Aussel re McCaffery

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Aussel re McCaffery [2013] NSWADT 102
Hearing dates:	17 April 2013
Decision date:	17 April 2013
Jurisdiction:	Legal Services Division
Before:	Naida Isenberg, Judicial Member J Wakefield, Judicial Member C Bennett , Non-Judicial Member
Decision:	Under s.17(3)(c) Legal Profession Act 2004 the Tribunal approves Nicholas Luke McCaffery, being a person who has been convicted of a serious offence, as a lay associate within the meaning of section 7(2)(b) of the Act of Nicholas William Aussel, Solicitor, subject to the conditions set out in this decision.
Catchwords:	Solicitor - employment of former barrister as a lay associate
Legislation Cited:	Legal Profession Act 1987 Legal Profession Act, 2004 Crimes (Sentencing Procedure) Act, 1999
Cases Cited:	Ziems v. The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 Clyne v NSW Bar Association (1960) 104 CLR 186 Harvey v Law Society of NSW (1975) 49 AUR 362 Weaver v Law Society of NSW (1979) 142 CLR 201 NSW Bar Association v Evatt (1986) 117 CLR 177 Wentworth v NSW Bar Association (1992) 176 CLR 239 Law Society of NSW v Bannister NSWCA [1993] 4 LPDR 24 Connolly v Law Society of NSW [2000] NSWADT 82 Camille Edouard Dezarnaulds and Stephen Wawn v Law Society of New South Wales (unreported Spender AJ dated 27 June 1995)
Category:	Principal judgment
Parties:	N W Aussel (Applicant)
Representation:	Counsel C K Stewart (Applicant)) N W Aussel (Applicant) (Council of the Law Society of New South Wales assisting the Tribunal)
File Number(s):	132003

reasons for decision

1. At the conclusion of the evidence we were prepared to make the orders sought, with the suggested conditions. These are our detailed reasons.

Background to the application

1. The applicant, Nicholas William Aussel wishes to engage Nicholas Luke McCaffery as a lay associate.

1. Mr McCaffery was admitted as a Solicitor of the Supreme Court of New South Wales in 1986, and, in 1993, was admitted to the New South Wales Bar. Between 8 August 2002 and 11 December 2003 Mr McCaffery practised as a barrister but did not at that time hold a practising certificate. On 17 December 2004 the New South Wales Court of Appeal declared that Mr McCaffery was guilty of professional misconduct in so practising and ordered that his name be removed from the Roll of Legal Practitioners of the Supreme Court of New South Wales.

1. Further, on 16 June 2005, Latham J found Mr McCaffery guilty of 29 counts of contempt of court in that he acted as a barrister without holding a current practising certificate in contravention of s48B of the Legal Profession Act 1987. He was convicted on all counts. On 3 November 2005, Mr McCaffery received a custodial sentence in respect of each charge, each sentence being suspended, upon entering bonds under s.12 of the Crimes (Sentencing Procedure) Act 1999.

Relevant legislation

1. The Legal Profession Act, 2004 (the Act) provides:

7 Terms relating to associates and principals of law practices

(1) For the purposes of…