Currie, Re [1991] QSCFC 16

fa /of io IN THE SUPREME COURT OF QUEENSLAND FULL COURT MOTION No. 417 of 1990 RE: JOHN DESMOND CURRIE WILLIAMS J. RYAN J. DOWSETT J. Judgment and reasons of the Court delivered on 8th March, 1991. "APPLICATION FOR ADMISSION AS A SOLICITOR DISMISSED. ORDER THE APPLICANT TO PAY THE COSTS OF THE RESPONDENTS". [1991] QSCFC 16 -- 1 of 29 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Motion No. 417 of 1990 Before the Full Court Mr. Justice Williams Mr. Justice Ryan Mr. Justice Dowsett Re: JOHN DESMOND CURRIE JUDGMENT OF THE COURT Delivered the Eighth day of March, 1991. CATCHWORDS Solicitors - admission to practise after being struck off - whether qualified for admission by previous admission - whether fit to be admitted to practise - risk of recurrence of mental illness - whether conditional admission appropriate. Counsel: Mr J.E. Gallagher Q.C. with Mr. J.D. Batch for Applicant Mr. J.C. Bell for Respondent Solicitors: James Byrne & Co for Applicant Thynne and Macarthney for Respondent Hearing dates: 19 and 20 November 1990 -- 2 of 29 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Motion No. 417 of 1990 . Re : JOHN DESMOND CURRIE JUDGMENT OF THE COURT Delivered the Eighth day of March, 1991. John Desmond Currie has applied to be admitted to practise as a solicitor of the Supreme Court of Queensland. The application is opposed by the Solicitors Board ("the Board") and the Queensland Law Society Incorporated ("the Society"). Mr Currie was born in April 1923, and is accordingly now aged 67 years. On 7th October, 1947 he was admitted as a solicitor of the Supreme Court of Queensland. On 22nd May, 1972 he was struck off the roll of solicitors by order of the Statutory Committee of the Society, upon a finding that he was guilty of professional misconduct. In June 1973, Mr Currie was found not guilty on the ground of insanity on charges under the Criminal Code which related to the same matters as those upon which the finding of professional misconduct had been made by the Statutory Committee. He was committed to Wolston Park Hospital where he was an inmate until August, 1976. He was discharged from the provisions of the Mental Health Act on 18th April, 1981. From November, 1976 until February 1984, Mr Currie was employed as Credit Manager for a company, O'Donnell Griffin Pty. Ltd., in Brisbane. In March, 1984 he commenced work in Brisbane as a litigation assessor, and is presently engaged on his own account in that position. -- 3 of 29 -- 2 The admission of solicitors in Queensland is currently regulated by the Solicitors Admission Rules 1968. Rule 16 provides that subject to the provisions of any statute relating to admission and to the provisions of the rules, a person may not be admitted unless he is of good fame, and has qualified for admission under Rule 17, Rule 18, Rule 74 or the Legal Practitioners Acts 1881 to 1968. The only one of these grounds for qualification which may possibly be applicable in the case of Mr Currie is Rule 18, which relates to qualifications for admission by taking the Solicitors' Board Examinations. Mr Currie was admitted to practice as a solicitor in 1947 having qualified for admission by taking the Solicitors' Board Examinations. It was apparently assumed on his behalf that having qualified in that way, in the past, he satisfied the current requirements as to qualification for admission. That assumption seems to us to be mistaken. A person who applies in 1990 to be admitted as a solicitor must satisfy the requirements for admission as they exist in 1990. There is nothing in the rules which would indicate that an applicant is deemed to complete the Solicitors' Board Examinations as required by Rule 18(2) by completing the examination under earlier rules, and the transitional provisions (Rules 77-80) have no relevance to the present application. It is necessary therefore for the applicant, if he is to be admitted, to satisfy the Court that he should be exempt from compliance with the admission rules. Rule 95 provides that notwithstanding anything to the contrary contained in the Rules, the Court, if in special circumstances it thinks fit so to do, -- 4 of 29 -- 3 o o may exempt any person from compliance with any of the rules, either wholly or partly or subject to such conditions as the Court thinks proper. The question therefore is whether special circumstances exist which make it proper to exempt the applicant wholly from compliance with Rule 18. He served articles of clerkship in 1941 until February 1942 when he was called up for army service. Upon his discharge in July 1945 he worked as an articled clerk until he was admitted as a solicitor. He continued to work as a solicitor for the firm in which he had served his articles, and after two years was admitted as a partner. In December 1964 he dissolved the partnership and formed a partnership with other solicitors. He had therefore had more than twenty-five years experience as a practising solicitor before he was struck off the roll of solicitors. It is however now more than seventeen years since he has practised his profession. It appears that his practice had been confined almost exclusively to litigation involving claims for compensation arising from motor vehicle or industrial accidents, and he has maintained some familiarity with this area in his occupation as a litigation assessor. It could not however be expected that a person who has been out of practice since 1972 would have kept himself up to date in his knowledge of 'the general law which is necessary to enable a practitioner effectively to discharge his duty, and no suggestion was made that Mr Currie had done so. We consider 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 -- 5 of 29 -- 4 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. It was said by this Court in Ex parte Letizia C.A. No. 340 of 1981 that the question that must be answered affirmatively if a motion for admission is to succeed is the question 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. In Ex Parte Lenehan (1948) 77 C.L.R. 403 at p. 422, it is stated in the joint judgment of Latham C.J., Dixon and Williams JJ. that where a solicitor who had been struck off the roll applies for reinstatement, he is in a more disadvantageous position than an original applicant because he must displace the decision as to probable permanent unfitness which was the basis of his removal. 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 . Incorporated Law Institute of New South Wales v. Meagher (1909) 9 C.L.R. 655. The judgment added, after referring to the great importance of financial integrity in a solicitor, that there is no rule of law that a solicitor who has been struck off the roll for pecuniary dishonesty cannot be reinstated. It was submitted for the applicant that he should not have been struck off the roll, but at most suspended during the continuance of his illness. Accordingly, it was said that he -- 6 of 29 -- 5 should be treated in no less disadvantageous a manner than a person who had never been previously admitted. The allegations made against Mr Currie as set out in an affidavit of Miss Donkin, the secretary of the Society, were that he had wrongly converted to his own use moneys of clients of the firm of solicitors of which he was a member. The allegations related to 33 clients of the firm, and extended over the period from 27th November, 1970 until 5th August, 1971. The alleged defalcation totalled $54,690.00. The Statutory Committee decided that a prima facie case was shown by the allegations in the affidavit and decided to call upon Mr Currie to answer the allegations. When the matter came on for hearing before the Statutory Committee on 11th May, 1972, Mr Currie's counsel sought an adjournment until after the termination of the criminal proceedings. When this was refused, he and Mr Currie withdrew. Thereupon evidence was taken. On 22nd May, 1972 the Statutory Committee stated that it found the allegations made in the affidavit of Miss Donkin proved to its satisfaction, and consequently it found Mr Currie guilty of professional misconduct. It then ordered that he be struck off the roll. The applicant had been arrested in December 1971 and charged with fraudulent use of trust money, following an audit check of his firm in October, 1971. The allegations examined by the Statutory Committee were the matters with which he had been charged. This provided no reason why the Statutory Committee should have acceded to the application to adjourn the proceedings before it. The allegations clearly raised in a serious way the fitness of Mr Currie to continue to practise as a solicitor, and -- 7 of 29 -- 6 the Statutory Committee was entitled to proceed with the hearing of the allegations. , It may be that if the applicant had availed himself of the opportunity afforded to him to make an answer to the allegations, the Statutory Committee may have made some order other than that which it did make. In Re Hill (1868) L.R. 3 Q.B. 543 at p. 575, it was said by Cockburn C.J. that if there had been a conflict of evidence upon the affidavit, that might be a sufficient reason why the Court before which the solicitor had been called to show cause why he should not be struck off the roll should not interfere until the conviction had taken place. It is unnecessary to express any opinion on this , since it is clear on the findings of the Statutory Committee, on the verdict of the jury at the trial, and on medical evidence which was tendered before this Court that Mr Currie was not a fit and proper person to practise as a solicitor at the time he was struck off the roll . _The only issue which the evidence raises is whether he was unfit by reason of insanity or by reason of misconduct. In Re B (a solicitor) [1986] V.R. 695 at p. 702, Brooking J. said: - "In my opinion a legal practitioner may be struck off the roll or suspended if he is shown for any reason not to be a fit and proper person to practise the law. The ground may be misconduct. It may be mental unfitness to practise. It may be physical unfitness to practise. The ground may even relate to the situation in which the practitioner finds himself." We agree with these comments. A letter dated 14th September, 1982 written by Dr Wood, Acting Medical Superintendent of Wolston Park Hospital, states -- 8 of 29 -- 7 that Mr Currie was first admitted to Wolston Park Hospital on 31st December, 1971 pursuant to a hospital order. Dr Wood examined him many times over his stay in hospital and found him to be suffering from a psychotic disorder, namely the manic phase of a manic depressive illness. He was treated with medication as a result of which his mental state improved to the point where he began having leave from the hospital on 14th February, 1972, and he was formally discharged on 3rd May, 1972, but he continued to attend as an outpatient. He was readmitted to Wolston Park Hospital on 4th June, 1973, having been directed by the learned trial judge to be kept in Wolston Park Hospital until Her Majesty's pleasure be known following the verdict at his trial. He was paroled from the security patient's hospital on 19 August 1976 on condition that he regularly attended Dr Edwards, the Psychiatrist-in-charge of Mary Street Clinic for continued treatment. Dr Woods expressed the opinion that Mr Currie had suffered over the years from a hypomanic personality with a tendency to redevelop episodes of both hypomania and depression. A number of reports by psychiatrists were tendered to which reference is made later in this judgment. These relate to the applicant's mental condition subsequent to his release from Wolston Park Hospital, but it is relevant to observe at this point that none of them question the opinion expressed by Dr Wood. In particular, Dr Edwards stated that Mr Currie has always had a hypomanic personality, and prior to the period of hospitalisation there had been prolonged manic episodes. When he was first admitted to Wolston Park Hospital he was in a manic phase of a mental illness referred to as manic-depressive -- 9 of 29 -- 8 psychosis. In relation to the offences for which he was charged, the history indicated that he was in a manic phase of a manic- depressive illness at the time when the offences occurred. It is for this Court to determine whether the applicant is a fit and proper person to be admitted as a solicitor, and in doing so to form its own opinion of the conduct which led to the action taken by the Statutory Committee and the verdict of the jury. In Re WHB (1882) 17 L Jo 165, a solicitor was struck off the rolls for wilful and corrupt misappropriation of moneys of his clients though he had been found not guilty of these matters by a jury. However in this case the uncontradicted evidence placed before the Court leads to the conclusion that at the time when the acts with which the applicant was charged were done, he was insane. It would, in our opinion, be wrong in these circumstances to treat the application before us as though it were made by a person who had been struck off the roll for a serious criminal offence, as was the case in Incorporated Law Institute of New South Wales v. Meagher (1909) 9 C.L.R. 655 and in Ex Parte Lenehan (1975) 77 C.L.R. 403. The essential question for our consideration is whether he has shown that he is a fit and proper person to be admitted. In answering that, this Court must have regard not only to the circumstances which led to him being struck off the roll but also to the evidence as to his subsequent rehabilitation from his mental illness and as to his conduct since he was struck off. In a report by Dr Edwards dated 23 July 1982 he stated that Mr Currie had been under his care as a condition of his parole ) ) ) ) -- 10 of 29 -- from 25 August 1976 until 16 April 1981 when by Order-in-Council he was granted a discharge. Since that date he had continued to attend the Clinic as a voluntary patient. Dr Edwards stated: "It is not possible to say that he will never have another relapse, but the likelihood of this occurring is substantially reduced by his being maintained on the drug, Lithium Carbonate. The preventive value of this treatment is well proven. However, it has to be said that the preventive value is not absolute and relapse can occur whether the person is taking Lithium or not. It is also possible that he might never have a relapse even if he were not maintained on Lithium." Dr Edwards stated in that report that there had been no evidence of manic-depressive illness for the past eight years. In a subsequent report dated 24 November 1987, he repeated the substance of his earlier report, and added that with treatment Mr Currie's condition had been stable for 15 years. In June 1988, Dr Irvine, a psychiatrist, took over from Dr Edwards the care of Mr Currie. She stated in a report dated August 1989 that from November 1987, Mr Currie had remained well and free from any significant psychiatric symptomatology. She added : "With regard to prognosis, it is of course not possible to say that a person with a diagnosis of Manic Depressive Psychosis will remain relapse free, but the likelihood of relapse occurring in Mr Currie's case is substantially reduced by his complete compliance with treatment." It is clear from these and other reports by psychiatrists which were tendered that with continued regular Lithium therapy Mr Currie has shown no episodes of mania or depression for a period of at least fifteen years. He has complied over a prolonged period with the treatment prescribed for him. He has remained abstinent from alcohol since he was admitted to hospital in 1971; prior to that, there was evidence of alcohol abuse. -- 11 of 29 -- 10 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. In the light of this evidence, we consider that it is not possible for this Court to conclude that the applicant is a fit and proper person to be admitted as a solicitor. In Clyne v. N.S.W. Bar Association (1960) 104 C.L.R. 186 at pp. 201-202, and in N.S.W. Bar Association v. Evatt (1968) 117 C.L.R. 177 at pp. 183-1.84, the High Court pointed out that the power of the Court to discipline a barrister is entirely protective. In Ex parte Munro (1969) 71 S.R. (N.S.W.) 448, it was said at p. 452, in relation to an application by a person for restoration of his name to the roll of solicitors, that "the jurisdiction which we exercise is in no sense punitive although it may be referred to as a punishment. An order refusing readmission is made from the public point of view for the protection of those who require protection and from the professional point of view in order that abuse of privilege may not lead to loss of privilege." The applicant has obviously done all that he can to ensure that he does not have any recurrence of his mental illness. Nevertheless, the risk remains that he may have a relapse. The Court protects the public by ensuring that the legal profession, in this case the Solicitors' branch, is comprised of people who are, as far as the Court can reasonably determine, physically, emotionally, intellectually and morally fit to practise. Individual members of the public who have dealings -- 12 of 29 -- with solicitors must be able to have confidence in the particular practitioners with whom they deal and also in the profession at large. Probably, some members of the public would be unable to discern between the position of a former solicitor, struck off for dishonesty and the position of the present applicant, but such people would be in error. It should be accepted for present purposes that the applicant is a person whose previous unfitness was precipitated by mental infirmity and not by demonstrated dishonesty. We consider that in assessing the effect on the public image of the profession of re-admitting the applicant, the Court should have regard not to the ill-informed view to which we have referred, but to the views of reasonable and well- informed men and women. Such people would know, as the Court knows, that the applicant is a person whose mental condition has previously resulted in demonstrated incapacity to practise and that although his condition has responded to medication, there can be no guarantee that he will not fail again. Of course, it is never possible to guarantee that any practitioner will not suddenly develop incapacitating mental or physical infirmity. Our decision should not be taken as indicating that a person suffering from a condition clinically similar to that of the applicant must always be thought to be unfit to practise. It is the demonstrated incapacity on a previous occasion which dictates that great care must be taken in considering the applicant's present position. When he was in the mental condition which led to the actions for which he was struck off, he inflicted considerable loss on -- 13 of 29 -- 12 his clients. Only $190.50 of the amount which had to be refunded to them was recovered from Mr Currie's estate in bankruptcy proceedings. It was submitted on Mr Currie's behalf that any concern the Court may feel in relation to a possible relapse could be removed by making the admission conditional. Mr Currie deposed that he was prepared if necessary to undertake or to accept as a condition of his re-admission that he would not practise on his own account or in partnership nor operate on any trust account unless permission was first obtained from the Court or the Society. His counsel indicated in his address that Mr Currie was prepared also to accept a condition that he be employed only with a particular firm which is prepared to offer him employment if he is admitted. There is no doubt that this Court has full power in a proper case to admit conditionally or unconditionally. See In re Bridgman (1934) St.R.Qd. 1 at p. 9. The rules relating to the admission of solicitors provide (rr. 74 to 76) for the conditional admission of persons admitted as solicitors outside Queensland, but an application is required to have the conditional admission made absolute after one year. Pursuant to s. 40A of the Queensland Law Society Act 1952-1985, conditions may be attached to practising certificates in certain circumstances. These are designed to ensure that the solicitor maintains a professional practice address in Queensland, or that he completes a year's employment as an employed solicitor of a practising practitioner before practising on his own account. These provisions provide basically for the case where a person O O o u -- 14 of 29 -- 13 who is otherwise a fit and proper person to be admitted absolutely has had only limited or no experience in practice as a solicitor in Queensland. If the only difficulty in the case of Mr Currie's application was that he had no current experience in a solicitor's practice, it might be appropriate to impose conditions of the kind he proposed for a twelve month period. It appears that it is the practice, in England when the name of a solicitor which has been struck off the roll is restored, that conditions will generally be imposed upon the issue of a practising certificate to that solicitor. See Halsbury's Laws of England 3rd ed., Vol. 36 para 35, note (h) . But in our view it would be wrong to impose such conditions on a permanent basis . The imposition of such conditions would amount to a recognition that he was not a fit and proper person to be admitted. Moreover, it is undesirable, in our opinion, that there be categories of practitioners, some of whom are and some of whom are not subject to continuing restrictions on their right to practise. The opposition by the Board and the Society to the application by Mr Currie was based not only on the ground that he had not shown that he had recovered from his mental illness, but also on the ground that he had not discharged the onus of proving that his personal character was such that he was a fit and proper person to be admitted as a solicitor. Reference was made to a statement in Incorporated Law Institute of New South Wales v. Meagher (1909) 9 C.L.R. at p. 682 that fitness includes honesty as well as knowledge and ability. That is obviously true. If quite apart from the matter of his mental condition, -- 15 of 29 -- 14 the conduct by the applicant leads the Court to conclude he is not a fit person to be admitted, his application must be refused. The first matter to which our attention was directed was that Mr Currie had not disclosed to the Court that he was convicted in 1973 of an offence under s. 7 of the Queensland Law Society Act 1952 and fined $50.00. There is a prohibition on disclosure of such a conviction after 10 years by virtue of s. 6 of the Criminal Law (Rehabilitation of Offenders) Act 1986, unless the person against whom the conviction is recorded wishes to disclose it, or the person who makes the disclosure does so in circumstances that constitute an exception to the operation of s 9(1) or that are expressed by s. 9(2) to be a case to which the provisions of s. 9(1) do not apply. We were informed that Mr Currie did not object to answering questions about this conviction. By s. 4(1) of the Criminal Law (Rehabilitation of Offenders) Act , the Act is to be construed so as not to prejudice any provision of law or rule of legal practice that requires disclosure of the criminal history of any person. There is a rule of legal practice that requires an applicant for admission as a solicitor to disclose to the Board and to the Court convictions of criminal offences, and disclosure should have been made of this conviction. However, the conviction relates to the period between when Mr Currie was struck off the role and when he was tried and found not guilty on the ground of insanity. He said that he did not contest the charge, so as not to prejudice his forthcoming trial, though he denied he had committed it. We do not consider that failure to disclose this conviction should in the circumstances be regarded as a serious matter for -- 16 of 29 -- 15 concern. It could not be supposed that Mr Currie intended to deceive the Court when the offence was known to the Society which had prosecuted it. The second matter is more substantial. On 20 October 1983, the Society wrote to Mr Currie as follows: "The Society has received a number of complaints over the last year alleging that you have been involved in illegal conveyancing and other proscribed activities. The following information has been provided to the Society: (a) A complaint by a Solicitor, enclosing copies of correspondence and accounts that apparently you have sent, indicating that you were acting for parties in a conveyancing matter; (b) Several oral complaints by Solicitors indicating that you had been representing people in conveyancing matters; (c) Written material from a Solicitor indicating that you had written letters on behalf of another person, threatening to commence legal proceedings. It would appear that the above matters fall within the provisions of Section 41 of the Supreme Court Act of 1867 and Sections 39 and Rule 102(4) of the Queensland Law Society Act. These provisions proscribe illegal practising by unqualified persons. A copy of these provisions is enclosed for your information and perusal. The Society has a policy of prosecuting all instances of illegal conveyancing or illegal practice. I would draw to your attention further that there is authority for the proposition that a person who has been struck off the roll of Solicitors and who prepares a document unlawfully may be held to have committed both an offence under the relevant legislation and a contempt of court independently of the legislation. I have been requested to bring these matters to your attention so that you will be aware of the present law and the attitude of the Council on the subject." Mr Currie wrote to the Society on 2 November 1983 as follows: "I wish to advise you of my intention to commence business as a litigation assessor. This work will involve the investigation and preparation of reports for the assistance of the legal profession in the -- 17 of 29 -- 16 preparation of claims to be presented in court and elsewhere . A large number of organisations, as well as a number of solicitors, have approached me to carry out such work. The business will be conducted on the same basis as a loss assessor in relation to the preparation of reports for insurance companies. Prospective litigants or other organisations will be able to obtain my services for the preparation of statements and investigation as to the circumstances of an accident or other similar matter. In the proposed pursuit of this function I make it clear to you and all prospective clients that I am not a solicitor, and that such work is not meant to substitute the role of a solicitor in the legal process . If your Society has any need for further information on the proposal, I shall be pleased to answer your request." On 5 December 1983, the Society replied: "Thank you for your letter of 2nd November, 1983. I note that the Society has not received a formal reply to its letter to you dated 20th October. That letter drew to your attention the proscriptions on certain activities alleged to have been carried out by you. Such activities, as alleged, could amount to an infringement of the provisions both of the Supreme Court Act and of the Queensland Law Society Act. The relevant sections were drawn to your attention in that letter. The Council of the Society wishes to advise you, once again, that persons who are not solicitors may be prosecuted for infringement of those sections . Further, you are requested to respond to the Society's letter of the 20th October. This is a matter which will be kept under review by the Council. In respect of the matters set out in your letter of the 2nd November, it is noted that you propose to commence business as a litigation assessor. The Council is of the view that the activities you have described and which you proposed to conduct, may well infringe the provisions of the sections referred to previously. The Council regards it as insufficient compliance with these sections, that persons requiring your services be informed of your status. I look forward to receiving your letter of reply in this matter." -- 18 of 29 -- 17 To this letter, Mr Currie replied on 2 January 1984: "Thank you for your letter of the 5th instant and also the letter of 20th October, 1983. As to the earlier letter I did not receive such letter until after I had despatched my letter of the 2nd November as I was absent on holidays and it was despatched to a business post box and not my private address. As to the allegations made in such letter I say immediately that such allegations are not correct. I have not and do not intend to practice as a Solicitor. My intention is to earn a livelihood as a litigation assessor not as a Solicitor. The difference between such occupations is well known and accepted." In 1976 Mr Currie joined the staff of O'Donnell Griffin Television Services Pty. Ltd. There he met Mr Howard Leadbetter, with whom he maintained a friendship until 1983 when Mr Currie left that employment. Mr Leadbetter who was Mr Currie's immediate superior, knew that he had been a solicitor before he was struck off in 1973, and he requested Mr Currie to do work for him in the legal field. In 1981, Mr Currie registered the firm name C.E.D. Services as carrying on business as a compensation consultant. Its main business was the collection of debts for O'Donnell Griffin Television Services Pty. Ltd., which had its offices at 5 Fame Street, Sunnybank. Mr Currie said that he also provided services for an associated company, O'Donnell Griffin Services. Some employees of that company came to him about their personal matters, which related to compensation claims or claims for moneys owed to them. He was not paid for the compensation claims . -- 19 of 29 -- In oral testimony, Mr Currie denied that prior to 20 October 1983 he had been acting for parties in conveyancing matters and had sent accounts to them for that work, but he admitted that he had acted for one particular person, Mr S. Leadbetter, who was the son of-Mr Howard Leadbetter. There was tendered a document headed C.E.O. Services dated 22 October 1981, address to S. & L. Leadbetter, setting out a bill of costs of and incidental to instructions to handle the sale of the business of "Bullbars". These included searches at Titles Office, drawing and engrossing contract of sale for $45,800; redrawing and engrossing contract, negotiations and discussions with owner (and solicitors); general care and consideration. The fee charged was $200.00. A further fee of $50.00 was charged for costs inter alia of drawing and engrossing an application for a Home Savings grant; requesting contract of sale of house and all banking certificates; checking particulars; conferences with officials; and drawing and engrossing documents. The contract shows that the vendor's solicitor was Walters & Co. Ashgrove, and that the purchaser's solicitor was John Currie of O'Donnell Griffin, Fame St. Sunnybank. Mr Currie became aware that he was so described. Mr Currie sent to Walters & Co. requisitions on title for answering and execution, and informed them that finance had been approved in accordance with the terms of the contract. Subsequently he sent to them documents required for settlement. Mr Currie admitted also that he had prepared a lease for Mrs Leadbetter, but denied that he had charged for it. -- 20 of 29 -- 19 Mr Currie admitted that he was acting for the purchaser in the conveyance, but denied that he was holding himself out as a solicitor at the time, as the parties and solicitors knew his position. Mr S. Leadbetter said that at the time of the conveyance he was aged 21, and that Mr Currie acted in the conveyance for him on account of the relationship with his father. Mr Walters said that he had sent his file in relation to the transaction to the Law Society. He had not made a complaint to the Society, but had drawn its attention to the matter as he knew that Mr Currie had been struck off the roll of solicitors. Another document tendered was a contract of sale of property to S. & E. Leadbetter dated January 1983. The purchaser's agent is stated to be John Curry (sic) of 5 Fame Street, Sunnybank Hills. On 2 February 1983 Mr Currie sent to the vendor's solicitors requisitions on title, and in May, 1983 the documents of transfer. In September 1983, he wrote to L . & S. Leadbetter, stating that he had reduced the fee he would have charged, as they had engaged a solicitor. He stated that "including outlays of $32.00 I have fixed a fee of $232.00. A contract was tendered for a sale to J. & E. Leadbetter and J.M.E. Thorne dated 22nd January 1980. Mr J.W. Leadbetter was another son of Mr Howard Leadbetter. The purchasers' solicitor is shown as John Curry (sic) and the vendor's solicitors as Roberts and Barrett. On 1 February 1980, Mr Currie wrote to the vendor's solicitors, advising that the contract had been rescinded and requesting payment forthwith of the deposit, and notifying that failure to comply with this request within seven -- 21 of 29 -- 20 days would leave him with no alternative but to institute legal proceedings to enforce the rights of the purchasers. Mr Barrett said that he could not recall whether he had complained to the Law Society at any time that Mr Currie was acting or holding himself out as a solicitor. Mr Currie was asked why, in reply to the letter from the Law Society dated 20 October 1983 stating that they had written material from a solicitor indicating that he had written letters on behalf of another person threatening to commence legal proceedings, he had said that this was incorrect? He replied: "Because Roberts and Barrett well knew that I was not a solicitor and I wouldn't be instituting any legal proceeding myself." A letter was tendered dated 23 July 1981 signed by Mr Currie and addressed to a Mr Ludwig of Jimboomba. Mr Currie said he had no recollection of Mr Ludwig. Mr Currie referred in it to negotiating with the vendors' solicitors with a view to assuring him of a clear title to the property. He sent an account to Mr Ludwig on 28 September 1981 for $50.00 for costs for acting for him in relation to the proposed sale, checking out the contract of sale, an investigation into determining whether he had a clear title, and finally handing the matter to Stein and L'Estrange (solicitors) with all material for the settlement. Mr Currie had sent an account for $100.00 to S. & L. Leadbetter on 22 October 1981 for costs inter alia of investigations concerning a. police charge, for conferences with solicitors and witnesses, appearance in Court and furnishing a notice of appeal on a decision to fine him $80.00. On 5 April 1984, he sent to S. Leadbetter an account for $750.00 for costs -- 22 of 29 -- 21 of and incidental to instructions from him and his father to investigate his defence of a criminal charge arising out of a road collision. The account is set out in considerable detail. Mr Currie said that he appeared for S. Leadbetter in Court on these charges as an advocate with the leave of the Court. On 22 March 1983, a letter was sent by C.E.D. Services on behalf of a Mr McFarlane, who was the son of the treasurer of the St. Vincent de Paul Society, of which Mr Currie is a member, to a former employee. The letter was signed by Mr Currie. The letter stated that his client held the employee responsible for damages on several grounds, and added: "Unless you advise within four days of the abovementioned date of the manner in which you and your partner in such fraud propose to repair the damage caused to our client, a writ will be issued in the Supreme Court of Queensland holding you both jointly and severally responsible in damages and an injunction to close down the business of Matilda Trading Co. without further notice." Mr Currie was asked "When the Law Society wrote to you on 20 October 1983 suggesting they had received written complaint from a solicitor that you had written letters threatening to commence legal proceedings, why did you deny it?" He replied: "Because that, in my opinion, does not indicate that I am going to issue the writ. The persons to whom I wrote had a document from C.E.D. Services, and a search at the Corporate Affairs by their solicitors would haye made it abundantly clear that C.E.D. Services was not in a position by itself to issue a writ and I submit that the only reasonable inference you could draw from that was that the writ would be issued by a solicitor who was competent to issue the writ." We consider this explanation unsatisfactory. Mr Currie had clearly done what the Law Society stated, namely written a letter threatening to commence legal proceedings . -- 23 of 29 -- -- 24 of 29 -- o Mr Currie did not dispute that he had drawn a Magistrates Court plaint dated November 1984 together with a statement of particulars of the plaintiff's claim for $1,767.52 for damages to the plaintiff's vehicle as a result of the negligence of the defendants, and that he had conducted that litigation for the plaintiff. He said that he was entitled to do this pursuant to the Magistrates Court Act. Section 9 of that Act permits a person other than a barrister or solicitor to appear if he is given special leave of the Court, and R. 335 of the Magistrates Courts Rules permits acts to be done by an agent. Two matters require consideration in relation to this evidence. One is whether there was any breach by Mr Currie of any of the provisions to which the Society drew his attention, namely s. 41 of the Supreme Court Act of 1867, s. 39 of the Queensland Law Society Act 1952, and Rule 102 of the Rules made under that Act. It seems clear from his own admissions that at least he did draw for reward an instrument in writing in respect of real estate for Mr S. Leadbetter. But a more important question is whether his response of 2 February 1984 to the Society's letter of 20 October 1983 was misleading. In our opinion, it was. His response denied all the allegations in the letter, but he must have been aware that the allegations were based on things he had done. The Society's letter called for a proper reply, which he did not provide. Mr Currie may have genuinely believed that his actions involved no breach of the provisions to which his attention had been drawn, but he made no attempt to answer the allegations. His attitude was reflected 22 ) ) O o -- 25 of 29 -- 23 in this answer he gave to a question addressed to him by counsel for the Society "As far as I am concerned, my relationship with the Law Society was such at that particular time that I felt that if they were - if they had any information against which they could charge me or deal with me they would have done so, and the fact is when they did nothing further than write that letter, then I feel that so far as I was concerned because of my relationship with them - that I felt that they had no cause to question what I had said to them in my letter. " The allegations relate mainly to conveyancing work done by Mr Currie for the sons of his friend, Mr Leadbetter and the amounts he charged were low, covering little more than outlays. We do not consider that these acts are sufficiently serious in the circumstances to lead to the conclusion that he is not a fit and proper person to be admitted as a solicitor. We find his reply to the Society's letter unsatisfactory, but in the circumstances we do not think that it is so serious that he should be considered unfit to be admitted on the grounds of personal dishonesty. The third matter to which our attention was directed was the conduct by Mr Currie of his practice as a "litigation assessor". A number of advertisements of his services were tendered. He said that he offered a service of assessing people's rights. He advised people whether particular matters were likely to benefit or hurt them. He stated he merely carried out what he considered to be investigative and assessing work for over 150 solicitors in practice in Queensland. A number of barristers have deposed to the high quality of the work performed by Mr Currie as a litigation assessor. -- 26 of 29 -- 24 We have examined the documents which were tendered in relation to the conduct by Mr Currie of his practice as a litigation assessor. In one, he writes on behalf of a client, stating that unless the addressee was prepared to pay his client the sum of $25,000.00, which included the sum of $1,800.00 for loss of commission on a sale, his client would have no alternative but to institute legal proceedings to enforce his rights without further notice. In Cordery on Solicitors, 8th ed at p. 31 it is stated that such descriptions as "legal adviser" and the use of the word "client" in threatening legal proceedings have been held improper. The cases cited are Merry v , Batson (1964) Times, 11 March, and Anon (1891) 90 LT.Jo 359, ibid 366. This is because such conduct amounts to pretending to be a solicitor, which is an offence under s. 21 of the Solicitors Act 1974 (U.K.) cf. Queensland Law Society Act 1952, s. 7(1) (a). Mr Currie's file in relation to his dealings with a Mr George was tendered. The nature of his services appears from an account he sent on 15 December 1987 for costs in the sum of $625.00. It is in these terms: "To Costs of and Incidental to instructions from you to investigate and assess your claim for compensation; taking statement drawing and engrossing same; making several copies forwarding letter to you with two copies; drawing and engrossing letter to Workers' Compensation Board; perusing lengthy material in reply; letter to you for appointment; conferring with you in relation to same; taking further statement; drawing and engrossing same; making copies; letter to you with two copies; conferring with you from time to time in relation to claim; letter to you requesting fees for medical examinations; perusing your replies; taking further statements; letters to you with two copies; conferring and advising of rights; letter to Board for decision, perusing letter whereby you were -- 27 of 29 -- 25 paid $2,792; general care and consideration; paid sundries." Mr Currie obtained from Mr. George an acknowledgment that he was not acting for him as a solicitor but solely as an assessor. Mr Currie had been advised by the Society on 5 December 1983 that the activities he proposed to conduct as a litigation assessor may infringe the provisions to which it had previously drawn his attention. No doubt the Society was concerned that Mr Currie was engaging in activities which are regularly performed by solicitors, including collecting outstanding debts, appearing in the Magistrates Court as an advocate, giving advice to clients on litigious matters, and gathering evidence for use at a trial. However, it did not seek to prosecute him for any of these activities, on the ground that they amounted to acting as a solicitor. We are not satisfied, on the evidence placed before this Court, that the conduct by Mr Currie in carrying on the business of litigation assessor is such that this Court should conclude that he should not be admitted because he has engaged in it in the way he has done. The applicant was obviously aware of the need to avoid impinging upon the proper area of practice of a solicitor and if he infringed the law in this regard, we would infer that it was an error of judgment rather than a deliberate breach. We do however consider that, given that the applicant ’s counsel has conceded that any admission should be on strict conditions which would require close supervision by the Queensland Law Society, such order could only be made if the Court was satisfied that the necessary degree of trust and frankness existed in dealings -- 28 of 29 -- 26 between the applicant and the Society. The conduct of Mr Currie since 1976 when he commenced employment with O'Donnell Griffin Television Services Pty. Ltd. in his dealings with the Society is not helpful for his present cause. It would appear from the documentary evidence, and from the oral evidence given before this Court, that he has, in general, been prepared to camouflage his conduct and not to give open, and frank, responses to the Society. Whilst that conduct would not, in itself, be sufficient ground for refusing to admit, it does clearly demonstrate that it would be inappropriate, if not futile, to make an order for conditional admission, which would be dependent upon their being a close working relationship between Mr Currie and the Society. Given the past history it is unlikely, to say the least, that if Mr Currie was admitted he would be prepared to maintain an open and frank relationship with the Society with respect to the restrictive conditions imposed upon him. For the reasons set out above, we consider that Mr Currie is unfit to be admitted as a solicitor. We dismiss the application, and order the applicant to pay the costs of the respondents. -- 29 of 29 --