Almost fit and proper

ACT admission ... Legal practitioner with list of offences and mental issues ... Ongoing medical assessment ... Artemus Jones says ACT Court of Appeal judgment is wrong in law ... Supervision regime unworkable ... Suppression of practitioner's name keeps it in-house ... Molonglo mayhem 

ACT Supremes: wrongheaded judgment

IN the not so distant past the Australian Capital Territory was a quality legal jurisdiction. It was presided over by top-flight judges, the likes of Blackburn CJ, Fox, Connor, McGregor and Gallop, whose judgments were regularly cited and followed in other jurisdictions. 

Cases got on quickly, were completed in less time than in NSW and judgments were usually handed down within a few months. The absence of juries in civil matters helped, and the ACT became an attractive forum for litigants. 

In the 1980s and 1990s for example, the ACT became the premier defamation jurisdiction in Australia. Interstate lawyers enjoyed running cases in Canberra where the legal system operated in a competent, timely and effective manner. Litigants were the main beneficiaries of this system, although defendants grumbled about the plaintiff-friendly court. Shorter trials and prompt quality judgments kept costs down.

Sadly, those days are long gone. 

Over last 15 years the ACT jurisdiction has declined dramatically. It is now a parochial jurisdiction characterised by poor quality judgments delivered after interminable delays (amounting in some cases to years). Justice Heydon aptly described the decline in Aon Risk v The ANU when he referred to the "drowsy procrastination" of the ACT courts. 

Litigants have been the primary victims of this decline. 

Cases now take longer and the delays in handing down judgments of doubtful quality favour insurers and other defendants. Deserving plaintiffs have to wait years to obtain damages awards to which they are entitled. In recent years many plaintiffs have settled their actions for less than they were worth in order to avoid unconscionable delays and the inevitable appeal.  

Just when it was thought that things could not get any worse in the ACT, the Court of Appeal (Refshauge, Penfold and Burns JJ) has handed down a decision which suggests that the decline in the ACT has now become terminal. 

The case is An Application for Admission by B as a Legal Practitioner handed down on November 14. 

The issue before the Court of Appeal was whether the applicant, B, was a fit and proper person to be admitted to practice. Any person seeking admission to practice as a lawyer must satisfy this requirement. That is because, "The fact that a person is a solicitor of the court gives him a stamp of trustworthiness and marks him as a person in whom confidence may be reposed": Ex parte Lenehan.  

In his application for admission B made the following disclosures: 

•  He had committed a number of traffic offences, which constituted breaches of the criminal law;

•  He owed money to Centrelink;

•  He had been made a bankrupt;

•  He had been arrested by US Federal authorities while in the US, was convicted of fraudulently entering the US and deported;

•  He had been a regular user of illicit drugs from 1993 to 2009;

•  He had a long term psychiatric history and had been diagnosed with schizoaffective disorder or, alternatively, a bipolar affective disorder with psychotic symptoms when manic. He had been admitted to a psychiatric unit on various occasions between 2004 and 2013. 

The Court of Appeal held that B was a fit and proper person to be admitted, but imposed the following conditions on him:  

(a)  That, for the next 12 months, he submit to random urinalysis at his own expense when directed to do so by the ACT Law Society on no more than eight occasions, the results of such urinalysis to be submitted at B's direction to the Chief Executive Officer of the ACT Law Society;

(b)  That for the next two years B consult every six months with a consultant psychiatrist, at his own expense, as to his mental health and fitness for legal practice;

(c)  If the consultant psychiatrist is not Dr Ingrid Butterfield, B supply to the psychiatrist a copy of Dr Butterfield's report of August 12, 2016 and the report of Dr Joe Garside dated March 30, 2016;

(d)  That B authorise the psychiatrist he consults in accordance with condition (c) to provide a report on his mental health and fitness for legal practice to the Chief Executive Officer of the ACT Law Society;

(e)  That B ensure that each psychiatrist he consults in accordance with condition (c) have access to a copy of each report that has previously been prepared in accordance with these conditions;

(f)  That B not apply within the next two years for admission as a lawyer to any other jurisdiction without giving the relevant admitting authority a copy of these conditions;  

(g)  That, if B seeks employment within the next two years in any position for which his admission as a lawyer is a necessary or desirable qualification, he give a copy of these conditions to the prospective employer.

A number of comments about this decision are irresistible.

First, it is clearly wrong as a matter of law. On the facts the relevant authorities virtually compel a finding that B should not be admitted. 

Test the key issue this way: if B is fit and proper person to practice law (and that is what the court held) why is he obliged to undergo lengthy supervision by medical experts and the ACT Law Society? A person is either fit to be admitted or not. The Court of Appeal's decision really amounts to saying, in effect, that B is "almost fit".

Second, the decision involves the application of "therapeutic law", which is wrong-headed as a matter of basic principle. Moral failings - whether caused by mental illness or not - are not curable by medical supervision, and it is not the function of Law Societies to provide ongoing medical testing and supervision for lawyers.  

The supervisory regime established by the Court of Appeal is futile and unworkable. The decision obliges B to provide the CEO of the ACT Law Society with urinalysis tests and psychiatric reports, but is silent as to what the CEO is to do with these. 

Is B entitled to dispute these tests and reports? In any event, the CEO does not have the power to remove B from the Roll of Practitioners. And why is the supervisory regime to last for two years? Why not six months, or five years for that matter? 

Third, the decision constitutes a flagrant indulgence in political correctness. What better way to deflect attention from incompetence and failure than by recourse to a strong dose of political correctness. It panders to the politically correct ACT elite and will no doubt give them a warm inner glow, but to ordinary citizens it is an affront to basic common sense.  

Furthermore, the decision is inherently paternalistic and demeaning of B. If B is fit to practice law, then why should he be the only lawyer in the ACT to be subjected to a draconian ongoing supervisory regime by medical experts and the ACT Law Society?

Fourth, the decision protects the ACT legal profession by obliging B to disclose his history to prospective employers but, at the same time, by suppressing B's name, it permanently denies ordinary ACT citizens access to the same information.

This is perhaps the most objectionable aspect of the decision. 

If someone with B's history is to be admitted to practice as a lawyer then clients are entitled to be aware of his background. To permanently deny clients access to this information - as the Court of Appeal has done - is to treat clients with contempt.

In permanently denying ACT citizens this information the court has revealed its inherent elitism. Lawyers are entitled to know about B's background - presumably so they can refuse to employ him if they so choose - but clients are denied the same information when deciding whether to retain B as their lawyer. 

One rule for the legal profession, another rule for hapless clients.

To add insult to injury, the Court of Appeal's judgment was handed down only five months after the hearing. The large number of deserving plaintiffs in the ACT who have waited years for judgments must be thrilled to know that the ACT wheels of justice are at long last turning more quickly.

In any other jurisdiction in Australia a judgment as fundamentally flawed as this would be immediately appealed by the local Law Society. And the suppression order would more likely than not be challenged by media organisations. 

Don't hold your breath waiting for that to happen in the ACT. In fact the ACT Law Society consented to B's admission and the conditions imposed by the Court of Appeal.

Blackburn CJ and other former judges of the ACT Supreme Court must be spinning in their tombs.  

Artemus Jones

See: ACT Court of Appeal judgment in An Application for Admission by B as a Legal Practitioner