Stanoevski v Council of the Law Society of NSW (2008) NSWCA 93

In this matter Greg Walsh acted for Liljana Stanoevski, a solicitor, who was found by the appeal panel of the Administrative Decision’s Tribunal to have engaged in various significant acts of professional misconduct. See Stanoevski v Law Society of New South Wales ( No. 2) (LSD) 2004 NSW ADTAP 35.

Ms Stanoevski appealed to the Court of Appeal in respect of the decision of professional misconduct and the order removing her name from the Roll of Solicitors: Stanoevski v The Council of the Law Society of New South Wales (2005) NSWCA 428. The Court of Appeal held that there was no reason to set aside the findings of professional misconduct but the process by which the penalty had been arrived at contained a material procedural flaw. The orders were set aside and the matter referred to the Appeal panel. The Appeal panel reconsidered the question of penalty and once again, though by majority rather than unanimously, concluded that the appellant’s name should be removed from the roll: Stanoevski v The Council of the Law Society of New South Wales (ILSD) NSW ADTAP 25.

It was argued on behalf of Ms Stanoevski that the Appeal Panel had fallen into error in applying the incorrect test. Campbell JA at [39] with whom Hodgson JA and Handley AJA agreed observed that the Appeal Panel’s reference to restoring the appellant to the roll was erroneous as she was already on the roll. His Honour found that the Appeal Panel had not misapprehended its task or applied the wrong test in any way was material in its decision to making reference to both whether the appellant was a fit and proper person to hold a practising certificate and whether the appellant was a fit and proper person to be on the roll.

It was further contended that the onus was on the Law Society to establish that a person whose name was on the roll was not a fit and proper person to remain on it. In particular, that it was necessary for the Law Society to establish that the solicitor is “permanently unfit for practice.”

It was further contended that the Appeal Panel had reversed the onus, and improperly placed an onus on the applicant. Campbell JA from paragraph [52] onwards analysed the question of the onus of the proof. The Court of Appeal determined that the appeal panel permissibly shifted the evidential onus to the appellant which required that she, in circumstances where proven misconduct had been established in the period 1991 to 1993, produced evidence that gave reason for believing that the situation had changed.

Thus, the appeal was dismissed.