NASH v THE LAW SOCIETY OF NEW SOUTH WALES [1988] NSWCA 100

NASH v THE LAW SOCIETY OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope, SAMUELS and CLARKE JJA 11 August 1988, 30 August 1988

[1988] NSWCA 100

Legal Practitioners — Statutory Committee — application for readmission by a solicitor struck off for misconduct defaults due partly to mental instability evidence of good character — up-to-date medical evidence that mental instability controlled by treatment — conclusion that solicitor should be restored to the roll on a basis which would limit him to practicing as an employed solicitor.

Hope JA I agree with Clarke JA. Samuels JA I agree with Clarke JA.

Clarke JA Alexander Nash (the plaintiff) whose name was removed from the Roll of Solicitors of the Supreme Court of New South Wales by order of the Solicitors' Statutory Committee on 13 August 1981 has applied to the Court to have his name restored to the Roll.

The principles which should guide the Court in determining whether the plaintiff's name should be restored to the Roll are well established. They require the solicitor to establish that he is again a fit and proper person to be admitted as a solicitor and to demonstrate that proposition upon solid and substantial grounds. (Kotowicz v Law Society of NSW, NSW Court of Appeal, 7/8/87, unreported, per Samuels JA, p 3). This statement should be understood in the context of the disadvantaged position in which a disbarred solicitor finds himself. In Ex parte Lenehan, (77 CLR 403) Latham CJ, Dixon and Williams JJ, said, at 422:

When such a person applies for reinstatement he is in a more disadvantageous position than an original applicant because he must displace the decision as to probable permanent unfitness which was the basis of his removal. A solicitor may be restored to the roll after he has been struck off but the power to reinstate should be exercised with the greatest caution and only upon solid and substantial grounds.