, it made its orders conditional upon Mr Turley’s undertakings to the tribunal that he would seek further psychological counselling and treatment, and further ordered that he provide a psychologist’s report in respect of his mental state to the Legal Services Commissioner within 12 months.

2 Attitude

The lawyer’s attitude to a tribunal’s concerns about the use of poor or

intimidating language may also influence the court. So, for example, any attempts to conceal or make light of professional misconduct, to explain, justify or deny it or to shift blame or diminish culpability for it will not be well regarded by the court. In Legal Services Commissioner v Baker,23 the Legal Practice Tribunal found that Mr Baker’s use of insulting and offensive language to or in the presence of clients and members of his staff, together with his attempts at self-justification and his ‘persistence and reluctance to accept the implications of his behaviour’, constituted a high degree of unprofessional conduct.24

Similarly, in Slowgrove, the Administrative Decisions Tribunal expressed its concern over Mr Slowgrove’s varying approach to his conduct and the proceedings, ranging from his ‘carefully couched denial’ that he had written the letter and failure to apologise for it to his final concession at the hearing that he had indeed drafted the document. Indeed, the tribunal noted that the ‘single most troubling consideration’

20 Legal Practitioners Conduct Board v Phillips (2002) 83 SASR 467, [28]-[29] and [39]-

[40]. 21 Legal Practitioners Conduct Board v Trueman [2003] SASC 58, [23]; The Law Society

of South Australia v Murphy (1999) 201 LSJS 456, [21]-[28]. 22 Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320, [32]-[33];

Prothonotary of the Supreme Court of NSW v Farran [2003] NSWCA 372, [14]-[17]. 23 [2005] LPT 2. 24 Ibid, [222]-[224].


was the barrister’s absence of contrition, or even a sense of any need for contrition, and his ‘evident lack of insight into his behaviour’.25

Conversely, if a lawyer responds honestly and frankly to the court’s enquiries, pleads guilty, acknowledges genuine remorse and provides evidence of rehabilitation or restoration to those who have suffered as a result of the breach, the court may reduce the severity of the disciplinary sanction imposed.26 An apology tendered at the time of making improper comments may therefore also serve to mitigate their effects and, accordingly, any resulting penalty orders made against a practitioner. In Winning, the tribunal concluded that some of Mr Winning’s comments, although ‘offensive, insulting and discourteous not just to the opponent but also troubling to the Bench’, did not tend or have the potential to bring the legal profession or the criminal justice system into disrepute because he had offered an immediate apology in court, which meant that any person who heard the disparaging words would also have heard the apology.27

In the present case, although Mr Turley did not tender an apology either to the court or the magistrate, there was no evidence that he did not accept the allegations made against him. He had sought medical treatment for his depression and other problems, as was clear from a psychologist’s report considered in the proceeding, and he offered undertakings to the tribunal that he would undergo further psychological counselling and treatment.28 Moreover, the tribunal took into consideration his ‘personal circumstances’ (such as, presumably, his age and perhaps also his medical conditions), the many years he had practised, the fact that he had not previously been found guilty of any professional breach and that he had admitted the two charges brought against him by the Legal Services Commissioner.29

D Sanctions

In cases where lawyers have on single occasions used insulting or offensive

language to an opponent, the lawyers involved have been reprimanded or severely censured.30 In contrast, a court will be critical of any evidence of persistent reoffending, as was clear in Baker.31 It will also consider whether there is any element of dishonesty or other impugning of the solicitor’s integrity inherent in his or her conduct, absence of which will count in the solicitor’s favour.32 In Turley, Mr Turley’s conduct did not reflect adversely on his honesty or integrity. Although his ‘use of grossly offensive language in the course of Court proceedings and an intimidatory approach to a judicial officer based on an untenable interpretation of what had occurred in the Court’ were clearly in breach of legal professional standards and indeed were ‘matters of some gravity’,33 they did not attract a severe sanction.

25 Council of the New South Wales Bar Association v Slowgrove [2009] NSWADT 150,

[22], [24], [26]. 26 See, for example, Attorney-General v Bax [1999] 2 Qd R 9, 23-5. 27 Legal Services Commissioner v Winning [2008] LPT 13, [32]. 28 Legal Services Commissioner v Turley [2008] LPT 4, 4. 29 Ibid 2, 4. 30 See Re a Solicitor; Ex parte Prothonotary (1952) 69 WN (NSW) 356, 358; also Council

of the New South Wales Bar Association v Slowgrove [2009] NSWADT 150, [22]. 31 [2005] LPT 2, [216], [223]-[224]. 32 See, for example, Council of the Queensland Law Society Inc v Cummings; Ex parte A-

G (Qld) and Minister for Justice [2004] QCA 138, [24]-[25]. 33 Legal Services Commissioner v Turley [2008] LPT 4, 4.


IV CONCLUSION As the case law indicates, high standards of professionalism and courtesy are

imposed on a legal practitioner’s conduct and language in relation to other practitioners and these standards are reflected in the penalties which a court will impose on a practitioner whose conduct and language fall short. The message that courts send to practitioners is clear: lawyers should avoid any attempt to mislead, threaten or intimidate other practitioners, including judicial officers, or the use of any offensive, derogatory or improper language when communicating with clients, staff or other members of the profession.

A lawyer’s breach of the high standards of legal professional conduct and courteous language may have significant consequences for the lawyer, giving rise to professional disciplinary proceedings and the possible award of penalties against him or her. However, its consequences for the profession may be even more significant: it may diminish public confidence in the legal profession, judicial system and administration of justice as a whole. The rise – across Australia – in the number of disciplinary proceedings for this behaviour is, for a profession whose public image is already in decline,34 cause for serious concern.

34 A 2009 Morgan ‘Image of Professions’ survey indicated that only 30% of respondents

believed that lawyers had high or very high standards of ethics and honesty, down from 44% in 1984. Roy Morgan Research, available at: <http://www.roymorgan.com/news/ polls/2009/4387> at 27 October 2009.

361

WARTS AND ALL: THE IMPACT OF CANDOUR IN ASSESSING CHARACTER FOR ADMISSION TO THE

LEGAL PROFESSION*

JUSTICE DEBRA MULLINS** A person who seeks admission to the legal profession must be a fit and proper

person to be admitted.1 One aspect of that criterion is that the person is of good fame and character.2 Past conduct has invariably been treated by admitting bodies as indicative of a person’s character and suitability for undertaking the professional duties and responsibilities of a lawyer.

Admission procedures require the applicant to disclose relevant past conduct. The applicant is the one person who has full knowledge of his or her past conduct that may bear on the person’s character and fitness to practise. The applicant’s candour in disclosing past conduct or lack of candour about past conduct may affect the outcome of the admission application.

Reference will be made to categories of past conduct that may be relevant in determining whether an applicant for admission is of good character. The effect of the applicant’s candour about past conduct on the assessment of the applicant’s character will then be examined.

In considering cases in which candour has played a significant role in determining whether an applicant is successfully admitted to the legal profession, the issue arises whether the emphasis on candour has overshadowed the assessment of the applicant’s character by reference to past misconduct.

I PAST CONDUCT Whether an applicant for admission is of good fame and of good character

invites a wide-ranging enquiry. The categories of past conduct that may be of relevance to the admitting body’s task are extensive. Some guidance may be provided by the statutory provisions covering admission where there is a list of matters relating to suitability for admission.3 Obvious conduct that must be disclosed includes convictions for dishonesty offences, convictions for other types of criminal offences, guilty pleas to criminal offences that do not result in the recording of convictions,4 academic misconduct in the course of University studies, bankruptcy or other insolvency, investigations by the Australian Securities and Investments Commission of companies associated with an applicant, any restriction on an applicant’s right to engage in legal practice in another jurisdiction, whether an applicant is the subject of a restraining or other type of order directed at preventing domestic violence, and persistent traffic breaches.5 The need to disclose other past

* An earlier version of this paper was presented at the Third International Legal Ethics

Conference at the Gold Coast, Queensland on 14 July 2008. ** See <http://www.sclqld.org.au/qjudiciary/profiles/damullins/> at 3rd December 2009. 1 s 31(1) Legal Profession Act 2007 (Qld). 2 s 9(1)(a) Legal Profession Act 2007 (Qld). 3 s 9 and s 31(2) Legal Profession Act 2007 (Qld). 4 What amounts to a conviction for an offence for the purpose of the Legal Profession Act

2007 (Qld) is extended by s 11(1) of the Act to include a finding of guilt or the acceptance of a guilty plea, whether or not a conviction is recorded on sentence.

5 Some examples of these types of obvious conduct are Barristers’ Board v Khan [2001] QCA 92, Re Bell [2005] QCA 151, Frugtniet v Board of Examiners [2005] VSC 332,

Vol 28 (2) Candour in Assessing Admission to the Legal Profession 362

conduct might not be as obvious to an applicant, but if it has the potential to be relevant to the admitting body’s consideration of the application, it must be disclosed.6 This includes criminal proceedings which have not resulted in convictions,7 prior history of depression and the circumstances in which the applicant left the army,8 and an unresolved contempt allegation arising out of litigation conducted personally by the applicant.9

II CANDOUR IN DISCLOSING PAST CONDUCT The critical role played by candour in disclosing past conduct was emphasised

by the High Court in Re Davis.10 Although that decision was concerned with the removal of the appellant’s name from the roll of barristers after admission, it was the appellant’s lack of candour about past conduct for the purpose of his admission that was the basis of the decision. The appellant had been admitted as a barrister in 1946 without disclosing to the two solicitors who provided certificates as to his character or to the Barristers’ Admission Board, when he applied to the Board to be a student-at-law and then for admission, that he had been convicted of breaking and entering. He committed the offence in 1934 when he was 20 years old. Subsequently he had led a life of scrupulous honesty. The appellant’s conviction was revealed to the Supreme Court of New South Wales in 1947. The appellant had to show cause why he should not be disbarred. The appellant obtained affidavits attesting to his character from the two solicitors who had previously provided certificates as to his character, the Attorney-General for New South Wales, a professor of law, a minister of religion and a detective constable of police. The court ordered that the appellant be disbarred and that his name be removed from the roll of barristers. The appeal to the High Court was dismissed.

Latham CJ accepted that by the time the appellant sought admission he may have become a person of good fame amongst those who then knew him, but dealt with character in these terms:11

But intrinsic character is a different matter. A man may be guilty of grave wrongdoing and may subsequently become a man of good character. If the appellant had frankly disclosed to the Board and to the two solicitors the fact of his conviction, that disclosure would have greatly assisted him in an endeavour to show that he had retrieved his character. But his failure to make such disclosure in itself, apart from the conviction, excludes any possibility of holding that he was in 1946, or had become in 1947, a man of good character.

Dixon J referred to the expression ‘good fame and character’ as denoting ‘the

reputation and the more enduring moral qualities’ of the candidate for admission.12

Re Deo [2005] NTSC 58, and Re Liveri [2006] QCA 152.

6 S v Legal Practice Board of Western Australia (2004) 29 WAR 173, 184 – 185 [47]. 7 Jackson (formerly Subramaniam) v Legal Practitioners Admission Board [2007]

NSWCA 289. 8 S v Legal Practice Board of Western Australia (2004) 29 WAR 173, 184 – 185 [47]. 9 Re Bell [2005] QCA 151, [15]. 10 (1947) 75 CLR 409. 11 (1947) 75 CLR 409, 416-417. 12 (1947) 75 CLR 409, 420. Refer to the discussion on the concept of good fame and

character in Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 117 FLR 455, 459 and Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320, [17].


Dixon J expressed doubt that a person who had been guilty of the crime of housebreaking for the purpose of theft could ever be qualified to be a barrister.13 Dixon J based his decision, however, on what the appellant’s lack of candour about his criminal conviction revealed about his character:14

But a prerequisite, in any case, would be a complete realization by the party concerned of his obligation of candour to the court in which he desired to serve as an agent of justice. The fulfilment of that obligation of candour with its attendant risks proved too painful for the appellant, and when he applied to the Board for his certificate he withheld the fact that he had been convicted.

The judgments in Re Davis15 linked the appellant’s lack of candour in

disclosing relevant past conduct with his character. That decision illustrated the use that could be made of an applicant’s candour (or lack of candour) about past conduct as a guide to the applicant’s present character.

Full and frank disclosure of past conduct can be taken as showing an applicant’s insight as to the relevance of that past conduct for admission purposes which itself may make a difference to the admitting body’s decision on whether the applicant is a fit and proper person to be admitted as a legal practitioner.16

III RECENT DECISIONS ON LACK OF CANDOUR IN DISCLOSING PAST CONDUCT Even if the prosecution of an applicant for a criminal offence did not result in a

conviction, the circumstances that resulted in the charge or even the circumstances surrounding the prosecution may reflect on the character of an applicant. The New South Wales Court of Appeal in The Prothonotary of the Supreme Court of New South Wales v Del Castillo17 did not set out principles for when an applicant for admission should disclose any charge of which the applicant had been acquitted, but did observe that it was the prudent and desirable course for an applicant for admission to disclose at least the fact of the charge and the acquittal and to offer to supply any further details required by the admitting body.18

Mr Del Castillo was acquitted of the charge of murder in the Australian Capital Territory in 1992. The deceased had died as a result of a knife wound that occurred during an altercation between the applicant and the deceased. The acquittal was explained on the basis that the stabbing was accidental. The applicant had given evidence at his trial. The applicant was admitted as a legal practitioner in New South Wales in July 1998. At no stage did he disclose in his application for admission in New South Wales that he had been tried for murder and acquitted. The applicant who was about 60 years old also sought admission in the Territory, relying on the steps that he had taken for admission including the Legal Workshop course at the Australian National University, rather than relying on his admission in New South Wales. The Legal Practitioners Admission Board of the Territory raised the issue of the applicant’s trial for murder. The applicant swore an affidavit in which he explained that he had been advised by one of the lecturers at the Legal Workshop that he did not have to disclose the charge of murder, as he had not been convicted, and that he had been given similar advice by his solicitor. The applicant’s

13 (1947) 75 CLR 409, 426. 14 (1947) 75 CLR 409, 426. 15 (1947) 75 CLR 409. 16 Re Evatt (1987) 92 FLR 381, 383, 384. 17 [2001] NSWCA 75. 18 [2001] NSWCA 75, [24] per Heydon JA.


application for admission was adjourned to November 1998. The applicant had not notified the court in New South Wales that he had not disclosed that he had been prosecuted for murder and acquitted. The Full Court refused his application for admission as a legal practitioner in the Territory on the basis that the applicant’s status as a legal practitioner in New South Wales would need to be resolved, before the court would be in a position to make a final decision on his fitness to be admitted in the Territory.19 The applicant’s appeal to the Full Court of the Federal Court was dismissed.20

Eventually the Prothonotary of the Supreme Court of New South Wales applied to have Mr Del Castillo’s name removed from the roll of New South Wales legal practitioners. There were two grounds that were pursued on the hearing before the Court of Appeal. One was that during the investigation of the circumstances of the death of the deceased the applicant lied or misled the investigating police and his counsel. The other was that the conduct of the applicant, following the stabbing of the deceased, in leaving the scene, concealing the whereabouts of the weapon used and not ensuring appropriate assistance was rendered to the deceased, was inconsistent with his being a person of good fame and character. The Prothonotary had included a ground in the application that the applicant did not in the certificate of character supporting his application for admission disclose to the Admission Board any details of the trial in 1992, but that ground was not pursued in the Court of Appeal. It was noted by the Court of Appeal, however, that the applicant’s failure to disclose had to be viewed in the light that he was making simultaneous applications for admission in two jurisdictions and at least in one of those jurisdictions, the Australian Capital Territory, the fact of the charge was well known in legal circles.21

The Prothonotary accepted that the Court of Appeal should proceed on the basis that the applicant was innocent of the charge of murder and did not seek to call any witness who had given evidence at the murder trial. The applicant’s evidence at the murder trial was admitted before the Court of Appeal without any limitation on the uses to which it might be put in the application. The balance of the transcript of the evidence at the trial was before the Court of Appeal as evidence of the extent of disclosure made by the applicant to the New South Wales Legal Practitioners Admission Board in January 1999 and for what it demonstrated were the issues at the murder trial that were relevant to the grounds before the Court of Appeal. The applicant gave evidence and was cross-examined before the Court of Appeal. Most of the leading judgment in the Court of Appeal given by Heydon JA analysed the evidence of the applicant at the murder trial and before the Court of Appeal for the purpose of dealing with the issues that were before the Court of Appeal. The Court of Appeal was not satisfied that the conduct of the applicant whilst in a state of panic and stress after the altercation and stabbing in 1991 and the errors of judgment made by the applicant in what he told the police and his lawyers showed a lack of fitness to be a legal practitioner at the time of the hearing before the Court of Appeal.22 The application was dismissed and the Prothonotary was ordered to pay the applicant’s costs.

The focus of the Court of Appeal in determining whether the applicant should remain on the roll of legal practitioners was what his past conduct that resulted in the charge of murder and the circumstances surrounding the prosecution of that charge revealed about the applicant’s character and its continuing relevance. That detailed

19 Re Del Castillo (1998) 136 ACTR 1, 8 [35]. 20 Re Del Castillo (1999) 89 FCR 120. 21 [2001] NSWCA 75, [24]. 22 The Prothonotary of the Supreme Court of New South Wales v Del Castillo [2001]

NSWCA 75, [57], [61], [71], [82], [99].


examination was in contrast to the manner in which the Full Court of the Australian Capital Territory disposed of the applicant’s admission application on the basis that the New South Wales court would need the opportunity to consider the applicant’s status. Disclosure at the outset by the applicant in relation to both admission applications about the murder charge may have curtailed the litigation that ensued.

The applicant for admission as a solicitor in Re H 23 had been registered as a nurse. He was dealt with in 1992 for conduct discreditable to a registered nurse. The Nurses’ Registration Board found the charges established and placed the applicant on 12 months’ probation. Subsequently in 1997 he retrieved the address of a female patient and attended at her home. The woman complained to the hospital on the same day. At first the applicant denied the conduct, then made up a story about why he was in the vicinity of the patient’s home and then disclosed that he had been under the impression that he had been invited to her home. On the basis that he used confidential information for private purposes, he pleaded guilty before the relevant professional conduct body and his registration as a nurse was cancelled. He subsequently pleaded guilty in 2000 to performing a nursing service contrary to the Nursing Act. He was fined, ordered to pay costs, but no conviction was recorded.

On application for admission to the Solicitors’ Board, the applicant answered ‘No’ to the question ‘Prior to the date of this statement have you been convicted of any criminal offence whether in Queensland or elsewhere?’ That answer was technically correct. A former work colleague of the applicant sent an objection to the Solicitors’ Board in respect of the applicant’s admission, because of his lack of professionalism while a registered nurse. The Board then made further enquiries and ascertained the details of these incidents in the applicant’s nursing career. The Board had the applicant independently psychiatrically examined. The psychiatrist identified features of the applicant’s psychiatric condition that reduced the applicant’s fitness to practise and suggested that he complete a course of psychotherapy. The applicant had been working as a law clerk for over 12 months prior to seeking admission and his admission was supported by those with whom he was working. The applicant had undergone a course of counselling with his psychiatrist.

In the Court of Appeal, the Chief Justice noted that the aggregation of the series of incidents between 1991 and 1999 showed that the applicant lacked appropriate professional judgment and discretion.24 The Chief Justice stated:25

Of considerable additional concern, is the feature that the applicant did not initially disclose these significant matters to the Board when making his application. He certainly should have been aware of the seriousness of the Board’s approach to such applications, and the seriousness of the court’s ultimate determination of them. An applicant for admission is obliged to approach the Board, and later the court, with the utmost good faith and candour, comprehensively disclosing any matter which may reasonably be taken to bear on an assessment of fitness for practice.

By taking a strong line in a case like this, the court must take the opportunity to emphasize the primacy of the pro-active obligation of an applicant to make candid, comprehensive disclosure. If it emerges an applicant has not, in some significant respect, been frank with the court, then the application should ordinarily be rendered doubtful at least.

23 [2002] QCA 129. 24 [2002] QCA 129, [25]. 25 [2002] QCA 129, [26] – [27].


The applicant’s application for admission was dismissed, although the court left open the possibility that the applicant may be in a position to prove his fitness for admission after further psychiatric treatment and the passing of time.26

Re H is a good example of how the lack of relevant disclosure by an applicant for admission affected the court’s view of the applicant’s past conduct. The application was able to be disposed of by placing weight on the applicant’s lack of candour about his relevant past conduct, rather than resting the decision solely on what an analysis of the past conduct revealed about the applicant’s character.

A similar approach was taken in Thomas v Legal Practitioners Admissions Board27 where the appellant had appealed against the decision of the Board to oppose his application for consent to enter into articles of clerkship. The appellant had disclosed that he had pleaded guilty to a ‘debt charge’ in 1995/96 in the Magistrates Court, at which time no conviction was recorded and no probation or community service was ordered. What the appellant had failed to disclose was that he had been charged on nine counts of dishonestly obtaining property over a period of almost three months and was fined $2,500 with no convictions being recorded. Although fraudulent misappropriation was indicative of unsuitability to practise as a lawyer, the Chief Justice acknowledged that the appellant had been on the way to demonstrating fitness from his subsequent conduct, but found that the manner of the appellant’s disclosure of the criminal offences justified the Board’s decision, and stated:28

Although the criminal offences were committed some years ago, the manner of the applicant’s disclosure of them constitutes very recent evidence of his unsuitability to practise, for want of appreciation of the need to arm the Board with all the information relevant to the performance of its publicly important role.

How lack of candour can become the focus of a proceeding concerning the

fitness of a legal practitioner to practise, rather than the underlying conduct of the legal practitioner that provoked the inquiry into the practitioner’s fitness, is illustrated by the decision in A Solicitor v Council of the Law Society of New South Wales.29 The appellant was admitted as a solicitor in 1987. He suffered a number of personal setbacks in 1997 and suffered depression. He was in a relationship with a woman who had four children. He committed four offences of indecent assault on two of his partner’s daughters. The offences occurred in April – May 1997. They involved removing the children’s clothing, rubbing on the back, buttocks and stomach, and on one occasion touching a victim on the outside of the vagina. The children were aged 12 years and 10 years. The appellant admitted the offences, pleaded guilty and was sentenced to three months’ imprisonment in February 1998. In May 1998 his appeal to the District Court was allowed, the sentence was quashed, and in lieu he entered into a recognisance to be of good behaviour for three years. In April 2000 the appellant married his partner who supported him at all stages of the proceedings. The appellant had undergone psychiatric counselling and treatment.

In July 1998 the Law Society resolved to institute disciplinary proceedings against the appellant based on his four convictions for indecent assault. Those proceedings were discontinued in October 2000, because of a procedural deficiency. In May 2000, one of the victims of the 1997 offences made further allegations of a similar nature against the appellant. The appellant denied those allegations and the charges were heard in October 2000. He was convicted on 7 November 2000 and

26 [2002] QCA 129, [30], [38]. 27 [2005] 1 Qd R 331. 28 [2005] 1 Qd R 331, 335. 29 (2004) 216 CLR 253.


sentenced to imprisonment for two years. The appeal in April 2001 was successful and the convictions were quashed.

When the disciplinary proceedings were discontinued in October 2000, the Law Society wrote to the appellant referring to the four convictions for the 1997 offences, indicating that it was considering further action and inviting submissions. After the appellant had been convicted of the new charges and sentenced, the appellant wrote to the Law Society endeavouring to convince it not to take action based on the 1997 conduct, but the appellant did not mention the 2000 convictions and sentence. The Law Society commenced proceedings in the Supreme Court in May 2001 alleging that the 1997 conduct was professional misconduct and seeking the removal of the appellant’s name from the roll of legal practitioners. It was not until August 2001 that the appellant disclosed the 2000 charges and the successful appeal. The Law Society then added a further charge of professional misconduct based on the appellant’s failure to disclose the 2000 convictions to his professional association, notwithstanding that they were ultimately set aside. The Court of Appeal made declarations that the appellant was guilty of professional misconduct, based on both the convictions for the 1997 offences and the failure to disclose that he had been convicted on 7 November 2000 of further charges of aggravated indecent assault on a person under the age of 16 years, when the appellant was aware that the Law Society was actively considering whether disciplinary action should be taken against the appellant in respect of previous similar convictions. The Court of Appeal therefore found that the appellant was not a fit and proper person to be a legal practitioner and removed his name from the roll. The appellant appealed to the High Court.

The High Court agreed with the Court of Appeal’s finding that it was professional misconduct for the appellant not to disclose the 2000 convictions in the correspondence with the Law Society in relation to his professional status.30 The Court found that the appellant’s professional obligations to the Law Society required him to disclose facts that were material to the Law Society’s decision as to what action to take against him, and stated:31

Frankness required the disclosure of the convictions and sentence, even if he regarded them as unjust, and hoped (or even expected) that they would be overturned on appeal. Furthermore, the appellant’s duty of candour in his dealings with the Law Society was a professional duty, and its breach was professional misconduct.

The High Court concluded, however, that the 1997 offences should not be

characterised as professional misconduct. Although the conduct involved a breach of trust on the part of the appellant in respect of his partner’s children, the nature of the trust, and the circumstances of the breach, were remote from anything to do with professional practice and did not justify the characterisation of the appellant’s personal misconduct as professional misconduct.32 The High Court considered that the commission of the 1997 offences was still relevant to the question of whether the appellant was a fit and proper person to remain a legal practitioner in conjunction with his failure to disclose the 2000 convictions.33 The High Court took into account the evidence as to the appellant’s character and rehabilitation, the exceptional circumstances in which the 1997 offences were committed and the appellant’s efforts to obtain professional advice and assistance and concluded that, on the basis

30 (2004) 216 CLR 253, 272 [30]. 31 (2004) 216 CLR 253, 272-273 [30]. 32 (2004) 216 CLR 253, 274 [34]. 33 (2004) 216 CLR 253, 274 [35].


of the facts of the 1997 conduct and the finding of professional misconduct in relation to the appellant’s lack of candour in correspondence with the Law Society about the 2000 convictions, it would have been appropriate for the Court of Appeal to have ordered the appellant’s suspension from practice, but that such an order would not have extended past the time of the High Court’s judgment.34 As the appellant had not renewed his practising certificate since the 1998-1999 year, the decision of the High Court not to impose any further sanction meant that the appellant had been unable to practise for about five years.

One commentator35 has suggested that the result of the decision of the High Court in this case was to excuse the lack of candour by the extraordinary circumstances. This criticism is about the severity of the sanction, as the lack of candour was characterised as professional misconduct and contributed to the outcome of the effective suspension of the appellant from legal practice for about five years. As the High Court judgment explained,36 each case must turn of its own facts. The lack of candour by the appellant related to his failure to disclose the 2000 convictions for sexual offences, where the underlying conduct was of the same nature as that which resulted in the 1997 convictions which were already under consideration for disciplinary action by the Law Society when the appellant failed to inform the Law Society of the fresh convictions. Although the appellant’s failure to disclose the 2000 convictions (even though they were also the subject of an appeal) was professional misconduct, the Law Society had been alert to the issue of the appellant’s prior sexual offending.

IV CONCLUSION A person’s conduct may reveal the character, or aspects of the character, of the

person. When an applicant for admission discloses past conduct, there are two sources of information about the applicant’s character: the past conduct itself, but also the extent and manner of the disclosure about the past conduct.

The approach in Re Davis37 of using the applicant’s candour (or lack of candour) about relevant past conduct as a guide to the applicant’s present character continues to apply, as shown in recent decisions in which candour about past conduct by the applicant for admission as a legal practitioner was an issue.38

Candour about past conduct gives the admitting body the opportunity to consider carefully the relevance of the past conduct to the applicant’s character for the purpose of admission. Candour gives the applicant a better chance of having past misdeeds not treated as an impediment to admission than if there were lack of candour.39 What a lack of candour about relevant past conduct reveals about the applicant’s character allows the court to reject the application on that basis, without dwelling on the past conduct. In substance, however, as decisions such as Re H40 show, reliance on lack of candour to refuse an application for admission is used as a

34 (2004) 216 CLR 253, 275 [37]-[40]. 35 Suzanne Le Mire, ‘Striking off: Criminal lawyers and disclosure of their convictions’

(2005) 79 Australian Law Journal 641, 647. 36 (2004) 216 CLR 253, 275 [37]. 37 (1947) 75 CLR 409. 38 Re H [2002] QCA 129, S v Legal Practice Board of Western Australia (2004) 29 WAR

173, Re Bell [2005] QCA 151, Frugtniet v Board of Examiners [2005] VSC 332, and Re Deo [2005] NTSC 58.

39 Re H [2002] QCA 129, [27] and [36], Thomas v Legal Practitioners Admissions Board [2005] 1 Qd R 331, 335.

40 [2002] QCA 129.


shorthand way of concluding that the past conduct remains of concern or that the requirement for admission that the applicant be of good character is not satisfied at the time of the application for admission. As the litigation involving Mr Del Castillo shows,41 lack of candour about past conduct will not in an appropriate case preclude the detailed examination of that past conduct, when that is what is required for the assessment of the character of the applicant.

There is an emphasis in the cases on the need for an applicant for admission to disclose past relevant conduct. As that candour is directly relevant to testing the applicant’s character at the time of the application for admission, it does not follow that the emphasis on candour has overshadowed the assessment of the applicant’s character by reference to past misconduct.

41 Re Del Castillo (1998) 136 ACTR 1, Re Del Castillo (1999) 89 FCR 120 and The

Prothonotary of the Supreme Court of New South Wales v Del Castillo [2001] NSWCA 75.

Documents

THE ‘GOOD TRIBUNAL MEMBER AN ARETAIC APPROACH TO … · 2020. 10. 22. · 2 Lawrence Solum, ‘Virtue Jurisprudence: A Virtue-Centered Theory of Judging’ (2003) 34(1-2) Metaphilosophy