Doherty v The Law Society of New South Wales [2003] NSWSC 105

Doherty v The Law Society of New South Wales [2003] NSWSC 105

Although the plaintiff breached trust accounting obligations and failed to comply with undertakings, the Court did not find dishonesty and was satisfied that the plaintiff had probably learned from his past experiences. The public could be adequately protected without restricting him to practice only as an employed solicitor, by issuing a practising certificate subject to strict monthly submission of trust account records for Law Society scrutiny and requiring him to pay the reasonable costs of that scrutiny for two years.

Jurisdiction
Australia
Judgment Date
28 February 2003
Procedural Posture
Appeal Under S 38 B(1) of the Legal Profession Act 1987 Against Law Society Decisions Cancelling and Refusing a Practising Certificate / Judgment After Hearing De Novo on Amended Summons
Outcome
Practising certificate ordered to be issued subject to conditions; costs reserved; liberty to apply granted.
Legal Topics
['practising Certificate' 'trust Account Records' 'conditions on Practising Certificate' 'law Society Disciplinary Powers' 'protection of the Public']
['legal Profession' 'administrative Law'] ['practising Certificate' 'trust Account Records' 'conditions on Practising Certificate' 'law Society Disciplinary Powers' 'protection of the Public']

Case Brief

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Procedural Posture

Appeal Under S 38 B(1) of the Legal Profession Act 1987 Against Law Society Decisions Cancelling and Refusing a Practising Certificate / Judgment After Hearing De Novo on Amended Summons

Legal Issues

  1. 1 ['Whether the plaintiff should be issued a practising certificate after the Law Society cancelled his certificate and refused his application for a certificate.' 'Whether any practising certificate should entitle the plaintiff to practise on his own account or be restricted to employment as a solicitor.' 'Whether conditions should be imposed on any practising certificate, including monthly scrutiny of trust account records and payment of scrutiny costs.']

Ratio Decidendi

Although the plaintiff breached trust accounting obligations and failed to comply with undertakings, the Court did not find dishonesty and was satisfied that the plaintiff had probably learned from his past experiences. The public could be adequately protected without restricting him to practice only as an employed solicitor, by issuing a practising certificate subject to strict monthly submission of trust account records for Law Society scrutiny and requiring him to pay the reasonable costs of that scrutiny for two years.

Court Disposition

Practising certificate ordered to be issued subject to conditions; costs reserved; liberty to apply granted.

Orders

  • ['That the plaintiff be issued with a Practising Certificate to be expressed as subject to the following conditions: (i) that the plaintiff within twenty-one days after the end of each calendar month is to provide to the Trust Account section of the defendant and to the Manager of the Professional Standards...