HARDING v LAW SOCIETY OF NEW SOUTH WALES [1991] NSWCA 143

HARDING v LAW SOCIETY OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, MAHONEY and HANDLEY JJA 5-6 August 1991, 29 August 1991 [1991] NSWCA 143

LEGAL PRACTITIONERS — DISBARRING AND REMOVAL FROM ROLL UNQUALIFIED PERSONS — proceedings taken before Solicitors' Statutory Committee against a solicitor or clerk — orders made under s40K of Legal Practitioners Act 1898 — appellant submits that the Committee had no power to make an order in respect of the clerk unless it found as a fact that the solicitor himself had been guilty of professional misconduct in relation to the matters in question — HELD — on the true construction of s40K it was not necessary to find the solicitor guilty of professional misconduct before an order could be made in respect of the clerk. In re a Solicitor's Clerk [1956] 1 WLR 547 followed.

LEGAL PRACTITIONERS — DISBARRING AND REMOVAL FROM ROLL findings against a solicitor's clerk by the Solicitors' Statutory Committee challenged on appeal — HELD — the challenge to the findings had not been made out. Legal Practitioners Act 1898, s40R

Gleeson CJ This is an appeal against an order made by the Solicitors' Statutory Committee pursuant to s40K of the Legal Practitioners Act 1898. That Act has since been repealed and has been replaced by the Legal Profession Act 1987. However, the proceedings that gave rise to this appeal were pending at the time of the commencement of the Legal Profession Act, and it is common ground that the matter is governed by the old Act.

At the material times the appellant, Mr Harding, was employed as a law clerk and office manager by a firm of solicitors known as H Hamilton Moore and Co. The principal of that firm was Mr Foreman. Following an investigation made by the Law Society of New South Wales into the affairs of H Hamilton Moore and Co, proceedings in the Statutory Committee were taken against both Mr Foreman and the appellant. It appears that the proceedings against the appellant, although separate from those against Mr Foreman, were conducted following, and in the light of, Mr Foreman's matter, and there was some common evidence in the two cases.