THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40484/97
MASON P PRIESTLEY JA MEAGHER JA
TUESDAY 29 FEBRUARY 2000
PAUL THOMAS COE v THE NEW SOUTH WALES BAR ASSOCIATION
PROFESSIONAL MISCONDUCT OF LEGAL PRACTITIONER-FINDING OUTSIDE SCOPE OF CHARGE-INTENT 1 Facts: The appellant was found guilty of professional misconduct by the Legal Services Tribunal, for falsely swearing an affidavit with intent. The Tribunal ordered the appellant’s name be removed from the role of Legal Practitioners.
2 On appeal the issue was whether the tribunal’s finding went beyond the scope of the charge. The tribunal found the appellant had signed the false affidavit with intent to deceive. The charge stated that he had sworn a false affidavit. It made no reference to intent. 3 Leave to adduce further evidence as to the appellant’s contrition and otherwise good character was sought.
Held: 4 Mason P: It was foreseeable from the submissions that during the course of the proceedings, some reference would be made to the appellant’s intent. The tribunal was entitled to find the affidavit was falsely signed, and knowingly so. 5 Leave to admit the fresh evidence should be refused.
6 Priestley JA: The appeal was presented more like an application for admission, rather than an appeal against the tribunal’s finding. In an appeal different matters to those in a hearing for readmission are considered. The fact the appellant did not give evidence before the tribunal makes it virtually impossible for him to succeed on appeal.
7 Meagher JA: The tribunal was asked to find whether the appellant swore a false affidavit. It was open to the members to speculate why the appellant would do such a thing, and the evidence presented at trial entitled them to draw the conclusion that it was done with intent to deceive other persons. There is nothing obliging or forbidding the tribunal from drawing inferences as to the appellant’s motive.
ORDERS
1. The appeal should be dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA…
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
AGLC
Coe v NSW Bar Association [2000] NSWCA 13
Case
[2000] NSWCA 13
Decision Date
CaseChat Overview and Summary
The New South Wales Bar Association appealed to the Court of Appeal of New South Wales against a decision of the Administrative Decisions Tribunal (ADT) which had set aside a finding of professional misconduct made against Mr. Coe, a barrister. The ADT had found that the Bar Association's finding of misconduct was made in relation to a matter that was outside the scope of the specific charge brought against Mr. Coe.
The central legal issue before the Court of Appeal was whether the ADT had erred in law by setting aside the Bar Association's finding of professional misconduct. Specifically, the court had to consider whether the Bar Association, in reaching its finding, had impermissibly considered conduct that was not part of the formal charge laid against Mr. Coe, and whether this constituted a jurisdictional error.
The Court of Appeal held that the ADT had correctly identified that the Bar Association's finding of misconduct was based on considerations that went beyond the specific charge. The court reasoned that a finding of professional misconduct must be confined to the allegations that have been properly formulated and put to the practitioner. To find misconduct on matters not charged would be a jurisdictional error. The court affirmed the principle that the disciplinary body must act within the confines of the charges presented.
The appeal was dismissed, and the NSW Bar Association was ordered to pay Mr. Coe's costs.