PROTHONOTARY OF THE SUPREME COURT OF NEW SOUTH WALES v TANTALA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBY P, HANDLEY and POWELL JJA 25 October 1993, 25 October 1993 [1993] NSWCA 216 LEGAL PRACTITIONERS — misconduct — solicitor — misconduct proved to the satisfaction of the Supreme Court of the Australian Capital Territory — findings of that Court that solicitor has been guilty of serious professional misconduct in specified respects — orders of that Court that solicitor's name be removed from the Roll of Barristers and Solicitors of the Supreme Court of the Australian Capital Territory — Prothonotary issues Summons for declarations and orders seeking (amongst other things) the removal of name of solicitor from the Roll of the Solicitors of the Supreme Court of New South Wales — solicitor does not appear — proof of service — whether Supreme Court of New South Wales should require separate proof of offences, in addition to those established before the Supreme Court of the Australian Capital Territory — held: (1) Having regard to the nature of the Australian Federal polity and the status of the Supreme Court of the Australian Capital Territory it was appropriate to give respect to the judicial proceedings and orders of the Supreme Court of the Australian Capital Territory in such a matter. In re a Solicitor [1993] QB 69 distinguished; (2) Separate proof of the defaults would not, at least in the absence of a contest, be required; (3) Accordingly, declarations made as sought by the Prothonotary; (4) Order that the solicitor's name be removed from the Roll of Solicitors, and that he pay the Prothonotary's costs. Australian Constitution, s118. ORDERS The Court: 1. DECLARES that Stephen Peter Tantala has been guilty of professional misconduct as a solicitor in the respects referred to in para(a) to para(v) of the Prothonotary's summons; 2. DECLARES that Stephen Peter Tantala is not a fit and proper person to remain on the Roll of Solicitors in the respects referred to in para(a) to para(v) of the Prothonotary's summons; 3. DECLARES that Stephen Peter Tantala be removed from the Roll of Solicitors; and 4. ORDERS that the said Stephen Peter Tantala pay the costs of the Prothonotary of these proceedings. Kirby P Before the Court is a Summons seeking a declaration that Stephen PeterTantala, a solicitor on the Roll, has been guilty of professional misconduct as a solicitor, in a number of particularised respects. There is also sought a declaration that Mr Tantala is not of good fame and character, and an order that his name be removed from the Roll of Solicitors, and such further order, or other orders, as the Court sees fit to make. When the case was called this morning, Mr Tantala did not appear. It was then proved, by an affidavit of Mr Mervyn Murphy, sworn 29 September 1993, that on 22 September 1993, Mr Tantala, at his usual place of abode, being 5 Hensman 2 UNREPORTED JUDGMENTS Street, Latham in the Australian Capital Territory, was served with the Summons, and with the affidavit of the Prothonotary in support of the Summons. It is clear that Mr Tantala had notice of the fact that the present proceedings were before this Court today. He has elected to make no appearance. Placed before the Court, in the affidavit of the Prothonotary, is proof that the name of Mr Tantala was on the Roll of Barristers and Solicitors of the Supreme Court of the Australian Capital Territory. By the order of that Court, his name was removed from that Roll. The short reasons of Miles CJ of that Court, in support of the orders which the Court made, have been read. I extract and include in my reasons the reasons given by Miles CJ for the orders made by the Supreme Court in the Australian Capital Territory: "What I am about to say constitutes the judgment of the Court. This is an application by the Law Society for orders by the court dealing with the alleged misconduct of a practitioner. The practitioner, Stephen Tantala was admitted to practice as a barrister and solicitor on 10 August 1976 At the time of the events with which the court is concerned he was in practice as a sole practitioner, but practising under a firm name, namely Livingston and Tantala. The proceedings were commenced by way of notice of motion, dated 28 February 1991, and the court has read the following evidence; the affidavits of Mr DCD Harper, sworn 13 August and 12 October 1990 and 2 September 1991 We have also read the affidavits of KJ Small, sworn 22 September 1991 and 27 September 1991 The practitioner did not appear to contest the application We have read also a report of Jean Sayer, an inspector appointed by the Law Society, dated 10 July 1991, which is exhibit B We have heard evidence of Ms Sayer, including verification of reports annexed to affidavits to which I have already referred, those reports being dated 8 October 1990, 14 June and 10 July 1991 We also note a letter from the practitioner to the Law Society, dated 18 September 1991, exhibit A. We accept the evidence of Ms Sayer and her findings and the court makes the following findings; (1) That the solicitor has been guilty of serious professional misconduct (2) That the professional misconduct has included the following; misappropriation of trust moneys in a sum yet to be determined, but not less than $205,021 40; making and maintaining false fraudulent entries in his trust account records for the purpose of concealing such misappropriations; misleading the Magistrates Court and the Law Society in relation to the setting aside of a judgment entered against the solicitor's client, Mr Muttock and the dishonor of a trust account cheque; the solicitor's intermingling of his finances and affairs with the finances and affairs of his clients, and wilful breaches of the Legal Practitioners Act 1970, s46(1) and s51(1). We find further that the practitioner is not a fit and proper person to be or to be held out by the court as being a barrister and solicitor of the court Upon those findings we make the following orders: (1) That the name of Stephen Peter Tantala be removed from the roll of barristers and solicitors of the court (2) That all orders restricting publication of the name of Stephen Peter Tantala, or the fact of, or evidence in these proceedings be set aside. (3) That Stephen Tantala pay the Law Society's costs of an incidental of these proceedings on a solicitor and client basis, and (4) We reserve liberty to apply to the Law Society. " A question arose, from matters raised by the Court itself, as to whether the Court should require proof, independently of the orders of the Supreme Court of the Australian Capital Territory, and in accordance with the law of this State, of UARDTHONOTARY OF THE SUPREME COURT OF NEW SOUTH WALES v TANTAL& (Powell JA) the occurrence of the conduct which was alleged in the Supreme Court of the Australian Capital Territory and found there against Mr Tantala. There is some authority in England which suggests the need, in that jurisdiction, to prove, independently of the circumstances proved in another jurisdiction, the facts necessary to ground the order of the High Court of Justice in that country removing the name of a practitioner from the Roll in England. See In re A Solicitor [1993] 1QB 69; [1992] 2 WLR 552 (DC). However, whatever other distinctions may exist between that decision of the English court, and the practice which has long been adopted in this Court, it would seem to me that this Court should give respect to the judicial proceedings and orders of the Supreme Court of the Australian Capital Territory, cf Prothonotary of the Supreme Court of New South Wales v Pangallo (1993) 67 ACrimR 77 (NSWCA), 78. This is really a consequence of the Federal polity under which we administer the laws of this State. It follows, although s118 of the Australian Constitution refers, in terms, only to the "judicial proceedings of every State". The section does not by its language refer to judicial proceedings in a Territory. But this matters not. It is unrealistic and clearly would be inconvenient to treat the orders of the Supreme Court of a Territory of Australia - any more than of a State - as equivalent to those of a court of a foreign country. Neither in law, nor in practical reality can they be viewed as such. Therefore, at least in the absence of a contest on the part of the solicitor, separate proof of the facts grounding the decision and orders of the Supreme Court of the Australian Capital Territory would not be required. In the absence of a contest, it is the fact of the order which is enough. We have before us the reasons for the orders of the Supreme Court of the Australian Capital Territory. Those reasons sufficiently demonstrate that Mr Tantala has been found by that Court to have committed the acts and omissions that were alleged against him before that Court. His name has, for those reasons, been removed from the Roll of Solicitors in that Territory. Giving appropriate respect to the orders of the Supreme Court of the Australian Capital Territory, it is plain on the face of the uncontested documents which have been placed before this Court, that Mr Tantala is not a person who should remain on the Roll as a solicitor of the Supreme Court of New South Wales. He should not be able to hold himself out as a practitioner authorised to practise, either by this Court, or under the laws of this State. Accordingly, the orders which I propose are those in the Summons. I would add to the orders sought in the Summons, and the declarations there sought, the order that Mr Tantala pay the costs of the Prothonotary incurred by the institution of these proceedings. Handley JA I agree. Powell JA I agree. Kirby P: The Court accordingly: 1. DECLARES that Stephen Peter Tantala has been guilty of professional misconduct as a solicitor in the respects referred to in para(a) to para(v) of the Prothonotary's summons; 2. DECLARES that Stephen Peter Tantala is not a fit and proper person to remain on the Roll of Solicitors in the respects referred to in para(a) to para(v) of the Prothonotary's summons; 3. DECLARES that Stephen Peter Tantala be removed from the Roll of Solicitors; and 4 UNREPORTED JUDGMENTS 4. ORDERS that the said Stephen Peter Tantala pay the costs of the Prothonotary of these proceedings. The Court: 5 1. DECLARES that Stephen Peter Tantala has been guilty of professional misconduct as a solicitor in the respects referred to in para(a) to para(v) of the Prothonotary's summons; 2. DECLARES that Stephen Peter Tantala is not a fit and proper person to remain on the Roll of Solicitors in the respects referred to in para(a) to 10 para(v) of the Prothonotary's summons; 3. DECLARES that Stephen Peter Tantala be removed from the Roll of Solicitors; and 4. ORDERS that the said Stephen Peter Tantala pay the costs of the Prothonotary of these proceedings. Counsel for the Claimant: A Bennett Solicitors for the Claimant: HK Roberts (Crown Solicitor) 20 Counsel for the Opponent: No appearance Solicitors for the Claimant: No appearance3040