Bell, Re [1991] QSCFC 157

■LIM Tim tiUFKEMtt COURT OP QUEENSLAND FULL COURT Motion No. 622 of 1991 IN THE MATTER of "The Rules Relating to the Admission of Solicitors to the Supreme Court of Queensland" -and- IN THE MATTER of An Application by JOHN RICHARD BELL of "Eaglewood", Shute Harbour Road, Airlie Beach, Whitsunday, in the State of Queensland for Admission as a solicitor of the Supreme Court of Queensland THOMAS J G.N. WILLIAMS J DERRINGTON J Reasons for judgment delivered by G.N. Williams J on 6th December 1991. Thomas J and Derrington J agreeing with those reasons . "ORDER THAT THE APPLICANT BE ADMITTED AS A SOLICITOR SUBJECT TO THE FOLLOWING CONDITIONS: 1 . THAT THE APPLICANT UNDERTAKE SUCH CONTINUING LEGAL EDUCATION COURSES OR STUDIES THAT THE LAW SOCIETY/SOLICITORS BOARD SHALL REQUIRE WITHIN THE NEXT 12 MONTHS AND 2. THAT THE APPLICANT COMPLETE 12 MONTHS EMPLOYMENT WITH A PRACTISING SOLICITOR BEFORE ENTERING INTO BUSINESS ON HIS OWN ACCORD." [1991] QSCFC 157 -- 1 of 10 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Motion No. 622 of 1991 Before the Full Court Mr. Justice Thomas Mr. Justice G.N. Williams Mr. Justice Derrington IN THE MATTER of "The Rules Relating to the Admission of Solicitors to the Supreme Court of Queensland" - and - IN THE MATTER of An Application by JOHN RICHARD BELL of "Eaglewood", Shute Harbour Road, Airlie Beach, Whitsunday, in the State of Queensland for Admission as a Solicitor of the Supreme Court of Queensland JUDGMENT - G.N. WILLIAMS J. J Delivered the day of December, 1991. CATCHWORDS : Solicitors - readmission after being struck off for professional misconduct - relevant factors considered - Re Currie (417/90) considered - admitted subject to conditions. Counsel : Mr. Webb for Applicant. Mr. Bell for Solicitors' Board. Solicitors : MacGillivrays t/a for Cowling & Virgo for Applicant. Hearing date: 2nd December, 1991 -- 2 of 10 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Motion No. 622 of 1991 IN THE MATTER of "The Rules Relating to the Admission of Solicitors to the Supreme Court of Queensland" - and - IN THE MATTER of An Application by JOHN RICHARD bell of "Eaglewood", Shute Harbour Road, Airlie Beach, Whitsunday, in the State of Queensland for Admission as a Solicitor of the Supreme Court of Queensland JUDGMENT - G.N. WILLIAMS J. Delivered the day of December, 1991. On 29th September, 1964 John Richard Bell ("the applicant") was initially admitted to practice as a solicitor of the Supreme Court of Queensland. That admission was based on his having passed the then Solicitors' Board examinations. Then on the 19th September, 1977 he was found guilty of professional misconduct by the Statutory Committee of the Queensland Law Society and it ordered and directed that his name be struck off the Roll of Solicitors of the Supreme Court of Queensland. Subsequently he was convicted of four charges of fraudulent disposal of trust property and the Court of Criminal Appeal was called upon to adjudicate upon the sentence imposed upon him. That court's reasons for imposing a non-custodial sentence are reported at (1982) Qd. R. 216. The facts on which the Statutory Committee made its findings in September 1977, and the relevant personal -- 3 of 10 -- 2 history of the applicant between then and May 1981 when the matter came before the Court of Criminal Appeal, are fully set out in those reasons. All of those matters are verified in affidavit material now before the court, and it is not necessary to record them again in this judgment. The applicant has now applied for readmission as a Solicitor. Lengthy affidavit material, containing numerous exhibits, has been placed before the court; generally it covers \ his personal history since 1981. In that intervening period he has not been convicted of any criminal offence in Queensland or elsewhere. During that period he has not been the subject of any investigation by the Queensland Law Society. In the reasons for judgment of the Court of Criminal Appeal there is reference to evidence from the psychiatrist, Dr. Milner; in his opinion the applicant was at the time of his transgressions exhibiting the personality of a constitutional ) hyperthymic, which personality is prone to episodes of hypomania. Amongst the material from this Court is a report from Dr. Milner dated 31st October, 1991. Relevantly he says in that report y "It is my opinion that his personality has shifted along the 'normal distribution curve' into the statistically average range. Thus there is no reason why personality disorder or peculiar abnormality of personality functioning should give rise to legal or associated problems with him in the future. He is not in my opinion suffering from any psychiatric disease nor from any significant psychological disorder. Thus it is my opinion that he is no more likely to re-offend than any average person would be. Indeed it may well be the case that because of the powerful learning experience occasioned by the 'short, sharp shock' of imprisonment, and the fact that he has taken the opportunity to study various material I gave him about personality functioning and learning change in -- 4 of 10 -- 3 personality functioning, that he is less likely than the average person to develop legal or related problems associated with personality." For some time around 1980 the applicant was on lithium drug therapy. But the material suggests that he has not been on any drug regime for quite a number of years, and there is nothing in the medical reports to suggest the likelihood of his requiring such drug therapy in the future. Since being struck off the Roll of Solicitors the applicant has been involved in the development of lands owned by his family and a family company, which has involved the successful sale of subdivisions of residential land in the Whitsunday area. It would appear that the applicant personally has been involved in numerous subdivision and rezoning applications, resumption negotiations, Local Government appeals, and similar procedures associated with those projects. He has always retained qualified practitioners to supply advice and professional assistance when needed. Generally he has taken steps to keep himself abreast of developments in the law, particularly as it relates to town planning and conveyancing. Solicitors acting for him in connection with this application for readmission prepared a lengthy submission to the Council of the Queensland Law Society detailing the applicant's history since the incidents in 1977. It also contained detailed testimonials by persons with whom the applicant has had contact throughout that period supporting his application for readmission. In the circumstances I do not find it necessary to set any of that out in detail. Suffice it to say that a wide range of people, including members of the legal profession, now -- 5 of 10 -- 4 support his application for readmission, and depose to his suitability. On 11th February, 1991 the Queensland Law Society, under the hand of its solicitor, wrote to the solicitor for the applicant informing him that the question of the applicant's readmission as a solicitor was further considered by the Council at its meeting on 7th February, 1991, and that it was then resolved that the Society would not oppose such an application. This application has been fully advertised in the Courier Mail and in newspapers circulating in the Whitsunday area. No opposition to the application was generated by the publication of those notices. The matter then went before The Solicitors' Board. After considering all the material that Board concluded that it was not inclined to oppose the application. The Board pointed out that the onus was on the applicant to satisfy the court of his fitness to be readmitted. That indeed was the attitude adopted by counsel who appeared before this Court on behalf of the Board. The relevant principles have recently been discussed by this Court in Re J.D. Currie (unreported, Motion 417 of 1990, judgment delivered 8th March, 1991). After referring to Ex parte Lenehan (1948) 77 C.L.R. 403 at 422, the court there stated that a solicitor may be restored to the roll after he has been struck off, but the power to reinstate should be exercised with the greatest caution and only upon solid and substantial grounds. The court also there adopted the approach approved of by this Court in Ex parte Letizia (unreported, Motion 340 of 1981, judgment delivered 10th February, 1982), that the question which -- 6 of 10 -- 5 must be answered affirmatively is , whether in all the circumstances the court is justified in putting the applicant before the public as a fit and proper person to follow the honourable calling of a solicitor. A perusal of those cases demonstrates that what is in issue is the applicant's intrinsic character and not necessarily his good fame either within the profession, or the community at large. Whilst there is, prima facie, some similarity between the circumstances of this case and those which the court had to consider in Currie . there are in my view significant distinguishing features. As is evident from a perusal of the reasons in Currie . that person's psychiatric illness was more severe, and indeed was such that he was found not guilty on the criminal charges arising out of his professional misconduct on the ground of insanity. On the material before it on the application for readmission the court was able to state: "Nevertheless, the medical evidence is unequivocal that although his prognosis is very good, provided he maintains his treatment, the possibility that another psychotic episode may occur cannot be excluded. In view of this, there is real difficulty in concluding that the applicant is presently medically and mentally fit to carry out the duties of a solicitor." That, as I have pointed out above, is not the position here; all the evidence placed before this Court suggests that this applicant suffered for a period from a personality disorder (which never reached the stage of rendering him legally insane) and that after a short period on medication he is not now suffering from any psychiatric disability. In those circumstances it is possible for this Court -- 7 of 10 -- 6 to comfortably reach the conclusion that from a medical and mental point of view the present applicant is now fit to carry out the duties of a solicitor. Another important feature which distinguishes this application from that under consideration in Currie is that it is not opposed by the Law Society, and there is nothing in the material which would suggest that "the necessary degree of trust and frankness" does not exist between the applicant and the Society. That was a question which was canvassed at some length on the evidence in Currie and, as the judgment of the court shows, it had a significant impact on the court's decision. As will be pointed out later it will be necessary, at least during the initial period of 12 months after admission, for the applicant to be open and frank with both the Law Society and the Solicitors' Board with respect to the conditions attached by this Court to his admission. On the material there is no basis for concluding that there would not be full co-operation between the applicant and those bodies with respect to those conditions. Another matter which distinguishes Currie , though it is not of great significance, is the fact that in this case full restitution was promptly made, whereas full restitution had not been made by Currie even at the stage of his application for readmission. After giving full consideration to the material filed in support of the application, and approaching the decision with the caution required, I am satisfied that in all the circumstances this Court is justified in putting the applicant before the public as a fit and proper person to be a solicitor. So far as -- 8 of 10 -- 7 this Court can determine the applicant now is physically, emotionally, intellectually and morally fit to practice notwithstanding his transgressions some 15 years ago. The applicant, because he passed the Solicitors' Board examinations as they were structured back in 1964, cannot comply with r. 16 of the Rules Relating to the Admission of Solicitors of the Supreme Court of Queensland. In consequence he asks the court to exercise the discretionary power conferred on it by r. 95 to exempt him from compliance with the rules. I do not find it necessary to add anything to the discussion of this topic which is found in the judgment in Currie. Ultimately the court in that case (albeit obiter because it refused admission) said that "an exercise of the discretion conferred by rule 95 could only be justified if it was made a condition of admission that the appellant undertake a supervised programme of continuing education the details of which could be worked out by the Board in conjunction with those responsible for the excellent continuing legal education programme conducted by the Society". Over recent years the applicant here has taken some steps to update his legal knowledge, but in my view the approach suggested by the court in Currie should be followed. The Board should determine what study programme the applicant should undertake during the ensuing 12 months, and he would be obliged to comply with those requirements. As the applicant would be residing and practising in North Queensland some of the programme could involve correspondence type study. The court has a general power in a proper case to admit conditionally (see In Re Bridgman (1934) St.R.Qd. 1 at 9 and -- 9 of 10 -- 8 Currie ) . I cannot usefully add anything to what was said by court in Currie on this topic. Here the Board suggested that there be a condition that the applicant complete a year's employment as an employed solicitor of a practising practitioner before practising on his own account. The applicant readily agreed to the inclusion of such a condition. The final matter for consideration is whether or not the admission should be absolute at this stage subject to conditions, or whether it should be a conditional admission so that the matter would have to come back before the court in 12 months. In the circumstances I am of the view that the admission should be absolute subject to the stated conditions. In the unlikely event of there being any failure by the applicant to comply with those conditions then the remedy lies in the power of the Board or the Society to apply to have the applicant again struck off on the ground of failure to comply with those conditions. For all of those reasons I am of the view that the applicant should be admitted subject to the conditions I have indicated. -- 10 of 10 --