Prothonotary of the Supreme Court of New South Wales v Tatar [2005] NSWCA 104

New South Wales Court of Appeal

Prothonotary of the Supreme Court of New South Wales v Tatar [2005] NSWCA 104 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 24 March 2005

JUDGMENT DATE: 24 March 2005

JUDGMENT OF: Spigelman CJ at 18; Beazley JA at 19; Giles JA at 1

DECISION: Make declarations and orders 1-5 of the Summons. Make declaration in para 2 omitting sub-para (iii) in relation to deliberate misleading of the Board.

CATCHWORDS: Solicitor - offences of dishonesty in 1997 - not disclosed when applied for admission - further offences of dishonesty thereafter - offences described - findings of professional misconduct and that not of good fame and character and not a fit and proper person to remain on Roll - declarations and removal from Roll.

CASES CITED: Allinson v General Council of Medical Education and Examination (1894) 1 QB 750.

Prothonotary of the Supreme Court of New South Wales - Claimant PARTIES: Andrew Tatar - Opponent

FILE NUMBER(S): CA 40954/04

L Cowley - Claimant COUNSEL: N/A - Opponent

I V Knight, Crown Solicitor - Claimant SOLICITORS: Ford Criminal Lawyers - Opponent

LOWER COURT JURISDICTION:

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40954/04

SPIGELMAN CJ BEAZLEY JA GILES JA

Thursday 24 March 2005 PROTHONOTORY OF THE SUPREME COURT OF NEW SOUTH WALES v TATAR Judgment 1 GILES JA: By a summons filed on 2 November 2004 the claimant sought a declaration that the opponent is guilty of professional misconduct, a declaration that the opponent is not a person of good fame and character, a declaration that the opponent is not a fit and proper person to remain on the Roll of legal practitioners for this State, an order that the name of the opponent be removed from the Roll and an order that the opponent pay the claimant's costs. The first declaration specified professional misconduct in engaging in conduct in 1999 and 2000 for which the opponent was convicted on criminal charges. The second and third declarations specified engaging in the same conduct plus conduct in 1997 for which the opponent was earlier convicted on a criminal charge and deliberate misleading of, or failure to make full and frank disclosure to, the Legal Practitioners Admission Board when applying in 1999 for admission as a legal practitioner. 2 The opponent did not oppose the making of the declarations and orders. He joined in a statement of agreed facts which, together with an affidavit of the claimant, constituted the evidence on which the claimant relied in support of the relief sought. 3 In February 1997 the opponent applied for and was issued with a Citibank Gold Card, using a forged drivers licence and a forged group certificate and a birth certificate he had obtained fraudulently. On 27 May 1997 he pleaded guilty to a charge of making a false or misleading statement with intent to obtain a valuable thing, contrary to s 178BB of the Crimes Act 1900. He was convicted and placed on a two year good behaviour bond. 4 The opponent was also charged that on 26 February 1997 he made a false or misleading statement with intent to obtain a financial advantage, contrary to s 178BB, in that he submitted a fraudulent application for the issue of a Colonial State Bank Visa Card. He pleaded not guilty. On 11 September 1998 he was convicted, and he was ordered to perform 50 hours of community service work. He appealed against the conviction. On 12 January 1999 the appeal was upheld and the conviction was quashed. 5 On or about 23 July 1999 the opponent applied for admission as a legal practitioner. He was required to disclose to the Board whether he had done anything likely to affect adversely his good fame and character and whether he was aware of any circumstance that might affect his fitness to be admitted as a legal practitioner. He disclosed some facts and circumstances in a document annexure B, and in a statutory declaration declared to the effect that there was nothing else to disclose. 6 The document annexure B read - "In the interests of full disclosure, I inform the Board that in 1996-1997 I was the managing director of an investment company. In February 1997 a co-director embezzled certain funds, and caused the company to become insolvent. Investors suffered loss and disadvantage as did our bank. Consequently, I was charged with aiding and abetting certain offences under the Corporations Law and aiding and abetting offences under s 178BB of the Crimes Act. There were no allegations of malice on my part but carelessness and recklessness in not making proper enquiries and signing authorities in blank. The charges under Corporations Law were dismissed, and under the Crimes Act charges, I received a s 556A discharge and a 558 bond. I successfully appealed to the District Court, before Blanch CJ and all convictions were quashed in January this year. In mitigation of my apparent recklessness, I say that I was out of NSW during this period and that the co-director responsible I had considered a close friend of over 10 years' standing. I had considered him trustworthy of taking care of the business whilst I was away. Further, I say that I was seriously ill at the time in question, and as such my judgment and capacity were impaired to an extent. I say that my lapse in good judgment was temporary and that no further such lapses shall occur." 7 The Tribunal before whom the opponent appeared for sentencing on the charges later mentioned expressed surprise that the opponent was admitted as a solicitor in 1999, referring to at least one of the matters disclosed in the document annexure B. It is a matter of concern that given the disclosure in annexure B, the opponent was admitted. We do not have information indicating the investigations made in light of the disclosure, and are unable to take that matter further. 8 The evidence does not permit a finding that the aiding and abetting annexure B offences were not correctly disclosed, with a positive misrepresentation of the true position in relation to those offences. But there was -