Prothonotary of the Supreme Court of New South Wales v Christopher Ronald Fitzsimons (No 2) [2012] NSWSC 329

Supreme Court New South Wales

Medium Neutral Citation: Prothonotary of the Supreme Court of New South Wales v Christopher Ronald Fitzsimons (No 2) [2012] NSWSC 329 Hearing dates: 3, 31 August 2011 Decision date: 23 March 2012 Before: Adams J Decision: (1)I decline to make any further declaration or order. (2)I make no order as to the costs of the supplementary submissions. Catchwords: PRACTISING CERTIFICATE - whether should be conditional - role of Law Society. Legislation Cited: Legal Profession Act 2004 Cases Cited: Prothonotary of the Supreme Court of New South Wales v Christopher Ronald Fitzsimons [2012] NSWSC 260 Johns v The Law Society of New South Wales, (unreported, NSW Court of Appeal, 6 June 1991) Category: Consequential orders Parties: Prothonotary of the Supreme Court of New South Wales (Applicant) Christopher Ronald Fitzsimons (Respondent) Representation: P Griffin (Applicant) J Lyons (Solicitor, Respondent) Crown Solicitors (Applicant) Lyons & Lyons (Respondent) File Number(s): 2010/265686

Judgment Introduction 1On 23 March 2012 (Prothonotary of the Supreme Court of New South Wales v Christopher Ronald Fitzsimons [2012] NSWSC 260) I made the following declarations - (1) The respondent is guilty of professional misconduct. (2) At the time of the commission of the misconduct particularised in paragraph 1 (a) of the summons the respondent was not a person of good fame and character. (3) I decline to make the declaration that the respondent is not a fit and proper person to remain on the local roll of lawyers of the Supreme Court of New South Wales. (4)The respondent must pay the applicant's costs. 2I indicated that I was minded to make the following additional declaration and asked the parties for submissions in respect of it - Mr Fitzsimons is not fit to practise as a sole practitioner or in partnership or as a solicitor having access to a trust account and that any practising certificate be subject to the conditions that he continue to remain under the care of a general practitioner and any specialist whom that practitioner may refer him and comply with any regime of treatment or medication prescribed for him, including undertaking of any tests as directed. He is to give written authority to his medical practitioners to provide progress reports to the Law Society when requested to do so. Helpful submissions have now been made by both parties. 3In substance, Mr Lyons for Mr Fitzsimons submits that the proposed declaration should be made and suggested that a further condition be added to the effect that any employment Mr Fitzsimons undertakes into the public or private sector be under the supervision, direction and guidance of his employer or other solicitor holding an unrestricted practising certificate. For reasons expressed below, I am not minded to impose such a condition. I would agree that the need to supervise Mr Fitzsimons' legal work arises, as I understand it, because of the potential effects of his mental illness, were it not controlled, rather than any problem with his competence as such. 4Mr Griffin, for the Prothonotary has informed me that, in accordance with the protocol between the Prothonotary and the Law Society, the views of the latter were sought as to what protective orders should be made. Ms Anne-Marie Foord, Manager Professional Standards of the Society has brought attention to the following matters - (a)On 15 July 2009 the Council of the Law Society filed an application in the Administrative Decisions Tribunal seeking orders, inter alia, that Mr Fitzsimons' name be removed from the Roll. (b)The application specifies 23 allegations, only five of which were dealt with in the proceedings brought by the Prothonotary, with the remaining 18 matters yet to be considered by the Tribunal. The Society's application, which was adjourned pending the outcome of the case brought by the Prothonotary, is now to proceed to hearing . (c)Sections 48 and 50 of the Legal Profession Act 2004 give the Council broad powers to refuse to grant or renew a practicing certificate and to impose a variety of conditions on it. (d)Mr Fitzsimons does not presently hold a practicing certificate and can apply for one at any time. The Council declined the invitation to propose conditions since it might fetter its discretion should an application be made. 5In light particularly of the as yet unconsidered outstanding allegations made by the Society against Mr Fitzsimons it seems to me that the Council's approach is a reasonable one. 6In Johns v The Law Society of New South Wales, (unreported, NSW Court of Appeal, 6 June 1991) Clarke JA, with whom Samuels AP and Mahoney AJ agreed, said - However, although I think that the Court has power either to require an undertaking from the claimant such as that which was required and given in Nash v The Law Society of new South Wales, Court of Appeal, 30 August 1988, unreported, or to make a direct order limiting the ambit of the claimant's practice, I do not think that either course should be adopted in the present case. It is a matter for the Law Society to determine whether the claimant should be given an unrestricted practicing certificate or whether he should be restricted in some way, and I think it would be appropriate to leave such a decision to the Society, in the light of these reasons and the intention which the claimant has expressed in this Court. On reconsideration of the matter, I consider, especially given the outstanding proceedings in the Administrative Decisions Tribunal, that the better approach is not to make the envisaged declaration but rather to leave the question of conditions to be imposed on any practicing certificate, if any, that might be issued to Mr Fitzsimons to the Council to determine. Accordingly I decline to make any further declaration or order. 7I make no order as to the costs of the supplementary submissions.