Adamson v Queensland Law Society Incorporated [2017] QCAT 355

CITATION: Adamson v Queensland Law Society Incorporated [2017] QCAT 355 PARTIES: Mark Gordon Adamson (Applicant) v Queensland Law Society Incorporated (Respondent) APPLICATION NUMBER: OCR247-16 MATTER TYPE: Occupational Regulation Matter HEARING DATE: 1 June 2017 HEARD AT: Brisbane DECISION OF: Justice Carmody DELIVERED ON: 4 October 2017 DELIVERED AT: Brisbane ORDERS MADE: THE TRIBUNAL ORDERS THAT: 1. The application to renew the practitioner’s unrestricted employee practising certificate for the 2016/2017 period for unfitness is refused. CATCHWORDS: PROFESSIONS AND TRADES – LAWYERS – PRACTISING CERTIFICATES – REFUSAL TO ISSUE – where Queensland Law Society refused to renew practising certificate for unsuitability – where applicant applied for review of that refusal – where applicant is a declared bankrupt – where the applicant was knowingly involved in serious breaches of the Corporations Act – whether the applicant is currently a fit and proper person to hold an unrestricted employee practising certificate Attorney-General v Gregory [1998] QCA 409 Connop v Law Society Northern Territory [2016] NTSC 38 Doolan v Legal Practitioners Admissions Board [2016] QCAT 98 -- 1 of 30 -- 2 Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2006] NSWSC 1338 Law Society of NSW v Foreman (No. 2) (1994) 34 NSWLR 408 Melbourne v The Queen (1999) 198 CLR 1 New South Wales Bar Association v Stevens [2003] NSWCA 95 New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 Pope v Bar Association of Queensland [2016] QCAT 311 Queensland Law Society Incorporated v Smith (2001) 1 Qd R 649 Re B (a Solicitor) [1986] VR 695 Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 Legal Profession Act 2007 (Qld) 3(a), 9, 21(a), 24(1), 30, 31, 45(2), 46(2), 47(1), 47(2), 51, 52, 53(1)-(3), 59, 227, 231(2)(e), 420(1)(e) Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20 APPEARANCES and REPRESENTATION: Applicant Bradley Wright QC, Counsel for the applicant Instructed by Anthony Delaney Lawyers Respondent P Davis QC, Counsel for the respondent G Hartridge, Junior Counsel for the respondent Instructed by the Queensland Law Society Incorporated REASONS FOR DECISION [1] The applicant1 is an Australian legal practitioner. The respondent2 is the regulatory authority for the Legal Profession Act 2007 (Qld).3 The practitioner seeks a review of the Society’s decision to refuse to renew his unrestricted employee practising certificate for the 2016/2017 period for unfitness. Practising certificate requirements [2] The Act regulates the practice of law in Queensland in the interests of the administration of justice, and for the protection of legal services consumers 1 The practitioner. 2 The Queensland Law Society Incorporated. 3 The Act or LPA. -- 2 of 30 -- 3 and the public generally.4 Its stated objects are sought to be achieved via the imposition of rigorous and demanding admission and practice requirements.5 [3] To earn the right to practice, legal practitioners must demonstrate that they are “worthy of public confidence and trust at all times”.6 To help ensure public trust in the profession, only eligible and suitable candidates are admitted to the profession and entitled to engage in legal practice within the state.7 As a further measure, practitioners are not allowed to engage in legal practice within Queensland without a current local practising certificate granted by the Queensland Law Society.8 [4] The Society issues two levels of practising certificate: principal and employee (restricted or unrestricted).9 Restricted employee certificates are usually issued to those practitioners who have not yet completed a required period of supervision imposed under the Act and the Law Society’s Administration Rule.10 A practitioner who has been granted an employee practising certificate is not entitled to engage in legal practice as a principal, and his or her work is monitored by their employer. [5] Certificates remain in force from the date stated in the certificate until the end of the financial year in which it is granted;11 certificates can be applied for at any time, provided the practitioner’s name remains on the Roll. The granting or renewal of a certificate is subject to the statutory conditions set out in the Act,12 as well as any reasonable and relevant limitations imposed by the Society, including conditions relating to supervision, employment, continuing legal education or training, or other requirements.13 [6] The Society’s role is to decide who is to be granted (and allowed to continue to hold) a practising certificate and on what, if any, conditions. As the regulatory authority, the Society must consider an application for the renewal of a certificate each year it is made.14 [7] A certificate must not be renewed if, having regard to the available information, the Society is not reasonably satisfied that the practitioner is an eligible and fit and proper person to hold the certificate.15 [8] The practitioner contends that the Society’s unsuitability finding is erroneous and so too the refusal to renew his certificate. He submits that 4 Legal Profession Act 2007 (Qld) (LPA) s 3(a). 5 LPA s 21(a). 6 See Pope v Bar Association of Queensland [2016] QCAT 311 [6]. 7 LPA ss 24(1), 30, 31. 8 LPA Ch 2, Pt 2.4, Div 3. 9 LPA ss 45(2), 52. 10 LPA s 59; Queensland Law Society Administration Rule 2005 (v34) r 15. 11 LPA s 47(1), (2). 12 LPA s 52. 13 LPA ss 53(1)-(3), 231(2)(e). 14 LPA s 51(1). 15 LPA s 51(1)(b), (5). -- 3 of 30 -- 4 the correct and preferable decision16 for the tribunal to make after a fresh hearing on the merits17 is to set aside the Society’s decision and order it to renew his unrestricted employee certificate on existing conditions for the 2016/2017 period, with any further imposed conditions that might be considered appropriate and necessary. The tribunal’s role [9] The review tribunal operates under the same constraints as the Society in externally reviewing the decision.18 The ultimate question to be determined in this review is whether or not the practitioner is a fit and proper person to hold an unrestricted employee practising certificate, subject to the usual conditions as to bankruptcy. [10] In the event that the tribunal makes an adverse finding against him, the practitioner accepts that renewal of his current certificate is prohibited by s 51(5) of the Act.19 [11] If, on the other hand, the tribunal finds that the practitioner is a fit and proper person to continue to hold a certificate, the tribunal may impose conditions as part of its decision to renew.20 However the issue of what, if any, conditions ought to be imposed has not yet been addressed. This is because the Society’s primary and firm view is that there are no appropriate conditions that can adequately address the practitioner’s deficiencies. The “fit and proper” person requirement [12] The considerations relevant to a practitioner’s suitability or fitness to hold a certificate include the matters mentioned in ss 9(1) and 46(2) of the Act. They are the same as those the Legal Practitioners Admission Board must take into account for admission to the profession. [13] However, there are differences between fitness to be admitted and suitability to hold a practising certificate.21 [14] In New South Wales Bar Association v Murphy, Giles JA said: The difference between unfitness to hold a practising certificate and unfitness to be a legal practitioner may not be great in many cases. But the difference can not be overlooked.22 [15] Thus, a legal practitioner may be worthy of being a solicitor despite the existence of a suitability matter. Conversely, a solicitor may not be “fit and 16 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 20(1). 17 QCAT Act s 20(2). 18 LPA s 51(9); QCAT Act Ch 2, Pt 1, Div 3; Queensland Law Society Administration Rule 2005 (v34). 19 Applicant’s submissions, [13]. 20 LPA s 53. 21 New South Wales Bar Association v Murphy (2002) 55 NSWLR 23. 22 Ibid 52, [111]. -- 4 of 30 -- 5 proper” to hold a practicing certificate, even though he or she is entitled to remain on the Roll. [16] The “fit and proper” requirement has been described as an “amalgam of virtuous moral values and attributes or traits, which include integrity, candour and honesty”.23 It includes whether a candidate is currently of good fame and character. [17] The notion of ‘character’ in the law was explained by Gummow J in Melbourne v The Queen24 as having “varying significance and shades of meaning from particular fields of discourse and the particular fact in issue”. [18] Good character denotes enduring moral and ethical strength even under extreme pressure and when no one is watching. It includes honesty as well as knowledge and ability. 25 Its use with respect to the profession has to be contrasted with its use in the criminal law and the law of defamation: ‘Good character' is not a summation of acts alone, but relates rather to the quality of a person. The quality is to be judged by acts and motives, that is to say, behaviour and the mental and emotional situations accompanying that behaviour. However, character cannot always be estimated by one act or one class of act. As much about a person as is known will form the evidence from which the inference of good character or not of good character is drawn. 26 [19] Although the law does not always distinguish between the two, a person’s character does not necessarily correspond with his or her reputation. [20] Unlike character the assessment of a person’s fame involves an evaluation of whether the person is known favourably to a large section of the public.27 [21] As Brooking J pointed out in Re B (a Solicitor), the focus of the question is on “the position in which the practitioner finds himself”,28 and whether, in light of that situation, the practitioner is now and in the predictable future, a suitable person to practice law. This involves more than an assessment of a person’s character or reputation and includes whether the person is able to satisfactorily carry out all the inherent requirements of practice: meeting exacting (if not exemplary) standards of conduct in professional services and personal affairs, and most of all, having due regard and respect for the authority of the law, the judiciary and allied social institutions. 23 Justice Susan Keifel, ‘Ethics and the Profession of the Lawyer’ (Speech delivered at the Queensland Law Society, 48th Annual Symposium, 26 March 2010). 24 (1999) 198 CLR 1 [64], per Gummow J. 25 Incorporated Law Institute of New South Wales v Meaghan (1909) 9 CLR 655, per Isaacs J. 26 Melbourne v The Queen (1999) 198 CLR 1 [66] citing Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448, 475-476 per Holmes JA. 27 Ibid. 27 Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2006] NSWSC 1338 [56]. 28 [1986] VR 695, 792. See Pope v Bar Association of Queensland [2016] QCAT 311 [11]. -- 5 of 30 -- 6 [22] The court in Ziems v Prothonotary of the Supreme Court of New South Wales considered the relevance of matters such as the standing of a practitioner and the respect in which he may be held in deciding whether a barrister was fit and proper to be permitted to practice. The majority concluded that the mere fact of a prior criminal conviction was not of itself conclusive and that it was necessary to have regard to the nature and circumstances of what had been done.29 The capacity “to command the confidence and respect of” those with whom he must deal in the administration of justice is a matter to be taken into account.30 [23] Dixon CJ (in a dissenting judgment) observed, however, that if a barrister: … is adequately to perform his functions and serve the interests of his clients, he should be able to command the confidence and respect of the court, of his fellow counsel and of his professional and lay clients. When a barrister is justly convicted of a serious crime and imprisoned the law has pronounced a judgment upon him which must ordinarily mean the loss by him of the standing before the court and the public which, as it seems to me, should belong to those to whom are entrusted the privileges, duties and responsibilities of an advocate. There may be convictions for a crime of which this is not true, but I cannot think that the present is one of them.31 [24] There may of course be differences in the case of a solicitor, but if a solicitor has been guilty of such conduct that the solicitors he deals with have significant reservations as to the fulfilment of his obligations and lack respect for him, that is a matter which is to be taken into account in assessing his fitness. [25] In Incorporated Law Institute of New South Wales v Meagher,32 Isaacs J noted the need for high standards and community, as well as professional, confidence in the integrity of those who provide legal services for reward. His Honour also mentioned the heavy responsibility on courts and tribunals to enforce those standards and not endorse people who cannot be trusted to meet and keep them or who “involve themselves in shabby, deceptive and dishonourable deceit”. In referring to what ‘fit and proper’ involves and to the considerations to be taken into account in deciding it His Honour noted that the question concerns more than the mere protection of the public who will deal with a disgraced or dubious solicitor against the possibility of a particular kind of misconduct or its repetition in the future, and continued: It may be that the error, though flagrant, has proved to be a solitary lapse. It may be that after sufficient time has passed the applicant can satisfy the tribunal that his purgation is complete, his repentance real, his determination to act uprightly and honourably so secure that he may be fairly re-entrusted with the high duties and grave responsibilities of a minister of justice. But that obligation lies upon him, and it is no light one. The errors to which human tribunals are inevitably exposed, even when aided by all the ability, all the candour, and all the loyalty 29 Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, 288 per Fullagar J. 30 Ibid 286 per Dixon CJ. 31 Ibid 285-286. 32 (1909) 9 CLR 655, 681. -- 6 of 30 -- 7 of those who assist them, whether as advocates, solicitors, or witnesses, are proverbially great. But, if added to the imperfections inherent in our nature, there be deliberate misleading, or reckless laxity of attention to necessary principles of honesty on the part of those the Courts trust to prepare the essential materials for doing justice, these tribunals are likely to become mere instruments of oppression, and the creator of greater evils than those they are appointed to cure. There is therefore a serious responsibility on the Court — a duty to itself, to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential. It is not a question of what he has suffered in the past, it is a question of his worthiness and reliability for the future. 33 [26] In Law Society of New South Wales v Foreman (No.2)34 Mahoney JA dealt with general principles for deciding whether a person is a “fit and proper” person at length, saying in part: In deciding whether a person is a fit and proper person for this purpose, the Court may, in accordance with the circumstances, take into account matters going beyond the mere protection of the public against similar misconduct. The Court may consider the character of the practitioner, or those aspects of it relevant to the office of a solicitor. A solicitor may affirm and sincerely believe that she will not offend again. But the character of the solicitor — demonstrated by the offence or otherwise — may be such that no sufficient reliance can be placed upon that affirmation. The practitioner may not understand, or be willing to accept, the obligations which the law places upon a solicitor and the high standard of performance which it requires. The Court may not think that in fact misconduct will occur but may be satisfied that the solicitor did not understand what was required of him: see, eg, Law Society of New South Wales v Moulton and the matters there referred to. It is also, I think, relevant for the Court to take into account the effect which its order will have upon the understanding, in the profession and amongst the public, of the standard of behaviour required of solicitors. The Court will no doubt, where appropriate, articulate the standards required and that they are high. However, the Court must, I think, also take into account the effect upon what it has said of, for example, a decision to allow a solicitor guilty of a serious infringement of those standards, to continue to practise. The Court may also have regard to whether, in the light of the offence in question, the solicitor can establish and maintain the kind of relationship which must exist between solicitors. In Re Weare, in the passages to which I have referred, Lord Esher MR and Lindley LJ referred to the relationship which must exist between solicitors. The Master of the Rolls said of Mr Weare (at 446) that “no other solicitors ought to be called upon to enter into such relations” — he had described them as “that intimate intercourse with him which is necessary between two solicitors” — “with a person who has so conducted himself”. Lindley LJ said (at 447): “What respectable solicitor could without loss of self-respect, knowing the facts, meet him in business?” Their Lordships were not referring to the niceties of social intercourse. They were referring, amongst other things, to the assumptions and the understandings which the nature of the business between solicitors requires to be made, one of the other. A solicitor should be able to place reliance upon the word of another and to accept his undertaking that he will do what he promises: as to the role 33 Ibid. 34 (1994) 34 NSWLR 408, 444-445. -- 7 of 30 -- 8 and significance of solicitors' undertakings, see generally, Halsbury's Laws of England, 4th ed, vol 44, pars 255-258. He should be able to assume that, for example, a document bearing the solicitor's signature as witness was executed in the solicitor's presence and that an affidavit made by a solicitor is properly made. If such assumptions cannot be made in the ordinary course of dealing between solicitors and each is required in prudence to check the truth of what the other has suggested, the administration of justice would be seriously impeded. [27] Furthermore: It is also necessary that the courts be able to place reliance upon what practitioners say and do. 35 … If what the solicitor has done is such that the court will hesitate before acting upon what the solicitor has said, that is, in my opinion, an important matter to be taken into account.36 [28] In the same case, however, Kirby P (in dissent) reaffirmed what he had said in Kotowicz v Law Society of New South Wales37 about restoring a solicitor to the Roll: Because the jurisdiction is for the protection of the public, regard also may be had, to the public's interests in the restoration to the Roll of such persons as have demonstrated, including by their work, activities and life, a fitness to be restored. For cultural and historical reasons, redemption and forgiveness are important attributes of the shared morality of our society. In part, this is because of the teachings of religious leaders who have profoundly influenced our community's perception of justice and fairness, reflected from earliest times in the courts: see, eg, St Matthew's Gospel 18, 11ff; The Acts, 3, 19. In part, it derives from the self-interest which any community has to encourage the rehabilitation of those who lapse and to hold out to them the hope that, by diligent and honourable efforts over a period, their past may be forgiven and they may be restored to the good opinion of their family, friends, colleagues and society. The public's interest also includes the economic interest which is involved in utilising, to the full, the skills of talented people who have undergone years of rigorous training but who, having misconducted themselves, have had to be removed for a time from positions of responsibility and trust.38 [29] Analogous principles apply here. The context [30] The practitioner is married and has three children. [31] His eldest child completed Year 12 in 2016 and will study law at University. [32] His youngest child commenced Year 6 at the beginning of 2017. 35 Law Society of NSW v Foreman (No. 2) (1994) 34 NSWLR 408, 445 per Mahoney JA. 36 Ibid 446. 37 Court of Appeal, 7 August 1987, unreported) (again in dissent). 38 Law Society of NSW v Foreman (No. 2) (1994) 34 NSWLR 408, 419. -- 8 of 30 -- 9 [33] The practitioner held an unrestricted certificate and practiced as a consultant to the firm OMB Solicitors, located on the Gold Coast, from December 2013 to January 2016. [34] From late January 2016 to the present day the practitioner has worked for Anthony Delaney Lawyers (excepting the period from when the Information Notice was served upon him until he obtained a stay on 11 January 2017). [35] The practitioner was admitted to practice as a solicitor on 16 June 1997; that is, about 19 years ago. [36] He has no other qualifications. [37] He held a principal practising certificate from 22 December 2004 until 2006. In or about March 2006, the practitioner retired from private practice and took up an in-house position with Atkinson Gore Group Pty Ltd.39 The practitioner went back into private practice in or about March 2011 when he joined Clamenz Evans Ellis Lawyers. [38] The applicant is an undischarged bankrupt (for non-payment of $30,000 in barrister’s fees) but has no criminal or disciplinary history. Nor has he been the subject of any formal complaint in relation to his conduct as a solicitor since 2015. [39] The substantial suitability hurdle confronting the applicant in addition to his bankruptcy is his past close professional association with companies that had deceived and defrauded vulnerable members of the public. The applicant was involved with the so called BVI schemes conceived and controlled by Craig Gore through a company known as MOGS. As a consequence of Gore’s and MOGS’ activities, 187 Australian investors with relatively modest amounts of superannuation were induced to establish self- managed superannuation funds (SMSF), and to use their superannuation funds to invest in property in the United States of America and in companies controlled by Craig and Marina Gore (the Gores) incorporated in the British Virgin Islands. Only $455,000 out of $3.1 million invested was used for the purposes contemplated by the investors. The monies invested were substantially or wholly lost. [40] As to that the parties agree to the following material facts:  The practitioner became a director of MOGS on 23 May 2011.40  By or about June or July 2011, the practitioner was spending almost all of his professional time working for MOGS.  From on or about August 2011 his salary, his secretary’s salary and the overheads of the law practice (Clamenz Evans Ellis Lawyers) were all paid by MOGS. The applicant had a retainer with Craig Core (the 17th 39 Third Affidavit of Mark Gordon Adamson, sworn 24 January 2017, [21]. 40 Third Affidavit of Mark Gordon Adamson, sworn 24 January 2017, [100]. -- 9 of 30 -- 10 defendant) and Marina Gore (the 15th defendant) to be paid $350,000 per annum plus superannuation.  ASIC commenced federal court proceedings on 20 June 2012 against 18 defendants for wrongdoing arising out of the fraudulent MOGS scheme. The applicant was the 16th defendant in his personal capacity. He was a director of Worldwide Property Opportunities Ltd (the 10th defendant) until February 2012. He was a director and shareholder of Cayco Management (the 11th defendant) from March 2012, and of MOGS (the 12th defendant) until 23 April 2012.  The case brought against the applicant related to his knowing involvement, and participation in, contraventions of the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth), both in his personal capacity and as a director of MOGS and Cayco Management.  He was not said to have been an accessory in the conduct relating to the establishment of self-managed superannuation funds, or in conduct relating to the investment by self-managed superannuation funds in real estate in the United States.  On 14 October 2013 consent declarations were made to the effect that between 13 March 2012 and 12 June 2012 the practitioner was knowingly concerned in contraventions of the Corporations Act and in the misleading and deceptive conduct.  White J delivered the principal judgment on 14 April 2015 and a secondary judgment on 29 May 2015.41  The secondary judgment contained orders for injunctions against the practitioner, both in his personal capacity and as a director of Cayco and MOGS, which restrain him from providing financial services or superannuation products for 10 years.  The practitioner made a contribution to the trial by giving evidence in the proceedings. His cooperation was ultimately beneficial to the Court, and White J found that “... in many respects his evidence was a genuine attempt to assist the Court and to be truthful...”42  The findings of Justice White did not go beyond a mere rejection of some of the practitioner’s evidence, which is distinct from a finding of deliberate lying.  At paragraph [52] of the principal judgment White J said: … (the practitioner) was cross-examined extensively … with due respect to (the practitioner), I considered that on several topics he sought to minimise his own 41 ASIC v ActiveSuper Pty Ltd (in liq) [2015] FCA 342; ASIC v ActiveSuper Pty Ltd (in liq) (No. 2) [2015] FCA 527. 42 ASIC v ActiveSuper Pty Ltd (in liq) [2015] FCA 342, [52]. -- 10 of 30 -- 11 involvement and knowledge of critical matters. Some parts of his evidence were self-serving in nature. This may have reflected a retrospective rationalisation of his conduct. I accept that that rationalisation may, in part, have been unconscious but the effect is that while I accept that much of (the practitioner’s) evidence is reliable, caution is required in relation to several aspects, and there is some of his evidence which I do not accept at all.43  Later, His Honour noted: … (the practitioner) has come to recognise the unlawfulness of aspects of his conduct and shortcomings in other respects. The former was reflected in his consent to the making of declarations of his accessorial liability in relation to several of the contraventions alleged against the primary defendants. It was evident that (the practitioner) is now embarrassed by much of his conduct at relevant times.44  The practitioner does not directly challenge White J’s judgment, findings, or reasons.  The applicant later gave evidence to and has cooperated with ASIC subsequent to the proceedings.  ASIC has since concluded its investigations of the practitioner’s business and conduct. No criminal action is proposed against him.  The practitioner informed the Society of the principal judgment by email on 28 May 2015, when he applied for a renewal of his unrestricted employee practising certificate for the 2015/2016 period. An unrestricted employee certificate for 1 July 2015 to 30 June 2016 was automatically issued under s 47 of the Act subject to the terms of undertakings given to the tribunal on 11 January 2017.  On 11 October 2015 the practitioner emailed the Society requesting reinstatement of a principal practising certificate.  On 19 January 2016, the Society sent a letter noting that it may not be satisfied the practitioner was a fit and proper person to hold a principal practising certificate. An outline of supporting submissions and affidavits was filed in response on 15 March 2016 (the first submission).  On 2 June 2016 the practitioner provided a second set of submissions withdrawing his application for a principal practising certificate, but maintained his application to renew his unrestricted employee practising certificate for the 2016/17 period.  The Society sent the practitioner a show cause notice based on his bankruptcy on 19 July 2016. The key question with regards to his bankruptcy was whether or not it rendered him unfit to be entrusted with the important role, functions, responsibilities and privileges of being a solicitor. 43 Ibid. 44 Ibid. -- 11 of 30 -- 12  A third set of submissions on behalf of the practitioner were lodged on 6 September 2016.  A fourth, and final, set of submissions was lodged on 2 November 2016.  On 3 November 2016, the Executive Committee of the Society resolved that it was satisfied that the applicant was not a fit and proper person to continue to hold an unrestricted employee practising certificate and refused to renew the practitioner’s certificate for the 2016/2017 period. [41] In its statement of reasons the Society informed the practitioner that the Executive Committee had assessed his fitness by reference to his honesty and integrity in the context of the reasons he gave for his behaviour, as well as the nature and gravity of his transgression. The Society concluded that:  The predominant concern for the protection of the public warranted a decision that the practitioner is not a fit and proper person to continue to hold a practising certificate.  The public interest considerations could not be satisfied by holding him out as a fit and proper person to continue to hold a practising certificate, having regard to the impugned conduct and the substance of his submissions.  His dishonest conduct demonstrated a level of character falling short of that which will, so far as may be foreseen, guarantee maintenance of the high standards which must lie at the foundation of legal practice.45  The holding of even an employee practising certificate by him presented an unacceptable risk to clients, the public generally and the administration of justice. The practitioner’s references [42] The practitioner presents with impressive and no doubt genuine references from people who have worked with him over recent years, subsequent to the events giving rise to the ASIC proceedings. He submits that the work he has done as a solicitor since then has enabled his employers (including Mr Bennett and later, Mr Delaney – both of whom have sworn an affidavit in support of the practitioner) to assess his attitude and ability to meet the relevant suitability matters. [43] The practitioner offers these references from senior practitioners to the tribunal as independent corroboration of his capacities and suitability, and submits that such opinions ought to weigh heavily in his favour. [44] The practitioner contends that having regard to the opinions of both Mr Bennett and Mr Delaney, reinforced by those of Mr Frigo and Mrs Clements, 45 Information Notice, 19 December 2016, [73]. -- 12 of 30 -- 13 his practising certificate ought to be renewed and that he is a suitable person to continue to hold a practising certificate. [45] He is entitled to bring his past creditable professional service and contributions to account so that the serious lapse of honesty, integrity and judgment is seen in its proper context.46 Mr Bennett – Managing Partner, OMB Solicitors [46] Mr Bennett is the managing partner of the firm OMB Solicitors47 and unreservedly supports the practitioner’s application to renew his unrestricted employee practising certificate for the 2016/2017 period subject to the usual conditions concerning bankruptcy.48 [47] He attests that the practitioner was employed in the litigation department of OMB Solicitors from 1 July 2014 until late January 2016.49 Prior to this, the practitioner undertook consultancy work with OMB Solicitors, commencing in early December 2013.50 [48] Mr Bennett describes the practitioner as being honest and reliable throughout his consultancy and employment with OMB Solicitors.51 [49] Mr Bennett also states that the practitioner brought the ASIC proceedings and decisions to his attention. 52 [50] Mr Bennett deposes that his observation and supervision of the practitioner during his employment did not raise any concerns that the practitioner was or would act unethically or unprofessionally. 53 Mr Delaney – Principal, Anthony Delaney Lawyers [51] Mr Delaney is the principal of Anthony Delaney Lawyers, the firm currently employing the practitioner. He confirms that prior to his employment, the practitioner made full disclosure to him about the ASIC proceedings.54 [52] Mr Delaney deposes that since commencing employment under his supervision, the practitioner has shown that he is a reliable and honest employee.55 46 Law Society of NSW v Foreman (No. 2) (1994) 34 NSWLR 408, 415 per Kirby P (in dissent). 47 Affidavit of Simon Bennett, sworn 25 January 2017, [1]. 48 Affidavit of Simon Bennett, sworn 25 January 2017, [2]. 49 Affidavit of Simon Bennett, sworn 25 January 2017, [5]. 50 Affidavit of Simon Bennett, sworn 25 January 2017, [6]. 51 Affidavit of Simon Bennett, sworn 25 January 2017, [7]. 52 Affidavit of Simon Bennett, sworn 25 January 2017, [8]-[10]. 53 Affidavit of Simon Bennett, sworn 25 January 2017, [11]. 54 Affidavit of Anthony Delaney, sworn 21 December 2016, [11]. 55 Affidavit of Anthony Delaney, sworn 21 December 2016, [16]. -- 13 of 30 -- 14 [53] Mr Delaney specifically states that, under his supervision, the practitioner has demonstrated to him that:  he will do the right thing even when not subject to scrutiny;  he will be honest in his dealings with the courts and with other members of the profession;  he has the best interests of his clients at heart;  he researches the law well;  he will go to the trouble of preparing written submissions in the Magistrates Court when the usual practice of solicitors is not to do so, to demonstrate that he understands and appreciates the responsibilities and privileges of being a solicitor.56 [54] Mr Delaney rejects the suggestion that the practitioner’s bankruptcy or the result of the ASIC proceedings operate as a bar to the practitioner discharging his duties to the client, other members of the profession, or the court.57 [55] In furtherance of this point, he denies that Counsel instructed by his firm treat the practitioner any differently as a consequence of his bankruptcy or the ASIC proceedings, nor would he expect that to be the case.58 [56] Mr Delaney believes that the practitioner is aware of the onerous responsibilities placed on solicitors and that the practitioner will faithfully, lawfully and confidentially discharge his duties as a solicitor now and in the future.59 Mr Delaney also confirms that employment with his firm is assured for as long as the practitioner wishes, and holds a practising certificate.60 [57] It is submitted that Mr Delaney’s affidavit demonstrates – beyond the mere say so of the practitioner – that the practitioner has gained insight into his past failings and has undertaken a genuine change in attitude. Mr Frigo – Barrister [58] Mr Frigo, a barrister based on the Gold Coast, deposes that he has known the practitioner for approximately 30 years.61 [59] He characterises the practitioner as a hardworking, loyal and honest person of good character (generally speaking).62 56 Affidavit of Anthony Delaney, sworn 21 December 2016, [19]. 57 Affidavit of Anthony Delaney, sworn 21 December 2016, [53]. 58 Affidavit of Anthony Delaney, sworn 21 December 2016, [54]. 59 Affidavit of Anthony Delaney, sworn 21 December 2016, [58]. 60 Affidavit of Anthony Delaney, sworn 21 December 2016, [62]. 61 Affidavit of Ronald Frigo, sworn 20 January 2017, [1]. 62 Affidavit of Ronald Frigo, sworn 20 January 2017, [19]-[20]. -- 14 of 30 -- 15 [60] Mr Frigo acknowledges the practitioner’s embarrassment and shame with respect to both the findings in the ASIC proceeding and the conduct grounding the decisions made by Justice White.63 [61] In Mr Frigo’s view, it is very unlikely that the practitioner would find himself in a like position again and, more importantly, that the offending conduct is, in his opinion, out of character for the practitioner.64 [62] The practitioner has briefed Mr Frigo in a number of matters during the practitioner’s employment with OMB solicitors and Anthony Delaney Lawyers.65 He has found that the practitioner performed the services required by him as a good and competent solicitor. [63] In summary, Mr Frigo considers that the practitioner:  is an honest person;  takes seriously his ethical duties and obligations;  keep confidences;  enjoys good relationships with other barristers;  can be relied upon by the courts, other solicitors and barristers to do the right thing, now and in the future;  will obey and uphold the law (both now and in the future).66 [64] It is Mr Frigo’s opinion and belief that the practitioner now has the maturity and appreciation required to faithfully, lawfully and confidentially discharge the duties of a solicitor.67 [65] Mr Frigo also states that the practitioner recognises his shortcomings leading to the findings reached in the ASIC proceedings.68 Mrs Clements – Senior Lawyer, Anthony Delaney Lawyers [66] Mrs Clements is a senior lawyer and consultant at Anthony Delaney Lawyers, and was admitted to practice around the same time period as the practitioner.69 [67] She states that she has referred her clients to the practitioner in the areas she does not personally practice, namely family Law and commercial litigation. Under her supervision, the practitioner has the day-to-day carriage 63 Affidavit of Ronald Frigo, sworn 20 January 2017, [22]. 64 Affidavit of Ronald Frigo, sworn 20 January 2017, [23]. 65 Affidavit of Ronald Frigo, sworn 20 January 2017, [27], [30]. 66 Affidavit of Ronald Frigo, sworn 20 January 2017, [31]. 67 Affidavit of Ronald Frigo, sworn 20 January 2017, [39]. 68 Affidavit of Ronald Frigo, sworn 20 January 2017, [40]. 69 Affidavit of Lisa Clements, sworn 23 January 2017, [1], [5]. -- 15 of 30 -- 16 of such matters and has demonstrated to her that he is a competent, compassionate and honest lawyer.70 [68] Mrs Clements deposes that over the course of the practitioner’s employment at Anthony Delaney Lawyers she has not had reason to discuss with the practitioner any issues of the law or professional obligations.71 [69] Mrs Clements states that the practitioner has always demonstrated to her that he is a fit and proper person to practice law, and that she has come to value his opinion in her day-to-day practice.72 [70] Mrs Clements also states that the practitioner has insight into his shortcomings giving rise to the principal judgment in the ASIC proceedings, and insight into the seriousness of such matters, and has taken full responsibility for the position he finds himself in.73 She appreciated the practitioner’s candour and honesty in respect of matters that she discussed with him.74 [71] Mrs Clements has no hesitation in working with the practitioner or overseeing him perform the work he does within the firm, work which she refers to the practitioner.75 Mrs Chase – Office Manager, Legend Legal Group [72] Mrs Chase is the office manager of Legend Legal Group located at Southport. She has more than 30 years’ experience managing legal firms in addition to acting as an investigator for a number of agencies and government departments, including the Society.76 [73] Mrs Chase describes the practitioner as an honest individual.77 Mr Briggs – client [74] Mr Briggs is the practitioner’s brother-in-law and client.78 [75] He supports the renewal of the practitioner’s employee practising certificate.79 If the practitioner is successful in renewing his unrestricted employee certificate for the 2016/2017 period, both he and his fellow 70 Affidavit of Lisa Clements, sworn 23 January 2017, [12]-[15]. 71 Affidavit of Lisa Clements, sworn 23 January 2017, [16]. 72 Affidavit of Lisa Clements, sworn 23 January 2017, [16]-[19]. 73 Affidavit of Lisa Clements, sworn 23 January 2017, [20]. 74 Affidavit of Lisa Clements, sworn 23 January 2017, [8]-[11]. 75 Affidavit of Lisa Clements, sworn 23 January 2017, [23]. 76 Affidavit of Charmaine Chase, 19 January 2017, [1]-[3]. 77 Affidavit of Charmaine Chase, 19 January 2017, [26]. 78 Affidavit of Luke Briggs, sworn 23 January 2017, [1]-[2], [8]-[10]. 79 Affidavit of Luke Briggs, sworn 23 January 2017, [23]-[24], [74]-[75]. -- 16 of 30 -- 17 company director, ABC, will continue to provide instructions to the practitioner.80 Mr Beattie – client [76] Mr Peter Beattie has instructed the practitioner during his previous employment at OMB Solicitors,81 and his current employment with Anthony Delaney Lawyers.82 [77] Mr Beattie considers the practitioner to be a fit and proper person to practice as a solicitor and maintain an employee practising certificate.83 [78] Mr Beattie confirms that the practitioner is an “excruciatingly” honest person who “meticulously” adheres to court processes, and that the practitioner is well respected by other members of the legal profession.84 [79] Mr Beattie states that in the time that he has known the practitioner, the practitioner has displayed the high standards of professional integrity required to be a solicitor.85 [80] Mr Beattie declares his trust of the practitioner in respect of his legal affairs.86 [81] In his opinion the public is better served by the practitioner being permitted to continue to practice as a solicitor under supervision than being refused a practising certificate.87 [82] Mr Beattie deposes that it is his observation that the practitioner accepts the findings of Justice White, is remorseful for the conduct leading to the principal judgment,88 has insight into his previous shortcomings leading to the events the subject of the principal judgement, and that the practitioner will never put himself in such a position again.89 [83] Mr Beattie believes that practitioner’s errors of judgement, leading to the events dealt with in the principal judgment are not a reflection of the true character of the practitioner, or the person that the practitioner is today.90 In his opinion the actions of the Society are surprising and grossly excessive.91 Michael John Adamson - brother 80 Affidavit of Luke Briggs, sworn 23 January 2017, [76]. 81 Affidavit of Peter Beattie, sworn 23 January 2017, [3]-[5], [9]. 82 Affidavit of Peter Beattie, sworn 23 January 2017, [10]-[14]. 83 Affidavit of Peter Beattie, sworn 23 January 2017, [20], [39], [44]. 84 Affidavit of Peter Beattie, sworn 23 January 2017, [40]-[43]. 85 Affidavit of Peter Beattie, sworn 23 January 2017, [58]. 86 Affidavit of Peter Beattie, sworn 23 January 2017, [49]. 87 Affidavit of Peter Beattie, sworn 23 January 2017, [46]. 88 Affidavit of Peter Beattie, sworn 23 January 2017, [29]-[30]. 89 Affidavit of Peter Beattie, sworn 23 January 2017, [29]-[31]. 90 Affidavit of Peter Beattie, sworn 23 January 2017, [27]-[28]. 91 Affidavit of Peter Beattie, sworn 23 January 2017, [56]. -- 17 of 30 -- 18 [84] The practitioner’s brother has also filed an affidavit in support of his application. XYZ and Luke McKenzie have also filed affidavits in support. [85] It is submitted that each of these character references support the contention that the practitioner is currently of good fame and character and suitable to hold an unrestricted employee practising certificate. [86] XYZ’s affidavit is said to be particularly important for what it says about the character of the practitioner (as well as what it does not). [87] The practitioner suggests that advising XYZ of the ASIC proceedings prior to her making a decision as to whether she should engage him as her lawyer shows contrition. The Gores [88] ASIC contended that Craig Gore was the person controlling the activities of MOGS and who conceived the BVI Schemes. [89] At paragraph [35] of the second judgment, White J held as follows: … I found that the directors of MOGS were accustomed to act in accordance with Mr Gore’s instructions and wishes in the sense contemplated by subparagraph (b) of the definition of s. 9 of the Corporations Act. [90] The practitioner ceased his association with Marina and Craig Gore (and any related companies) at or about October 2014, when the trial where the applicant was joined as a party to the ASIC proceedings commenced. [91] The practitioner’s submissions addresses the criticism of him that he allowed Craig and Marina Gore to influence his decision making process, by readily accepting that he allowed himself to be put in the position where his decision making was compromised, and that his association with the Gores provided the platform for this to occur.92 [92] It is submitted that in distancing himself from the Gores prior to the ASIC hearing commencing, the practitioner demonstrated a recognition of the seriousness of the situation and his own shortcomings. [93] The practitioner has also made submissions providing reasons why he does not publicise his disassociation with the Gores. [94] In or about late November 2011 the practitioner records that he was advised by Gore that, “bikies” were following him, and further, that the “bikies” were engaged by Mayfair.”93 92 Applicant’s submissions, [297]. 93 Third Affidavit of Mark Gordon Adamson, sworn 24 January 2017, [285]. -- 18 of 30 -- 19 [95] The practitioner records that in or about late November 2011 or December 2011 Gore arranged for a sweep of his office one evening and that as a result of that sweep “bugs” were located in the desk of the practitioner.94 [96] The practitioner was alarmed by the location of “bugs” in his desk; the “bugs” found were said to be not overly sophisticated and used by “bikies”.95 [97] The practitioner records that Gore initially convinced him that the “bugs” were planted in his office by Mayfair.96 [98] The practitioner records that at or about this time, the practitioner withdrew from his friend and family base and that he did not like going out in public with his wife.97 [99] He and his family are said to be genuinely fearful of repercussions that they might suffer as a consequence of the evidence that the practitioner gave in the ASIC proceedings and the co-operation that he has provided generally.98 [100] The practitioner sets out that he was fearful of Gore and he detailed a number of break-ins that he claims occurred prior to the ASIC hearing.99 [101] Exhibit “C” to the third practitioner affidavit contains a copy of a tax invoice by Bodyguards International purportedly for the period 15 November 2011 to 15 January 2012. The fees claimed are substantial. [102] The practitioner now has serious doubts as to whether “bikies” were ever following him at all.100 [103] In the third practitioner affidavit, he states that:  without the influence of Gore, he has reconnected with past friends and past clients;  the people that he has reconnected with include people for whom he has engaged in legal practice, or alternatively, who have referred work to him.101 [104] The practitioner’s brother deposes that in the late evening of 26 January 2012, his wife’s car was set alight in the driveway of his family home. A fuel 94 Third Affidavit of Mark Gordon Adamson, sworn 24 January 2017, [291- [294]. 95 Third Affidavit of Mark Gordon Adamson, sworn 24 January 2017, [292],-[293], [294]. 96 Third Affidavit of Mark Gordon Adamson, sworn 24 January 2017, [298]. 97 Third Affidavit of Mark Gordon Adamson, sworn 24 January 2017, [301]-[304]. See also Affidavit of Luke Briggs, sworn 23 January 2017, [43]-[45] and Affidavit of Michael John Adamson, sworn 24 January 2017, [25]- [27], [33]-[35]. 98 Third Affidavit of Mark Gordon Adamson, sworn 24 January 2017, [453]-[462]. 99 Third Affidavit of Mark Gordon Adamson, sworn 24 January 2017, [206]-[262]. 100 Third Affidavit of Mark Gordon Adamson, sworn 24 January 2017, [317]-[318]. 101 Third Affidavit of Mark Gordon Adamson, sworn 24 January 2017, [433]-[434]] -- 19 of 30 -- 20 can was left under the car, seemingly as a calling card, which caused considerable distress to his family.102 [105] The practitioner’s brother also deposes that he and the younger brother confronted the practitioner about the arson of his wife’s car, and let the practitioner know that he was concerned for his welfare, due to a belief that the practitioner was working for a person who was responsible for the arson of his wife’s car.103 [106] The practitioner’s brother also states that:  when they reconciled, the practitioner apologised profusely about his actions, his conduct and poor choices;  the practitioner was extremely remorseful and the reconciliation was very emotional;  he had only one requirement for reconciliation with the practitioner – a commitment from the practitioner that he had disassociated himself from Gore. That commitment was forthcoming by the practitioner;  upon reconciling with the practitioner, the practitioner shared with him the fear in which he had been living. He was tormented and remorseful for his actions. The practitioner was very emotional and he was worried about the practitioner’s then state of mind.104 [107] On 23 January 2017 (the day before his affidavits were due to be filed) the practitioner’s home was again broken into.105 The Society’s stance [108] In support of its decision as the correct and preferable one, the Society submitted that:  As early as 2012 the practitioner should have known that he had an ongoing duty to fully and frankly disclose his perilous situation to the Society, as it was a material suitability factor when renewing his practicing certificate for the 2014/2015 and related to his being declared bankrupt in 2014.  White J’s comments in the second judgment are relevant to the practitioner’s honesty and general reputation. The findings reveal serious personal and professional dishonesty and illegality on the practitioner’s part tantamount to substantial substandard professional conduct and raises significant unaddressed concerns about his ongoing entitlement to practice law. 102 Affidavit of Michael John Adamson, sworn 24 January 2017, [28]. 103 Affidavit of Michael John Adamson, sworn 24 January 2017, [30]. 104 Affidavit of Michael John Adamson, sworn 24 January 2017, [33]- [35]. 105 Third Affidavit of Mark Gordon Adamson, sworn 24 January 2017, [453]-[462]. -- 20 of 30 -- 21  The practitioner’s belated candour or expressions of regret and asserted insight do not suffice to dispel the serious past misconduct in a professional role.  While past conduct is not conclusive, it can be used as a more reliable predictor of future risk than self-serving promises and assurances of a person of variable honesty and questionable integrity. Consistency over a prolonged period is needed to warrant the necessary conclusion of a genuinely improved character and an acceptable future risk of relapse, in order that the deterrent purposes and protective demands of the regulatory framework are adequately met.  The practitioner took longer than a reputable lawyer would have to disassociate from sharp business practices and associates, preferring to pursue personal gain over meeting his professional obligations.  The practitioner concedes that he compromised his professional independence and integrity by agreeing to be on MOGS payroll and allowing Gore to dictate terms. This insight is an indicator of true character building, but it is not enough on its own.  The practitioner breached an implied undertaking to the court not to use a confidential report (Ex H of his tribunal affidavit) for any purpose other than the ASIC litigation.  The practitioner repeating “without prejudice” communications with other lawyers is not conducive to maintaining working relationships with other solicitors.106  His cooperation with ASIC did not begin until late 2015 and his motives were a mixture of genuine contrition and a desire for reduced penalties.  As the only accredited family law solicitor at Anthony Delaney Lawyers (his current employer) the ability of his principal to properly supervise his work in that area is limited.  Legal Services Commissioner v Cousins107 has clear parallels with the practitioner’s circumstances. That case concerned a lawyer who was knowingly involved in misleading and deceptive conduct in a corporate context who, like the practitioner, attempted to shift blame and downplay his culpability and the criticism of him by a court. The lawyer in Legal Service Commissioner v Cousins also had general connections with dubious entrepreneurs, a good professional history and testimonials, but had re-established himself, cooperated with ASIC (although not to the same degree as the practitioner here) and presented evidence of illness during the period of contrary conduct. 106 NSW Bar Association v Stevens [2003] NSWCA 95. 107 [2009] LPT 002. -- 21 of 30 -- 22 The practitioner’s position [109] The practitioner’s contention is that past misconduct should only disqualify a solicitor from renewing his or her practising certificate where that past misconduct reflects the presence of some personal defect incompatible with, or the absence of qualities essential to, the conduct of practice as a solicitor.108 [110] The circumstances regarding the bankruptcy of the practitioner have been set out in his compliance affidavits provided to the Society. [111] The practitioner is expected to be automatically discharged later this year. [112] It is submitted that the practitioner’s status as an undischarged bankrupt does not constitute any impediment to the practitioner renewing his unrestricted employee practising certificate, subject to the conditions usually imposed as to bankruptcy. [113] The practitioner emphasises the point that his application is for an employee practising certificate, meaning he will be supervised by the Principal of the firm that employs him, effectively militating any contention by the Society that the public is at risk if the practitioner holds an unrestricted employee practising certificate. [114] According to the practitioner, any risk to the public is minimised by the fact that he has no disciplinary history, no criminal history, and, more importantly, a substantial period of time has passed, without incident, since the events giving rise to White J’s principal judgement took place. [115] Additionally, the practitioner entered into consent orders, including the undertakings made by Justice White, and there is no appreciable risk that he intends to breach any of them. [116] Moreover, Mr Delaney is prepared to continue to informally supervise the practitioner’s performance in his work to reduce any appreciable risk.109 [117] In his third affidavit, the practitioner deposes that since the conclusion of the ASIC hearing he has been trying to rebuild himself and his professional reputation110 and has no interest in being involved in any aspect of financial planning, the creation of a prospectus for a company, nor the offering of securities as investments.111 [118] He submits through counsel that his circumstances post-judgment are completely distinguishable from those in Legal Services Commissioner v Cousins. He contends that unlike Mr Cousins the self-reflection he has 108 See Queensland Law Society Incorporated v Smith (2001) 1 Qd R 649; Law Society of NSW v Foreman (No. 2) (1994) 34 NSWLR 408, 442. 109 Affidavit of Anthony Delaney, sworn 21 December 2016, [60]. 110 Third Affidavit of Mark Gordon Adamson, sworn 24 January 2017, [423]. 111 Third Affidavit of Mark Gordon Adamson, sworn 24 January 2017, [430]. -- 22 of 30 -- 23 engaged in has led him to appreciate the reasons why he is in the position he is in. [119] Importantly, the practitioner submits that his conduct since the ASIC proceedings can be described as being at odds with the conduct of a person with a serious character flaw. His behaviour demonstrates remorse, contrition, a recognition of past wrongdoings, and a clear intention to do right. [120] The practitioner maintains that his present fitness does not depend as much on what he has done wrong in the past, as it does on his basic character and trustworthiness. [121] He argues that despite his insolvency and the findings in the ASIC proceedings, he has shown that he presently has the character and capacities needed to command the confidence, respect and trust of the courts and other members of the profession. The practitioner submits that he can be relied upon now and in the future to obey and uphold the law and to be completely honest in all of his professional dealings. [122] The applicant contends that while past behaviour is an indicator, it is not necessarily a predictor, of future conduct. [123] The practitioner highlights his voluntary disclosure to the Society of the principal judgment in the ASIC proceeding and his insolvency as evidence he has not sought to minimise or conceal his prior conduct, and that this behaviour is as would be expected of a solicitor acting properly. He therefore approached the renewal of his practising certificate for 2015 and 2016/2017 with good faith and candour. [124] It is suggested that if the practitioner failed to disclose the decisions in the ASIC proceeding that would have revealed a lack of awareness of the practitioner’s professional responsibilities, or worse still, would have been an attempt to obfuscate the true state of affairs. [125] The practitioner has provided (in the Third Adamson Affidavit) various reasons why he admittedly did not provide all the facts, circumstances and personal reflections required by the Society in his earlier submissions delivered to the Society. [126] The applicant submits, however, that there can be no suggestion of any moral turpitude or improper conduct in his failing to fully and frankly disclose all relevant material in his earlier submissions to the Society. [127] The applicant argues that the Third Affidavit, when read in combination with his earlier submissions, provides a complete explanation as to why the practitioner is in this position and a personal reflection on what he might or should have done differently. [128] It is also submitted that by entering into consent orders in the ASIC proceedings, the practitioner showed an insight into his personal failings -- 23 of 30 -- 24 and shortcomings, and demonstrated that he had accepted and taken responsibility for his conduct. He says his conduct following the conclusion of the ASIC proceeding makes this point particularly clear. [129] The practitioner rejects any suggestion that he sought to lay the blame for his actions at the feet of others. [130] The practitioner’s counsel maintains that there are many kinds of conduct deserving of disapproval, and many kinds of convictions or breaches of the law, which do not spell unfitness.112 [131] It is argued that when the practitioner’s involvement with the MOGS affair is viewed in its proper context, it is not so disgraceful or discreditable to justify disentitling the applicant the right to practice as a solicitor. [132] The practitioner submits that his self-managed superfund (SMSF) purchased two properties (via options) in developments to be undertaken by MOGS.113 [133] The argument is that it is contradictory for the Society to suggest that the practitioner is inherently dishonest, when he too invested in properties to be developed by MOGS, and like other investors, lost his money (or more accurately, his SMSF lost money). [134] The practitioner’s counsel rightly notes that present fitness does not depend as much on what he has done wrong in the past as on his basic character and current trustworthiness. [135] Past misconduct, the practitioner’s counsel says, should only be grounds for disqualification where it reflects the presence of some personal defect incompatible with, or the absence of qualities essential to, the conduct of practice as a solicitor.114 [136] Furthermore, depriving the applicant of the opportunity to practice as a solicitor will inevitably result in further financial and personal hardship for the practitioner and his dependents. [137] Human frailty, inexperience and misguided trust in others, rather than a flagrant disregard of the law or professional duties to the court, led the practitioner to the position that he now finds himself in. [138] The practitioner’s shortcomings are not so serious as to reflect a permanent defect in his character or professional competence or integrity. It is submitted that, all things considered, there is no reasonable basis for the 112 Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279, 298 per Kitto J. 113 Third Affidavit of Mark Gordon Adamson, sworn 24 January 2017, [402]-[409]. 114 Queensland Law Society v Smith (2001) 1 Qd R 649; Law Society of New South Wales v Foreman (No. 2) (1994) 34 NSWLR 408, 442; New South Wales Bar Association v Cummins (2001) 52 NSWLR 279. -- 24 of 30 -- 25 Society to have determined that the practitioner suffers from “a serious character flaw beyond an error of judgement”.115 [139] Furthermore, there is a public interest in the profession retaining dedicated, hardworking (and redeemed) solicitors (like the practitioner). [140] Overall, the applicant has demonstrated the present character and capacities needed to command the confidence, respect and trust of the courts, the profession, clients, and shown that he can be trusted in the future to be completely honest in all his professional dealings, by obeying and upholding the law. Analysis and findings [141] The key issue for the tribunal to resolve is whether it is reasonably satisfied or not that the applicant is currently fit and proper to be issued an unrestricted employee practising certificate for the next twelve months. [142] The intrinsic character of the practitioner should be the focal point in deciding whether or not he is of good fame and character within the profession. [143] A finding of unfitness is not dependent on proof of dishonesty. Dishonesty is generally discreditable but discreditable conduct is not necessarily inherently dishonest. Major errors of judgment can sometimes be of such a magnitude as to demonstrate permanent or tenacious character flaws. [144] The practitioner should not be endorsed as a fit and proper person to be a lawyer by the tribunal or regulatory body lightly. Endorsement should occur only if and when there is reason to believe he genuinely and demonstrably deserves it. [145] Shortly stated the test is: does the practitioner have the intrinsic personal character and professional capacity needed to command the confidence, respect and trust of the judiciary, legal profession and clients, and can he be relied on in the predictable future to obey and uphold the law, and to be completely honest and candid in all his professional dealings? [146] To be a fit and proper person to hold a practising certificate requires demonstrated honesty and competence in dealing with clients, other practitioners and the court. It also extends to the assessment of a practitioner’s “character”. Assessments of character help maintain continuing public confidence in the performance of the duties of legal practitioners, which is essential given the central role the profession plays in the administration of justice.116 [147] The character and quality of the practitioner’s conduct must be assessed in the context of all the circumstances leading to the orders. 115 Information Notice, 19 December 2016, [69]. 116 Connop v Law Society Northern Territory [2016] NTSC 38 [25]. -- 25 of 30 -- 26 [148] The suitability matters in s 9 LPA are considerations – especially ‘fame and character’ – relevant to the inquiry into whether an applicant meets the description of a “fit and proper” person to continue to hold a practising certificate. [149] The Australian Solicitors Conduct Rules117 are also pertinent, because a breach of the rules may provide a basis for a finding of professional misconduct or unsatisfactory professional conduct. The rules with particular significance to the present case include: 3.1 A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty; 4.1.2 (A solicitor must) be honest and courteous in all dealings in the course of legal practice; 4.1.4 (A solicitor must) avoid any compromise to their integrity and professional independence; 5.1 A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to: 5.1.1 be prejudicial to, or diminish the public confidence in, the administration of justice; or 5.1.2 bring the profession into disrepute; and 17.1 A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client or of the instructing solicitor (if any) and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s instructions where applicable. [150] The governing principle of the Act and the regulatory regime is the protection of the public and the standing of the profession. [151] The object of the regulatory regime is to ensure, as far as possible, that only those who may reasonably be expected to display the appropriately high standards of professional integrity and competence are held out to the public, with its imprimatur, as being suitable to practice as solicitors.118 [152] The practitioner must be able to be relied on to do the right thing, even when no one is looking. There is no escaping the fact that he deliberately chose to enrich himself at the expense of others. [153] As his counsel rightly points out, there are a number of factors that may be seen to support the renewal of the practitioner’s unrestricted employee practising certificate. 117 Which are binding on legal practitioners under LPA s 227. 118 Attorney-General v Gregory [1998] QCA 409. -- 26 of 30 -- 27 [154] Firstly, about five (5) unremarkable years have passed since the conduct giving rise to the ASIC decisions. [155] Secondly, the practitioner’s contribution to the trial, by giving evidence in the proceedings, assisted the court perform its forensic and protective functions. [156] Thirdly, the practitioner continued to co-operate with the ASIC subsequent to the ASIC hearing. [157] Fourthly, the character references in support of the practitioner commend the practitioner as a person who is now and into the predictable future fit and proper to practice his profession without supervision. Mr Bennett and Mr Delaney have both supervised the practitioner and had the opportunity to assess his suitability to hold an unrestricted employee practising certificate. [158] Mr Bennett and Mr Delaney, as well as his other referees, assert that the practitioner is an honest person – not only in the present, but prior to his involvement with the MOGS scheme and the Gores. [159] Mr Delaney asserts that the practitioner has insight into his past failings. His opinions are reinforced by the statements of Mr Frigo and Mrs Clements in their affidavits. [160] The references of the practitioner demonstrate his acceptance of the legal outcomes as a result of the ASIC proceedings, and recognition of his shortcomings and wrongdoings grounding the ASIC proceedings. [161] The references also demonstrate a change in the practitioner’s attitude, beyond the practitioner’s mere say-so. [162] The references in support of the practitioner also demonstrate remorse and contrition. [163] Fifthly, the issuing of an unrestricted employee practising certificate will mean that the practitioner is supervised in his professional dealings. The practitioner is currently supervised by Anthony Delaney and, to a lesser extent, Lisa Clements. He will agree to a condition that states he must inform any alternative employer of the principal judgment for as long as the tribunal considers appropriate. [164] He also undertakes to do more continuing legal education and training if directed; participate in a mentoring program if deemed necessary; and not apply for a principal practising certificate for up to 5 years. [165] It is submitted that allowing the practitioner to continue to practice as an employee would avoid the unfortunate situation of effectively bringing the professional career of the practitioner to an end. The practitioner is a married man with three children. It also means that appropriate and proper protection mechanisms are in place for the protection of the public. This -- 27 of 30 -- 28 would, it is said, be consistent with the approach taken in Quinn v Law Institute of Victoria Limited.119 [166] Sixthly, the practitioner’s employee practising certificate will be subject to protective conditions for the balance of his bankruptcy. [167] Seventhly, the behaviour of the practitioner subsequent to the ASIC hearing reflects a degree of insight, acceptance, remorse and contrition on the part of the practitioner. [168] Eighthly, the practitioner has severed his connections with the Gores and the other MOGS defendants. [169] Ninthly, the practitioner now confines his professional activities to solely providing legal services to clients, as an employee, under supervision of his Principal. [170] Tenthly, the practitioner has the clear confidence and support of those who know him in the workplace, including the partners of the firm, and has the support of his clients – both past and current. However, good fame is not as weighty a consideration as character, and the referee evidence has to be assessed against contradictory indications. [171] Therefore, the opinions and testimonials of the practitioner’s supervisors, colleagues, barristers, clients and family members are given substantial, but not decisive, weight by the tribunal. [172] The court or tribunal is not concerned with punishing the applicant for past misconduct. The aim to ensure the public is well served by the legal practitioner in whom they place their trust, and to maintain the confidence in the legal profession as a valuable public institution. [173] The case In Re Davis120 concerned a lawyer who could not meet that standard. He was admitted, but subsequently it was discovered that he had been convicted on a charge of breaking and entering. He had failed to disclose the conviction on his application for admission. Dixon J recognised the numerous difficulties Davis had had as a young man, when he had committed the crime, but the point was that he had not been frank and honest with the court. Dixon J said that: The fulfilment of that obligation of candour with its attendant risks proved too painful for the appellant … In those circumstances the conclusion that he is not a fit and proper person to be made a member of the Bar is confirmed. [174] The practitioner was struck off and not readmitted for another 30 years, after four further applications. 119 [2007] VSCA 122. 120 (1947) 75 CLR 409. -- 28 of 30 -- 29 [175] I accept the Society’s submissions that despite the time that has elapsed since the federal court proceedings:  the practitioner’s defaults were objectively dishonest (in a broad if not technical legal sense), intentional, and callous; It is not necessary or appropriate for the tribunal to make specific professional conduct findings, but I note that disqualification from managing a company is capable of supporting professional misconduct charges.121 The federal court findings and orders (especially the injunction banning the applicant from the superannuation business and finance industry) are evidence that the applicant and related companies contravened the corporations law;  he allowed a client to control his decision making;  although he severed his ties with Mr and Mrs Gore in 2015, the reason was not solely because he realised his conduct was wrong – it was partly because they had under paid him;  despite the asserted embarrassment and remorse, deep insight, genuine contrition, candour and empathy appears lacking;  while the practitioner may be chastened by his recent fall from grace, he still tends to minimise his conduct and partially blames others for his predicament, rather than accepting full unqualified personal responsibility for his contrary conduct and a determined commitment to atone by proposed actions, beyond mere words;  the intimate participation in unfair trading schemes shows an overly close identification with unscrupulous corporate clients and an inability to act at arm’s length in dealings between them and unsuspecting investors;  past errors of judgment and the resolution of ethical issues reflect adversely on his character as well as his decision-making and, in my opinion, he currently lacks the capacity to always make sound and principled judgments under the pressure of stronger personalities or financial opportunities;  having regard to the position in which the practitioner finds himself, I am not confident enough that he is a suitable person to practice law in the predictable future. This is in the sense of being able to satisfactorily meet all of the profession’s inherent requirements, including the exacting, if not exemplary, standards of conduct in providing legal services and conducting his personal affairs with due regard and respect for the Society (acting in the public interest), the authority of the law, the courts and related social institutions. 121 LPA s 420(1)(e). -- 29 of 30 -- 30 [176] The protective aspect of professional regulation extends beyond shielding public investors from potential harm, to include deterring and discouraging similar behaviour and emphasizing the standard of conduct expected of those who practice law. [177] The practitioner has no doubt suffered great humiliation and public shame as a result of the federal court proceedings and the publicity surrounding it. This is relevant to assessing the likelihood that he would risk it again by reoffending, but in my estimation he continues to shirk full personal responsibility for his contraventions in his affidavits and submissions, and overvalues the fact that no specific dishonesty findings were made about him by the federal court. [178] In my opinion, however, insufficient time has passed to be confident that the practitioner is now worthy of public trust in all professional circumstances. The practitioner has not done enough to demonstrate, aside from the (insufficient) passing of time, that he is a safe pair of hands. [179] Having regard to the available information I am reasonably satisfied that the practitioner is not yet fit to hold an unrestricted employee practising certificate with the usual conditions as to bankruptcy. [180] The correct and preferable decision, therefore, is that the practitioner is not currently “fit and proper” to hold an unrestricted employee practising certificate. Notably, this does not mean that the practitioner ceases to be a member of the legal profession. It simply prevents him temporarily from practising it on an unsupervised basis on the current conditions. The non- renewal of a practising certificate does not preclude reapplication in the future and, to that extent, the consequences are less serious than removal from the Roll. [181] Orders accordingly. -- 30 of 30 --