Legal Profession Board of Tasmania v W [2023] TASFC 1 (17 March 2023) – Tasmanian Supreme Court (Full Court)
‘Legal practitioner’ – ‘Offer to settle dispute by withdrawal of complaints to police’ – ‘Professional misconduct’ – ‘Protection order’ – ‘Unprofessional conduct’
Proceeding: Legal Profession Board appeal from finding of mere unprofessional conduct by a legal practitioner.
Grounds:
1.
The primary judge erred in holding that for a finding of professional misconduct both s 421(1)(a) and (c) of the Legal Profession Act 2007 (Tas) had to be satisfied;
2.
The primary judge erred in failing to make a declaration of professional misconduct having found that the respondent’s conduct constituted a serious failure to reach a standard of competence and diligence.
Facts: A client of the respondent was charged with two counts of common assault against his former wife who had been granted a protection order against the client.
The lawyer wrote to the complainant on behalf of his client, offering to settle their matrimonial property dispute on terms which included that “all legal pursuits and accusations cease including Tas. Police. All matters are then resolved, finalised”. The client was charged with perversion of justice. Despite this, the respondent wrote to the ex-wife’s lawyer offering again to settle the matrimonial dispute upon the withdrawal of the complaints. Senior counsel for the respondent conceded ground 1.
Reasoning and decision:
1.
Appeal allowed.
2.
Declaration of unprofessional conduct set aside.
3.
Declaration of guilt of professional misconduct made.
Estcourt J observed:
[1] I do not have the slightest doubt that it is professional misconduct for a lawyer to offer to settle a client's dispute with another person on the condition that the other person withdraw a criminal complaint that person has made against the client and which is pending before a court.
Estcourt J found that the gravity of the respondent’s attempt to have pending charges withdrawn or undermined constituted a “substantial failure to reach or maintain a reasonable standard of competence” within the meaning of s421(a) of the Legal Profession Act 2007 (Tas). This was regardless of the client’s instructions or whether the offers amounted to a crime.
The court rejected the primary judge’s reasoning that the two paragraphs in s421 were to be read conjunctively. However, it was found that even if that were correct, the conduct would still amount to professional misconduct (per Porter AJ at [33].
PQR v Sundram [2020] TASFC 10 (4 December 2020) – Tasmanian Supreme Court (Full Court)
‘Appeal against conviction’ – ‘Family law’ – ‘Federal circuit court order’ – ‘Inconsistency’ – ‘Meaning of "parental responsibility"’ – ‘Protection orders’
Charges: Breaches of police family violence order, breach condition of bail.
Proceedings: Appeal against breaches of police family violence order.
Facts: The appellant and his former wife had separated, and had two children. In 2014, the Federal Circuit Court made parenting orders which included provision for “equal shared parental responsibility”, and designated contact days. In 2018, police issued and served the appellant with a family violence order. This prohibited the appellant being within 50 m of the children (para 3), except in accordance with a court order (para 3(c)). It also prohibited the appellant being within 50 m of the children’s school where the children “may be present from time to time” (para 11). The appellant was charged with a number of breaches.
The Chief Justice dismissed charges relating to circumstances where the appellant was within 50 m of the children during contact periods allowed by the parenting orders and when the children were not present at the school. The Chief Justice found a charge proven, imposing a fine without recording a conviction, for an instance where the appellant attended the school on a non-contact day to speak to the principal while the child was there. The visit did not fall within the exception in para 3(c) of the family violence order, and breached para 11.
Grounds of appeal: The appellant's conduct in attending at the school on 24 July 2018 was permitted by the "Parenting Orders" made by the Federal Circuit Court which effectively restored the appellant his full rights as their father, including by having equal shared parental responsibility and a substantial and significant role in their lives, such that it cannot have been in breach of the police family violence order. There was inconsistency between the family violence orders and the parenting orders in the Federal Circuit Court and the orders of the Federal Circuit Court prevailed to the exclusion of the family violence order which underpinned the finding of guilt.
Held: The appeal was dismissed (Martin AJ, Pearce J agreeing). Martin AJ rejected the broad proposition that any constraint on the appellant’s ability to visit the school, at any time, necessarily created a relevant inconsistency between the parenting orders and the family violence order. Para 11 only applied when a child “may be present” and was not relevantly inconsistent with the appellant’s obligations (and rights) pursuant to the parenting order (at [47]-[49]).
In separate reasons and also agreeing with Martin AJ, Estcourt J also dismissed the appeal. While the family violence orders might “detract” from the appellant’s unqualified “parental responsibility” by limiting the means by which the appellant might communicate with teachers while the children were at school, those orders did not abrogate or nullify the appellant’s parental responsibilities. It could not be said that there was any relevant inconsistency between them and the parenting orders, or that the police family violence orders were incapable of operating “subject to” the Federal Circuit Court orders (at [15]-[17]).
Director of Public Prosecutions (Acting) v J C N [2015] TASFC 13 (27 November 2015) – Tasmanian Supreme Court (Full Court)
‘Aggravated assault’ – ‘Assault’ – ‘Bail’ – ‘Breach of domestic violence order’ – ‘Damaging property’ – ‘Exposing children’ – ‘Following, harassing, monitoring’ – ‘History of abuse’ – ‘Physical violence and harm’ – ‘Risk factor - separation’
Charges: Attempted aggravated assault, Breach of family violence order, Common assault, Damaging property
Appeal type: Appeal against order for bail
Facts: The respondent and the complainant had previously been in a relationship for more than two years. The complainant had two children. A family violence order was made against the respondent, restraining him from threatening, harassing or assaulting the complainant. On one occasion when the complainant went to the respondent’s house with her daughter and mother, the respondent seriously assaulted her and her mother. He was charged with two counts of assault and breaching the family violence order and was granted bail. Subsequently, the respondent breached the conditions of bail and the order when the complainant and her children stayed with him. After fighting the next morning, the respondent followed the complainant into shopping centre toilets, kicked in the door and punched her in the face twice. An interim family violence order was then made with a condition that he would not contact the complainant. In breach of that order, the respondent phoned the complainant seven times from prison. The respondent was sentenced for these offences to four months’ imprisonment and a new family violence order was made to protect the complainant and her children.
Just after a month after his release, the respondent seriously assaulted another female, his former partner, and was held in custody. While in custody, he phoned the complainant 19 times. He was then granted bail. After interviewing the complainant, the police discovered that the respondent had assaulted the complainant’s daughter by grabbing her bottom. He also threw a bar stool at the complainant and her son, striking him on the leg. The respondent then forced the complainant’s pants down and attempted to insert a plastic vibrator into her anus, witnessed by the two children. He then punched her five times in the face, bit her ear and pushed a hot cigarette butt into her forehead. The next morning the respondent emptied the complainant’s daughter’s school bag onto the floor and stomped on it, threatening ‘This is going to be your face’. He then grabbed her hair and pushed her against the wall. The respondent then threatened the complainant’s son that he would kill him, his sister and the complainant if the police were notified of the assaults.
In relation to this conduct, the respondent was charged with 35 counts of breaching the family violence order, one count of assault with indecent intent, five counts of common assault, three counts of damaging property, and one count of attempted aggravated assault. The respondent was granted bail, having satisfied the court that bail would not adversely affect the safety, wellbeing and interests of an affected person or child under s 12 Family Violence Act 2004 (Tas).
Issue: Whether the order for bail should be set aside.
Decision and reasoning: The appeal was allowed and the order for bail was revoked.
In favour of granting bail was that the respondent’s mother and father were both ill. His mother was prepared to offer a surety of $4,000 to secure his attendance at court and compliance with bail conditions. The respondent agreed to comply with a curfew and reporting conditions. However, there was a significant risk he would continue to offend if bail was granted when considering his history of breaching court orders and violent offending. There was also a considerable amount of evidence to prove guilt once at trial.
Legal Profession Board of Tasmania v W [2023] TASFC 1 (17 March 2023) – Tasmanian Supreme Court (Full Court)
‘Legal practitioner’ – ‘Offer to settle dispute by withdrawal of complaints to police’ – ‘Professional misconduct’ – ‘Protection order’ – ‘Unprofessional conduct’
Proceeding: Legal Profession Board appeal from finding of mere unprofessional conduct by a legal practitioner.
Grounds:
1.
The primary judge erred in holding that for a finding of professional misconduct both s 421(1)(a) and (c) of the Legal Profession Act 2007 (Tas) had to be satisfied;
2.
The primary judge erred in failing to make a declaration of professional misconduct having found that the respondent’s conduct constituted a serious failure to reach a standard of competence and diligence.
Facts: A client of the respondent was charged with two counts of common assault against his former wife who had been granted a protection order against the client.
The lawyer wrote to the complainant on behalf of his client, offering to settle their matrimonial property dispute on terms which included that “all legal pursuits and accusations cease including Tas. Police. All matters are then resolved, finalised”. The client was charged with perversion of justice. Despite this, the respondent wrote to the ex-wife’s lawyer offering again to settle the matrimonial dispute upon the withdrawal of the complaints. Senior counsel for the respondent conceded ground 1.
Reasoning and decision:
1.
Appeal allowed.
2.
Declaration of unprofessional conduct set aside.
3.
Declaration of guilt of professional misconduct made.
Estcourt J observed:
[1] I do not have the slightest doubt that it is professional misconduct for a lawyer to offer to settle a client's dispute with another person on the condition that the other person withdraw a criminal complaint that person has made against the client and which is pending before a court.
Estcourt J found that the gravity of the respondent’s attempt to have pending charges withdrawn or undermined constituted a “substantial failure to reach or maintain a reasonable standard of competence” within the meaning of s421(a) of the Legal Profession Act 2007 (Tas). This was regardless of the client’s instructions or whether the offers amounted to a crime.
The court rejected the primary judge’s reasoning that the two paragraphs in s421 were to be read conjunctively. However, it was found that even if that were correct, the conduct would still amount to professional misconduct (per Porter AJ at [33].
PQR v Sundram [2020] TASFC 10 (4 December 2020) – Tasmanian Supreme Court (Full Court)
‘Appeal against conviction’ – ‘Family law’ – ‘Federal circuit court order’ – ‘Inconsistency’ – ‘Meaning of "parental responsibility"’ – ‘Protection orders’
Charges: Breaches of police family violence order, breach condition of bail.
Proceedings: Appeal against breaches of police family violence order.
Facts: The appellant and his former wife had separated, and had two children. In 2014, the Federal Circuit Court made parenting orders which included provision for “equal shared parental responsibility”, and designated contact days. In 2018, police issued and served the appellant with a family violence order. This prohibited the appellant being within 50 m of the children (para 3), except in accordance with a court order (para 3(c)). It also prohibited the appellant being within 50 m of the children’s school where the children “may be present from time to time” (para 11). The appellant was charged with a number of breaches.
The Chief Justice dismissed charges relating to circumstances where the appellant was within 50 m of the children during contact periods allowed by the parenting orders and when the children were not present at the school. The Chief Justice found a charge proven, imposing a fine without recording a conviction, for an instance where the appellant attended the school on a non-contact day to speak to the principal while the child was there. The visit did not fall within the exception in para 3(c) of the family violence order, and breached para 11.
Grounds of appeal: The appellant's conduct in attending at the school on 24 July 2018 was permitted by the "Parenting Orders" made by the Federal Circuit Court which effectively restored the appellant his full rights as their father, including by having equal shared parental responsibility and a substantial and significant role in their lives, such that it cannot have been in breach of the police family violence order. There was inconsistency between the family violence orders and the parenting orders in the Federal Circuit Court and the orders of the Federal Circuit Court prevailed to the exclusion of the family violence order which underpinned the finding of guilt.
Held: The appeal was dismissed (Martin AJ, Pearce J agreeing). Martin AJ rejected the broad proposition that any constraint on the appellant’s ability to visit the school, at any time, necessarily created a relevant inconsistency between the parenting orders and the family violence order. Para 11 only applied when a child “may be present” and was not relevantly inconsistent with the appellant’s obligations (and rights) pursuant to the parenting order (at [47]-[49]).
In separate reasons and also agreeing with Martin AJ, Estcourt J also dismissed the appeal. While the family violence orders might “detract” from the appellant’s unqualified “parental responsibility” by limiting the means by which the appellant might communicate with teachers while the children were at school, those orders did not abrogate or nullify the appellant’s parental responsibilities. It could not be said that there was any relevant inconsistency between them and the parenting orders, or that the police family violence orders were incapable of operating “subject to” the Federal Circuit Court orders (at [15]-[17]).
Director of Public Prosecutions (Acting) v J C N [2015] TASFC 13 (27 November 2015) – Tasmanian Supreme Court (Full Court)
‘Aggravated assault’ – ‘Assault’ – ‘Bail’ – ‘Breach of domestic violence order’ – ‘Damaging property’ – ‘Exposing children’ – ‘Following, harassing, monitoring’ – ‘History of abuse’ – ‘Physical violence and harm’ – ‘Risk factor - separation’
Charges: Attempted aggravated assault, Breach of family violence order, Common assault, Damaging property
Appeal type: Appeal against order for bail
Facts: The respondent and the complainant had previously been in a relationship for more than two years. The complainant had two children. A family violence order was made against the respondent, restraining him from threatening, harassing or assaulting the complainant. On one occasion when the complainant went to the respondent’s house with her daughter and mother, the respondent seriously assaulted her and her mother. He was charged with two counts of assault and breaching the family violence order and was granted bail. Subsequently, the respondent breached the conditions of bail and the order when the complainant and her children stayed with him. After fighting the next morning, the respondent followed the complainant into shopping centre toilets, kicked in the door and punched her in the face twice. An interim family violence order was then made with a condition that he would not contact the complainant. In breach of that order, the respondent phoned the complainant seven times from prison. The respondent was sentenced for these offences to four months’ imprisonment and a new family violence order was made to protect the complainant and her children.
Just after a month after his release, the respondent seriously assaulted another female, his former partner, and was held in custody. While in custody, he phoned the complainant 19 times. He was then granted bail. After interviewing the complainant, the police discovered that the respondent had assaulted the complainant’s daughter by grabbing her bottom. He also threw a bar stool at the complainant and her son, striking him on the leg. The respondent then forced the complainant’s pants down and attempted to insert a plastic vibrator into her anus, witnessed by the two children. He then punched her five times in the face, bit her ear and pushed a hot cigarette butt into her forehead. The next morning the respondent emptied the complainant’s daughter’s school bag onto the floor and stomped on it, threatening ‘This is going to be your face’. He then grabbed her hair and pushed her against the wall. The respondent then threatened the complainant’s son that he would kill him, his sister and the complainant if the police were notified of the assaults.
In relation to this conduct, the respondent was charged with 35 counts of breaching the family violence order, one count of assault with indecent intent, five counts of common assault, three counts of damaging property, and one count of attempted aggravated assault. The respondent was granted bail, having satisfied the court that bail would not adversely affect the safety, wellbeing and interests of an affected person or child under s 12 Family Violence Act 2004 (Tas).
Issue: Whether the order for bail should be set aside.
Decision and reasoning: The appeal was allowed and the order for bail was revoked.
In favour of granting bail was that the respondent’s mother and father were both ill. His mother was prepared to offer a surety of $4,000 to secure his attendance at court and compliance with bail conditions. The respondent agreed to comply with a curfew and reporting conditions. However, there was a significant risk he would continue to offend if bail was granted when considering his history of breaching court orders and violent offending. There was also a considerable amount of evidence to prove guilt once at trial.