Coe v NSW Bar Association

[2000] NSWCA 13

CITATION:	Coe v NSW Bar Association [2000] NSWCA 13
FILE NUMBER(S):	CA 40484/97
HEARING DATE(S):	14 December 1999
JUDGMENT DATE:	29 February 2000
PARTIES :	Appellant: Paul Thomas Coe Respondent: New South Wales Bar Association
JUDGMENT OF:	Mason P at 1; Priestley JA at 14; Meagher JA at 17

LOWER COURT JURISDICTION :	Legal Services Tribunal
LOWER COURT FILE NUMBER(S) :	LST 3 of 1995
LOWER COURT JUDICIAL OFFICER :	Legal Services Tribunal

COUNSEL:	Appellant: C A Evatt, M K Rollinson Respondent: P R Garling SC, V M Heath
SOLICITORS:	Appellant: Kevin McMaster Rodgers - Brock Partners Respondent: Colin Biggers and Paisley
CATCHWORDS:	Professional misconduct of legal practitioner - finding outside scope of charge - intent
LEGISLATION CITED:	Supreme Court Act (NSW) 1970
CASES CITED:	New South Wales Bar Association v Hamman (1999)NSWCA404 Lee v Lee's Air Farming Ltd [1961] AC 12 Southern Group Ltd v Smith (1997) 37 ATR 107 Re B [1981] 2 NSWLR 372
DECISION:	Appeal dismissed with costs.

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 40484/97



MASON P
PRIESTLEY JA
MEAGHER JA

TUESDAY 29 FEBRUARY 2000



COE v NSW BAR ASSOCIATION

JUDGMENT

1    MASON P: On 3 July 1997 the Legal Services Tribunal ordered that the name of Paul Thomas Coe ("the barrister") be removed from the roll of legal practitioners. This is an appeal, by way of rehearing, from that order. The barrister challenges the findings upon which the order was based, and he argues that the misconduct established before the Tribunal did not justify the extreme sanction of removal from the roll. The respondent Association submits that the proper order was made by the Tribunal, all the more so if (as the Association contends) two of the three charges which were dismissed by the Tribunal should not have been dismissed. 2    The Association brought three complaints against the barrister in the Tribunal. 3    The act of misconduct that was established to the satisfaction of the Tribunal was that, in proceedings in the Family Court of Australia in which the barrister was a party, the barrister swore an affidavit which he knew to be false in a material particular. The proceedings in the Family Court were between the barrister and his former wife. There were issues as to custody of children, maintenance and property settlement. The barrister was required to file and serve details of his financial affairs, using a prescribed Statement of Financial Circumstances verified by affidavit. In the Statement, it was indicated that the barrister's salary or wages (before tax) were estimated at $70,000. The affidavit deposed that the estimate was "based on knowledge, information and belief and … given in good faith". 4 On the barrister's own admission in the Tribunal below, the affidavit was misleading; the barrister had failed to take due care to ensure that it was as accurate as possible in the circumstances; the barrister knew at the time of the swearing of the affidavit, in general terms, the extent of his income and expenses; the true position as represented in a later-filed tax return was that the income was in excess of $150,000; and the barrister's conduct in regard to the swearing of the affidavit was negligent. There was nothing to suggest that the barrister was under time pressure that might have prevented him from giving proper consideration to the matter, or at least flagging that the particular "estimate" was grossly defective. The Tribunal was, in my view, clearly entitled to conclude that the affidavit had been sworn falsely and knowingly so. Given that the barrister did not give evidence before the Tribunal, despite the most explicit warning of the risk he was taking, the conclusion was well-nigh inevitable. 5 In the Court of appeal the barrister applied for leave to adduce fresh evidence. That leave was refused (cf Supreme Court Act 1970 s75A(8)). This is not an application for readmission to practice. 6 In its initial Judgment, the Tribunal found that the affidavit was substantially false and that it was knowingly so. There was also a finding that it was sworn by the barrister with the intention of deceiving the Family Court of Australia and the barrister’s then wife and her legal advisers as to what the barrister's financial position was. Reference to a finding in these terms also appears at the commencement of the Tribunal's later determination on penalty. The principal submission advanced on appeal was that this finding was outside the charge laid against the barrister in the Tribunal. 7 The Association points to pages in the transcript of the hearing before the Tribunal suggesting that the gloss on the bare finding of swearing an affidavit known to be false was foreshadowed in argument (see esp AB 281, 305). I am not satisfied that these passing references show that the barrister fought the case before the Tribunal on the broader basis, even though the drawing of this inference as to intent was raised and was (on the facts) well nigh inevitable. However, I find it unnecessary to resolve this issue because I have concluded that the narrower finding in accordance with the original charge was properly made and that this finding sustains the order of striking off. 8 In reaching my conclusion that the appeal should be dismissed I have considered afresh the question of sanction. Shorn of the gloss, the findings of the Tribunal establish that a legal practitioner was guilty of having sworn a knowingly false affidavit. It was an affidavit filed in connection with legal proceedings in which, to the knowledge of the barrister, both the Family Court and the opposing litigant had obvious and material interests in getting at the truth on this particular matter. The false affidavit was unexplained by the practitioner who, despite warning, declined to enter the witness box. 9 Like the Tribunal, I would give the barrister full credit for the major role played by the barrister in advancing the interests of members of the Aboriginal community. Nor have I overlooked the affidavit evidence tendered provisionally on appeal on the alternative basis that it would become relevant in the event that the Court of Appeal found error in the Tribunal's reasoning as to "penalty". That evidence was that the barrister has not practised law since his disbarment; that he has worked in a voluntary capacity with the Aboriginal Children’s Service and lectured on issues affecting aboriginal people; that he deeply regrets the disgrace his disbarment has brought; and that he will never fall short of appropriate standards in the future. 10 If (which I doubt) there are exceptional cases where a practitioner who knowingly swears a false affidavit that is filed in court could be regarded as fit to practice, this is not one of them. The underlying purpose of the disciplinary jurisdiction over practitioners is discussed in this Court’s recent decision in New South Wales Bar Association v Hamman (1999) NSWCA 404. 11 In Re B [1981] 2 NSWLR 372 at 382 Moffitt P said: “It is of the utmost importance that this Court can order its procedures and give its decisions in the confidence that the barristers appearing before it, will not mislead it, will conduct themselves in accordance with the law and discharge their duty even when not subject to scrutiny”. 12    It is unnecessary to resolve the points of contention raised by the Association. I content myself with observing, in relation to the second complaint, that the evidence supports the Association’s submission that the barrister was an employee of the Aboriginal Legal Service in his capacity as Acting Administrator (cf AB 357, Lee v Lee’s Air Farming Ltd [1961] AC 12, Southern Group Ltd v Smith (1997) 37 ATR 107). But even if this is so, the second charge was still dismissed on the additional ground that the Tribunal was not persuaded that the misconduct alleged amounted to professional misconduct.

13    I would dismiss the appeal with costs.

14    PRIESTLEY JA: I agree generally with what is said by both Mason P and Meagher JA in their reasons for dismissing this appeal. The fact that the appellant did not give evidence before the Legal Services Tribunal made it virtually impossible for him to succeed in the appeal, in view of the nature of the appeal and the limitations it imposes upon the appeal court. 15    The appeal as sought to be presented had more the appearance of an application for readmission than an appeal. Different considerations would arise on a readmission application. What might happen if such an application is made will have to await the future. Not all the matters relevant to a readmission application can be taken into account in an appeal of the present kind.

16    In my opinion the appeal should be dismissed with costs.

17    MEAGHER JA: This is an appeal by Mr. Paul Thomas Coe from a decision of The Legal Services Tribunal (consisting of Officer QC, Stowe QC and Dr Costigan) to order Mr Coe’s name to be removed from the Roll of Legal Practitioners of New South Wales. Mr Coe was formerly a barrister; and he was also and still is, a well known Aboriginal activist, but that fact, as his counsel Mr CA Evatt said, is entirely irrelevant to the present proceedings. 18    Mr Coe was charged by the Association with having been guilty of conduct which was either professional misconduct or unsatisfactory professional conduct. Three grounds of complaint were made. The second and third grounds need not be considered at the moment, as Mr Coe was acquitted on each of them. However, the first ground was found to have been proved. 19    At the outset, I wish to make it clear that I am in entire agreement with the Tribunal’s reasons both as to liability and as to the proper orders to be made. 20    The first charge was that he swore at least one false affidavit in divorce proceedings in the Family Court of Australia, between him and his first wife, knowing it to be untrue or alternatively paying no regard as to whether it was true or not. There is no point in reciting all the circumstantial evidence. Suffice it to say that on 23 July 1990 he swore in an affidavit that his income in the year just ended (ie. the year ending 30 June 1990) was $70,000.00, when it in fact vastly exceeded this figure. It is true, as Mr Evatt pointed out, that the figure given was only an approximate figure, not a perfectly exact figure. That fact was known to the Tribunal and taken into account by it. There was evidence that only a week or two before he swore that affidavit he had before him documents which demonstrated the falsity of his statement. To my mind the charge against him is proved by the mere fact that he swore to such an extraordinarily unlikely statement. One can only wonder what induced him to do it . On the face of it the motive must have been to deceive his wife or the Court or both. The mystery is complicated by the admissions made by him through his counsel to the Tribunal that the figure was wildly incorrect, that he was negligent in stating it, and that at the time he made it he had a generally knowledgable view of what the accurate figure was. 21    In these circumstances one would have expected Mr Coe to mount the witness box and explain the mysteries. He did not. He was offered the opportunity - on at least two occasions during the hearing of the evidence on liability, but did not take it. He was offered another opportunity before the Tribunal embarked on the hearing of what orders should be made. Again he declined. As the Tribunal said:

“In the circumstances where a prima facie against a legal practitioner has been presented and where the practitioner wishes the Tribunal to accept an explanation as to how the conduct came about it is inappropriate and irregular for the legal practitioner to attempt to do so through submission from the Bar table. If he wishes the Tribunal to accept some explanation as to how the conduct came to take place then in our view he has an obligation to meet the situation by explanation on oath.”

22    As Mr Evatt, who was not Mr Coe’s counsel before the Tribunal, said before us the failure to call evidence from Mr Coe was “inexcusable”. 23    There are two further matters to mention. The first is that there was an application to admit fresh evidence. Eventually the Court ruled that five paragraphs of an affidavit would be provisionally admitted against the contingency that the Court would review afresh the orders made below. As I am of the view that the Court should do no such thing the additional evidence should remain forever unconsidered. 24    The second matter concerns the terms in which the Tribunal made its finding. What the Tribunal said was as follows:

“In the circumstances, the Tribunal is left to draw its own conclusions as to Mr Coe’s fitness from the fact that Mr Coe, as found by the Tribunal, swore a substantially false affidavit, knowing it to be false and with the intention to deceive his wife, his wife’s advisers, and the Court.”

25    What Mr Evatt submitted was that the charge was one of swearing a false affidavit. That should have been found to be true or false. The charge did not specify that the falsity was made with any particular intention. By making the additional finding as to motive the Tribunal strayed beyond its remit, and this in turn led to the necessity of at least reconsidering the penalty. I do not think there is any substance in this submission. The Tribunal had to decide whether a false affidavit was sworn, and this they did. They speculated as to Mr Coe’s motive in so doing, which they were neither obliged nor forbidden to do; and on this matter they came to the only possible conclusion on the evidence as it stood. There was no suggestion that the order would have been any different if they had not made this superfluous finding. 26    I would dismiss the appeal with costs.

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