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Barristers' Board v Darveniza

Barristers' Board v Darveniza

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SUPREME COURT OF QUEENSLAND

CITATION: Barristers' Board v Darveniza [2000] QCA 253

PARTIES: BARRISTERS' BOARD
(applicant)
v
PAUL MATTHEW DARVENIZA
(respondent)

FILE NO/S: Appeal No 2107 of 2000

DIVISION: Court of Appeal

PROCEEDING: Miscellaneous Application – Civil

ORIGINATING COURT:
Court of Appeal

DELIVERED ON: 30 June 2000

DELIVERED AT: Brisbane

HEARING DATES:
5 June 2000, 8 June 2000, 22 June 2000

JUDGES:
McMurdo P, Thomas JA, White J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER: That the respondent's name be removed from the Roll of Barristers and that the respondent pay the costs of the Barristers' Board of these proceedings to be assessed.

CATCHWORDS:
PROFESSIONS AND TRADES – LAWYERS MISCONDUCT, UNFITNESS AND DISCIPLINE – CRIMINAL OFFENCE

PROFESSIONS AND TRADES – LAWYERS MISCONDUCT, UNFITNESS AND DISCIPLINE – MISLEADING COURT AND PERVERTING COURSE OF JUSTICE

PROFESSIONS AND TRADES – LAWYERS MISCONDUCT, UNFITNESS AND DISCIPLINE – DISCIPLINARY ORDERS – STRIKING OFF AND ANCILLIARY ORDERS

PROFESSIONS AND TRADES – LAWYERS – REMOVAL OF NAME FROM ROLL – whether respondent a fit and proper person to remain a barrister – where respondent convicted of two counts of supplying a dangerous drug on basis of extended definition of "supply" in s 4 Drugs Misuse Act 1986 – where respondent subsequently obtained certificate to practice as a barrister in New South Wales – failure to disclose prior drug convictions in statutory declaration – where respondent's affidavit denying further dealings with persons involved in offences refuted by unchallenged evidence of undercover police officer alleging that respondent offered further drug supplies and money-laundering services – deliberate attempt to present untrue picture to court – conduct revealing untoward opportunism and lack of respect for the law – disbarment only appropriate order.

Drugs Misuse Act 1986 s 4, s 43D

Clyne v The New South Wales Bar Association (1960) 104 CLR 186, considered
New South Wales Bar Association v Evatt (1968) 117 CLR 177, considered
New South Wales Bar Association v Hamman NSWCA No 404 of 1999, 29 October 1999, considered
In Re A Practitioner (1984) 36 SASR 590, considered
Queensland Law Society Incorporated v Smith [2000] QCA 109; CA No 1052 of 2000, 4 April 2000, considered
In Re Davis (1947) 75 CLR 409, considered
Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, considered

COUNSEL:
S L Doyle SC with D J Campbell for the applicant

N J Macgroarty for the respondent

J S Douglas QC with R P Devlin for the Bar Association of Queensland

SOLICITORS: Hemming & Hart for the applicant
Price & Roobottom for the respondent
Tutt & Quinlan for the Bar Association of Queensland

McMURDO P: I have read the reasons for judgment of Thomas JA. I agree with his Honour’s reasons and proposed orders.

THOMAS JA: This is an application for removal of Mr Darveniza's name from the Roll of Barristers. The applicant is the Barristers’ Board of Queensland. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] QCA 253
Decision Date: 30 June 2000

CaseChat Overview and Summary

The case of Barristers' Board v Darveniza involved a disciplinary hearing against a barrister who had been convicted of supplying dangerous drugs. The Board sought to have the respondent's name removed from the Roll of Barristers on the grounds that his criminal conduct rendered him unfit to practice law. The respondent had been convicted under the extended definition of "supply" in the Drugs Misuse Act 1986 and had subsequently obtained a practising certificate in New South Wales without disclosing his prior convictions. In his affidavit, the respondent denied any further dealings with the individuals involved in the drug offences, but this was contradicted by evidence from an undercover police officer. The Board argued that the respondent's failure to disclose his convictions and his deliberate attempts to mislead the court demonstrated a lack of respect for the law and an opportunism that was incompatible with the role of a barrister.

The key legal issues before the court were whether the respondent was a fit and proper person to remain a practising barrister and what disciplinary order, if any, should be imposed. The court had to consider the principles of legal professional conduct, particularly the duty of candour and the requirement for lawyers to uphold the administration of justice. The Board contended that the respondent's conduct in failing to disclose his convictions and his subsequent attempts to mislead the court were serious breaches of these principles. The respondent argued that his conduct did not warrant disbarment, given that he had not practised since his conviction and had taken steps to rehabilitate himself.

The court found that the respondent's conduct was a clear departure from the standards expected of a legal practitioner. The deliberate omission of his criminal convictions from his statutory declaration and the false statements made under oath were significant breaches of professional conduct. The court noted that the respondent's actions showed a disregard for the law and an attempt to present an inaccurate picture to the court. This conduct was deemed to be incompatible with the role of a barrister and a threat to the integrity of the legal profession. The court concluded that disbarment was the only appropriate disciplinary order, given the seriousness of the respondent's misconduct.

The court ordered that the respondent's name be removed from the Roll of Barristers and that he pay the costs of the proceedings to be assessed by the Barristers' Board. This decision reinforces the importance of honesty and integrity in the legal profession and the consequences that can follow from a failure to adhere to these principles.

Orders

Orders of the court

That the respondent's name be removed from the Roll of Barristers and that the respondent pay the costs of the Barristers' Board of these proceedings to be assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Barristers' Board v Darveniza [2000] QCA 253
PARTIES:	BARRISTERS' BOARD (applicant) v PAUL MATTHEW DARVENIZA (respondent)
FILE NO/S:	Appeal No 2107 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Civil
ORIGINATING COURT:	Court of Appeal
DELIVERED ON:	30 June 2000
DELIVERED AT:	Brisbane
HEARING DATES:	5 June 2000, 8 June 2000, 22 June 2000
JUDGES:	McMurdo P, Thomas JA, White J Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDER:	That the respondent's name be removed from the Roll of Barristers and that the respondent pay the costs of the Barristers' Board of these proceedings to be assessed.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS MISCONDUCT, UNFITNESS AND DISCIPLINE – CRIMINAL OFFENCE PROFESSIONS AND TRADES – LAWYERS MISCONDUCT, UNFITNESS AND DISCIPLINE – MISLEADING COURT AND PERVERTING COURSE OF JUSTICE PROFESSIONS AND TRADES – LAWYERS MISCONDUCT, UNFITNESS AND DISCIPLINE – DISCIPLINARY ORDERS – STRIKING OFF AND ANCILLIARY ORDERS PROFESSIONS AND TRADES – LAWYERS – REMOVAL OF NAME FROM ROLL – whether respondent a fit and proper person to remain a barrister – where respondent convicted of two counts of supplying a dangerous drug on basis of extended definition of "supply" in s 4 Drugs Misuse Act 1986 – where respondent subsequently obtained certificate to practice as a barrister in New South Wales – failure to disclose prior drug convictions in statutory declaration – where respondent's affidavit denying further dealings with persons involved in offences refuted by unchallenged evidence of undercover police officer alleging that respondent offered further drug supplies and money-laundering services – deliberate attempt to present untrue picture to court – conduct revealing untoward opportunism and lack of respect for the law – disbarment only appropriate order. Drugs Misuse Act 1986 s 4, s 43D Clyne v The New South Wales Bar Association (1960) 104 CLR 186, considered New South Wales Bar Association v Evatt (1968) 117 CLR 177, considered New South Wales Bar Association v Hamman NSWCA No 404 of 1999, 29 October 1999, considered In Re A Practitioner (1984) 36 SASR 590, considered Queensland Law Society Incorporated v Smith [2000] QCA 109; CA No 1052 of 2000, 4 April 2000, considered In Re Davis (1947) 75 CLR 409, considered Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, considered
COUNSEL:	S L Doyle SC with D J Campbell for the applicant N J Macgroarty for the respondent J S Douglas QC with R P Devlin for the Bar Association of Queensland
SOLICITORS:	Hemming & Hart for the applicant Price & Roobottom for the respondent Tutt & Quinlan for the Bar Association of Queensland