NSW Bar Association v Somosi [2001] NSWSC 285

Conduct not occurring in the course of professional practice may demonstrate unfitness if it amounts to incompatibility with the personal qualities essential for the conduct of practice. There may not even have been any criminal conviction with respect to that conduct. This is particularly so where the conduct over a long period shows systematic non-compliance with legal and civic obligations

65 defines show cause event, to mean:
becoming bankrupt or being served with notice of a creditor’s petition
presentation (as a debtor) of a declaration to the Official Receiver
applying to take the benefit of any law for the relief of bankrupt or insolvent debtors,
conviction for a serious offence or a tax offence, whether or not:
(i) the offence was committed in or outside this jurisdiction, or
(ii) the offence was committed while the person was engaging in legal practice
(iii) other persons are prohibited from disclosing the identity of the offender.

serious offence, which means an offence whether committed in or outside NSW that is anindictable offence against a law of the Commonwealth or any jurisdiction, s4 LPA
tax offence, which means any offence under the Taxation Administration Act 1953, s 3(1) LPA

Convictions
Conviction is defined in s 11 of the LPA 2004. A reference in the LPA to a conviction includes a finding of guilt, or the acceptance of a guilty plea, whether or not a conviction is recorded. Subsections (2) and (3) deal with the quashing of a conviction.

Legal Profession Act 2004, Chapter 2, Part 2.4, Division 7 - Special powers in relation to local practising certificates-show cause events

66. Applicant for local practising certificate-show cause event
An applicant is to provide to the appropriate Council a written statement about a show cause event which has happened and explaining why, despite the show cause event, the applicant considers himself or herself to be a fit and proper person to hold a practising certificate: s 66(2). That statement must be provided as part of the application: s 66(2).  Contravention of s 66(2) is professional misconduct: s 66(3)

67. Holder of local practising certificate-show cause event
Requires the holder of a local practising certificate to provide Council with both:
(a) written notice that a show cause event happened, within seven days of the happening of the event; and
(b) a written statement explaining why, despite the show cause event, the person considers himself or herself to be a fit and proper person to hold a local practising certificate, within 28 days after the happening of the event (not the giving of notice under s 67(2)(a)). The holder of a practising certificate now has 28 days after the happening of the event to give Council the s 67(2)(b) statement.

Contravention of s 67(2) is professional misconduct: s 67(3). 

68. Investigation and consideration of show cause event
On “becoming aware” of the happening of a show cause event in relation to an applicant or a holder, Council must investigate, and within the required period determine, whether the applicant or holder is a fit and proper person to hold a local practising certificate.

Within 28 days of becoming aware of the happening of a show cause event, Council must give notice in writing to the applicant or holder dealing with four matters:
• if Council has not received a statement under s 66 or 67 in relation to the show cause event, requiring the applicant or holder to provide the required statement, and
• informing the applicant or holder that determination in relation to the matter is required to be made under Division 7,
• informing the applicant or holder of the required period in relation to determination of the matter (and that the applicant or holder will be notified of any extension of the period) and
• informing the applicant or holder of the effect of the automatic suspension provisions in s 70 in the event of the matter not being determined by the Council or the Commissioner within the required period.

Required period is defined in s 68(5) as the period of three months commencing on the earliest of:
• the date on which Council receives a written statement under s 66 or 67 in relation to the show cause event; or
• the date on which Council issues a notice under s 68(2) to the applicant or holder.

The period may be extended to four months by the Commissioner.

Section 68(3) of the LPA 2004 provides that a Council must determine the matter by:
• deciding that the applicant or holder is a fit and proper person to hold a local practising certificate;
• deciding that the applicant or holder is not a fit and proper person to hold a local practising certificate; or
• deciding that the applicant or holder is a fit and proper person to hold a practising certificate but that it is appropriate to impose conditions on the applicant’s or holder’s local practising certificate for a specified period.

Subsection (4) provides that in investigating and determining a matter under s 68 Council is not limited to investigating and making its determination on the basis of just the show cause event, and must have regard to the facts and circumstances that surround, arise in connection with, relate to or give rise to the show cause event concerned.

69. Power to renew practising certificate or defer action in special circumstances
Allows the Council to renew a holder’s local practising certificate when the end of the financial year for the current practising certificate is imminent and Council has not yet made an s 68 determination, without preventing Council from subsequently cancelling or suspending the practising certificate under Division 7.

70. No decision in required period-suspension of practising certificate and referral to Commissioner
Section 70 of the LPA 2004 provides that if Council has not determined a show cause matter under s 68 within the required period:
• the Commissioner must take over determination of the matter from the Council, and
• if the matter concerns the holder of a local practising certificate, the local practising certificate of that person is suspended.

Unless the Tribunal orders its removal, the statutory suspension under s 70(1)(b) remains in force until the Commissioner decides that the holder is a fit and proper person to hold a local practising certificate

A holder whose local practising certificate is suspended under s 70(1)(b) may make an application to the Tribunal to remove the suspension under s 70(3).

71. Commissioner taking over determination of matter

72. Council to implement decisions under this Division
Requires that Council give effect to a decision that the applicant or holder is not fit and proper person to hold a local practising certificate by refusing the grant of a local practising certificate or immediately cancelling or suspending the holder’s local practising certificate. 

If Council decides under s 68(3)(c) that it is appropriate to impose conditions, Council must given effect to that decision by imposing the conditions, under s 72(3). Where the Commissioner decides that it is appropriate to impose conditions, Council must give effect to the decision under subs (4), by imposing such of those conditions as Council considers to be appropriate after consultation with the Commissioner. If

73. Failure to comply with conditions imposed under this Division
If the holder of a local practising certificate contravenes without reasonable excuse a condition of the practising certificate imposed under this Division the contravention is professional misconduct, and the appropriate Council may, by written notice given to the holder, cancel or suspend the local practising certificate.

74. Restriction on making further applications
Allows a Council or the Commissioner who determines that an applicant or holder is not a fit and proper person to hold a local practising certificate to decide also that the applicant or holder is not entitled to apply for a grant of the local practising certificate for a specified period not exceeding five years.

75. Review of decisions by Tribunal
Provides for a right of review by the Tribunal for an applicant or holder dissatisfied with a decision of a Council or the Commissioner under Division 7. The person asserting their fitness has the onus of establishing that they are a fit and proper person under s 75(3)(a). There are other procedural and evidentiary provisions in s 75(3).

An application to the Tribunal for a review of a decision referred to in s 72 does not of itself affect the operation of the decision: s 72(9).

The Tribunal may make any order it considers appropriate on a review under s 75, including:
• an order directing Council to grant or refuse to grant an application for a local practising certificate,
• an order directing Council to cancel or suspend a local practising certificate for a specified period, or to reinstate a local practising certificate that has been cancelled or suspended,
• an order that an applicant or holder is not entitled to apply for the grant of a local practising certificate for a specified period not exceeding five years,
• an order directing Council to impose conditions on a local practising certificate for a specified period, or to vary or revoke, or vary the period for which Council imposed conditions.

Section 75(5) provides that the Tribunal may not order the imposition of conditions without first taking submissions from Council as to the appropriateness of the proposed conditions

Section 729A provides that an order or other decision made by the Tribunal under the LPA 2004 may be appealed to the Supreme Court, rather than to an Appeal Panel of the Tribunal. Leave is required for an appeal against an interlocutory decision and a decision made with the consent of the parties or as to costs.

76. Parties to Tribunal proceedings
Section 76 provides for those who are entitled to appear at a hearing on a review under s 75 - any party who appears other than as a witness is taken to be a party to the proceedings.

77. Relationship of this Division with Chapters 4 and 6
However, s 77(2) expressly provides that nothing in Division 7 prevents a complaint being made under Chapter 4 about a show cause matter. Accordingly, a complaint of professional misconduct could be made in relation to a failure to provide a show cause statement under s 66 or 67 at all.  That is failure to notify a show cause event is professional misconduct.