Bell, Re [2005] QCA 151

SUPREME COURT OF QUEENSLAND CITATION: Re Bell [2005] QCA 151 PARTIES: IN THE MATTER OF THE RULES RELATING TO THE ADMISSION OF LEGAL PRACTIONERS OF THE SUPREME COURT OF QUEENSLAND and IN THE MATTER OF AN APPLICATION BY IAN BRUCE BELL FOR ADMISSION AS A LEGAL PRACTITIONER OF THE SUPREME COURT OF QUEENSLAND (applicant) FILE NO/S: SC No 1741 of 2005 DIVISION: Court of Appeal PROCEEDING: Application for Admission ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 13 May 2005 DELIVERED AT: Brisbane HEARING DATE: 3 May 2005 JUDGES: McMurdo P, Keane JA and Wilson J Judgment of the Court ORDER: Application for admission as a legal practitioner refused CATCHWORDS: PROFESSIONS AND TRADES – LAWYERS – QUALIFICATIONS AND ADMISSION – where applicant applied for admission as a legal practitioner – where subsequently requested application be adjourned to a date to be fixed and that no further advertisement of the application be required – where Court adjourned application but did not dispense with requirement for advertisement – where applicant did not readvertise before current application – whether non-compliance with order sufficient to refuse application for admission PROFESSIONS AND TRADES – LAWYERS – QUALIFICATIONS AND ADMISSION – where under s 30 Legal Profession Act 2004 (Qld) a person is suitable for admission as a legal practitioner only if he or she is a fit and proper person – where Legal Practitioners Admissions Board contends applicant is not a fit and proper person – where applicant failed to disclose to the Board he was declared bankrupt in 1991 – where discharged from bankruptcy in -- 1 of 6 -- 2 1995 – where applicant convicted of 12 breaches of domestic violence orders between April and November 2003 – where applicant's admissions to the Board of breaches of domestic violence orders were not full and frank – where applicant stated to the Board the opposition to his admission could be traced to the "pro-paedophilia lobby which reaches into the court system and government of this State" – where applicant swore and filed affidavits in family court proceedings to which he was party which contained threats to judicial officers of the Family Court of Australia and the Federal Magistrates Court – where unresolved contempt proceedings against applicant in the Federal Magistrates Court for alleged breaches of the court's orders – whether applicant a fit and proper person – whether application for admission should be refused Legal Profession Act 1994 (Qld), s 30 Supreme Court (Legal Practitioner Admission) Rules 2004 (Qld) Barristers' Board v Khan [2001] QCA 92; Appeal No 11225 of 2000, 13 March 2001, considered D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 214 ALR 92, considered Giannarelli v Wraith (1988) 165 CLR 543, considered Harley v McDonald (1999) 3 NZLR 545, considered Re Hampton [2002] QCA 129; SC No 10413 of 2001, 5 April 2002, considered Thomas v Legal Practitioners Admissions Board [2004] QCA 407; Appeal No 6458 of 2004, 28 October 2004, considered COUNSEL: The applicant appeared on his own behalf M J Burns for the Legal Practitioners Admissions Board SOLICITORS: The applicant appeared on his own behalf M Timmins for the Legal Practitioners Admissions Board [1] THE COURT: Mr Bell originally applied for admission as a legal practitioner before this Court, differently constituted, on 29 March 2005. He was then represented by counsel, Mr Sheridan, who asked that Mr Bell's application be adjourned to a date to be fixed and that the Court also order that no further advertisement of his application be required. The Legal Practitioners Board ("the Board") did not oppose the orders sought. The Court agreed to adjourn Mr Bell's application for admission as a legal practitioner to a date to be fixed but, despite the Board's lack of opposition, determined that it was not a proper case to dispense with the requirement for advertisement. [2] Mr Bell, who is now self-represented, has renewed his application for admission as a legal practitioner and seeks an order exempting him from the requirement to advertise under the Supreme Court (Legal Practitioner Admission) Rules 2004 (Qld) ("the Rules"). -- 2 of 6 -- 3 [3] Under s 30 of the Legal Profession Act 2004 (Qld) ("the Act") a person is suitable for admission as a legal practitioner only if he or she is a fit and proper person. The Board contends that Mr Bell is not such a person. [4] In deciding this controversy, the Court considers the matters listed under s 13 of the Act, including whether Mr Bell is currently of good fame and character; whether he is or has been an insolvent under administration and whether he has been convicted of an offence and, if so, the nature of the offence, how long ago it was committed and his age when the offence was committed.1 The Court will also take into account other matters that it considers relevant.2 [5] This Court has consistently affirmed the important principle that an applicant for admission as a legal practitioner must be candid and act with the utmost good faith in making comprehensive disclosure of issues relevant to any matter which might reasonably be regarded as touching on the applicant's fitness to become a legal practitioner: Barristers' Board v Khan,3 Re Hampton4 and Thomas v Legal Practitioners Admission Board.5 The obligation is closely related to the ethical duty of a legal practitioner as an officer of the Court not to mislead the Court, discussed most recently by the High Court in D'Orta-Ekenaike v Victoria Legal Aid.6 [6] The printed Form 18A now completed by every applicant for admission as a legal practitioner under the Act and Rules contains eight questions. The form first completed by Mr Bell contained the following: "6. Prior to the date of this statement have you been convicted of, pleaded guilty to or been found guilty of, any criminal or quasi- criminal offence, whether in Queensland or elsewhere even though a conviction may not have been recorded? YES. In 2002, fined under Section 74(1) of the Meat Industry Act 1993 for "Unauthorised Meat Processing" (conviction not recorded). In 2004, fined for breaches of void not voidable Temporary Domestic Violence Order. Finding of fact on each count: "Mr Bell has never been accused of committing domestic violence or property damage." 7. Do you know of any other matter which might bear on your fitness to be admitted as a legal practitioner of the Supreme Court of Queensland or to practise in Queensland as such? NO. …" [7] Mr Bell deposed in a subsequent affidavit that he committed the offence under the Meat Industry Act 1993 (Qld) when working as a consultant by taking a client's unpasteurised organic milk and pre-ordered organic beef to an organic market, wrongly believing that his client had complied with all legal requirements. The 1 Under s 15 of the Act, "conviction" includes a finding of guilt. 2 See s 30(2)(b) of the Act. 3 [2001] QCA 92, p 5. 4 [2002] QCA 129, paras 14 and 26-29, 36-37. 5 [2004] QCA 407, pp 8-10. 6 (2005) 214 ALR 92, [113]. -- 3 of 6 -- 4 Board rightly does not place significant reliance on this minor regulatory offence in opposing Mr Bell's application for admission as a legal practitioner. [8] Some of the character testimonials relied on by Mr Bell in his original application for admission referred to his previous bankruptcy. As a result, the Board made enquiries and ascertained that Mr Bell had once been declared bankrupt. The Board's secretary requested further details from Mr Bell on this issue. Mr Bell then provided a certificate which indicated that he had been discharged from his 1991 bankruptcy on 9 August 1995. Mr Bell deposed in a subsequent affidavit that the bankruptcy arose out of the breakdown of his relationship as an agent for an insurance company. He claimed the insurance company fraudulently withheld commissions to which he was entitled and wrongly bankrupted him. He deposed in a more recent affidavit that he has never accepted any moral culpability for the bankruptcy and is not ashamed of it. [9] The Board does not contend that this bankruptcy from which he was discharged in 1995, would, on its own, now make Mr Bell unsuitable for admission as a legal practitioner. [10] Of more concern are the breaches of the domestic violence orders which are part of a wider conflict between Mr Bell and his former wife following the breakdown of their relationship about two and a half years ago. There are four children of that relationship and their custody has caused particular conflict between their parents. Mr Bell has represented himself in his many appearances in courts in the family law jurisdiction. Material now before this Court indicates that Mr Bell has been dealt with for 12 breaches of domestic violence orders between April and November 2003. Mr Bell pleaded not guilty to each charged breach but was convicted after a hearing. He was fined $3,000 as a global punishment. Some of Mr Bell's breaches of the domestic violence orders may have been of a technical nature and relatively minor. The magistrate recognised they did not constitute assault or damage to property, but found that Mr Bell's former wife (who had taken out the order) could well have felt intimidated or harassed on the occasions when she was personally aware of the breaches. [11] Prior to his original application for admission as a legal practitioner, a barrister who had previously acted for Mr Bell's ex-wife, Mr Jon Moore, filed an affidavit objecting to Mr Bell's admission because of Mr Bell's conduct in some of those judicial proceedings. The following matters raised by Mr Moore are of particular concern. In a proceeding in the Federal Magistrates Court, Mr Bell swore an affidavit on 14 February 2005 which included: "If this court countenances any continuation of such a travesty, there will be the most severe consequences for the officers concerned." In a later affidavit, sworn by Mr Bell on 3 March 2005 and filed in the Family Court of Australia, he deposed, "I state here and now that if this kind of illegal brutality against my children does not now cease, then each and every person causing it will rue the day they ignored this warning." In an affidavit sworn very recently on 29 April 2005, Mr Bell stated that in the context of the situation then pertaining in the Family Court in relation to his children, the affidavits he filed were "no more than appropriate". [12] These statements appear to be threats to officers of the Family Court of Australia and the Federal Magistrates Court. Even accepting that Mr Bell made the threats when he was genuinely concerned for his children's welfare whilst reacting -- 4 of 6 -- 5 emotionally and irrationally in the milieu of a traumatic family breakdown, they are not statements made by a person who is suitable for admission as a legal practitioner. They demonstrate an inability to distinguish between vigorous but legitimate advocacy of a position and a reaction to an adverse decision of the courts which is entirely unacceptable in a officer of the court, as is Mr Bell's evident tendency to identify a court which does not decide in his favour as part of a persecuting opposition. [13] When questioned about these statements in the course of the hearing, Mr Bell described his statements as "unfortunate" but "not suggesting anything improper". After further questioning, he conceded that making threats in those terms was improper but sought to justify them because he knew of nothing else that would allow him to regain custody of his son. He claimed that as a legal practitioner he would not seek to achieve an end by improper means but because he was emotionally involved in this case involving his children, he was prepared to use even improper means to achieve an outcome in their interests. [14] Many parents would empathise with Mr Bell's devotion to his children, blinkered or not, but if all dedicated parents involved in family breakdowns acted as he has, the effectiveness of our society's family law system would be dangerously undermined. Mr Bell's conduct is inconsistent with the unique and indispensable functions of a legal practitioner in the administration of justice: see D'Orta-Ekenaike v Victoria Legal Aid,7 Giannarelli v Wraith8 and Harley v McDonald.9 [15] Other material before the Court establishes that Mr Bell has brought two appeals to the Full Court of the Family Court, both of which were subsequently struck out for want of prosecution with indemnity costs ordered against him. The awarding of indemnity costs against him in the family law jurisdiction suggests some degree of culpability in his conduct. Contempt proceedings have been brought against him in the Federal Magistrates Court for what are alleged to be breaches of that court's orders. The contempt proceedings were adjourned earlier this year to a date to be fixed and remain unresolved. It is ordinarily inconsistent with suitability for admission as a legal practitioner that an applicant have an unresolved allegation of contempt of court against him. [16] A further issue relevant to Mr Bell's suitability for admission as a legal practitioner is raised in the affidavit of Mr Peter Byrnes, solicitor and general counsel of the Queensland Law Society Inc. On Thursday, 24 March 2005 Mr Byrnes and the Board's secretary, Ms Timmins, met with Mr Bell at his request to discuss why the Board was opposing his application for admission. In the course of that discussion, Mr Bell said that "opposition to his admission could be traced to the pro-paedophilia lobby which reaches into the court system and government of this State". When referred by this Court to that extraordinary claim, Mr Bell did not seek to withdraw it or apologise but again attempted to justify the apparently unjustifiable, claiming that he had "very good reason for saying that" and he "could only assume that some improper influence" was behind the opposition to his admission as a legal practitioner. If Mr Bell has any proof of such serious allegations he should provide it to police or to the Crime and Misconduct Commission, not make unsupported and 7 (2005) 214 ALR 92, [26], [51], [104]-[113]. 8 (1988) 165 CLR 543, Mason CJ at 555-7, Brennan J (as he then was) at 578-9. 9 (1999) 3 NZLR 545, 557-560. -- 5 of 6 -- 6 scandalous public claims which can only be intended to undermine public confidence in the very courts which he is asking to serve as an officer. [17] This Court, by its order of 29 March 2005, indicated its clear intention that Mr Bell's application for admission as a legal practitioner should be re-advertised so that members of the public could have an opportunity to consider whether he is a fit and proper person for admission. His non-compliance with this order is itself sufficient reason for this Court to refuse his application for admission. Moreover, it is of concern that he sought to justify his non-compliance on the ground that the Chief Justice had indicated he would not waive the requirement for re-advertising only because the application was being adjourned to a date still to be fixed. A perusal of the transcript reveals nothing to this effect. Mr Bell was not present on that occasion. Nevertheless, the Court expects someone wishing to be admitted as a legal practitioner, and so to become an officer of the Court, to show respect for its authority, to be vigilant in complying with its orders, and to be meticulously accurate in attributing statements to it. [18] Even had he met his obligation to advertise, this Court would refuse his application because he has failed to demonstrate that he is presently a fit and proper person suitable for admission as a legal practitioner. Mr Bell's original Form 18A was not a full and frank statement of his breaches of domestic violence orders or of all matters relevant to his suitability for admission as a legal practitioner. His behaviour in his ongoing dispute with his former wife over the custody of their children demonstrates that he presently lacks proper regard for the authority of the judicial system and that he is prepared to act improperly to achieve an end which he believes is desirable. He has an unresolved allegation of contempt of court against him. He is prepared to make unsubstantiated, scandalous claims about those involved in the administration of justice. All this is inconsistent with a conclusion that he is, at the present time, a fit and proper person to undertake the obligations and functions of a legal practitioner in the administration of justice. [19] Mr Bell states that he expects the turmoil caused by his domestic problems to gradually settle and that he is committed to becoming a barrister so that he can advocate to help those who might not otherwise have access to justice. The rejection of this application for admission as a legal practitioner does not forever preclude him from realising his goal. Human experience is that people sometimes behave atypically, irrationally, emotionally and unwisely when involved in a discordant marital break-up, especially where the custody and welfare of children is concerned. It may be that when Mr Bell has had the outstanding contempt proceedings finalised and his proceedings in the Family Court and Federal Magistrate Court have ended, he will be able to file material sufficient to satisfy this Court that, despite the matters of concern referred to earlier in these reasons, he has become a fit and proper person suitable for admission as a legal practitioner. [20] Mr Bell's present application for admission as a legal practitioner must be refused. -- 6 of 6 --