Attorney-General v Clough [2000] QCA 254 [2002] 1 Qd R 116

SUPREME COURT OF QUEENSLAND CITATION: Clough v Queensland Law Society Inc; A-G v Clough [2000] QCA 254 PARTIES: PAUL HENRY CLOUGH (appellant/cross-respondent) v QUEENSLAND LAW SOCIETY INCORPORATED (respondent/cross-appellant) THE ATTORNEY-GENERAL AND MINISTER FOR JUSTICE (appellant) v PAUL HENRY CLOUGH (practitioner/respondent) FILE NOS: Appeal No 8498 of 1999 Appeal No 8797 of 1999 Solicitors’ Complaints Tribunal Charge No 21 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Solicitors’ Complaints Tribunal DELIVERED ON: 7 July 2000 DELIVERED AT: Brisbane HEARING DATE: 16 May 2000 JUDGE: Pincus JA, Muir and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDER: In Appeal No 8498 of 1999: Order that the: (a) charge be amended in accordance with the application made in this Court by the Queensland Law Society (b) appeal and cross-appeal be dismissed (c) appellant pay the Queensland Law Society’s costs of the appeal to be assessed In Appeal No 8797 of 1999: Appeal dismissed CATCHWORDS: PROFESSION AND TRADES – LAWYERS – REMOVAL OF NAME FROM ROLL – MISCONDUCT UNFITNESS -- 1 of 27 -- 2 AND DISCIPLINE – GROUNDS FOR DISCIPLINARY ORDERS – IN GENERAL – DISCIPLINARY ORDERS – STRIKING OFF AND ANCILLARY ORDERS – SUSPENSION - Solicitors’ Complaints Tribunal found practitioner guilty of unprofessional conduct on basis of unfairness – 12 months suspension and legal education requirement – whether practitioner unfit having demonstrated failure to maintain reasonable standard of competence – whether penalty inadequate and should be struck off – conduct concerned false and misleading Statements of Loss and Damage under r 149A DCR – failure to include information re partnership entitlements and other income sources/capacities known to practitioner – requirements of r149A re self-employed plaintiff – whether conduct negligent as opposed to unprofessional – whether “attempt” to advance case by unfair means involves “intention” Judiciary Act 1903 (Cth), s 41 Legal Practitioners’ Ordinance 1970-1 (ACT) s 35, s36 Legal Profession Practice Act 1958 (Vic) s 15 Queensland Law Society Act 1952, s 6A, s 6P, s 6Z, s 3B District Court Rules 1968, r 149A Adamson v Queensland Law Society Inc [1990] 1 Qd R 498, referred to Attorney-General v Bax [1999] 2 Qd R 9, mentioned Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321, referred to Clyne v New South Wales Bar Association (1960) 104 CLR 186, mentioned Coulton v Holcombe (1987) 162 CLR 1, contrasted DPP v Morgan [1976] AC 182, mentioned Ex parte Attorney-General; Re A Barrister and Solicitor (1972) 20 FLR 234, referred to Federal Commissioner of Taxation v Everett (1979-80) 143 CLR 440, referred to Federal Commissioner of Taxation v Everett 78 ATC 4, 595, referred to Federal Commissioner of Taxation v Happ (1952) 9 ATD 447, referred to Gardner v Akeroyd [1952] 2 QB 743, mentioned Harvey v The Law Society of New South Wales (1975) 49 ALJR 362, referred to Medical Board of Queensland v Bayliss [1999] QCA 59; [2000] 1 Qd R 598, referred to Mellifont v Qld Law Society Inc [1981] Qd R 17, mentioned Myers v Elman [1940] AC 282, referred to New South Wales Bar Association v Evatt (1986) 117 CLR 177, mentioned -- 2 of 27 -- 3 O’Reilly v Law Society of New South Wales [1988] NSWLR 204, contrasted Pemble v The Queen (1971) 124 CLR 107, mentioned Pillai v Messiter (No 2) (1989) 16 NSWLR 197, mentioned Prothonotary of the Supreme Court of New South Wales v Costello (1984) 3 NSWSLR 201 at 203, mentioned R v Leavitt [1985] 1 Qd R 343, contrasted R v O’Connor (1980) 146 CLR 64, mentioned Re A, A Practitioner of the Supreme Court [1937] SASR 316, referred to Re A Practitioner (1984) 36 SASR 590, referred to Re a Solicitor [1966] VR 617, mentioned Re Maraj (A Legal Practitioner) (1995) 15 WAR 12, referred to Re R, A Practitioner of the Supreme Court [1927] SASR 58, referred to Re Wheeler [1991] 2 Qd R 690, referred to Resch v Federal Commissioner of Taxation (1942) 66 CLR 198, referred to Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, mentioned COUNSEL: N M Cooke QC with D J Campbell for the appellant/cross-respondent Clough D G Clothier for the respondent/cross-appellant Queensland Law Society P A Keane QC SG with G R Cooper, for the appellant Attorney-General SOLICITORS: Coyne Coyne & Towers for the appellant/cross-respondent Clough Brian Bartley & Associates for the respondent/cross-appellant Queensland Law Society Crown Law for the appellant Attorney-General [1] PINCUS JA: The circumstances giving rise to this appeal are set out in the reasons of Muir J, which I have had the advantage of reading. [2] The appellant was charged with having attempted to further his client's case by unfair or dishonest means. The Solicitors Complaints Tribunal found the charges, with some exceptions, proved; but it was not prepared to hold that the appellant had been dishonest. It was satisfied that the appellant "exhibited a lack of understanding of the [relevant] rule and his obligation in preparing the answers [to interrogatories]". In further reasons given after argument on the issue of penalty, the Tribunal said that it had found unprofessional conduct in "failure to maintain a reasonable standard of competence". That expression is based upon part of the definition of "unprofessional conduct or practice" in s 3B(1) of the Queensland Law Society Act 1952 ("the Act"). The Tribunal also said – -- 3 of 27 -- 4 "[A]t the present time, the practitioner is unfit to practice [sic] as, on his own evidence before the Tribunal, he has demonstrated a failure to maintain a reasonable standard of competence". [3] Information which had to be supplied by the appellant under the court's procedures was incomplete and incorrect; this was due to what the appellant claimed to be his genuine opinion of the extent of the required disclosure. Although much of what was said by the appellant in defending his position has on the face of it the appearance of a series of quibbles, there is no challenge by the Society to the position adopted by the Tribunal, that there was no dishonesty. [4] I agree that, for the reasons given by Muir J, the charges as framed required proof of an intentional action; an attempt to achieve a particular purpose is not made unless one's actions are due to a particular mental state, namely an intention to achieve that purpose. The Tribunal acted on the view that "it is unnecessary for the Society to prove intent in order to establish unfairness"; that is true, but proof of an attempt to achieve an unfair result does require proof of a bad intention. The ordinary understanding of the expression, "I tried to win by unfair means" is that the speaker has been consciously unfair. [5] In this respect the Tribunal decision was in error, since the Tribunal found negligence but no reprehensible intention. The question is whether, as the appellant contends, the appeal should be allowed and the penalty imposed set aside. This would seem an odd result; the Tribunal's view of the matter was, some might think, the most charitable which could be adopted. It found actions and statements which might have been regarded as chicanery to be honest but mistaken. [6] Mr Cooke QC, who led for the appellant, argued that if the issue had been whether there was negligent conduct the appellant could have called additional evidence and conducted his case differently; this was said in opposition to the proposal that the charge be amended to allege negligence, rather than setting aside the order made by the Tribunal. There are a number of reasons for thinking that this consideration does not warrant allowance of the appeal. One is that the question of competency was distinctly raised before the hearing concluded during addresses to the Tribunal. As has been explained, the Tribunal found that the appellant had exhibited a lack of understanding of the rule and of his obligations in preparing the answers. Five days later, the hearing resumed to discuss penalty and counsel for the appellant pointed out that the finding against him appeared to be based "on a failure to maintain reasonable standards of competence and diligence". There was no suggestion that that view of the matter was not open; it was expressly accepted and the argument then proceeded on the basis of that acceptance. If the turn of events had genuinely taken the appellant by surprise, one would have expected that to be mentioned, at the further hearing on penalty. [7] Secondly, the line taken in the appellant's evidence before the Tribunal was that his conduct had been in accordance with proper practice; subject to the observations mentioned at para [64] of the reasons of Muir J, issue was joined on the question whether, objectively speaking, the conduct was or was not unfair. If there was independent evidence available that what the appellant did accorded with proper practice, that could have been called. -- 4 of 27 -- 5 [8] Thirdly, with respect to the more obviously wrong conduct, the failure to disclose the documents in the appellant's possession revealing that the appellant's client had done a substantial amount of building work, for remuneration, it is inconceivable that any credible evidence could have been called in support of the proposition that this was proper. Rule 149A(3)(f) of the District Court Rules 1968 distinctly requires disclosure of all documents relating to economic loss. It is obvious that the documents mentioned should have been disclosed and not in dispute that they were not. [9] It is my opinion, then, that the right course is to allow the amendment sought by Mr Clothier, counsel for the Law Society, and referred to in para [57] of the reasons of Muir J. Misconduct in a professional respect [10] These words do not appear in s 6A of the Queensland Law Society Act 1952, which defines the Tribunal's functions. A rather similar expression in a New South Wales statute dealing with medical practitioners was discussed in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200, referred to by Muir J and followed by this Court in Medical Board of Queensland v Bayliss [1999] QCA 59; [2000] 1 Qd R 598 at 609. In Pillai's case language was used by Kirby P which might be taken to imply that incompetence cannot constitute misconduct, unless there is – "a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner." But it should be noted that Kirby P does not exactly express this notion; his Honour says that "something more" than mere incompetence is necessary to constitute misconduct in a professional respect, but does not comprehensively define what more is needed. [11] The doctrine just mentioned goes back to the 19th century when medical science was, by comparison with the present day, relatively primitive. Remedies were used by orthodox practitioners which, in some cases, were not only ineffective but positively harmful. Medical training was similarly afflicted. It might be that the idea of letting an incompetent but well-meaning doctor continue to practise, endangering the patients, was then less offensive than it presently is. However that may be, it is in my view clear that the notion expressed in Pillai does not govern the conduct of Queensland solicitors. In this State a solicitor commits "unprofessional conduct or practice" if guilty, in relation to his practice, of "failure to maintain reasonable standards of competence or diligence": s 3B(1). [12] I have made these observations in an attempt to dispel any impression that the decision in Pillai and its acceptance in Bayliss have affected the position of legal practitioners in Queensland. Conclusion [13] Subject to the qualification set out above, I am in general agreement with the reasons of Muir J. I would order: (a) that the charge be amended in accordance with the application made in this Court by counsel for the Society; (b) that the appeal and cross-appeals be dismissed; -- 5 of 27 -- 6 (c) that the appellant pay the Society's costs of the appeal to be assessed. [14] MUIR J: On 19 August 1999 the Solicitors’ Complaints Tribunal, constituted under the Queensland Law Society Act 1952, (“the Act”) found the appellant, Paul Henry Clough, guilty of unprofessional conduct in attempting to further a client’s case by unfair means. The Tribunal ordered that the appellant, who for the sake of convenience, will be referred to as the “practitioner”, be suspended from practice for a period of 12 months and that, prior to his applying for a new practising certificate, he attend and complete to the satisfaction of the Queensland Law Society Inc. a legal education programme in civil litigation. The practitioner was ordered to pay the Law Society’s costs of and incidental to the application. [15] The practitioner appealed, alleging errors of fact and of law on the part of the Tribunal and, in particular, challenging the finding that the practitioner was unfit to practise as a solicitor through having demonstrated a failure to maintain a reasonable standard of competence. [16] The Law Society cross-appealed, alleging that the Tribunal – (a) should have concluded, on the basis of facts found by it, that the appellant is not a fit and proper person to practise as a solicitor; (b) erred in not concluding that the name of the appellant should be struck off the roll of solicitors. The Attorney-General and Minister for Justice also appealed, seeking an order that the name of the practitioner be struck off the roll of solicitors. [17] The hearing before the Tribunal took place under s 6A of the Act and the orders made were within the Tribunal’s powers under s 6P. Under s 6Z, a party dissatisfied with a decision of the Tribunal may appeal to the Court of Appeal. The section gives the Attorney-General and Minister for Justice a right of appeal. The Society’s charge against the practitioner [18] In a Notice of Charge dated 11 June 1999, the Society required the practitioner to answer the charge that – “The practitioner attempted to further the case of his client, William George Smith (‘Smith’), against Rohn Pty Ltd (‘the defendant’) in action No 3743 of 1991 in the Brisbane District Court arising out of an accident in the course of Smith’s employment on or about 10 February 1989 by unfair or dishonest means.” [19] It was alleged in the Notice of Charge that the charge constituted “malpractice and/or professional misconduct and/or unprofessional conduct or practice” and it was stated that “… in the event of such charge being proved to the satisfaction of the Tribunal (the Society) seeks an order that his name be struck off the roll of solicitors … or that he be suspended from practice …”. The particulars of charge [20] The charge was particularised in the Notice of Charge by reference to conduct on the part of the practitioner in relation to Statements of Loss and Damage prepared -- 6 of 27 -- 7 and delivered in purported compliance with r 149A of the District Court Rules 1968. The substance of the particulars is as follows. (1) The practitioner prepared and caused to be filed and served on the solicitors for the defendant in the action a false and misleading Statement of Loss and Damage dated 26 May 1992, and a false and misleading amended Statement of Loss and Damage dated 5 April 1993. The Statements were false and misleading because – (a) Smith’s loss of income was calculated in each Statement on the basis that Smith had lost income from employment as a carpenter for the period between 10 February 1989 and the date of the Statement. But, to the practitioner’s knowledge, Smith had not been available for employment as a carpenter during such period as Smith had been engaged in other work. (b) The Statements calculated and claimed future economic loss on the basis that Smith had no capacity to work for the period of approximately two and a half years remaining until his retirement. However, to the practitioner’s knowledge, Smith, by carrying out the work referred to in (a), had demonstrated a capacity to work. (c) The Statements made no reference to Smith’s having engaged in work as a builder and having, through such work, earned gross income for the partnership comprising Smith and his wife. (d) Documents provided to the defendant’s solicitors with the Statements did not include any document recording income received by the partnership as the result of the building work done by Smith on behalf of the partnership after 10 February 1989. (2) The particulars specified seven discrete items of building work or projects allegedly done or undertaken by Smith on behalf of the partnership between June 1991 and June 1992. In addition, the particulars alleged that, to the knowledge of the practitioner at relevant times - (a) in about September 1991, Smith had built a retaining wall and fence on the boundary with Smith’s neighbour and had been paid for the work done and materials supplied; (b) from about January 1992 to May 1992, Smith had worked on painting and restoring shop premises at Red Hill in which Mr and Mrs Smith conducted an antique business; (c) on or about 28 January 1993, Mr and Mrs Smith contracted to purchase residential property at Hall Street, Alderley with the intention of renovating the existing dwelling and reselling the property for a profit. Renovation work was commenced in March 1993. [21] There are three additional related allegations. (1) In or about September 1992, the practitioner drew for execution by Smith and witnessed the execution by Smith of answers to interrogatories in which Smith deposed to the truth of the facts contained in the Statement dated 26 May 1992. (The answers to interrogatories were sworn before the practitioner on 15 September 1992.) -- 7 of 27 -- 8 (2) On or about 31 March 1993, the practitioner provided to Smith a document comprising a list of questions proposed to be asked of Smith by Smith’s barrister during the course of the trial (set down to commence on 7 April 1993) which included a draft of proposed questions and answers which, if asked and given, would verify the accuracy of the calculation of lost income made on the same basis and in the same amount as that contained in the Amended Statement. (3) Documents provided with the Statements did not include the following documents recording income received by the partnership as a result of Smith’s building activities particularised in the Notice of Charge – (i) documents on the practitioner’s file recording the terms of settlement of Smith’s dividing fence dispute with his neighbour; (ii) a draft of a contract to be entered into with a Neil Davey for the provision of building services; (iii) a receipt given by Mrs Smith to the practitioner in or about June 1992 in the sum of $1,850 in payment for renovation work to a house owned by the practitioner; (iv) an exercise book recording receipts by Mr and Mrs Smith for the 1991-1992 financial year. The Tribunal’s findings [22] The Tribunal found that the matters particularised had been established with the exception of: the matter in para [21](3)(ii) above; the knowledge of the practitioner of the matter in para [20](2)(b); and one of the seven matters particularised items of building work referred to in para [20](2). [23] The Tribunal also found that – (a) details of the income expenses of the partnership from 1 July 1991 until 26 May 1992 should have been included in the first statement and that details of income and expenses of the partnership from 1 July 1991 to 5 April 1993 should have been included in the Amended Statement; (b) The practitioner exhibited a lack of understanding of r 149A and of his obligations in preparing answers to interrogatories; (c) The practitioner failed to maintain a reasonable standard of competence. The Tribunal declined to find dishonesty on the part of the practitioner. The practitioner’s contentions generally [24] It was submitted by Mr Cooke QC who, leading Mr D J Campbell, appeared for the practitioner that – (a) the conduct comprised in the particulars of the charge was not proved; (b) assuming against the practitioner that the particulars were proved, the Statements may nevertheless have complied with the requirements of r 149A; and -- 8 of 27 -- 9 (c) if, contrary to the practitioner’s contentions, there was a failure to comply with r 149A, the practitioner may have been negligent but was not guilty of unprofessional conduct; (d) an intention to further Smith’s case by unfair or dishonest means was a necessary element of the charge and had not been established. I will postpone consideration of the last of these contentions until later. [25] It was submitted that the Tribunal should have rejected the evidence of Mr and Mrs Smith as it was inconsistent and confused. That was one respect in which it was submitted that the case against the practitioner was not proved. Another, which will be addressed in some detail later, relied on an argument that the Tribunal in arriving at it findings failed to have due regard to the existence of the partnership and the legal consequences flowing therefrom. Correctness of Tribunal’s findings of fact [26] In many respects, however, there was no serious issue before the Tribunal or on appeal as to the accuracy of the particulars. For example, there is and was no dispute about the nature and extent of the work done by Smith on behalf of the partnership. There is no dispute about the contents of the Statements and about the fact that they were prepared and caused to be filed and served by the practitioner. Nor is there any doubt that the practitioner drew for execution by Smith and witnessed the execution by Smith of the answers to interrogatories. As is demonstrated in the next two paragraphs, that the practitioner had knowledge of the matters alleged in the particulars and found against him by the Tribunal is also clearly established. [27] The practitioner admitted in response to questioning by the Tribunal’s chairman, that in the first consultation with Smith on or after receiving instructions he was informed by Smith of the existence of the partnership, that Smith was trying to earn money from building, that he and his wife had been trying to get business and that he had been “doing the odd job here and there”. The practitioner also admitted in the course of his oral evidence– (a) that he assisted Smith in a dividing fence dispute with his neighbour and was aware of an agreement between Smith and the neighbour which required Smith to construct the fence in consideration of the neighbour paying half Smith’s normal charge for such work; (b) having knowledge of the receipt by Smith of $28,000 for work done by the partnership in renovating “a sort of Queenslander”; (c) having knowledge of the renovation for the practitioner of a house at Sackville Street, Milton in return for a payment of $1,850; (d) knowing that the partnership did building work in the sum of $1,149 in July 1991 for a Mrs Harding and building work on or about 16 August 1991 in the sum of $400 for M. Twomey; (e) that in December 1991, Smith told the practitioner he was going into a building contract business, and that Smith sought the practitioner’s advice in relation to a form of building contract which he intended to use; -- 9 of 27 -- 10 (f) that in December 1992, Mr and Mrs Smith told the practitioner that they had made an offer to purchase a house and land at Alderley; that they intended to move the house to one side of the block, renovate it, build another house on the balance of the land and sell both parcels; and further that the practitioner acted on behalf of Mr and Mrs Smith in connection with this purchase and inspected the existing house whilst work was being done on it on behalf of the partnership; (g) that the practitioner was given the exercise book recording receipts including receipts showing payment for building work done on behalf of the partnership during the year ended 30 June 1992 and that he was aware of its contents. [28] Other evidence made it plain that the practitioner was aware that Smith was personally and substantially involved in doing the building work referred to in the particulars, or, at least, the great bulk of it. I can detect no flaw in the Tribunal’s finding that the particulars, with the exceptions specified by it, had been established. Content of the rule 149A Statements [29] In order to understand the Tribunal’s findings generally and the arguments advanced on behalf of the practitioner, it is necessary to consider the precise terms of the Statements. The first Statement relevantly provides – “PLAINTIFF’S STATEMENT OF LOSS AND DAMAGES PURSUANT TO RULE 149A Particulars of the Plaintiff’s out of pocket expenses are as follows: Medical Expenses: … TOTAL TRAVELLING EXPENSES $121.00 … TOTAL OUT OF POCKET EXPENSES $2,329.90 … (ii) The Plaintiff makes a claim for economic loss and in relation thereto states as follows: EMPLOYERS PRE-INJURIES (A) The Plaintiff was employed with Horn Engineering Pty. Ltd. Of 1105 Kingsford-Smith Drive, Eagle Farm, as a Carpenter and commenced work on the 9th February, 1989 to the date of accident which was 10th February, 1989. The Plaintiff’s gross income for that period was $65.64. [Other details of post-accident employment were then set out.] (B) EMPLOYERS POST-ACCIDENT No employers since date of accident. (C) GROSS INCOME LOST The Plaintiff’s gross income lost to date of statement has been $114,800.00. (D) FUTURE ECONOMIC LOSS -- 10 of 27 -- 11 The Plaintiff will suffer as a result of the alleged injuries impairment of earning capacity in the future, due to a 30% loss of right arm function. The Plaintiff’s age at the date of statement is 62 years and the Plaintiff still has two and a half years of working life remaining. The Plaintiff’s expected income as a Carpenter for that period would have been $700.00 per week for 156 weeks, being a total gross income of $109,000. (E) Not applicable. (iii) The Plaintiff continues to suffer pain in his right arm and shoulder, creating an inability for the Plaintiff to sleep soundly at night. … (vi) Documents which are in the Plaintiff’s possession or power are as follows:- … (D) Copy Income Tax Return Form AB for the year ended 30/06/88 26/02/89 Copy Income Tax Return Form A for the year ended 30/06/89 Undated Copy Income Tax Return Form P for the year ended 30/06/90 Undated Copy Income Tax Return Form I for the year ended 30/06/90 Undated Copy Income Tax Return Form I for the year ended 30/06/91 Undated (E) Refer to Item vi(D) above (F) Not applicable.” [30] The second Statement is in generally similar terms. The amount claimed for further economic loss was reduced to $30,317. The documents listed in paragraph (D) under the words “Documents which are in the Plaintiff’s possession or power” remained unaltered. Rule 149A [31] Rule 149A relevantly provides – “Plaintiff’s statement of loss and damage (3) The plaintiff shall, within 28 days after the close of pleadings, file and serve on the defendant a written statement of loss and damage disclosing – (a) particulars of any amount claimed for out of pocket expenses and listing all documents in the plaintiff’s possession or power concerning those expenses; (b) if there is a claim for economic loss – (i) the name and address of each of the plaintiff’s employers during the 3 years immediately before the injury, the period of employment and the capacity in which the plaintiff was employed by each employer -- 11 of 27 -- 12 and the plaintiff’s net earnings for each period of employment; (ii) the name and address of each of the plaintiff’s employers since the injury, the period of employment by each employer, the capacity in which the plaintiff was employed and the plaintiff’s net earnings for each period of employment; (iii) particulars of any amount the plaintiff is claiming for loss of income to the date of the statement; (iv) particulars of any disability resulting in loss of earning capacity and of the amount of any future economic loss claimed; and (v) in the case of a self-employed plaintiff – such additional or other particulars as will disclose the basis of the claim for economic loss; (c) ... (d) particulars of any other amount sought as damages not otherwise mentioned; (e) … (f) all documents in the plaintiff’s possession or power relating to the plaintiff’s injury, loss (including economic loss) and treatment and without limiting the generality of the plaintiff’s obligation the statement shall disclose – … (iv) documents concerning the amount of wages paid to the plaintiff, or if the plaintiff was self-employed, the loss of net income for any period mentioned in paragraph (b); and (v) documents concerning the tax paid by the plaintiff and the taxable income of the plaintiff for any period mentioned in paragraph (b); and (vi) documents concerning any other head of the plaintiff’s claim for damages. … (3D) The plaintiff shall file and serve supplements to the statement of loss and damage – (a) whenever there is a significant change in the information given in the statement of loss and damage after the making of the statement; and (b) so that the statement is accurate at the time of the holding of the call-over at which a trial date is allocated; and (c) so that after the allocation of a trial date the statement is accurate at all times.” (emphasis supplied) -- 12 of 27 -- 13 The Law Society’s contentions in relation to the Statements [32] The thrust of the Law Society’s argument in relation to the Statements was that, by formulating a case based on a total impairment of earning capacity and omitting any reference to work performed or income received by Smith as a self-employed person, the Statements conveyed the impression that Smith had not worked since the accident. The Statements were thus false and misleading and by using them the practitioner had furthered Smith’s case by unfair and/or dishonest means. The construction of r 149A and the Tribunal’s findings in that regard [33] Rule 149A requires that a self-employed plaintiff making a claim for economic loss provide “such additional or other particulars as will disclose the basis of the claim for economic loss”. Other relevant requirements are: that such plaintiff disclose all documents in the plaintiff’s possession or power relating to the plaintiff’s economic loss; that a plaintiff, if self-employed, disclose the loss of net income for any period commencing on a date three years before the date of the injury; and that any plaintiff in an action covered by the rule disclose documents concerning the taxable income of the plaintiff. [34] Where a plaintiff is in employment prior to the date of the injury and continues in employment the operation of r 149A(3)(b) is straightforward. The information to be provided in relation to such employment is clearly prescribed. However, where such a plaintiff is, in whole or in part, self-employed, the operation of the provision is less clear. On a literal reading of the paragraph, the plaintiff need only provide particulars relating to the plaintiff’s self-employment if the plaintiff’s claim for economic loss is based on his self-employment. For example, on such a construction, a plaintiff who has been employed and has also done some work as a self-employed person and does not formulate or pursue a claim based on self- employment, need not provide any “additional or other particulars”. [35] Sub-paragraphs (i) and (ii) of paragraph (3)(b) require the provision of factual information or evidence. Sub-paragraph (iii) requires particulars, not of loss, but of an amount claimed. Sub-paragraph (iv) requires particulars of an amount claimed and of disability and sub-paragraph (v) requires particulars so as to disclose the basis of the Plaintiff’s claim. Of course, the rule was drafted on the premise that a claim would have a rational and factual basis and, in the case of a self-employed person, it was doubtless assumed that the claim would be based on losses incurred in that regard rather than on the basis of hypothetical employment. However, contrary to the Tribunal’s findings, the Statements were not required to set out details of the income and expenses of the partnership, unless the finding was based on the consideration referred to in the next paragraph and not merely on the construction of the rule. [36] The argument advanced by the Law Society, however, is soundly based when regard is had to the fact that the Statement failed to disclose documents which showed that Smith and the partnership were doing building work at relevant times and receiving payment for it. The omission of such documents from the Statements made them false and misleading. I will make further observations on the misleading nature of the Statements later. -- 13 of 27 -- 14 Answers to interrogatories [37] I now turn to the particulars concerning the answers to interrogatories. The essence of the complaint in that regard is that the answers to interrogatory 17, when sworn by Smith, were false to the knowledge of the practitioner. Interrogatory 15 enquired as to whether Smith was in employment for wages and, if so, the detail of such wages paid or payable. Interrogatory 16 enquired as to whether Smith was in employment for remuneration at stated times. It was drawn on the assumption that a person in employment for remuneration was a wage earner in receipt of wages. In that respect it appeared to duplicate interrogatory 15. [38] Interrogatory 17 asked whether Smith, during stated periods, had “received any income” (other than wages). It also enquired as to the capacity or capacities in which Smith’s entitlement to the receipt of such income arose, and as to the amount of money expended by him in obtaining such income. In answering interrogatory 17, Smith swore that the only income (other than wages) received by him at relevant times was the sum of $16,543 received from the Workers’ Compensation Board. No mention was made in the answers of moneys received from his partnership activities. [39] The practitioner contended before the Tribunal that the answers to interrogatories were accurate as, at the time answers to interrogatories were drawn and executed, Smith did not have available to him the concluded partnership accounts for the year ended 30 June 1992. That is irrelevant. If it were thought desirable to qualify the answer in any way by reference to the partnership outgoings and any uncertainty as to their extent (the interrogatory in fact enquired into moneys expended in obtaining the income concerned), the appropriate course was for the answer to be qualified, and not for a wrong answer to be provided. Summary of the practitioner’s arguments based on the partnership [40] The argument advanced on behalf of the practitioner, may be summarised as follows – (a) any of the work and income particularised was work done and moneys earned by Smith in his capacity as partner; (b) the partnership did not, at any relevant time, make a distribution of profits or pay wages to Smith; (c) consequently, Smith received no income in respect of the work particularised in the Statements; (d) Smith was thus correct in not disclosing any income from the work particularised in the Statements. [41] Those contentions were put forward also in an attempt to answer the Law Society’s arguments in relation to the preparation, service and filing of the r 149A Statements. -- 14 of 27 -- 15 Conclusion in relation to the partnership argument [42] A share in a partnership is a right to the partner’s proportion of the surplus after the realisation of assets and the payments of debts and liabilities.1 In the absence of agreement to the contrary, a member of a partnership has no definite or separate share or interest in any particular partnership receipt. A partner’s separate entitlement in relation to partnership profits is to share, in the agreed proportion, in the partnership profits if and when they are earned in respect of any accounting period adopted by the partnership.2 [43] In Everett,3 Bowen CJ observed – “At that point of time [upon the accounts for a particular accounting period being taken] the share of profits of each partner becomes certain in the sense that it is capable of being rendered certain and his share of the net income for the purposes of Div 5 of Pt (iii) of the Assessment Act become certain in the same sense. It is then his income whether in fact it is detached or not (FC of T v Happ (1952) 9 ATD 447 at p 451).” [44] It is plain from these observations and from Happ, that even for income tax purposes, derivation of partnership income is not dependent on the fact of distribution. [45] Copies of partnership accounts in evidence show that the partnership’s accounting period at relevant times was a 12 month period ending on 30 June. The profits or losses (as the case may be) were apportioned in the accounts between the partners in equal shares. [46] But, the contentions summarised in para 27 overlook that fact that a partnership is not a legal entity distinct from its constituent members. It is no “more than a useful means by which to refer to all partners who, from time to time, make up the partnership…”.4 Everett and Happ were concerned with the derivation by a partnership for the purposes of income tax by reference to those provisions of the Income Tax Assessment Act 1936 applicable to partnerships. The case the practitioner was conducting for Smith did not concern Smith’s income tax liability and interrogatory 17 was not concerned with questions of income tax either. The fact is that money paid to Mr and Mrs Smith or either of them on account of work done by Mr Smith for the partnership was income received by Smith, albeit subject to Mrs Smith’s rights and interest as partner. There was no justification for answering the interrogatory on the basis that “income” was some obscure term of art. As Starke J observed in Resch v Federal Commissioner of Taxation5 – 1 Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321 at 327. 2 Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (supra) at 327- 328; Federal Commissioner of Taxation v Everett 78 ATC 4,595 at 4,603 per Deane J and at 4,597 per Bowen CJ and see also Federal Commissioner of Taxation v Everett (1979-1980) 143 CLR 440 at 449. 3 at 78 ATC 4,597. 4 35 Halsbury’s Laws of England 4th ed (Reprint) para 125. 5 (1942) 66 CLR 198 at 213. -- 15 of 27 -- 16 “Income is as large a word as can be used to denote a person’s receipts … it signifies that which comes in.” Failure to disclose relevant documents [47] In any event, it cannot be contended seriously that documents which go to show the plaintiff’s share of any partnership profits or losses do not fall within para (3)(f) of the r 149A statement. Documents relate to a plaintiff’s loss if they provide evidence of the plaintiff’s income and income earning capacity or lack thereof. The fact that documents relate to work done in a year in which a plaintiff in a self-employed capacity has sustained a loss is irrelevant. [48] Documents showing work in which a plaintiff was physically involved, and which was done on behalf of a partnership of which a plaintiff is a member, will normally be documents which relate to the plaintiff’s injury where it is alleged that physical incapacity limits income earning capacity. There were documents of this nature, which to the practitioner’s knowledge, were in Smith’s possession or power and which plainly ought to have been disclosed. The false and misleading nature of the practitioner’s conduct in relation to the Statements [49] Disclosure of documents evidencing work done by Smith as partner and remuneration received by the partnership in that regard was particularly important, having regard to the wording of the Statements. An obvious inference to be drawn from the Statements was that the plaintiff, prior to his being injured, was an employed carpenter and that, as a result of his injuries, he had been unable to continue in any such employment or, for that matter, in any other income earning capacity. That was particularly so as the Statements made no reference to documents which the practitioner knew were in Smith’s possession or power and which evidenced the fact that Smith, on behalf of the partnership, had done a substantial amount of building work for remuneration at relevant times and had been engaged in other partnership activities. [50] It is contended on behalf of the practitioner that the Statements were not misleading as the existence of the partnership was disclosed in the Statements through the reference to “Copy Income Tax Return Form P for the year ended 30/06/90” as being a document in the plaintiff’s possession or power. That return, although alerting a reader to the existence of a partnership between Mr and Mrs Smith, would not, without further inquiry, suggest that the partnership engaged in building work. It makes no reference to receipts from any activities of that nature. -- 16 of 27 -- 17 The practitioner’s further contentions in relation to the charging of attempt and the necessity for proof of intent [51] In the practitioner’s outline of submissions it was submitted that as the Tribunal had made a finding that the appellant did not act dishonestly, it necessarily erred in finding the charge proved. The outline did not explain why this finding would affect the finding in relation to unfairness. On the hearing of the appeal, it was contended that, as an attempt had been charged, intention was a necessary element of the offence. It was also argued that the finding of a failure to maintain a reasonable standard of competence was not only insufficient to sustain the charge, but was not within the scope of the charge, and thus not open to the Tribunal. These points were not adverted to in the practitioner’s Notice of Appeal but Mr Clothier, who appeared for the Law Society, intimated that he was prepared to meet them and they were fully argued. [52] Mr Clothier submitted that the charge, on a fair construction, required no element of intent and that the word “attempted” was used merely to recognise the fact that Smith’s case had not in fact been furthered by unfair or dishonest means, even though the actions of the practitioner were allegedly unfair and/or dishonest. This approach to the construction of the charge was supported by Mr Keane QC SG who appeared for the Attorney-General. Mr Clothier submitted, in the alternative, that having regard to the manner in which the case was argued, the Tribunal was entitled to make its finding of unfairness. [53] In my view, the concept of an attempt to further a case by unfair or dishonest means has, as an element, an intention on the part of the person charged to so further the case. That conclusion is consistent with the traditional approach of the common law in relation to offences involving attempts.6 Mr Keane in his submissions pointed out that the proceedings before the Tribunal were civil rather than criminal in nature, and I accept that this is so.7 Nevertheless in my view, the natural meaning of the charge is that the practitioner did act with a view to producing a particular result.8 That is, he acted with intent. [54] However, at no point in the course of the proceedings before the Tribunal, except as will be mentioned shortly, was reference made to the possibility that the charge, which was framed in terms of an attempt, had intention as an element. The practitioner’s argument, in essence, involved an exploration of whether his conduct was in fact dishonest or unfair. He placed no reliance on the fact that the charge alleged attempt. He set out to further his contention that there was no element of dishonesty or unfairness by urging that what he had done was in fact legally justified. He did not argue in his closing address that if his conduct viewed objectively was unfair, then there was nevertheless no intent to act unfairly. Although the practitioner referred to the existence of “attempt” as part of the charge at the commencement of his submissions, that element or aspect of the charge was thereafter ignored. Similarly, Mr Bartley’s argument for the Law Society raised no question of intent and did not advert to the fact that attempt was an element of the 6 Gardner v Akeroyd [1952] 2 QB 743. 7 Adamson v Queensland Law Society Inc. [1990] 1 Qd R 498. 8 Cf the observations of Andrews SPJ in R v Leavitt [1985] 1 Qd R 343 at 345. -- 17 of 27 -- 18 charge. In submissions in reply, however, the practitioner introduced the concept of intent as follows – “Really, to be dishonest, you’ve got to intend to do it. To be unfair, you’ve got to intend to do it. You don’t accidentally do those things. You’ve got to look at my intent, so I would disagree with Mr Bartley. There is nothing in my actions that showed an intent to defraud or an intent to be unfair, to trick or do otherwise.” No reliance was placed on the fact that the charge was framed in terms of an attempt. [55] The matter was then taken up by the chairman who raised the prospect that “unfairness to the other side” might result from ignorance, whether or not there was any intention to be unfair. The practitioner addressed the point further, submitting inter alia – “Well, you’ve got to have to be culpable in anything, as this Tribunal, to fall short of a standard, you’ve got to have some intention to do it.” [56] It was this argument in reply which led to the Tribunal’s finding that it was unnecessary for the Society to prove intent in order to establish unfairness. Amendment of the charge [57] In the course of submissions Mr Clothier sought leave to amend the charge, in the event that the Court concluded that intention was a necessary element of the charge, so that it read – “The practitioner attempted to further conducted the case of … Smith … by means which were dishonest or, alternatively, unfair by reason of the practitioner’s failure to maintain reasonable standards of competence or diligence or dishonest means.” The amendment is opposed but it is not contended that this Court lacks power under the Uniform Civil Procedure Rules, or otherwise, to allow the amendment. [58] I would allow the amendment except in as much as it seeks to add the words “by reason of the practitioner’s failure to maintain reasonable standards of competence or diligence”. [59] As the foregoing discussion shows, the hearing before the Tribunal was conducted as if the charge did not allege an attempt. Furthermore, that the Law Society might need to prove a requisite intention on the part of the practitioner was not raised by the practitioner until his submission in reply, and then not in relation to any attempted conduct. The practitioner’s Notice of Appeal did not raise the point. [60] In the circumstances, I can see no justification for not allowing the amendment to the extent foreshadowed earlier. The effect of the amendment will be to conform the charge to the manner in which it was construed by the Tribunal, the practitioner, and the Law Society, in the course of the proceedings before the Tribunal. 9 9 Cf Coulton v Holcombe (1987) 162 CLR 1; O’Reilly v Law Society of New South Wales [1988] NSWLR 204. -- 18 of 27 -- 19 [61] I do not accept that intention is a necessary element of that part of the charge alleging furthering the case by unfair means (once the allegation of an attempt is disregarded). Nor do I consider that intent is a necessary element of the allegation of unfairness in the charge as amended. The charge is not a criminal one and the principles and authorities which, at common law, import a mental element into offences, are of little relevance. Criminal responsibility normally does not attach to inadvertent or negligent acts or omissions. The matters which constitute the elements of the offence in question, generally speaking, must be committed either intentionally or recklessly.10 Such concepts have no general application to disciplinary proceedings against solicitors. There the focus is more on whether the conduct alleged fails to meet objectively ascertainable standards. Those standards may be, and frequently are, infringed by inadvertent or negligent acts on the part of a practitioner. The primary roles of disciplinary proceedings under the Act are to protect the public and maintain professional standards, not to punish a transgressing solicitor.11 [62] This is not to say that a charge against a solicitor may not involve a mental element. Clearly it may and, in this case, it does in so far as dishonesty is alleged. The existence of an intent to do an act charged may also be relevant to the gravity of the alleged conduct. Returning to the wording of the charge as amended, the conducting of a case “by means which were … unfair” does not necessarily import a mental element on the part of the practitioner. The word “unfair” qualifies or relates back to the words “conducted the case … by means …”. [63] I do not consider it appropriate though to permit an amendment which potentially introduces allegations of incompetence outside the scope of those implicit in the charge as originally framed. The concept of unprofessional conduct, as can be seen from its definition in the Act, may involve a failure to maintain reasonable standards of competence or diligence. But the allegation the practitioner had to meet was that the practitioner’s unfair conduct amounted to such a failure, not the converse that there was a failure to maintain such standards which had the consequence of causing unfairness. An allegation of the latter kind has a somewhat different focus to the former. [64] Mr Clothier relied on a passage in the transcript of proceedings before the Tribunal in which the Tribunal’s chairman, in the course of the practitioner’s submissions, queried whether the Tribunal could find that the practitioner acted unfairly if, in effect, he acted incompetently in relation to the matters in question. The practitioner’s response was to remind the Tribunal of the charge saying, inter alia – “The charge is strictly was I dishonest and was I unfair? If, in your wisdom, you decide you think I was stupid, I don’t admit to that … However, if you think I was stupid, that doesn’t mean that I am unfair. That does not mean that I am dishonest.” The debate then continued for some time and ended inconclusively. 10 DPP v Morgan [1976] AC 182 and R v O’Connor (1980) 146 CLR 64; Pemble v The Queen (1971) 124 CLR 107. 11 Harvey v The Law Society of New South Wales (1975) 49 ALJR 362 at 364; Clyne v NSW Bar Association (1960) 104 CLR 186 at 202 and Attorney-General v Bax [1999] 2 Qd R 9 at 22. -- 19 of 27 -- 20 [65] The Law Society’s application faces the difficulty that at the commencement of his submissions the practitioner said – “It’s important that I outline my submissions in respect of this charge. I’d ask you to look at the charge and it, in summary, means that I attempted to further Mr Smith’s case against his employer Rohn Pty Ltd by unfair and dishonest means. … The particulars of the charge are very relevant. It is said that the unfairness and dishonesty arises in five ways. …”. When raising the possibility of an adverse finding by the Tribunal notwithstanding the absence of a finding of negligence, the chairman said – “… I am not speaking for the other members of the Tribunal and I am not expressing any opinion of my own …”. [66] At no stage of proceedings, before finding that the charge was sustained, did the Tribunal inform the practitioner that it intended to act on a basis which had the potential to broaden the charge that the practitioner was required to meet. Nor did the Law Society seek to amend the charge to include incompetence as an alternative element. [67] It was submitted on behalf of the practitioner that if professional incompetence generally had been an issue before the Tribunal there was, at the least, a possibility that the practitioner’s case would have been differently presented and relevant evidence called on his behalf. It is impossible to rule out the existence of such a possibility despite the careful and extensive particularisation of the charge. Moreover, no such case could be made out against the practitioner now without his being afforded an opportunity to adduce further evidence and to make further submissions after due consideration of the amended charge. [68] There is no good reason, particularly in the light of the conclusions about to be expressed, why the Law Society should be permitted to alter the thrust of its case at this late stage. The practitioner’s contention that his conduct, at worst, was negligent. [69] It is submitted on behalf of the practitioner that if, contrary to his contentions, there was substance in the complaints about the Statements, then the practitioner may have been negligent but that his conduct fell short of unprofessional conduct. Section 3B of the Act provides – “(1) A practitioner commits ‘unprofessional conduct or practice’ if the practitioner, in relation to the practitioner’s practice, is guilty of – (a) serious negligent or undue delay; or (b) the charging of excessive fees or costs; or (c) failure to maintain reasonable standards of competence or diligence. (2) Sub-section (1) does not, by implication, limit the type of conduct or practice that may be regarded as unprofessional for this Act.” -- 20 of 27 -- 21 It may be seen from sub-section (2) that the definition in sub-section (1) does not purport to be exhaustive. [70] The conduct under consideration does not have the character of an isolated lapse or error. The first statement is dated 26 May 1992, the second is dated 5 April 1993. The practitioner had cause to reconsider the accuracy of the Statements when acting in relation to the answers to interrogatories in September 1992 and when providing Mr Smith on or about 31 March 1993 with the questions and answers proposed to be used in Mr Smith’s examination in chief. Part of that process was the calculation of lost income which also failed to disclose partnership receipts from building work. [71] The practitioner conducted Smith’s case unfairly by causing the Statements to be brought into existence, filed and served. They were false and misleading in the manner described above. They did not comply with the rules. The defendant in the action was entitled to assume that Smith, through relying or acting on the advice of the practitioner, would comply with the rules of court and not attempt to further his case by means of false and misleading documents. Observations to generally similar effect may be made concerning the answers to interrogatories. Those answers were, of course, sworn. [72] It ought to have been glaringly obvious to any reasonably competent legal practitioner exercising reasonable skill and diligence and armed with the practitioner’s knowledge at relevant times, that a r 149A Statement needed to list partnership returns and other documents such as the receipt in the sum of $1,850 given by Mrs Smith to the practitioner for work done by the partnership for the practitioner and the exercise book listing receipts in respect of building work done at relevant times by or on behalf of the partnership. It should also have been apparent to such a practitioner that, without the inclusion of such material, the Statements were misleading. [73] The practitioner’s conduct in this regard and in relation to the answers to interrogatory 17 was also deficient to a marked degree. For present purposes, to supply false and misleading material to a solicitor on the other side of the record and to the solicitor’s client, was to conduct the case unfairly and to fall short of, to a substantial degree, the standards of professional conduct observed or approved by members of the profession of good repute and competency. The conduct thus went beyond mere negligence and amounted to unprofessional conduct.12 [74] The practitioner’s conduct, in acting unfairly as particularised, also amounts to a failure to maintain reasonable standards of competence or diligence and, for that reason, constitutes unprofessional conduct within the definition of that term in s 3B of the Act. [75] It has been suggested in an article in the Queensland Law Society Journal13 that some confusion has arisen as to the meaning of “malpractice, professional misconduct or unprofessional conduct or practice” in s 6(1)(a) of the Law Society 12 Re R, A Practitioner of the Supreme Court [1927] SASR 58 at 60-61; Re A, A Practitioner of the Supreme Court [1937] SASR 316 at 320-321. 13 D G Searles, Professional Misconduct – Unprofessional Conduct Is there a difference? (1992) 23 Queensland Law Society Journal 237. -- 21 of 27 -- 22 Act as a result of two Queensland Appellate Court decisions.14 The learned author concludes that in both cases the court erroneously used as a test of professional misconduct the test appropriate to unprofessional conduct. It was argued on behalf of the practitioner that “unprofessional conduct” was less serious than “professional misconduct”. The test for the latter, it was submitted, was that employed in Adamson and Re Wheeler, whereas the test for the former was to be found in s 6(1)(a) of the Act. [76] Both Adamson and Re Wheeler, concerned with charges of professional misconduct, defined the concept in terms of the test for unprofessional conduct formulated in Re R, A Practitioner of the Supreme Court.15 In Adamson, no express reference was made to Re R, A Practitioner of the Supreme Court. Ex parte Attorney-General; Re A Barrister and Solicitor16 was cited as authority for the test. The court in that case was considering an order for a practitioner to show cause why an order should not be made that his entitlement to practise as a barrister and solicitor be suspended. The matter came before the Court on application by the Attorney-General who had received a report from a disciplinary Board which, acting under s 35 of the Legal Practitioner’s Ordinance 1970-1971 (ACT) had considered whether there were “reasonable grounds for believing that the [practitioner] … has been guilty of professional misconduct …”. [77] The Statutory source of the Court’s power to deal with the matter was identified as s 41(1) of the Judiciary Act 1903 (Cth) which relevantly provided – “41(1) Where it is proved to the satisfaction of the Court that the conduct of a barrister and solicitor has been such as to justify it so doing, the Court may by order…” [There then followed a statement of the orders which the Court was authorised to make.] [78] The section, it will be noticed, made no reference to concepts such as malpractice, professional misconduct, or unprofessional conduct. The application before the Court made no reference to such concepts either, and in the Judgment of the Court it was said at 239- “In passing, we should say that, for the future, notice to show cause should … call upon the barrister and solicitor to show cause why he should not be dealt with by the court for misconduct, or conduct unbefitting …”. [79] It was also noted that the Legal Practitioner’s Ordinance had been amended to remove references to “professional misconduct” and that in s 36, which deals with powers of the disciplinary committee, the words “professional behaviour” were used. [80] After discussing the English High Court’s disciplinary jurisdiction the Court said at 241 – “Cordery says that ‘misconduct which makes a solicitor unfit to continue in practice may be divided into three kinds: criminal 14 Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498 and Re Wheeler [1991] 2 Qd R 690. 15 [1927] SASR 58, 61. 16 (1972) 20 FLR 234. -- 22 of 27 -- 23 conduct, professional misconduct and unprofessional conduct’. This is a convenient classification, and to some extent different considerations apply as between the three categories mentioned. The ultimate test is however the same in all cases. What the classification does emphasize is that conduct which justifies removal from the rolls, or suspension, is not confined to the professional activities of a practitioner. The courts are not concerned with conduct which does not bear on the fitness of the practitioner to remain on the rolls, but they are concerned with all conduct which does have such a bearing.” [81] Reference was made to Myers v Elman17 in which Viscount Maugham had said – “Apart from the statutory grounds, it is of course true that a solicitor may be struck off the rolls or suspended on the ground of professional misconduct, words which have been properly defined as conduct which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency: In re a Solicitor; Ex parte the Law Society [1912] 1 KB 302. Mere negligence, even of a serious character, will not suffice. The application is strictly personal and relates to the solicitor himself and his fitness to practise.” I digress to note that this test has been applied in Victoria and New South Wales in respect of charges defined in terms of misconduct. 18 [82] The Court then considered the South Australian cases mentioned earlier.19 [83] The discussion which followed in the judgment was then couched in terms of “misconduct” or “professional misconduct” and at 245 it was said – “As to what is professional misconduct which comes within s. 36, no definition should be attempted. (See Orkin, Legal Ethics, pp. 201, 202.) … Although in Re A---, A Practitioner of the Supreme Court [1927] SASR 58, the phrase was ‘unprofessional conduct’, and not ‘professional behaviour’, it is equally true to say, as was said in that case, that misconduct within s. 36 includes ‘conduct which may reasonably be held to violate, or to fall short of, to a substantial degree, the standard of professional conduct observed or approved of by members of the profession of good repute and competency. … Where a case is reported to the court by the Disciplinary Committee, acting under s. 37, it will be dealt with by the court under s. 41. It follows that what is professional misconduct for the purposes of s. 35 will be conduct which comes within the ambit of s.41. It is as 17 [1940] AC 282 at 288. 18 This criterion was applied to “misconduct in a professional capacity” used in s 15 of the Legal Profession Practice Act 1958 (Vic) by Dean J in Re a Solicitor [1960] VR 617. It has been applied regularly in New South Wales. Prothonotary of the Supreme Court of New South Wales v Costello (1984) 3 NSWSLR 201 at 203. 19 Re A, A Practitioner of the Supreme Court (supra) and Re R, A Practitioner of the Supreme Court (supra). -- 23 of 27 -- 24 unwise to attempt a definition of misconduct for the purposes of the one as it is for the other. Again, we think valuable practical guidance will be found in the passages we have cited from the two South Australian cases.” [84] Although in the course of the judgment reference was made to Cordery which drew a distinction between “professional misconduct” and “unprofessional conduct”, the Court did not find it necessary to categorise conduct in any such way for the purposes of the Legal Practitioner’s Ordinances. It concluded that the test for “unprofessional conduct” formulated in the South Australian cases had application to the sections in the Ordinance which referred to “professional behaviour”. [85] In England also, at least of recent times, no particular need to differentiate between professional misconduct, malpractice, unprofessional conduct, or conduct unbefitting a solicitor seems to have been felt. In the 3rd edition of Halsbury’s Laws of England20 it is stated with reference to non-statutory grounds for disciplinary proceedings – “Where a complaint is made to the disciplinary committee in respect of a solicitor it is customary to allege that the solicitor has been guilty of conduct unbefitting a solicitor.” [86] A like statement is made in the 4th edition.21 The learned authors of Cordery22 state - There is no all-embracing definition of what constitutes professional misconduct. Indeed it may be inappropriate to attempt such a definition.” [87] In Pillai v Messiter (No 2),23 Kirby P propounded the following test in relation to the words “misconduct in a professional respect” in s 27(1)(c) of the Medical Practitioner’s Act 1938 (NSW) – “Departures from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say that he or she was ignorant could amount to such professional misconduct: [cf Re Anderson and the Medical Practitioners Act 1938-1964 (1967) WN (Part 1) (NSW) 558 at 575]. But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner: cf Allinson [Allinson v General Council of Medical Education and Registration [1894] 1 QB 750] (at 760-761).” [88] Cordery’s treatment of non-statutory grounds for disciplining solicitors does not draw any distinction between “professional misconduct” and “conduct unbefitting a solicitor”.24 The Act though, by referring to “malpractice, professional misconduct 20 Vol 36, para 308. 21 Vol 44 para 297. See also Cordery on Solicitors, 9th ed para 1410 22 Cordery on Solicitors, 9th ed para 1403. 23 (1989) 16 NSWLR 197 at 200. 24 Section 9B. -- 24 of 27 -- 25 and unprofessional conduct or practice” in s 6(1)(a), in contrast with the position in Great Britain and some Australian jurisdictions, may require the categorisation of wrongful conduct. [89] In order to decide this appeal, however, it is not necessary to decide the meaning to be attributed to each of those terms or the precise relationship between the concepts invoked by them. The Tribunal has power under s 6R(1) of the Act to make orders “in relation to a practitioner the Tribunal finds guilty of a charge brought under this Act”. Depending on the circumstances of the case, a finding that a practitioner has been guilty of any one of malpractice, professional misconduct or unprofessional conduct will enliven the Tribunal’s power to make any of the orders contemplated by the sub-section. [90] The test applied in Adamson and Re Wheeler for professional misconduct may be an appropriate test to apply in the case of “unprofessional conduct”. That conclusion is consistent with the reasoning of the Court in Ex Parte Attorney- General; Re A Barrister and Solicitor and with the South Australian decisions. The definition of “professional misconduct”, as mentioned earlier, is not exhaustive. Common law concepts thus remain relevant. [91] Whether, having regard to the wording of s 6(1)(a) of the Act, a charge of “malpractice” or “professional misconduct” ought require the application of some higher or different test is not a matter for this appeal. It is perhaps worth observing that even if the three “offences” are ranked on a descending scale of seriousness, starting with “malpractice”, there may well be areas of overlap between offences. And, of course, practitioners’ conduct will fall short of the requisite standards of professional conduct in various ways and in differing degrees of seriousness. Considerations relating to penalty [92] Neither the Law Society nor the Attorney-General submit that a finding of dishonesty was inescapable on the evidence before the Tribunal. Rather, it was submitted that the penalty was inadequate, having regard to the seriousness of the practitioner’s conduct and his failure to accept that he had committed any relevant error. It was submitted on behalf of the Law Society that the Tribunal erred in regarding the practitioner’s conduct as an isolated lapse which the Tribunal could be reasonably confident would not re-occur given further training. It was urged that the appropriate course in the circumstances was to strike the practitioner off the roll of solicitors so that the onus would be on him to demonstrate his fitness to practise when seeking re-admission. [93] In support of the contention that the appropriate penalty was removal from the roll rather than suspension, it was submitted that – (a) A finding of unprofessional conduct can, in appropriate circumstances, result in the name of a practitioner being struck off the roll of practitioners.25 (b) A period of suspension is not ordinarily an appropriate order where a practitioner is found to be unfit to practise.26 25 Re Maraj (A Legal Practitioner) (1995) 15 WAR 12 and Re A Practitioner (1984) 36 SASR 590 -- 25 of 27 -- 26 (c) A negative or unco-operative attitude on the part of the practitioner to the offending conduct is relevant to the question of whether striking off is a more appropriate penalty than suspension.27 So too is the fact that the conduct engaged in was not a casual act but carried on over a period of time (Bax at 22) and the practitioner’s failure to appreciate that the impugned conduct was wrong.28 [94] All of these submissions are soundly based. However, in the particular circumstances of this case, and not without reservations, I have concluded that it would not be appropriate to alter the penalty imposed by the Tribunal. Those circumstances include – (a) The Tribunal’s conclusions, after having heard and observed the practitioner that he was not dishonest and would not be unfit to practise once he had complied with the legal education condition imposed by the Tribunal; and (b) The limited nature of the case against the practitioner which did not seek to impugn, directly, his general level of professional competence; (c) The fact that the evidence does not suggest that the subject conduct caused material loss to the defendant in the action. It must be recognised though that it played a major role in Smith’s prosecution and conviction for perjury; (d) The consideration that costs orders made against the practitioner will, of themselves, constitute a substantial penalty. [95] I would – (a) Order that the charge be amended in accordance with the application made in this Court by counsel for the Law Society with the deletion therefrom of the words “by reason of the practitioner’s failure to maintain reasonable standards of competence or diligence”; (b) Dismiss the practitioner’s appeal; (c) Dismiss the cross appeals; (d) Order that the practitioner pay the costs to be assessed of the Queensland Law Society of the appeal. [96] DOUGLAS J: I have had the advantage of reading the reasons of Pincus JA and Muir J. I agree generally with the reasons of Muir J but wish to add some comments of my own with respect to two matters. [97] With respect to the amendments sought to the charge both Pincus JA and Muir J consider that the amendment should be allowed. Where their reasons diverge is as to whether the words “by reason of the practitioners failure to maintain reasonable standards of competence or diligence” should be allowed as part of the amended charge. In this respect I agree with Pincus JA that it is inconceivable that any credible evidence could have been called in support of the proposition that it was proper not to disclose the documents in the appellant’s possession revealing that the 26 Attorney-General v Bax [1999] 2 Qd R 9; Mellifont v The Queensland Law Society Incorporated [1981] Qd R 17 at 30-31; Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279. 27 Attorney-General v Bax [1999] 2 Qd R 9. 28 New South Wales Bar Association v Evatt (1986) 117 CLR 177 at 184. -- 26 of 27 -- 27 appellant’s client had done a substantial amount of building work for remuneration. This conduct was, as Pincus JA pointed out, obviously wrong, and, in my view it was inexcusable. The addition of the subject words to the amended charge merely provide particulars of the unfairness which is alleged. I would therefore allow the amendment as sought. [98] I agree with the reasons of Pincus JA also with respect to his discussion of “Misconduct in a Professional Respect” referring to Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200 and Medical Board of Queensland v Bayliss [1999] QCA 59; [2000] 1 Qd R 598 at 609. [99] Otherwise I agree with the orders proposed by Pincus JA. -- 27 of 27 --