Prothonotary of the Supreme Court of New South Wales v Thomson

THE COURT: The respondent (Mr Craig Robert Thomson) was admitted to the roll of legal practitioners in this State on 31 March 1995. He remains on the roll of this Court as an Australian lawyer, but has never held a practising certificate in any Australian jurisdiction. From around 1988, he was employed by the Health Services Union (HSU), initially as an industrial officer in the New South Wales branch. On 16 August 2002, he was elected as National Secretary of the HSU, in which position he remained until resigning following his election as a Member of the Federal Parliament for the seat of Dobell on 24 November 2007. He was subsequently found to have committed criminal offences, and civil contraventions of the Workplace Relations Act 1996 (Cth) (WR Act), in his position as National Secretary.

On 11 October 2016, Mr Thomson applied to the Law Society of New South Wales for a practising certificate. On 19 December 2016, the Law Society Council notified him of its refusal to grant a practising certificate on the basis of his criminal convictions. On 23 February 2017, the Law Society informed the Prothonotary of the Court of that refusal. By summons filed on 15 March 2018, the Prothonotary applied for declarations that Mr Thomson has been guilty of professional misconduct, is not a person of good fame and character, and is not a fit and proper person to remain on the roll of legal practitioners of the Court. The Prothonotary also seeks orders for the removal of his name from that roll, and for costs. Mr Thomson neither contests that application nor appeared in Court. In his letter addressed to the “Registrar and Members of the Supreme Court of NSW” dated 25 July 2018, he stated:

As this proceeding invokes the Supreme Court’s inherent jurisdiction and disciplinary powers with respect to a legal practitioner, it is assigned to the Court of Appeal: Supreme Court Act 1970 (NSW), s 48(2)(k); Supreme Court Rules 1970 (NSW), Pt 65A, r 2. Although the summons might also have constituted an application under Legal Profession Uniform Law (NSW) (LPUL), s 23(1)(b), the Prothonotary only relies on the inherent jurisdiction and powers, preserved by LPUL, s 264(1). Thus, the order for removal does not depend on a finding that Mr Thomson engaged in “professional misconduct” as defined in LPUL, s 297 (and a declaration in those broad terms in this application would have little if any utility). Rather, “the ultimate issue is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner of [this] Court” as “at the time of the hearing”: A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1 at [15], [21].

In determining such an application, the Court must satisfy itself that any orders made are appropriate in all the circumstances, even if the proceeding is uncontested: Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 at [27] (McColl JA). The Court should also make appropriately detailed factual findings, both to advance public confidence in the control and discipline of the profession and to assist those tasked with determining any future application for readmission: Bridges v Law Society (NSW) [1983] 2 NSWLR 361 at 362 (Moffitt P); New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at [24] (Spigelman CJ, Mason P and Handley JA agreeing); Council of New South Wales Bar Association v Power (2008) 71 NSWLR 451 at [9]–[11] (Hodgson JA, Beazley and McColl JJA agreeing).

The findings necessary to determine this application have two sources in the evidence. First, an agreement as to facts for the purpose of this proceeding signed by Mr Thomson on 13 June 2018 establishes the nature and circumstances of his offences and contraventions: see Evidence Act 1995 (NSW), s 191. Secondly, Mr Thomson’s correspondence with the Law Society, annexed to an affidavit sworn on 15 March 2018 by Ms Foord, the Director of Professional Standards at the Law Society, reveals his current attitude towards his earlier conduct. In making the findings set out below, it has not been necessary to determine the admissibility in this proceeding of the “Statement of Non-Disputed Facts” prepared by the prosecution for use in the County Court of Victoria appeal by way of a hearing de novo from Mr Thomson’s earlier conviction and sentence in the Melbourne Magistrates’ Court.

Two months after he was elected as National Secretary of the HSU, Mr Thomson established a business account for the HSU National Office in Victoria with the Commonwealth Bank of Australia (CBA). He was the only signatory to this account, which included a CBA credit MasterCard with a cash withdrawal facility accessible by PIN. In accordance with HSU policy, that card was only to be used for work-related expenses. Irregularities in the accounts for the card were, however, revealed by an exit audit conducted after Mr Thomson’s resignation as National Secretary.

On 15 December 2014, in the proceeding in the County Court, Mr Thomson was found guilty of 12 charges of stealing cash belonging to the HSU, amounting to at least $5,350, over a four-year period from October 2003 to October 2007: Director of Public Prosecutions v Thomson (County Court of Victoria, Judge Douglas, 15 December 2014). Those charges are attached as Annexure A to the statement of agreed facts and to these reasons. Mr Thomson does not dispute that he engaged in the conduct that was the subject of those charges, and in particular that he stole cash belonging to the HSU using the MasterCard cash withdrawal facility. On 17 December 2014, he was convicted and, by way of sentence, ordered to pay an aggregate fine of $25,000 and compensation to the HSU of $5,650: Director of Public Prosecutions v Thomson (County Court of Victoria, Judge Douglas, 17 December 2014). As at 13 June 2018, he had paid the fine, but not the compensation.

Earlier, in 2012, the Fair Work Commission had commenced civil penalty and compensation order proceedings against Mr Thomson for contraventions of the WR Act. On 11 September 2015, Mr Thompson was found to have contravened ss 285, 286 and 287 of that Act, which required him to exercise his powers and discharge his obligations with reasonable care and diligence, and in good faith in what he believed to be the best interests of the HSU and for a proper purpose; and prohibited improper use of his position to gain any advantage for himself or cause detriment to the HSU: General Manager of the Fair Work Commission v Thomson (No 3) [2015] FCA 1001 (Jessup J). Again, Mr Thomson does not dispute that he engaged in the conduct forming the basis of the contraventions as described in Annexure B to the statement of agreed facts and to these reasons, and numbered using Arabic and Roman numerals.

That conduct, over a period between September 2005 and December 2007, may be summarised as follows:

On 15 September 2015, Jessup J made orders imposing an aggregate penalty of $175,550, but providing that penalties imposed for contraventions identified by a Roman numeral would be stayed if the penalty with a corresponding Arabic numeral ($80,050 in total) was paid within 74 days. In addition, Mr Thomson was ordered to pay the HSU compensation of $231,243 and pre-judgment interest of $146,937: General Manager of the Fair Work Commission v Thomson (No 4) [2015] FCA 1433 (Jessup J). As at 13 June 2018, he had not paid the penalties, compensation or interest.

By way of disclosure directed to whether he considered himself a “fit and proper person”, Mr Thomson’s application for a practising certificate in October 2016 noted a conviction for “theft of between $3500 and $5500 from employer” and sentence by way of a “fine of $25,000”. But it made no reference to the contraventions of the WR Act, which Ms Foord subsequently raised in a letter notifying of a show cause event. In response, Mr Thomson challenged some uncontested allegations in the criminal proceeding and conclusions in the contravention proceeding. He also referred to his “fragile mental condition and related mental health issues”; insisted that he had “largely spent a lifetime in honourable public service”; and asserted that he was a “person of good character and a fit and proper person that can honourably conduct himself as a solicitor if given that opportunity”. In later correspondence, Ms Foord notified Mr Thomson that she proposed to ask the Council to refuse his application. In his further submissions to the Council, Mr Thomson claimed that he had accepted “responsibility for the outcome of [the two Court decisions] and … either repaid or [was] in the process of repaying fines and debts that arise from those two proceedings”.

The ultimate question for this Court is whether Mr Thomson is a fit and proper person to remain on the roll. Its determination requires the application of established principles reflecting the purpose of disciplinary proceedings against a legal practitioner, which is the protection of the public, rather than the punishment of that individual: Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 250–251 (Deane, Dawson, Toohey and Gaudron JJ). In New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at [20], Spigelman CJ identified four “interrelated interests” which may be regarded as protected by such proceedings:

Three principles are particularly significant in this application.

First, although the fact of a criminal conviction and sentence is not necessarily sufficient to disqualify a person from continuing as a member of the legal profession, the defects of character revealed by the criminal conduct, and the disgrace flowing from conviction, may be incompatible with practice: Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 especially at 288 (Fullagar J), 298 (Kitto J). That consequence follows more readily in relation to crimes involving dishonesty and misappropriation. In Re Davis (1947) 75 CLR 409 at 420, Dixon J observed that a member of the Bar must:

These considerations are not limited to applicants for admission to the Bar; they apply with equal, if not greater, force to practitioners who may seek to work as solicitors, in which capacity they would be entitled to hold trust moneys on behalf of clients. And an unfitness to do so may be shown by the commission of misappropriation offences with less objective seriousness than crimes such as break, enter and steal.

Secondly, conduct occurring outside the practice of law may nevertheless indicate a present unfitness to practice: Ziems at 290 (Fullagar J). As explained by Mason P in New South Wales Bar Association v Hamman [1999] NSWCA 404; (1999) 217 ALR 553 at [21]:

Mr Hamman’s tax offences were described as involving “significant and prolonged dishonesty for personal gain”: at [101]. Repeated misappropriation from any entity that has entrusted a person with control of its funds will expose a characteristic inconsistent with the holding of trust moneys for clients.

Thirdly, fitness to practise requires an appreciation of the high degree of trust that the court, of necessity, reposes in legal practitioners and of their general and ongoing obligation of candour to the court in which they desire to serve as an “agent of justice”: Davis at 426 (Dixon J); Prothonotary v Montenegro [2015] NSWCA 409 at [70] (Meagher and Leeming JJA and Emmett AJA); Prothonotary v Comeskey [2018] NSWCA 18 at [29]–[31] (Basten JA). That obligation of candour applies especially in relation to the disclosure of past misconduct that is otherwise relevant to fitness to practise. Non-compliance with this obligation may confirm that defects in character remain or demonstrate a further inadequacy: see Thomas v Legal Practitioners Admissions Board (2005) 1 Qd R 331 at 333; [2004] QCA 407, where de Jersey CJ observed that “making candid disclosure of relevant information … demonstrates a proper perception of [the] duty” and thereby demonstrates good character.

The evidence establishes, and we find, that Mr Thomson engaged in the criminal and contravening conduct described in Annexures A and B to this judgment, and that he was convicted of the offences and found to have committed the contraventions described in the judgments of the County Court of Victoria and Federal Court of Australia referred to in [7] and [8] above. That conduct included theft and other misappropriation of funds belonging to the HSU and abuse of a fiduciary or a quasi-fiduciary position, in each case over an extended period. Mr Thomson’s conduct involved, in the language of Hamman, “significant and prolonged dishonesty for personal gain”.

Mr Thomson has not suggested that the deficiencies of character revealed by that conduct are shown no longer to be present and that he has undergone a reformation of character sufficient to justify the conclusion that he is presently a fit and proper person. To do so would first require that he demonstrate an appreciation of his obligation of candour in relation to that past conduct. Mr Thomson has neither demonstrated that appreciation nor acted consistently with it. In his application to the Law Society for a practising certificate, he failed to disclose the Federal Court findings as to his contraventions of the WR Act. He maintained in that application that he was a fit and proper person “despite the conviction” for a number of reasons, none of which included a candid and comprehensive disclosure of, or explanation for, the misconduct outlined above, so as to justify a finding that he truly understands the “high degree of trust which the Court, of necessity, must repose in a person whom it endorses as a fit and proper person to practise”: Re Hampton [2002] QCA 129 at [37] (White J). Finally, he has not paid the penalties ordered by the Federal Court or the compensation ordered by either Court or otherwise demonstrated an insight into the serious deficiencies revealed by his conduct.

For all these reasons, we are satisfied that presently Mr Thomson is not a fit and proper person to remain on the roll of lawyers. Accordingly, the Court makes the following declarations and orders: