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Barry Lane
28 November, 2005  
Full and frank

The Victorian authorities have taken a harsh approach to a fellow desperate to be a solicitor, but who kept forgetting large slabs of his unhappy past when he applied to be admitted. The creative excuses and the lapses of memory might, in less puritinical times, have been the pride of the profession


imageIt’s disturbing to get a glimpse at some of the people who want to get into the ancient, learned and honourable profession of the law. I’m sure Rudy Noel Frugtniet (seen here) is not typical of everyone, but his case is instructive.

Rudy graduated with a degree in law from Deakin University on August 24, 2001 but his application for admission had been with the Board of Examiners by mid-2001.

Like everyone else who wants to get in on the caper Rudy is obliged by the Legal Practice (Admission) Rules 1999 to bring to the board’s attention anything bearing on his fitness to practice.

Frugtniet had written to the board on August 20, 2001 and told them that he had been fined $1,000, without conviction, by the Broadmeadows Magistrates’ Court on November 24, 1997 after pleading guilty to one count of obtaining property by deception.

The charge arose out of the sale of some “blacklisted” international airline tickets through a travel agency called Karina Travel, which was formerly owned by Rudy’s wife, Corine.

If you’re keen to drill deeper into Rudy’s history in the travel business, look at a decision of Deputy President McNamara in the Administrative Appeals Tribunal.

Rudy followed up the letter with an affidavit sworn on August 28, 2001 deposing that there was nothing else to disclose.

Let’s cut to Justice Pagone’s reasons for judgment when he considered Rudy’s appeal from the board’s refusal to let him ply the trade of a Victorian legal practitioner.

The judge reeled off a raft of brushes with the law that the applicant forgot to disclose: three charges in the early 1990s for perjury; a 1978 conviction in the UK; charges in 1998 concerning six counts of theft and three counts of attempted theft as an employee of the ANZ Bank.

The judge explained:

“The perjury charges arose from evidence that he had given in 1992 to the Travel Agent’s Licensing Authority when he emphatically denied ever having been convicted of a criminal offence; that is, under oath he denied the fact that on January 4, 1978 he had been convicted in the Leeds Crown Court in the United Kingdom on several counts of handling stolen goods, forgery, obtaining property by deception and theft; convictions for which he was sentenced to imprisonment.

“The perjury charges were heard in the County Court where he was acquitted. His successful defence to the perjury charges was that he held an honest and reasonable belief at the time that he had given the evidence to the authority that he did not have to disclose the UK convictions because of his understanding of the operation of the laws of the United Kingdom relating to ‘spent’ convictions.

“The ANZ charges were unrelated to the perjury charges and involved events at a time when he was an employee of the bank. He was successfully acquitted of those charges as well.”

Although Rudy was aware of the distinction between charges and convictions when he made the application, he told Pagone J that he had not mentioned the perjury charges or the ANZ Bank charges because he believed that he was required to disclose only those charges which were still pending at the time the application was made.

As most of us appreciate, that’s an easy enough mistake to make.

All of these troubles only came to light after the board’s adverse decision and after the appeal had commenced and after Rudy had filed his first affidavit in the Supreme Court in support of his appeal.

Pagone found:

“In those circumstances I have no present confidence that the applicant would have disclosed these matters if they had not come to the board’s knowledge and had the board not tendered the evidence in the proceeding before me.”

Thereafter Rudy continued with his legal studies and on May 7, 2003 got a Master of Laws from Deakin University.

Clearly satisfied that a decent interval had passed since he last joined battle with the board, Rudy lodged another application for admission on July 27, 2004. Regrettably, he suffered from a further bout of amnesia and the board knocked him back.

imageAgain he appealed to the Supreme Court and on this occasion found himself before Mr Justice “Silver Tray” Gillard (seen here).

It’s amazing, but every time Rudy went near a court to press his case for admission, there emerged further and better pongs from his past, all of which he’d forgot to disclose much earlier.

This time it was deception charges in 1989 resulting from the improper debiting of client credit card facilities with the State Bank of Victoria (later withdrawn); the making of a false declaration to the Migration Agents Registration Board on October 26, 1999 concerning the ANZ Bank charges which were outstanding at the time (no action taken by or on behalf of MARA); and charges in April 2003 of defrauding the Commonwealth in relation to Centrelink payments between March 1998 and November 2000, which were dismissed on May 11, 2004.

Even though Rudy had batted these charges off to leg, old Silver Tray was not impressed:

“Some of his evidence I do not accept as truthful or accurate. He struck me as a witness whose first move was to think of an answer which would help his cause rather than being frank and honest. He told the court that he was sorry and remorseful for his past conduct, but I am not persuaded that he is an honest person, a person of good character, and fit and proper person to be admitted to practice as a barrister and solicitor and officer of this court. In reaching that conclusion, I rely upon his past, the way the appellant gave evidence, his attitude to obvious wrongdoing which he was not prepared to candidly accept was very wrong, his attempts to mislead the court and his looseness with the truth…

[snip]

“It will take, in my view, many years of blameless conduct before one could have any confidence that the appellant has shed his past, turned over a new leaf and intends to pursue a blameless and honest career.”

We await Rudy’s next move. Will he go for the trifecta with the Board of Examiners? Maybe he’ll just hang about hoping that all who know his form might have croaked and his file has been eaten by bogong moths.

Of course, he could trade without a ticket until he got caught, like Bill Davison in New South Wales.