Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93

New South Wales Court of Appeal

CITATION: Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93

HEARING DATE(S): 22 April 2008

JUDGMENT DATE: 14 May 2008

JUDGMENT OF: Hodgson JA at 1; Campbell JA at 2; Handley AJA at 86

DECISION: Appeal dismissed with costs.

CATCHWORDS: LEGAL PRACTITIONERS – discipline – professional misconduct – proceedings commenced in Administrative Decisions Tribunal under Legal Profession Act 1987 – Appeal Panel ordered Appellant's name be removed from roll of solicitors – right of appeal to Supreme Court on question of law – s 118 Administrative Decisions Tribunal Act 1997 – proceedings pending in Tribunal immediately before commencement of Legal Profession Act 2004 – proceedings governed by 1987 Act – Sch 9, cl 15 Legal Profession Act 2004 – whether Appeal Panel applied wrong legal test or misapprehended nature of its task in determining whether Appellant's name should be removed from roll – proper test for removal from roll – whether a difference between fitness to be on the roll and fitness to hold a practising certificate – whether Appeal Panel misapprehended on which party onus lay of establishing certain matters – whether Appeal Panel took into account irrelevant matters – whether Appeal Panel made erroneous findings of fact – whether Appeal Panel exercised its discretion in a manner outside permissible legal bounds – where ground of appeal dependent on success of at least one of other grounds - EVIDENCE – matters relating to proof – onus of proof – proof of negative proposition – not a fit and proper person to remain on roll – shifting of evidential onus in respect of negative proposition – distinction between burden of proof in the sense of establishing a case and burden of proof in the sense of introducing evidence - WORDS AND PHRASES – "permanently unfit to practice"