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Solicitor rejects onus of proving he is ‘fit and proper’
An ACT solicitor whose practising certificate was not renewed has objected to a timetabling and onus issue in the appeal.
Naomi Neilson
The solicitor, known only as LP9, appealed the ACT Law Society’s decision not to renew his practising certificate because it had determined he was not a “fit and proper person” to practise.
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Before the appeal could begin, LP9 objected to the ACT Supreme Court registrar’s proposed timetabling, which requested that he be the first one to file and serve any evidence he intends to rely on.
LP9 said the proposed timetable “places the onus of establishing the facts on the appellant rather than the respondent”.
“That is part of a broader argument about onus in the substantive proceedings, which is the material impetus for challenging what would otherwise be a straightforward timetable imposed by the registrar,” Justice Verity McWilliam noted.
Instead of the usual course, LP9 proposed that the Law Society file the first pleading to establish why he is not a fit and proper person.
He claimed that it “must be the entity moving the termination of the practising certificate” to bear the onus of establishing the facts.
The Law Society said that not only was it the responsibility of a legal practitioner to satisfy the court he is eligible to hold a certificate, but he must do the same when applying for a grant or renewal.
Justice McWilliam said she agreed with the Law Society.
“When an application for renewal is refused, the process involved is not an active termination or cancellation by the Law Society that must then be justified on appeal,” Justice McWilliam said.
“Rather, a refusal to renew a certificate is a decision made in response to an application for renewal … by the legal practitioner.”
Justice McWilliam added that for the Legal Profession Act to be effective, it is “critical” lawyers “adhere to the requirements to honestly disclose or bring forward anything that might be seen as affecting their standing as a fit and proper person”.
“It is not for the applicants to sit back and respond to any issues that may already be known by the Law Society,” she said.
“The appellant was the moving party as an applicant for renewal, and on appeal, remains the moving party as an applicant for renewal. The consequence is that it is for the appellant to file his evidence first.”
