Bryson v New South Wales Bar Association (LSD]

[2003] NSWADTAP 29

Appeal Panel - Internal

CITATION:	Bryson v New South Wales Bar Association (LSD] [2003] NSWADTAP 29
PARTIES:	APPELLANT John Henry Bryson RESPONDENT Council of the Bar Association of New South Wales
FILE NUMBER:	039009
HEARING DATES:	04/07/2003
SUBMISSIONS CLOSED:	07/04/2003
DATE OF DECISION:	07/23/2003
DECISION UNDER APPEAL:	New South Wales Bar Association of New South Wales v Bryson 2003 [2003] NSWADT 19
BEFORE:	Nader J QC - ADCJ (Deputy President); Officer D QC - Judicial Member; Fitzgerald R - Member
CATCHWORDS:	penalty
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	012022
DATE OF DECISION UNDER APPEAL:	07/23/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987
CASES CITED:	McBride v Walton NSWCA 15 July 1994 Hall v New South Wales Trotting Club Ltd (1977) 1 NSWLR 378 Malone v Marr (1981) 2 NSWLR 498 Gorman v Health Care Complaints Commission (2002) NSWCA 396 Sinha v Health Care Complaints Tribunal (2001) NSWCA 206
REPRESENTATION:	APPELLANT P Brereton SC, barrister RESPONDENT C Adamson, barrister
ORDERS:	1. Order number 3 of the orders made below be set; aside.; 2. Otherwise the decision under appeal is affirmed.; 3. The Appellant to pay the Respondent's costs of the appeal as agreed or assessed.

Background

1 In proceedings before the Legal Services Division of the Tribunal ("the Divisional Tribunal"), the Appellant was found guilty of professional misconduct arising out of his conduct on 3 November 1999 at the Bourbon and Beef Steak Bar in Darlinghurst Road, Kings Cross. The information alleged that in three respects his conduct was such that it "justifies a finding that he is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners".

2 As noted in paragraph 49 of the decision of the Divisional Tribunal there was no substantial dispute on the facts of the relevant conduct and those facts are primarily set out in paragraphs 49-52 of that decision.

3 The Divisional Tribunal set out in its decision the provisions of s.127(1)(b) of the Legal Profession Act 1987 which provides that "professional misconduct" includes:

"Conduct ... occurring otherwise than in connection with the practice of law which, if established, would justify a finding that a legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners".
4 The Divisional Tribunal then (in paragraph 61) posed the relevant question in the following terms:
"Whether the conduct would justify a finding that the barrister is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners."
The Appellant in the present case acknowledges that this paragraph correctly poses the question which the Divisional Tribunal had to answer.

5 The Divisional Tribunal then went on (in paragraph 62) in the following terms:
"The aggravating factors referred to above clearly fall within the ambit of conduct which would justify a finding that the barrister is not of good fame and character. In particular, the fact that he took with him a loaded weapon and a second weapon which could be loaded in a short time with a view, if the circumstances arose, to "going down fighting" and that he then permitted himself to achieve a degree of intoxication which must have increased the danger to members of the public in his vicinity is a very serious matter. When it is added to this the alternatives available to him and the duty of a barrister to uphold the law, the conduct readily falls into the relevant category."
6 In paragraph 71 the Divisional Tribunal said:
"Taking into account the substantially agreed facts, the mitigating circumstances and the aggravating (circum)features, the Tribunal is satisfied that the barrister is guilty of professional misconduct within the meaning of s.127(1)(b) of the Act."
7 The Tribunal went on to make three orders. It publicly reprimanded the barrister, fined him $10,000 and made an order in the following terms:
"Orders that the barrister undertake and complete a course of further legal education by practising under the supervision of a barrister of at least 7 years' standing approved by the Bar Association for the period of 12 months, such supervising barrister being requested to report to the Bar Association as to the barrister's ability to practice at the end of 3 months, 6 months and 12 months. That supervising barrister should be given a copy of these reasons."
8 On the appeal the Tribunal had the benefit not only of oral argument, but of detailed written submissions from both the Appellant and the Respondent and the Tribunal was taken to a number of authorities.

9 As reflected in paragraph 53 of the decision of the Divisional Tribunal there was put to that Tribunal and there was again put to this Tribunal the proposition that for the purposes of the Legal Profession Act, s.127(1)(b), conduct (otherwise than in connection with the practice of law) could amount to professional misconduct only if it warrants a finding that the practitioner is not a fit and proper person to remain on the roll. The test in that section could not be satisfied so it was submitted, by conduct which would justify (at some time in the past) a finding that the practitioner was not of good fame and character, but not lead to a finding of "present incapacity" and the mandated removal of the practitioner's name from the roll. It was submitted by the Appellant that if a finding were made that the practitioner "is not of good fame and character or is not a fit and proper person to remain on the roll", then almost of necessity an order had to be made removing his name from the roll. Reference was made to various authorities including Handley JA in McBride v Walton NSWCA 15 July 1994 at 24-26. It was submitted in the present appeal that properly understood and particularly in light of the orders made, the Tribunal below had erred in law. It was submitted that the order made demonstrated an erroneous construction of the section.

10 The question of construction of s.127(1)(b) may be thought to raise some difficulties. This Tribunal however is of the opinion that the present appeal does not provide the appropriate or necessary context for that question to be resolved.

11 There can, in the Tribunal's opinion, be no doubt that the Divisional Tribunal made an express finding that the barrister had been guilty of professional misconduct within the meaning of s.127(1)(b). That Tribunal posed the correct question and expressly answered it in paragraphs 62 and 71 as set out above. That finding of fact was clearly open, bearing in mind all the facts of the conduct as identified in the decision under appeal. Mr Brereton SC on behalf of the Appellant did not, in that sense, submit to the contrary.

12 As has been said, it is not necessary or appropriate in the present case to resolve or deal with the questions of construction raised by the Appellant. If Mr Brereton SC's argument be correct, then it may follow that an order ought to have been made for the removal of the Appellant's name from the roll. That was not, of course, the way that the Appellant put the argument. There was no appeal by the Respondent against the orders made below. In the Tribunal's opinion, the findings of fact that the Appellant had been guilty of professional misconduct are unassailable even if a view may be taken that some other order ought to have been imposed.

13 In relation to order 3, it was submitted by the Appellant that such an order was not justified by the terms of s.171C(1)(f) which empowers the Tribunal to "order that the legal practitioner undertake and complete a course of further legal education specified in the order". In relation to this order it was also submitted that there had been a denial of procedural fairness in that there had been no warning to the Appellant that such an order was being contemplated and no opportunity to address on this aspect of the penalty. Reference was made to Hall v New South Wales Trotting Club Ltd (1977) 1 NSWLR 378 and Malone v Marr (1981) 2 NSWLR 498. It was further submitted that there was no nexus between the conduct complained of and found by the Divisional Tribunal and such an order. Reference was made to Gorman v Health Care Complaints Commission (2002) NSWCA 396. It was further submitted that in breach of s.89(5) of the Administrative Decisions Tribunal Act 1997 there was no reasoning process set out in the decision that such an order was justified.

14 On the hearing of this Appeal, the Bar Association did not seek to uphold the third order and indeed expressly stated that such an order could not be justified.

15 This Tribunal is of the opinion that order 3 was made without jurisdiction in that it could not properly be described as an order that the legal practitioner "undertake and complete a course of further legal education" within the meaning of s.171C(1)(f). That being so, order 3, for that reason, will be set aside.

16 It was further submitted by the Appellant that the order imposing the fine ought to be set aside in that the question of penalty had been and was properly the subject of the criminal proceedings against the practitioner. It was submitted that there was an element of double jeopardy and that the object of the disciplinary proceedings was not to punish the practitioner, but to protect the public.

17 The Tribunal rejects that submission. It is clearly contemplated by the legislation that a fine can be an appropriate response to professional misconduct and while it no doubt can cause some financial imposition, it ought more properly be seen as an order by which the Tribunal marks for the benefit of the community and the profession its view of the seriousness of the conduct found against the practitioner. In this important aspect it has a totally different function to any penalty which may be inflicted pursuant to criminal proceedings.

18 It was submitted that there should be only one penalty and that the Tribunal ought not to have imposed both a reprimand and a fine. The Tribunal rejects that submission. Section 171C expressly provides that the Tribunal may make "any one or more" of the contemplated orders.

19 It was submitted that there had been a breach of natural justice in relation to the question of the fine. The Tribunal rejects that submission. As this Tribunal understands it, the question of penalty was raised with the parties at the hearing. The Bar Association indicated to the Divisional Tribunal that it did not seek an order that the Appellant's name be removed from the roll. While there is no doubt that a party is entitled to have an opportunity to address on penalty, this Tribunal is not satisfied in the present case that there was any relevant denial of that opportunity or that, removal from the roll aside, the parties were not content for the Divisional Tribunal to make such order as contemplated by s.171C(1)(d) and/or (e) as it saw fit.

20 It is further submitted that the Divisional Tribunal gave no reasons for imposing the fine and that it was bound to disclose the reasoning process that led to the conclusion that a fine was justified (s.89(5) of the Administrative Decisions Tribunal Act) and that failure to do so constitutes an error of law which vitiates the decision. See Sinha v Health Care Complaints Tribunal (2001) NSWCA 206. In that case the Court was concerned with a provision that the Tribunal set out any findings on material questions of fact, refer to the evidence on which the findings were based and give reasons for the decision. It was said that the area of non-compliance in that case related to a central issue in the proceedings and a critical aspect of the Tribunal's decision and that the Tribunal had failed to deal with a significant evidentiary conflict when explaining its acceptance of the patient's allegations and that the reasons were accordingly critically defective.

21 In the present case it is not necessary in the Tribunal's opinion for the Divisional Tribunal to have reasoned with the particularity contended for, for a fine of $10,000. It is clear that the appropriateness of orders made by a Tribunal under s.171C must take into account all the facts of a particular case and a judgment must then be made as to the appropriate response. This Tribunal is of the opinion that that is what the Divisional Tribunal did in paragraphs 69-72. It weighed the mitigating and aggravating factors of the conduct, the effect of the barrister's conduct as a member of the legal profession and the public perception of the profession and it took into account the facts of the conduct and various medical opinions the barrister's own evidence and the character references. It then concluded what the appropriate response was. In this Tribunal's opinion there has been no failure to comply with s.89(5).