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SUPREMECOURT OF SOUTHAUSTRALIA(Full Court)LEGAL PRACTITIONERSCONDUCTBOARD v DUDEKSASC2ss[20061Judgmentof The Full JusticeSulanandThe ND TRADES . LA\ryYERS - MISCONDUCT. IJNFITNESSAND DISCPLINEApplication by the Legal PractitionersConductBoard to removea legal practitionerfrom the Rollof Practitioners - respondent found guilty of unprofessional and unsatisfactory conduct respondentacceptedthe frndings - respondentsuffered from a depressiveillness at time of hismisconduct- needto protectpublic confidencein the legal profession- conductnecessitatesorderof removal from Roll of Practitioners - application granted - respondentstruck of Roll ofPractitionersLegal PractitionersAct I98l s76(4)(b), referredto.Legal Practiîioners Conduct Board v Phillips (2002) 83 SASR 467; Legal Practitioners ConductBoardv Trueman(2003) 225 LSJS 503, considered.Applicant:LEGAL PRACTITIONERSCONDUCTBOARDCounsel:MS R E DAVEY - Solicitor:LAW SOCIETY OF SOUTH AUSTRALIARespondent:ANDREW DEAN DTIDEKCounsel:MR J D EDWARDSON- Solicitor:ILES V-OS-1301A
LEGAL PRACTITIONERSCONDUCTBOARD v DUDEKSASC2ss[20061Full Court:Doyle CJ, Sulan and VanstoneJJDOYLE CJ:An order should be made that the name of Mr Dudek bestruck off the Roll of Practitioners. I agree with the reasonsof Sulan J for sodeciding.The Legal Practitioners Conduct Board ("the Board") hasSULAN J:applied for an order that the name of Mr Andrew Dean Dudek be struck off theroll of legalpractitioners.The Board relied on the fïndings and reasonsof the Legal PractitionersDisciplinary Tribunal ("the Tribunal") that the practitioner was guilty ofunprofessionalconduct and unsatisfactoryconduct. The Board had investigateda number of complaints made against the practitioner by the CommonwealthDirector of Public Prosecutions,clients of the practitionerand a practitionerwhohad employedMr Dudek.At the commencementof the hearing before this Court, counsel for thepractitioneradvisedthe Court that his client had consideredthe findings of theTribunal, and he no longer wished to resist the application that his name beremoved from the roll of legal practitioners. Mr Dudek did not challengethefindings of the Tribunal and accepted the accuracy of its report withoutqualification. He statedthat Mr Dudek now had a much clearerinsight into theseriousnessof his conduct,and that he unequivocallyacceptedthe findings thathad been made againsthim. Mr Dudek acknowledgedthat his conduct was wellbelow the standardof behaviourexpectedof a practitionerand that it constitutedunprofessionalconduct.The Court indicatedthat it would make the orderssoughtby the Board,butreservedits decisionin orderto provide written reasonsfor making the order.Factual backgroundThe practitioner was chargedwith hve chargesof unprofessionalconductrelatingto eventswhich occurredbetweenabout June2000 and October2003.In summary,the Tribunal concludedthat on eight occasionsMr Dudek hadfailed to comply with a notice from the Board requiring him to report to theBoard in relation to a matter that was under investigation,contrary to s 76(a)þ)of TheLegal PractitionersAct I98l ("the Act").The Tribunal also concludedthat the practitionerhad failed to comply withan undertakingto the MagistratesCourt to pay moniesto Centrelink.
Sulan J[2006] SASC2552In addition,the respondentfailed to accountto eight clientsfor moniespaid'Whento him for various purposes. The amount involved a total of 5650.explanationswere sought from the practitionerhe misled his clients and, in onecase, misled his employer, which causedprofessionalembarrassmentto theemployer,who was then dealing with the client. To date,there has been nosatisfactoryexplanationby Mr Dudek as to his failure to account.t0Further,he failed to protect the interestsof one of his clients in relation tothat client's financial position. He actedto the potential detriment of his client.Mr Dudek had been instructedto assista client who was in financial diff,rculties.In considerationof the client delivering a motor vehicle to Mr Dudek, he agreedto continueto make leasepaymentson the vehicle. Mr Dudek had been engagedto advisehis client who was in financialdiffrculty in circumstancesin which theclient was under pressure from creditors. Mr Dudek failed to inform thefinancier of the change in possession,failed to make the paymentsand, in sodoing, actedto the detrimentof his client. In the circumstances,for Mr Dudek toenter into that commercialtransactionwith his client constitutesunprofessionalconduct.llThe Tribunal was concernedabout the candour of Mr Dudek in his oralevidence. The Tribunal said:The Tribunal had concernsin many instancesabout the candor of the Practitionerin hisoral evidenceas well as the information which he provided to explain his behaviour. Inaddition, the Practitionerappearedin generalterms to display a carelessapproachto theneed to accountfor monies which he receivedin cashfrom clients. He also appearedtolack professionalappreciationof the requirementsof the role of a legal practitioner. Thiswas particularly apparentin the bluning of the relationshipwhich he had with variousfirms of solicitors with whom he was either employed or was acting as a consultantsimultaneously.He also displayedthe sameconfusionand lack of clarity concerninghisprofessionalrelationshipwith "clients", such that his own personalaffairs and interestsbecame inextricably interfwined with the professionalresponsibilitieswhich he had inrelation r.ohis "clients ".lt2The conductof Mr Dudek constitutedunprofessionalconduct. There was apersistentneglectof the affairs of clients.t3Part of the reasonfor Mr Dudek's conduct was explainedby Dr Raeside,apsychiatrist,who examinedMr Dudek. In Dr Raeside'sopinion, a number ofstressorsin Mr Dudek's life contributed to him avoiding issues which wereunpleasantand likely to produce stress. He was suffering from a range ofdepressiveand anxiety symptoms,causedpartly by the substantialstressunderwhich he was labouringduring the time.t4Dr Levy, a psychiatrist,reportedthat in 2003 Mr Dudek was overwhelmedwith a numberof issueswhich were impactingupon his life. He was anxiousand'Legal Practitioners Conduct Board v Dudek [2005] (Unreported, Legal Practitioners DisciplinaryTribunal,M S Frickerand G A Brown, l8 August2005) [0]-[ l].i
SASC2s5[2006JSulanJ3very negative and had difficulty in motivating himself. He was not enjoyinglegal practice, and a combination of these factors would have had a negativãimpact on his ability to adequatelyperform and dischargehis functions as ilegalpractitioner.l5The evidence establishesthat the practitioner was suffering from apsychiatric condition which contributed to his failure to discharge hisprofessionalresponsibilities. He was unable to conduct himself in accordancewith proper professionalstandards. It seemsthat his condition has improvedsincehe ceasedpracticein2002.rn Legal Practitionersconduct Board v phitlips,2prior J said:This Court acts in the public interestsand not to punishthe practitioner. The publicinterest is understandablydemanding of proper behaviour and accountabilitv frommembersof the profession.3l 1In Legal Practitioners ConductBoard v Trueman,oDoyle CJ referredto thepractitioner's health problems which may have explained his inability over aprolongedperiod to maintain proper professionalstandards. The Chief Justiceobserved:. The orderis not madeto punishMr Trueman.If theCourtwereconcernedonly withpunishment,it might be possibleto takea moremercifulcourse. The fact that he soughttreatmentfor his condition, and the improvementin his condition, would be võrysignificantif the Court'sdecisionwasbasedon considerationsof punishment.But theCourtis concernedwith thefitnessto practiceandwith thepublic interest.st8That statementis appositeto this case. The role of the Court is to ensurethat the public is protectedand that personswho practiselaw maintain the highprofessionalstandardsrequiredof legal practitioners.It is essentialto ensurethatthe public who deal with the profession are protected,and that persons whopractiseare fit to do so and will maintainproper professionalstandards.It is therole of this Court to ensurethat the confidenceof the public in the honestyandintegrity of legalpractitionersis maintained.l9The practitionerhasfailed to maintainthosestandards.His conductrequiresthat his namebe struck off the Roll of Practitioners.VANSTONE J:I agree.z qzooz¡83sASR467.'.(2002)83SASR467,473." (2003)225LSJS503.5(zoo¡)225LSJS503,506.
Created Date: 3/12/2009 4:06:33 PM
