Case: A Solicitor v Law Society (NSW) [2004] HCA 1 ; (2004) 216 CLR 253
Outcome: referred to
Mr Seymour submitted that the reasoning of the tribunal as set out in paragraph 37 and the first sentence of paragraph 38 of its reasons (see [29]) demonstrated that the tribunal had failed in its statutory task of assessing the subjective and objective circumstances of Mr Seymour's offending behaviour in the way explained by the High Court in A Solicitor v Law Society (NSW) [2004] HCA 1 ; (2004) 216 CLR 253 at 267-268 [19] - [22] . That submission was based on characterizing the tribunal's reasoning that Mr Seymour's history of having been struck off as a solicitor in 1982, having given the undertaking to the Supreme Court that he would not in future act or purport to act as a solicitor in 1994 and his 2004 conviction and sentence for contempt were facts which ' alone would be sufficient to render [Mr Seymour] not a fit and proper person whether the contempt was criminal or civil ' (see [38] of the tribunal's reasons). 41 The Authority submitted that the tribunal had been referring in this passage of its reasoning to the earlier findings which it had set out recounting the nature of the proceedings leading up to Buddin J's decision and his Honour's findings in that decision, including matters that were set out in the decision but not necessarily referred to directly in the tribunal's reasons. The Authority said that there was a number of freestanding findings by the tribunal each of which would justify its ultimate conclusion, first, the findings which I have just set out, secondly, the findings relating to Mr Seymour's change of position as to whether contempt was a criminal offence depending on whether he was before the Court of Appeal or the tribunal (see [26]-[31] of the tribunal's reasons [26] above). Thus the Authority argued that even if the tribunal had been wrong to take account of the balance of material referred to in [38] of its reasons, having concluded that by reference to the matters in [37] alone, Mr Seymour was not a fit and proper person, that was a finding of fact on the merits in respect of which there was no error of law. 135 And, the tribunal's reasons show that it did examine 'the whole position': A Solicitor v Law Society (NSW) [2004] HCA 1 ; (2004) 216 CLR 253 at 266 [18] . Despite Mr Seymour's submissions, I am not satisfied that the tribunal made any error of law in approaching its task of making an evaluation of the particular facts and circumstances before it concerning him and in making its decision as to its satisfaction under s 290(1). The tribunal considered the detailed subjective and objective circumstances of Mr Seymour's offending behaviour (cf: 216 CLR at 268 [22]) in the context of the whole of its reasons, before expressing its conclusion at [37]-[38]. The tribunal is not obliged to set out every detail of its reasoning process ( Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437 at 449 [54] per Gummow and Heydon JJ, Gleeson CJ agreeing at 438 [1] applying Commissioner for Australilan Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592. There Northrop, Miles and French JJ held that a decision-maker could rely on an obvious and natural evaluation of admitted facts to decide that an applicant was not a fit and proper person). 141 It was open to the tribunal to have regard to Mr Seymour not explaining why he consented to injunctions 12 years after his striking off that he would not act as a solicitor. Again, it was open to the tribunal to see this lack of explanation, in combination with the other matters it took into account in [37]-[38] as revelatory of integrity and of fitness and propriety, just as in In Re Davis (1947) 75 CLR 407; and see too A Solicitor v Law Society (NSW) [2004] HCA 1 ; (2004) 216 CLR 253 at 267-268 [20] - [21] . Moreover, the underlying facts of the 1994 injunction were relevant. The tribunal had earlier found ([13]) that Mr Seymour was vague when asked to recount them.