Tag Archives: Professional Responsibility

Fitness to Practice – Criminal Convictions and Lack of Candour

I can only imagine what it must be like to do four or five years of Law School, only to be refused admission to practice. It must be soul destroying. Indeed this is why provision exists to apply to the Legal Practice Board (LPB) for an early ruling on matters affecting your suitability to practice, so that you don’t find yourself in that situation.

Jarvis v Legal Practice Board [2012] WASAT 28 is a case which deals with issues relating to whether someone is a fit and proper person to hold a practising certificate.

The facts were that the applicant, Ronelle Jarvis was a person who was eligible for admission as a legal practitioner. There was no dispute that she had attained all the necessary academic qualifications and completed practical legal training.

Ms Jarvis then sought a compliance certificate from the Legal Practice Board. Part of her application disclosed that she had only four previous convictions. One related to giving a false name to Police (1985), two related to stealing as a servant (1989, 2002) and most recently (and perhaps most seriously) obtaining a financial advantage from Centrelink (2008).  The LPB resolved to hold an enquiry to determine whether or not Ms Jarvis was a fit and proper person to be admitted. The LPB formed the view that Ms Jarvis was not ‘currently asset and proper person to be admitted’. Ms Jarvis applied to the State Administrative Tribunal for a review of the decision. The reasons published concisely outline the major events in the Ms Jarvis’ (at least in so far as they relate to the application for admission).

The LPB, at its inquiry, resolved that in relation to the convictions for giving a false name to the police and the earlier stealing as a servant did not on their own lead to the conclusion that she was not a fit and proper person to be admitted as a lawyer. However, Ms Jarvis did not disclose the circumstances leading to her conviction for giving a false name for the Police, which was that she was caught driving on an extraordinary drivers licence. Ms Jarvis had lost her drivers licence for drink driving. This conviction was not disclosed. Furthermore Ms Jarvis had again been convicted for drink driving in 1988 and lost her licence for life in 1995. None of these convictions were disclosed.

The Legal Practice Board took a more dim view of the second stealing as servant conviction and matters relating to Centrelink. The LPB noted that these matters could not be chalked up to a “folly of youth’ with Ms Jarvis being in her thirties at the time. The LPB also took the view that her statements regarding this incident did not show remorse to her employer. Having regard to the Centrelink matter, the LPB observed that she failed to report the existence of the Centrelink debt in her application for admission. The LPB resolved that failing to disclose the debt (although Ms Jarvis considered that a debt to Centrelink was not an infringement on her character) assured that she was not fully understanding of her obligations of candour and honesty. The LPB also considered that by continuing to under report her income she demonstrated a lack of regard for the law and displayed a measure of reckless carelessness was to the honesty of her statements to Centrelink.

The review hearing by the State Administrative Tribunal is a hearing de novo. The Tribunal outlined the principles to be applied and then discussed each of the matters referred to above.

The matters to be considered are:

  1. whether the applicant has the personal qualities of character that are necessary to discharge the role of a lawyer;
  2. whether the applicant has a commitment to honesty and integrity in all of their dealings;
  3. the applicant has demonstrated candour and honesty in disclosing relevant matters in her application, irrespective of self interest or embarrassment;
  4. the applicant has insight into her past conduct and the effect of the her conduct on others;
  5. the past conduct is indicative of the applicant’s current fame or character;
  6. the circumstances identified by the applicant as being causes or contributing factors to her past conduct have been removed or are no longer likely to affect the applicant, such that the Committee can have confidence that such conduct is not likely to reoccur.

The Tribunal’s findings did not differ from the LPB’s as outlined above. Therefore, the Tribunal agreed with the LPB’s decision that Ms Jarvis, is not at this time, a fit and proper person to be admitted to practice.

The only light at the end of the tunnel is Ms Jarvis can apply again in the future.

I am available to advise on cases such as this. Please contact me.

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No Writ for You!

I note with interest that yesterday the Supreme Court of Western Australia published its reasons in The Principal Registrar of the Supreme Court v Chin [2012] WASC 7.

This case is somewhat unique in that it dealt with an application by the Principal Registrar to declare Mr Chin, a solicitor, a vexatious litigant.

Over a period of approximately five and a half years Mr Chin commenced twenty-two sets of proceedings in various West Australian courts. These proceedings consisted of:

  • 1 State Administrative Tribunal action;
  • 2 Magistrates Court actions;
  • 1 District Court action;
  • 10 Supreme Court actions (7 of which sought certiorari and mandamus);
  • 4 Court of Appeal actions; and
  • 3 special leave applications to the High Court of Australia.

Mr Chin was also the respondent to disciplinary proceedings in the State Administrative Tribunal.

The proceedings in question related broadly to three separate events: firstly, the removal of a caveat lodged by Mr Chin purportedly to protect a solicitors’ lien; secondly, in relation to conditions the Legal Practice Board sought to impose on his practicing certificate; and thirdly in relation to a dispute he had with a Mr Thies, a solicitor to whom Mr Chin owed money.

The application was brought on the basis that the Mr Chin’s actions were vexatious as defined by Section 3 of the Vexatious Proceedings Restriction Act 2002 (WA).

  vexatious proceedings means proceedings —

(a)              which are an abuse of the process of a court or a tribunal;

(b)              instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose;

(c)              instituted or pursued without reasonable ground; or

(d)             conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.

The Principal Registrar sought to characterise Mr Chin’s conduct as being covered by paragraphs (a), (c) and (d) of the Act.

At the substantive hearing Mr Chin spent his time and focus on defining ‘justice’ rather than directly responding to the contentions advanced by the Principal Registrar.

Murray J was satisfied that the proceedings relied upon may be characterised as an abuse of process, not because of any wrongful motive but because of their general character. His Honour also discussed that it was not necessary to show that the proceedings were intended to be vexatious but rather the general character of the proceedings was to be considered. It was clear from the reasons that Mr Chin’s proceedings amounted to no more than a collateral attack on the judgement of the court in each instance. The sheer volume of relief sought by prerogative writ it testament to that. It was not possible for Mr Chin’s proceedings to be regarded as a proper use of the appellate process.

It was likely Mr Chin’s ‘single minded willingness to litigate and re-litigate the same issues’ that was his undoing.

Orders were made that Mr Chin was not commence proceeding of any kind without the leave of the Court and that leave was only to be granted if the proceedings are not vexatious proceedings and there is a prima facie ground for the proceedings.

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