A Solicitor v The Council of Law Society NSW
[2003] HCATrans 453
[2003] HCATrans 453
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S406 of 2002
B e t w e e n -
A SOLICITOR
Appellant
and
THE COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES
Respondent
GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 11 NOVEMBER 2003, AT 12.05 PM
(Continued from 1/5/03)
Copyright in the High Court of Australia
MR P.L.G. BRERETON, SC: May it please the Court, I appear for the appellant. (instructed by the appellant)
MR J.E. GRIFFITHS, SC: If the Court pleases, I appear with my learned friend, MR N.J. BEAUMONT, for the respondent. (instructed by Raymond John Collins)
GLEESON CJ: Yes, Mr Brereton.
MR BRERETON: In the judgment of this Court in Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, Mr Justice Fullagar said at page 287, in contemplating such an appeal, that:
the appellant challenges what is not merely an exercise of discretion by the Supreme Court, but an exercise of discretion in a matter which is, in a special sense, the province of the Supreme Court as the highest court of New South Wales. It relates to the right of a man to practise in that court and in other courts of New South Wales over which that court exercises a supervisory jurisdiction in certain ways.
But, his Honour continued:
On the other hand, the possibly disastrous consequences of disbarment to the individual concerned (in this case a man of about fifty years of age) are not overstated by Cockburn CJ in Hudson v Slade and a court to which an appeal comes as of right is bound to examine the whole position with meticulous care.
Now, true it is that nowadays this appeal comes to this Court not as of right, but by special leave. But, that special leave having been granted, considerations similar to those there enunciated by Mr Justice Fullagar apply. Particularly is that so where, in this case, the Law Society, as it was entitled to do, has chosen to invoke the inherent jurisdiction of the Court of Appeal, thereby depriving the present appellant of two intermediate appeals which he would otherwise have had: one from the legal services division of the Tribunal to the appeal panel and a second from the appeal panel to the Court of Appeal.
GUMMOW J: I understand that, but what is the root of the inherent jurisdiction?
MR BRERETON: It is preserved by section 171M, I think, your Honour. I must say I do not have it at my fingertips, but I think 171M preserves the jurisdiction which a court otherwise had.
KIRBY J: That still does not answer his Honour’s question. What was the jurisdiction it otherwise had?
MR BRERETON: I think we then go back to the Charter of Justice in 1825.
GUMMOW J: Yes, and what does that say. It is a text. What is the actual text we have to construe? There are some words in the Charter of Justice. What are they? That is the starting point, it seems to me.
MR BRERETON: As I recall it, it confers on the court jurisdiction to deal with the admission and discipline of attorneys, solicitors and proctors. I must say I do not have the words of the Charter at my fingertips.
GLEESON CJ: You can probably dig it up over the luncheon adjournment.
GUMMOW J: But it is important because there is the definition that Justice Gaudron referred to in special leave in this case, you might remember, which, as it happens, had not been referred to by the Court of Appeal. Does that definition hold good for the inherent jurisdiction? Is it a restatement of it? What is the content of the inherent jurisdiction? If we do not know what the criteria are, what are we doing?
MR BRERETON: The definition in the Legal Profession Act does, in our submission, not hold good for the inherent jurisdiction. The statutory definition is a concept of statutory misconduct, which is dealt with under Part 10 of the Legal Profession Act.
GUMMOW J: Where is the definition, in section 3?
MR BRERETON: Section 127.
KIRBY J: Is there something in the Charter of Justice about the court in New South Wales having the same jurisdiction as the Court of Kings Bench or something to that effect, which has been, I think, taken as the source as inherent as distinct from implied statutory power.
MR BRERETON: Your Honour, I think that is the position, but I would rather answer ‑ ‑ ‑
GUMMOW J: I think it is too, but the Court of Kings Bench has long since departed this earth.
GLEESON CJ: And the Court of Kings Bench did not admit barristers, did it? I thought the Inns of Court were in charge of that.
McHUGH J: That was done by the Inns of Court, but clause 10 of the Charter of Justice gave a specific power to admit fit and proper persons as barristers, proctors, solicitors and attorneys and there was also, if my memory is right, a curious provision about people who were guilty of forgery. I think there was some special provision. They could not be admitted at all, if I remember rightly.
GLEESON CJ: You would not be able to rely on them.
MR BRERETON: I will take that on board and see if I can be of more assistance on that particular issue ‑ ‑ ‑
GUMMOW J: But otherwise it just seems to be all up in the air. We start talking about “fit and proper” and we start talking about “professional”. I just wonder where all these criteria come from. The answer is: out of case law construing the inherent jurisdiction, I suppose.
MR BRERETON: That is, with respect, the answer, and many of the cases have said it cannot be defined beyond the concept of “fit and proper”. I would be seeking today to ‑ ‑ ‑
GUMMOW J: Fit and proper to do what though?
MR BRERETON: Fit and proper to practise law.
GUMMOW J: Yes.
McHUGH J: I know it was always accepted that the Charter of Justice continued, but the old 1898 Legal Practitioners Act gave a specific power about fit and proper persons and I always thought it was hard to say that the two of them could run side by side. So you might have a look at that. That is the Legal Practitioners Act 1898.
MR BRERETON: I will have a look at that, your Honour.
McHUGH J: At least in respect of barristers. It said you could admit as a barrister a person who is fit and proper, I think. There was a specific section in the Legal Practitioners Act.
MR BRERETON: I have to say that because of section 171M there does seem to be a statutory recognition that the two concepts of a common law inherent jurisdiction of the courts to deal with the matter on the one hand ‑ ‑ ‑
McHUGH J: In Weaver v Law Society I argued the case for Weaver and the Court held in Weaver that the inherent jurisdiction existed and, although Weaver had been acquitted under the statutory jurisdiction, it was held that nevertheless he could be retried under the inherent jurisdiction and that his acquittal under by the statutory committee was not a bar to that. That is in 1974, I think ‑ ‑ ‑
GUMMOW J: Yes, in this Court it is 142 CLR 201 and the matter Justice McHugh was just taking up with you about the relation of the two proceedings is at 207.
MR BRERETON: I am indebted to your Honours and I will do some more homework over the adjournment.
GLEESON CJ: You had better also have a look at a case referred to by Justice Fullagar in the Privy Council. At the bottom of page 290 and the top of 291 of the case you have already referred us to the Privy Council held:
The power of removal or suspension is incidental to that of admitting to the roll of barristers –
So you may find that the Charter of Justice just gives a power to admit and, indeed, some of the first litigation that ever occurred in the Supreme Court of New South Wales concerned attempts by solicitors to be admitted as barristers.
MR BRERETON: Yes. The purpose of my going to the passage in Justice Fullagar to which I shortly adverted is this. In the circumstances of this case this Court sits not just as a court of last resort, but also as a first appellate court. In those circumstances, this Court ought to be more than usually willing to scrutinise the conclusions of the Court of Appeal on what might conveniently be called questions of secondary or ultimate fact, including, for example, whether proved conduct constituted professional misconduct or whether such conduct demonstrated a want of good fame and character or manifested a lack of fitness.
KIRBY J: I am sympathetic to that notion which came up in a case in the Court of Appeal called Young v Registrar concerning the right to have a real appeal, but the problem is, or may be, that the appeal which you bring now by special leave is a constitutional appeal, and at least I have a problem with the suggestion that it has a different content according to the nature of the case that has been decided below.
MR BRERETON: Special leave having been granted, the case is now in no different plight to Mr Ziems’ case. Once one is over the special leave hurdle, it is no longer necessary to resort to matters of general application and principle, although we will touch on some. But, once special leave has been granted, this Court is not inhibited from embarking on the appeal in just the way Justice Fullagar did in Ziems’ Case.
KIRBY J: We are not a Court conducting a rehearing in the sense of the Court of Appeal’s function as an appeal court under its statute. We are acting under the Constitution.
MR BRERETON: I accept that this is an appeal in the strict sense, as distinct from a rehearing.
KIRBY J: So you have to show error?
MR BRERETON: Unquestionably.
KIRBY J: Once error is shown, you say we should be particularly careful because of the fact that you have not had an earlier opportunity of an appeal by way of rehearing because of the election of the respondent.
MR BRERETON: Error can be shown, for example, by showing that a conclusion, professional misconduct from established facts ‑ the facts that were established in this case ‑ do not match, that is, if this Court forms an opinion on that different to that of the Court of Appeal, that is error.
GLEESON CJ: Mr Brereton, what was the question in Ziems? Was it whether Ziems had been guilty of professional misconduct or whether he was a fit and proper person to be a barrister or both?
MR BRERETON: It was the latter, and that is the point to which I am going to first come, and where, in my submission, particularly in New South Wales in recent times, there has been an unhealthy tendency to merge the concepts of professional misconduct and fitness and propriety.
McHUGH J: Yes, I have to say, it strikes me as rather odd the reasoning in the Privy Council decision in the South Australian Full Court. A solicitor who engages in bank robberies is obviously not a fit and proper person to be on the rolls as a solicitor. You would hardly say he was guilty of professional misconduct.
MR BRERETON: Quite so, your Honour, and that is exactly the point, and that is the first issue to which I will come. The first ‑ ‑ ‑
KIRBY J: It may be that in the Court of Appeal in, say, the case of Mr Cummins, the issue of non‑return of tax returns and not paying your tax might indicate something to do with your honesty, which may be relevant to professional misconduct. It may be that the issue is more nuanced than simply saying, if it is a crime, it is not professional misconduct.
MR BRERETON: In my submission, even in those cases, accepting that the failure to lodge tax returns can bespeak suppression or deception or dishonesty, that bears on fitness and propriety, rather than being probative of professional misconduct.
McHUGH J: In any event, there is an extended definition of professional misconduct in the Legal Practitioners Act, is there not? Does not clause (b) cover that sort of case?
MR BRERETON: It does, in a case under Part 10, which depends upon the statutory regime. Not in this case.
McHUGH J: No, I understand that.
GLEESON CJ: You do not have to go that far, though, do you? I mean, I can see that what might be called compliance issues could form an aspect of professional conduct.
MR BRERETON: Yes.
GLEESON CJ: But that is not this case.
MR BRERETON: Exactly, your Honour. So the first substantial issue, in my submission, is whether the conduct the subject of what, in the written submissions, is called the 1997 convictions – the convictions from, in fact, early 1998, but of conduct in April and May 1997 – whether that conduct constituted professional misconduct and/or otherwise demonstrated that the appellant was not a fit and proper person to be on the roll of solicitors. My submission, expressed in the alternative, is first that to be professional misconduct there must be a nexus between the conduct in question and professional practice ‑ ‑ ‑
KIRBY J: In that phrase “a nexus” you hide a multitude of sins.
MR BRERETON: I accept that, and I will try to illuminate that by reference to the cases, as we come to them. Alternatively – I am sorry, and that in this case there was no such nexus. Alternatively, that even if the broader concept of professional misconduct suggested by Chief Justice Spigelman in Cummins, for example, is correct, conduct outside professional practice will warrant disciplinary action, whether on the basis that it is professional misconduct, or whether it relates only to fitness and propriety, if and only if that conduct manifests the presence or absence of a quality incompatible with or essential for professional practice.
May I elaborate on that submission this way. There is no doubt that misconduct in a field completely removed from professional practice can warrant suspension or removal from the roll. In my submission, that is not because it is professional misconduct, but because it manifests the absence of a quality essential for practice, typically, though not invariably, honesty, or the presence of a quality incompatible with practice, typically some vice characteristic of the practitioner in question.
Such conduct may in that way be illustrative of unfitness, but it only serves to confuse to describe it as professional misconduct, as has been the more recent tendency in New South Wales. This tendency to broaden the rubric of professional misconduct to embrace conduct outside professional practice should be rejected. Such conduct can be brought to account, where relevant, on the basis that it demonstrates that the practitioner is not a fit and proper person.
The distinction was, in my submission, plainly recognised by this Court, or at least by Mr Justice Fullagar, in Ziems v The Prothonotary (1957) 97 CLR 279, to which I have already referred. May I take your Honours back to it, relevantly, at page 290. This passage, which has been cited in innumerable of these cases ever since, commences at the top of page 290. His Honour said:
There is another point (though I attach much less importance to it) on which I find myself unable to agree without qualification with the view of the Supreme Court. It is said that: “The personal and the professional sides of his life cannot be dissociated.” If this is read literally, it goes, in my opinion, much too far. Personal misconduct, as distinct from professional misconduct, may no doubt be a ground for disbarring, because it may show that the person guilty of it is not a fit and proper person to practise as a barrister –
and that is precisely the point –
But the whole approach of a court to a case of personal misconduct must surely be very different from its approach to a case of professional misconduct. Generally speaking, the latter must have a much more direct bearing on the question of a man’s fitness to practise than the former.
So, in my submission, the true question, in a case of personal misconduct, is not, does it amount to professional misconduct, but does it illustrate the presence of a quality incompatible with practice or the absence of one essential for practice? That that was the true test is illustrated by subsequent passages in the judgment. First, the passage to which I have already referred from Justice Fullagar at 290, point 2. Secondly, in Mr Justice Kitto at 298, point 5, again, in a passage often cited:
Yet it cannot be that every proof which he may give of human frailty so disqualifies him. The ends which he has to serve are lofty indeed, but it is with men and not with paragons that he is required to pursue them. It is not difficult to see in some forms of conduct, or in convictions for some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self‑respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily co‑operation which the satisfactory working of the courts demands. A conviction may of its own force carry such a stigma . . . But it will generally be agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar; and to draw the dividing line is by no means always an easy task.
Finally, in Justice Taylor at 302, point 2:
The Full Court, however, was not concerned with the appellant’s conduct as such; it was concerned merely with the fact of conviction and sentence and the underlying facts were thought by the members of the court to be irrelevant. But, whilst I respectfully agree with the observations of the learned Chief Justice concerning the high standard of conduct expected and required of members of the Bar, I find it impossible to assent to the proposition that proof of the fact of the appellant’s conviction and sentence, without more, made it inevitable that an order should be made directing that his name be removed from the roll of barristers; the vital question, in my opinion, in such cases, is not whether a practitioner has been convicted of an offence against the criminal law but whether his conduct has been such as to show that he is unfit to remain a member of his profession.
On the following page, his Honour returned to it, just after point 2:
The vital question, as I have already said and as these considerations show, is whether the conduct of the person concerned, whether it constitutes an offence against the law or not, has been such as to show that he is unfit to remain a member of the Bar.
Now, ultimately the majority of the Court in Ziems overruled the Full Court of the Supreme Court of New South Wales which had held, in essence, that on the mere fact of the conviction and sentence, removal from the roll was inevitable because, in the words of the Chief Justice, Justice Street, it was incongruous to have someone on the roll and in prison at the same time, and in the words of the second judge – I think it was Mr Justice Owen, although I will immediately be corrected on that – it was incompatible that one be in prison and on the roll at the same time.
In other words, by overturning that, this Court in Ziems established that it was the underlying conduct and, more importantly, what that underlying conduct said of qualities relevant to practice that is relevant in a disciplinary proceeding. The wider view of professional misconduct has been most clearly and cogently articulated by Chief Justice Spigelman in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279.
KIRBY J: You refer to the New South Wales cases, but the South Australian case included in the respondent’s submission indicates that the same view is apparently adopted there. They treated the matter as professional misconduct.
MR BRERETON: Justice Spigelman’s judgment has been persuasive in South Australia and a similar view, it has to be said, has been taken, although subject to some qualifications, in the Privy Council in Roylance, to which I will come momentarily.
GLEESON CJ: What is the practical significance of this, Mr Brereton? What is the practical significance of the rubric to which you assign this conduct?
MR BRERETON: I have to accept that it is limited. It would be enough to say that this conduct demonstrated that the practitioner was not fit and proper, but as soon as one appreciates that one is not dealing with ‑ ‑ ‑
GUMMOW J: Fit and proper to what? The words of the Charter of Justice are “fit and proper persons to appear and act as Barristers, Advocates, Proctors, Attorneys and Solicitors”. It is set out in 75 CLR 414. It is not fit and proper in some sort of moral philosophy question.
MR BRERETON: I accept and embrace that completely, with respect, your Honour. Fitness and propriety always bespeaks a purpose. That concept was dealt with by this Court, I think, in Bond v Australian Broadcasting Commission – I will check that that is the right reference and I think it was a judgment of Justice Gaudron’s in that case which adopted the proposition that one could not be fit and proper in the abstract. It was fitness and propriety for a particular purpose. Here, the purpose is to act as a solicitor.
McHUGH J: But was not the important distinction between the two points this, that even though you were guilty of professional misconduct there was still a further question of whether that professional misconduct made you unfit to be on the rolls, whereas if you go directly to the fit and proper issue, a finding that you are not fit and proper to be on the rolls has a necessary result.
MR BRERETON: And in the case which your Honour will remember in the Court of Appeal of Herron v McGregor, your Honour touched precisely on this point saying that professional misconduct may have to be proved along the way but the ultimate question in a disciplinary proceeding is usually always present fitness, present fitness to practise. Now, Cummins 52 NSWLR 279, first at paragraph 28 of the judgment ‑ ‑ ‑
GUMMOW J: This was in the inherent jurisdiction?
MR BRERETON: It was. The Bar Council resorted immediately to the Court of Appeal in the inherent jurisdiction.
GUMMOW J: Yes. Now, what is the standing of the Bar Association of the Law Society to enliven the inherent jurisdiction? Is that lost in the mists of time as well?
CALLINAN J: No, I think that may have been dealt with in a case of Lamb from Queensland. I think there is an application there.
MR BRERETON: I demur entirely to your Honour’s knowledge of the law of Queensland over mine. I am sure also that there is a case in New South Wales, the name of which is not present in my mind, which holds that the Law Society and the Bar Association have standing on disciplinary applications as the recognised custodians of the profession.
GUMMOW J: We now have the Legal Profession Act of New South Wales which has rather changed the situation, has it not? It is just legal practitioners now.
MR BRERETON: Yes.
GLEESON CJ: But it preserves the inherent jurisdiction.
MR BRERETON: It does.
GLEESON CJ: And the inherent jurisdiction is sometimes invoked by the prothonotary, is it not, as it was in Ziems, I think.
MR BRERETON: It is, as it was in Ziems, as it was in Del Castillo, which is a case to which some reference has been made in the written submissions, and as it was most recently in the case of Prothonotary of Supreme Court of New South Wales v P, which is on your Honours list of authorities.
McHUGH J: And in Weaver, although that was prior to the new Legal Practitioners Act. I have the Charter of Justice; it is in Betts Louat and Hammond Supreme Court Practice pages 1 to 9, and clause 10 authorised the Supreme Court:
to admit so many other fit and proper Persons to appear and act as Barristers, Advocates, Proctors, Attornies and Solicitors as may be necessary according to such general Rules and Qualifications –
and here is the rub –
Provided that the said Court shall not admit any person to act in any or either of the characters aforesaid who hath been by due course of Law convicted of any crime which according to any Law now in force in England would disqualify him from appearing and acting in any of our Courts of Record at Westminster.
So there were certain crimes that I think by statute prevented your admission, and my recollection is that forgery was one of them. So there was an absolute bar on admission but the power to suspend or disbar is regarded as incidental to the power to admit.
MR BRERETON: While we are on the topic of the 1825 Charter and the early days of the courts of this country, it is worth bearing in mind, given the significance that convictions have now adopted in some of these proceedings, that our early courts were in large part staffed by convict attorneys and that there were many who, in the early days of our courts, being recognised as having been rehabilitated, were admitted ‑ ‑ ‑
GUMMOW J: Mr Norton was one, the founder of Norton Smith; he had a very cloudy past.
MR BRERETON: It is significant to bear in mind that from the earliest days of this nation we have recognised the prospect of rehabilitation and we have not seen a conviction, even of an offence which warranted transportation to the colonies for life, as a disqualification to admission.
GLEESON CJ: Chief Justice Spigelman deals with this question of inherent jurisdiction on pages 281 and 282.
MR BRERETON: Thank you, your Honour. Yes, indeed. What is important about this judgment for my argument is first of all that his Honour deals with the matter on the basis of fitness and propriety. Much as the Law Society did in this case, in that case the Bar Council filed the summons which claimed a declaration that Mr Cummins was guilty of professional misconduct, a declaration that he was not a fit and proper person and an order for his removal from the roll.
At paragraph 28 of the judgment at the foot of page 285, his Honour concluded:
that the barrister’s disregard of his legal and civic obligations with respect to the payment of income tax was such that he must be regarded . . . as permanently unfit to practice.
And at paragraph 33 on page 286 his Honour held that notwithstanding paragraph 32, the act of removal was the operative act, it was appropriate for the court to declare that he was:
not a fit and proper person to remain on the Roll of Legal Practitioners.
It was totally unnecessary, in my submission, for the court to go any further than that, but his Honour then embarked on a consideration of whether a declaration should also be made that he was guilty of professional misconduct. His Honour fairly sets out cases which weigh on both sides of the argument as to whether conduct outside the course of practice can be professional misconduct.
At paragraphs 34 and 35 his Honour notes the distinction drawn by Justice Fullagar in Ziems. At paragraph 39 his Honour refers to Myers v Elman; on the one hand Viscount Maugham adopting a broader construction of professional misconduct, but at paragraph 40 Lord Atkin taking:
a different view . . . when he said that the words “professional misconduct . . . only mean misconduct in the exercise of the profession”.
At paragraph 42 his Honour refers to Lord Parker, the Lord Chief Justice, in Marten v Royal College of Veterinary Surgeons, and there the point is this. If the conduct is equally disgraceful in everyone it is not professional misconduct, but if it more reprehensible in the professional person than in anyone else then it may be professional misconduct. So, in the context of veterinary case, a vet, who though not acting as a vet did not care properly for his own farm animals, was held to be guilty of professional misconduct.
KIRBY J: Is not this just another way of saying that there is a nexus with practice which is what you have started with?
MR BRERETON: Yes, exactly. Then his Honour at paragraph 44 notes that in Hamman, another tax case, a declaration of professional misconduct was made but without argument, and comes to Maddocks at paragraphs 45 to 48 and records at 46:
A number of relevant observations were made by the members of the Court. The extent to which the other declarations were pressed does not appear. Some of the conduct of the barrister occurred in the course of litigation in which the barrister was a party.
Your Honour Justice McHugh had said:
“… For a barrister to seek to profit from another person’s breach of the criminal law by not reporting it is contrary to the standard of conduct expected of members of a profession so closely involved with the due administration of justice according to law.
So there is the nexus again. On the other hand, Justice Samuels had:
characterised the conduct as making the barrister unfit for practice, rather than as professional misconduct –
and in my submission, that is the preferable way of addressing it, which was also the route adopted by your Honour Justice Kirby:
Neither Kirby P nor Samuels JA suggested that the conduct was not professional misconduct. However, as I have said, no declaration to that effect was made.
At paragraph 49 his Honour fairly recognises that:
The term “professional misconduct” has sometimes been limited to misconduct in the course of professional work ‑ ‑ ‑
GUMMOW J: But this expression “professional misconduct” does not come from the Charter of Justice.
MR BRERETON: No, it does not.
GUMMOW J: Where does it come from? I think in a lot of these cases, this legislation dealing with veterinary surgeons and all sorts of people ‑ ‑ ‑
McHUGH J: It comes from Allinson’s Case.
MR BRERETON: It comes from Allinson where it had a special statutory source.
McHUGH J: Yes, a medical practitioner.
GUMMOW J: Exactly.
MR BRERETON: Exactly, and in that sense, it was a concept perfectly relevant in Allinson’s Case because it was a statutory charge, not perhaps so relevant in a case in the inherent jurisdiction, where there is no such statutory concept.
GLEESON CJ: Does not the statute governing the legal profession in New South Wales at the moment distinguish between what I might call incompetence or negligence on the one hand and professional misconduct of a kind equated with fitness on the other?
MR BRERETON: It does, I think section 127.
GLEESON CJ: And that affects the procedures and the jurisdiction of this statutory body, does it not?
MR BRERETON: It does. The distinction in short is this. One does not like to use the word “ordinary” but common garden incompetence or negligence in professional practice is unsatisfactory professional conduct. Professional misconduct includes sustained or serious unsatisfactory professional conduct.
GUMMOW J: The phrase is “substantial or consistent failure to reach reasonable standards of competence”.
MR BRERETON: I am indebted to your Honour.
GUMMOW J: Is that not enough, 127(1)(a)?
MR BRERETON: Yes, so that is professional misconduct, but then paragraph (b) broadens the statutory definition to include conduct outside the course of professional practice demonstrative of unfitness.
GUMMOW J: Yes. The point is, perhaps, 127(1) when it says “‘professional misconduct’ includes” is expanding notions and that whole system in Part 10 may be wider and more extensive than the old inherent jurisdiction.
MR BRERETON: Yes.
GUMMOW J: You would simply ask a fit and proper person to appear and act as a barrister, et cetera, even though you might have been a convict.
MR BRERETON: Yes.
GUMMOW J: But the price, of course, of extending with Part 10 is, as you have been emphasising to us, the rather elaborate procedures that are then gone through in that wider context.
MR BRERETON: And the procedural protections which that involves.
GUMMOW J: That is what you say, yes, I understand that.
MR BRERETON: And this Court addressed those procedural protections to some extent in Walsh v Law Society and also in Barwick v Law Society. At paragraph 50 Chief Justice Spigelman said:
It has not generally been useful or necessary to distinguish the terminology of “professional misconduct” from other phrases –
typically used, which his Honour sets out. In my submission, to the contrary, it is useful and important to distinguish that terminology because it then causes one to focus on the very matter which Justice Fullagar drew attention to, that professional misconduct will normally be far more relevant to fitness for practice than misconduct outside the scope of professional practice. At paragraph 56 his Honour said that:
There is authority in favour of extending the terminology “professional misconduct” to acts not occurring directly in the course of professional practice. That is not to say that any form of personal conduct may be regarded as professional misconduct.
And his Honour identifies two categories:
First, acts may be sufficiently closely connected with actual practice, albeit not of occurring in the course of such practice.
They are what I call the nexus cases, the veterinary surgeon’s case to which we referred a moment ago. But his Honour says:
Secondly, conduct outside the course of practice may manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice. In this second case, the terminology of “professional misconduct” overlaps with and, usually it is not necessary to distinguish it from, the terminology of “good fame and character” or “fit and proper person”.
In my submission, that is where the problem arises. Indeed, conduct outside the course of practice may manifest the presence or absence of such qualities, but it does not establish professional misconduct. It establishes a want of fitness and propriety for the purpose, or it may do so.
Now, our learned friends have drawn attention to the judgment of the Privy Council in Roylance v General Medical Council(No 2) [2000] 1 AC 311. Again, it must be said that this was a medical case involving a statutory charge and a statutory concept of serious professional misconduct.
GUMMOW J: Where do we find the section that they were construing ‑ ‑ ‑
MR BRERETON: Section 36 of the Medical Practice Act and there is a reference to it at page 331B to C, which is where I was going, but it does not set out the section in terms.
McHUGH J: At 330F his Lordship says:
The expression “serious professional misconduct” is not defined in the legislation and it is inappropriate to attempt any exhaustive definition.
MR BRERETON: And it is the statutory successor of the Allinson phrase of “infamous conduct in a professional respect”. At 331B their Lordships say:
Analysis of what is essentially a single concept requires to be undertaken with caution, but it may be useful at least to recognise the elements which the respective words contribute to it. Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances . . . The misconduct is qualified in two respects. First, it is qualified by the word “professional” which links the misconduct to the profession of medicine –
there is the nexus –
Secondly, the misconduct is qualified by the word “serious”.
We can pass over that. At F:
In the present case the critical issue is whether, if there was misconduct, the misconduct was “professional misconduct”. As counsel for the General Medical Council pointed out it is not simply clinical misconduct which is in issue. Professional misconduct extends further than that. So it is not simply misconduct in the carrying out of medical work which may qualify as professional misconduct. But there must be a link with the profession of medicine. Precisely what that link may be and how it may occur is a matter of circumstances.
Now, that is then expanded and the essence of this case was that it was held that the doctor’s performance, not as a doctor, but as a manager in the hospital, is capable of being professional misconduct. Given that he was holding an appointment in a hospital and that this impacted on the care of patients, that is hardly surprising. What, with respect, is more surprising is the adoption at 332D of a judgment on a summary dismissal application in A County Council v W:
where a question arose whether the alleged sexual abuse by a father of his daughter, the father being a medical practitioner could constitute serious professional misconduct.
It being said, on the summary dismissal application, that:
if he has sexually abused his daughter, [that] demonstrated conduct disgraceful to him as reflecting on his profession and/or indeed conduct disgraceful to him as a practising doctor.”
McHUGH J: It seems a hard case making bad law, because they only have one concept, serious professional misconduct. They want to force all fit and proper cases into the category of serious professional misconduct.
MR BRERETON: We do not need to do that because we have the other concepts available to us.
GLEESON CJ: But you can live with that decision, can you not, on page 332? That is a medical practitioner who in the ordinary course of his practice deals intimately with patients.
MR BRERETON: With patients, yes, exactly, your Honour. We can live with it and recognise that there is a substantial distinction between a medical practitioner who has responsibility for caring for people, and particularly for their physical and mental welfare, as distinct from a lawyer, whose professional practice does not usefully involve the physical and mental welfare of his or her clients.
KIRBY J: There seems to be some resonance of that approach though in the case of Hoile v Medical Board of South Australia 104 CLR 157. It is mentioned in Chief Justice Spigelman’s reasons in Cummins at paragraph 57. It concerned a doctor who had a sexual relationship with a nurse at the hospital and it was found that that was something which, if established, was destructive of his position that he could hold in the hospital and of his influence.
MR BRERETON: That, in my submission, was a much stronger case for the prosecutor, for want of a better word, even than a county council, because there, this was the conversion of what ought to have been a professional relationship into a sexual relationship.
McHUGH J: If I remember rightly, it was all going on during duty hours, was it not in Hoile?
MR BRERETON: Yes, and at the site of professional practice at the hospital.
KIRBY J: But was it dealt with under the rubric of professional misconduct or under ‑ ‑ ‑
McHUGH J: Under the Allinson direction, was it not, under the Allinson definition?
MR BRERETON: But, in my submission, there was a sufficient nexus there for it to come under any definition of professional misconduct, because it was – to use an example which springs to mind, if an army officer establishes a sexual relationship with a subordinate in the direct chain of command, that can easily be seen to be conduct prejudicial in the military sense because it is inimical to the command structure and the functioning of the military system, just as if a doctor establishes a sexual relationship with a nurse, working in the same staff, in the same hospital ‑ ‑ ‑
KIRBY J: What, even after hours? Come off it. I mean, that would not be an uncommon phenomenon. Sexual relationships tend to grow with propinquity and propinquity includes propinquity of work. If it is after hours, I do not see why it is professional misconduct.
MR BRERETON: I do not need to go that far, your Honour is quite right, because here these acts occurred on the hospital premises while the nurse was on duty.
KIRBY J: It was a 1960 decision.
MR BRERETON: Yes. In my submission, what is said in Roylance in the later passages from about 332E onwards have a degree of tension with what is said in the earlier passage where the need for a nexus is identified, but for the reasons that have appeared in the argument that has already taken place, there was, on any view, a sufficient nexus there, as distinct from the present case.
Can I come then to the next part of the submission which is on the step from the general to the particular without quite getting to the particular yet. In judging fitness for practice as a solicitor, in my submission, two principles are well and clearly established. The first is that the jurisdiction is concerned with protection, not punishment, particularly, though not exclusively, protection of the relevant public – the clientele, the patients, depending on the profession – but also, as Cummins acknowledges, there are four related interests: the clients, the judiciary, fellow practitioners and the public. I will come back to that in a moment.
The second principle to which reference has already been made is that the question is one of present fitness, not fitness at the time of the relevant conduct. Without going to ‑ ‑ ‑
GUMMOW J: Justice Gaudron emphasised that second point on the special leave application.
MR BRERETON: Quite so, your Honour, and without taking your Honours to the cases at this stage, can I just refer to what your Honour Justice McHugh said Herron v McGregor (1986) 6 NSWLR 246 at 258B, what Justice Heydon, also then as a Judge of Appeal, said in Prothonotary v Del Castillo [2001] NSWCA 75 at paragraph 71, and what was said most recently by Mr Justice Young, the Chief Judge in Equity, with the concurrence of Mr Justice Meagher and Justice Tobias, in Prothonotary v P [2003] NSWCA 320 at paragraph 17. Prothonotary v P, which is on your Honours’ lists, is an important case, particularly for this reason. Ms P had been guilty of a serious crime, importing a trafficable quantity of cocaine. She had a long history of drug addiction, but aside from that, a very powerful case on character and she was able to demonstrate rehabilitation from her drug conviction.
GUMMOW J: What was the date of the conviction, roughly?
MR BRERETON: From recollection, it was about three years before the hearing in the Court of Appeal, but I can turn that up.
GUMMOW J: But whilst she was a solicitor?
MR BRERETON: Yes. The Court of Appeal, in effect, opened the proceedings by asking counsel for the Prothonotary what possible use would making an order for removal serve, who would it protect, essentially given her proven rehabilitation, and that was never answered. My learned friend draws my attention to the headnote. By the time of the hearing in the Court of Appeal five years had passed since the commission of the offence.
GUMMOW J: Yes, thank you.
MR BRERETON: The conviction, from recollection, was about three to four months after the commission of the offence. It may have been later than that, but it was certainly while she was practising. I will come back to P for other purposes.
KIRBY J: If it would be possible to get a better print – the last column cuts off words and it is often a matter of guesswork as to exactly what it is. It is simply a matter of photocopying, if it is possible.
MR BRERETON: I will see what we can do, your Honour. We have only been able to get ours from the Internet ‑ ‑ ‑
KIRBY J: If you cannot do it, we will bring it down ourselves.
MR BRERETON: We will attend to that over the adjournment. Can I come back to the question of protection ‑ ‑ ‑
KIRBY J: What did the court do in P? Did it proceed on the professional misconduct basis, or a fit and proper person basis?
MR BRERETON: Essentially on a fit and proper person basis and it dismissed the summons. It dismissed the prothonotary summons, and made no disciplinary order at all. Can I come then to ‑ ‑ ‑
GUMMOW J: The point is that there will be all sorts of lapses on the part of solicitors which amount to professional misconduct. You might describe them as “technical”, I suppose, in some respects – some of them – but the overriding question is his lack of fitness to practise as a solicitor. That is what the Charter of Justice is telling you.
MR BRERETON: Yes.
GLEESON CJ: And, in any event, even if you establish professional misconduct, the question remains, what is going to be done about it?
MR BRERETON: Exactly, and all of that comes back to what does the conduct in question say of the qualities essential to practice? That in turn brings us to present fitness as distinct to the time of the conduct and that brings us to the four related interests referred to by the Chief Justice in Cummins at paragraph 20. Can I take your Honours to that ‑ ‑ ‑
GUMMOW J: Just before you do that, is there any particular reason that we can know of why this matter was proceeded with in the inherent jurisdiction not under Part 10?
MR BRERETON: I think all we can infer is this: proceedings were taken under Part 10. They were instituted before this Court’s decision in Barwick. After this Court’s decision in Barwick the concept of what was called Barwick invalidity became well known in the Administrative Decisions Tribunal. Many cases were dismissed or recommenced after due investigation because of Barwick invalidity. This case was the subject of argument as to whether it was affected by Barwick invalidity or not. The Administrative Decisions Tribunal held that it was affected by Barwick invalidity and, in effect ‑ ‑ ‑
GUMMOW J: Do we have that decision of the Tribunal?
MR BRERETON: Yes, that is in the appeal papers. The very day of that decision, the Law Society wrote to the appellant and said, “We’re now going to consider ‑ ‑ ‑
GUMMOW J: It would be a pity if the various requirements that are required by Part 10 were obviated by some notion of a fast‑track procedure through the inherent jurisdiction.
McHUGH J: I have some vague idea – is there not something in the Act about a time period, something that after three years or something ‑ ‑ ‑
MR BRERETON: There is a three‑year period, but that can be extended and the Law Society was contemplating, as we will see when we get to the second ground, such an extension, but then apparently without resolving that it decided to resort to the inherent jurisdiction in any event.
KIRBY J: Did this Court say something in the case of the solicitor Mr Walsh about the delays in the statutory procedures? It may be that that encouraged the Society to proceed in the circumstances of this case directly to the Court of Appeal. I think there was a suggestion that that might be a way of cutting the Gordian knot, I am not sure.
MR BRERETON: If anything – and I will check this – what was said in Walsh one would have thought would have encouraged the Society to use the statutory procedure rather than to sidestep it and in the Queensland case, I think, of Smith v The Law Society similar observations were made, that professional associations should not be encouraged to avoid the statutory procedures and resort to the inherent jurisdiction.
GLEESON CJ: I see it is one o’clock, Mr Brereton. We will adjourn until 2.00 pm.
AT 1.01 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.02 PM:
GLEESON CJ: Yes, Mr Brereton.
MR BRERETON: May it please the Court. Your Honours should now have a further copy of Prothonotary v P, which we have had copied off and which should be more legible than the one that was troubling your Honour Justice Kirby.
GLEESON CJ: Thank you.
MR BRERETON: May I return to the question which I was initially confronted with by your Honour Justice Gummow, as to what is the root of the inherent power. The answer to that is in short, once upon a time the root was the inherent power to admit. Now ‑ ‑ ‑
GUMMOW J: Well, it was not an inherent power to admit, it was an express power to admit. Clause 10.
MR BRERETON: Express power.
GUMMOW J: That had with it the negative.
MR BRERETON: The root was the express power to admit. That root has now been eradicated and there is no longer any root for the inherent power. Let me explain that. The starting point ‑ ‑ ‑
GUMMOW J: That is a fairly alarming proposition.
GLEESON CJ: Particularly having regard to the terms of the statute, which preserves the inherent power.
GUMMOW J: You say if there was one.
MR BRERETON: Well, even accepting that there was one, that seems to have been revoked, but I will make that good in a moment. Just before I do that, we are of course keen ultimately to fight this case on the merits rather than the technicalities, because the technicalities ultimately lead to further litigation. But, as I have been asked that question, I need to answer it.
Can I start with a case which I have just provided a copy of to your Honours, referred to in Ziems and also In re Davis and In re the Justices of the Court of Common Pleas at Antigua and this illustrates the source of the inherent power of our courts. In the judgment of Lord Wynford it was noted first that in England the courts did not have to deal with these unpleasant matters because the powers were delegated to the Inns of Court. Then his Lordship continued:
Now advocates and attornies have always been admitted in the Colonial Courts by the Judges, and the Judges only. The power of suspending from practice must, we think, be incidental to that of admitting to practise, as is the case in England with regard to attornies. In Antigua the characters are [mixed]; the Court therefore that confers both characters may for just cause take both away.
That approach was adopted in this country. It is illustrated in two judgments of this Court, one which your Honours have, Ziems, in the judgment of Justice Fullagar at page 290 at about point 7, where his Honour says:
I have no doubt that suspension as distinct from disbarment could be ordered. Admission to the Bar of New South Wales is governed by Part II of the Legal Practitioners Act 1898-1954. A candidate is admitted by order of the court under section 10. There is no express statutory power either to disbar or to suspend, but it was held by the Privy Council in In re the Justices of the Court of Common Pleas at Antigua that “The power of suspending from practice must be incidental to that of admitting . . . In In re Davis Starke J said: “The power of removal or suspension is incidental to that of admitting to the roll of barristers.” In the same case Latham CJ said: “In the unreported case of In re White (August 1930) the Supreme Court held on the authority of the Antigua Case that the court had a power of suspending barristers from practice and disbarring them in a proper case”.
The relevant passage in the judgment of Chief Justice Latham is in 75 CLR 414, but it really adds nothing to the summary of it there by Justice Fullagar in Ziems.
GLEESON CJ: What might have been more impressive than what Lord Wynford said in Antigua is the fact that it was Dr Lushington who in argument said that he had absolutely no intention of disputing the jurisdiction.
MR BRERETON: As was noted by Chief Justice Spigelman in Cummins 52 NSWLR 279 at 281 at paragraph 5 the power to “admit and enrol . . . persons as legal practitioners” is now conferred by section 4 of the Legal Profession Act. His Honour, of course, says immediately above that:
The inherent jurisdiction of the Court extends to the making of orders that a person’s name be removed –
That was not in issue in Cummins. But if the power to admit is the source of the power to remove, then we need to see what has happened in the Act to that power. Section 4 of the Act, as Justice Spigelman set out, confers the power to “admit and enrol natural persons as legal practitioners”. Section 5(1) – and this is important for an alternative submission to which I will come back – provides that:
A legal practitioner is, on and from admission, an officer of the Supreme Court.
Division 2 then provides for the constitution of the Admission Board and procedures for admission through the Admission Board with which your Honours will be more than familiar. Section 11 provides that:
A candidate . . . must not be admitted as a legal practitioner unless the Admission Board is satisfied that the candidate is of good fame and character and is otherwise suitable for admission.
Section 17 provides that:
(2) Any inherent power or jurisdiction of the Supreme Court to admit barristers and solicitors (or legal practitioners) is revoked.
(3) The Supreme Court Charter remains revoked in New South Wales in so far as it relates to the admission of barristers, advocates. proctors, solicitors and attorneys.
GUMMOW J: So that is section 17(3) of the ‑ ‑ ‑
MR BRERETON: Subsections (2) and (3), your Honour.
GUMMOW J: Subsections (2) and (3) of the Legal Profession Act 1987?
MR BRERETON: Yes.
GUMMOW J: It is the section I had in the back of my mind and I think the same situation has been reached in some other States. You need not go into that.
MR BRERETON: I am not sure, your Honour. I will come to Queensland for a slightly different purpose in a moment. What that does, in my submission, is to revoke the root on which the inherent power to remove depended.
GLEESON CJ: Have you been reading from Part 2?
MR BRERETON: Yes, your Honour.
GLEESON CJ: So that is subject to section 171M(1), which refers back to Part 2?
MR BRERETON: Yes.
GLEESON CJ: It says that Part 2 does not affect:
The inherent power or jurisdiction of the [court] with respect to the discipline of legal practitioners ‑ ‑ ‑
MR BRERETON: Exactly, and that then brings us to what is that inherent power with respect to discipline. In my submission, the true answer to that is to be found in the combination of section 5 and a decision in the Queensland case to which I will come. Section 5 provides that:
A legal practitioner is . . . an officer of the Supreme Court.
In the Queensland case of Law Society and Queensland Law Institute v Smith – I am just having some copies made of this as we speak – the Queensland Court of Appeal there analysed the Queensland equivalent provisions and that court held that the inherent disciplinary power depended upon the status of the practitioner as an officer of the court.
That is probably what section 171M was seeking to preserve. Recognising that a practitioner was an officer of the court, it preserved the jurisdiction of the superior, the court, over the subordinate, its practitioner. In my submission, that is also telling for the nature of such inherent jurisdiction. In my submission, it supports strongly the argument that at least now to invoke the court’s inherent jurisdiction there must be a close connection between the conduct in question and professional practice. If removal is to take place for other reasons – fitness and propriety and the like – that now depends on the statutory scheme.
GLEESON CJ: You mean, there is now no inherent jurisdiction in the Supreme Court to remove from the roll an officer of the Supreme Court on the ground that he or she is unfit to be an officer of the Supreme Court? Is that what you are saying?
MR BRERETON: Yes, because there is a statutory procedure prescribed by the Act which provides for admission and which takes away the inherent power to admit and which provides a detailed mechanism for removal.
GLEESON CJ: And which expressly preserves what it calls the inherent jurisdiction.
MR BRERETON: I accept that there is that difficulty with the argument.
GUMMOW J: But the inherent jurisdiction relies on 171M, does it?
MR BRERETON: That is the only thing that there is now to support it.
GUMMOW J: But that talks about discipline.
MR BRERETON: Yes.
GUMMOW J: What does that mean?
MR BRERETON: Normally, the maintenance of professional standards by rapping people over the knuckles from time to time when they fall below those standards. In my submission, that is a concept which is at least arguably distinct from the concept of evaluating ‑ ‑ ‑
GUMMOW J: Our headmaster used to discipline boys by caning them, but sometimes they got expelled. That was a bit more than disciplining them, I think. I just wonder what the reach of the word “discipline” is.
MR BRERETON: Yes, but they were expelled not because they were not fit and proper to be school boys but because they broke the rules, the rules of the school. Having answered your Honour Justice Gummow’s question as best as I can, can I return to where I was on the question of fitness. In Cummins 52 NSWLR, relevantly at page 284, Chief Justice Spigelman identified four interrelated interests. His Honour said:
Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice.
So the four interests identified are those of clients, the judiciary, fellow practitioners and the public. One other interest does have to be added on that, the interest of the practitioner and the civil right of the practitioner to work and to earn a living practising his or her chosen profession, what is recognised by the European Court of Human Rights as a civil right and the right to work now being recognised by the International Covenant on Economic Rights, I think it is.
GLEESON CJ: Do you mean by that, that if a person has been determined to be unfit to be a legal practitioner, that person’s right to earn a living might outweigh the consequences of that determination?
MR BRERETON: No, your Honour, I do not go so far as that.
GLEESON CJ: We only get to this point, do we not, on the assumption that the person has been found to be unfit?
MR BRERETON: With respect, no, because there is a balancing exercise. On the one hand, for example, the public must have confidence in the legal administration of justice. That may mean that some people convicted of some particular crimes so damage confidence in the profession if they remain on the rolls that they have to be removed. That consideration has to be balanced in the light of the circumstances of the individual against, inter alia, the individual’s right to work and earn a living.
The right to work is important when we look at some of the competing interests. If the conviction shows, as I have suggested previously, the absence of an essential quality or the presence of an incompatible quality, then that will be fatal. But if the conviction does not show the absence or presence of such a quality but is thought to have some impact on the overall reputation of the profession, then it is much more important to take into account balance in considerations, such as the practitioner’s right to work.
Now, in this territory our learned friends have drawn attention to a relatively recent decision of the Supreme Court of South Australia in The Law Society v Rodda (2002) 83 SASR 541. There is no doubt that the facts in that case are very close to the present and, with one exception, it is difficult to see how that decision could be supported as correct and the present held to be incorrect. That one distinction, so far as the facts are concerned, turns on the degree of contrition and the risk of further offence. That can be picked up at page 543 of the judgment, paragraphs 9 and 10:
The magistrate accepted a submission that Mr Rodda was not “a sexual predator . . . received a report from a psychologist, which said that Mr Rodda had acknowledged that his actions were not appropriate. The psychologist said that Mr Rodda had “an immature personality and very poorly developed social skills”. Mr Rodda was receiving treatment . . . The magistrate sentenced Mr Rodda on the basis that he had learnt his lesson, would seek appropriate professional help and was unlikely to offend again . . .
10. A further report from the same psychologist was tendered to this Court. The report states that Mr Rodda had “come to understand” the possible long term harmful effects of his behaviour on MT. The report refers to “a number of long‑standing personality deficits that Mr Rodda exhibited”. The report explains how these could affect Mr Rodda’s behaviour. The report says that he had “difficulty with personal boundaries” . . . “appears to be beginning to understand the meaning and causes of his behaviour”.
So the rehabilitation that had taken place in that case had not gone nearly as far as it had in the present case and that did allow the court there to be much more dubious as to the risk of future misconduct than it would be in the present case. But the essence of the court’s judgment is to be found at paragraphs 27, 28 and 29.
MR GRIFFITHS: Yes, your Honour.
GUMMOW J: We have had these problems with declarations in other areas of court effort. You do not just make a declaration because it is in public interest.
MR GRIFFITHS: Yes, but even if your Honours were to conclude ‑ ‑ ‑
GUMMOW J: The Federal Court has fallen into that trap from time to time.
McHUGH J: The old practice was that the summons charged the barrister. It charged the person with professional misconduct in that he facilitated a course of conduct of excessive charging by solicitors. Having proven that charge, the question then arose whether he should be struck off. But it was a charge that was put to declare that one was guilty of professional misconduct.
MR GRIFFITHS: The amended summons, which is at page 1 of the appeal book, of course, in effect, was that charge. Prayer 1 makes the charge:
that the solicitor is guilty of professional misconduct –
and it is not overcharging, but your Honours then see that the three matters which are relied upon in respect of that charge are then clearly set out. Even if your Honours were to conclude that it was, for whatever reason, inappropriate for the Court to make the declaration that was sought in paragraph 1, your Honours will see that in prayer 2 of the amended summons on page 2 that the declaration in respect of fitness and propriety is one which is made in express reference to the matters which are described in paragraph 1, which picks up the three charges, and also the matters referred to paragraph 1A.
Now, it is one of the interesting aspects of the Court of Appeal’s decision here that although the court thought it was appropriate to make a declaration in terms of prayer 1, no declaration was made in respect of 1A, and there is no discussion or explanation as to why that was not the case.
GLEESON CJ: I notice that in New South Wales Bar Association v Evatt 117 CLR 177 this Court upheld a decision of the New South Wales Full Court of the Supreme Court and it began its judgment by saying:
The Supreme Court of New South Wales has found that the respondent . . . has been guilty of professional misconduct as a barrister in that
“he between [certain dates] knowingly was a party to –
overcharging, et cetera.
MR GRIFFITHS: Yes. That may well have been a more appropriate course for the court to have adopted here.
McHUGH J: In earlier times what was done was that the court issued an order nisi calling on the barrister to show why he should not be removed from the rolls upon the grounds, et cetera, and would make an order absolute removing your name from the roll.
MR GRIFFITHS: Yes.
KIRBY J: We have spent some time now on this procedural matter, which I do not think is raised on the record.
MR GRIFFITHS: It is just that it did tend to take up some time earlier on and we simply wanted to make the submission that even if the Court were to take the view that the Court of Appeal was wrong to make the declaration that it did in respect of professional misconduct, the critical point is that the relevant findings were made in respect of professional misconduct which then fed their way into the appropriate order that was made that the solicitor was not a fit and proper person to remain on the roll in the light of those findings concerning professional misconduct.
KIRBY J: Assuming that it would be appropriate for this Court to get into that question of procedure, I would certainly, myself, want much more information about how this procedure was adopted, how long it has been performed, is it followed in other States of Australia. As long as I sat in the Court of Appeal we got applications like this summons on page 1. Declarations were regularly made. It is not something I would like to review without a lot more knowledge than I have at the moment.
McHUGH J: I think this form of summons probably came in after 1970.
MR GRIFFITHS: Yes. Your Honours, can I move on and just deal with some other matters that came from the Bench. Justice Gummow asked what was the source of the standing of the Bar Council or the Law Society Council to invoke the inherent jurisdiction of the court. That is specifically provided for, in our respectful submission, in section 54(1)(b) of the Legal Profession Act 1987. It provides, in the context of the Law Society Council, that in addition to its other functions, it may:
appear by barrister or solicitor before, and be heard by, the Supreme Court in the exercise of the functions of the Supreme Court under this Act or otherwise in relation to solicitors or locally registered foreign lawyers ‑ ‑ ‑
GUMMOW J: Yes, thank you.
MR GRIFFITHS: Can I turn then to the issue of the juxtaposition of the court’s inherent jurisdiction and Part 10. Your Honours will see from the material that we handed up - the second bundle of material that I just handed up to your Honours - that an important background matter to this appeal is that when the Law Society filed its summons invoking the inherent jurisdiction of the Supreme Court, the solicitor filed in those proceedings, as your Honour will see from the material that I have just
handed up, a notice of motion seeking to have that summons dismissed or struck out as an abuse of process.
Your Honours will see from the written submissions that were filed on behalf of the respective parties in relation to that notice of motion, that at the heart of the allegation of abuse of process was the fact that there was a background history in this matter of investigations having been commenced under Part 10 and the upshot of the argument was effectively that the court ought not to allow its inherent jurisdiction to be used in circumstances where Part 10 had been invoked and where, as the solicitor put it, it was appropriate that the matter be dealt with under Part 10.
Your Honours, that notice of motion was not pressed. The argument, having been raised, was not pressed before the Court of Appeal and, in our respectful submission, there can be no appealable error on the part of the Court of Appeal proceeding to deal with the matter, as it is authorised to do, or empowered to do, more correctly, under section 171M of the Act in the circumstances that I have just described.
GLEESON CJ: Now, it is a quarter past four, Mr Griffith. Just before we adjourn, in Re Evatt; Ex parte New South Wales Bar Association (1967) 67 SR 236, it appears that in that case by:
A notice of motion by the New South Wales Bar Association sought a declaration that [the respondent] had been guilty of professional misconduct and such orders as the court might deem proper.
and that declaration was made and the order that was made was that he be removed from practice for two years. That was described in the reasons for judgment as a sentence.
MR GRIFFITHS: Yes.
GLEESON CJ: You might also need to look at, in terms of procedure, Clyne v The New South Wales Bar Association (1960) 104 CLR 186.
MR GRIFFITHS: If the Court pleases.
GLEESON CJ: We will adjourn until 10.15 am tomorrow morning.
AT 4.16 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 12 NOVEMBER 2003
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