Council of the Law Society of New South Wales v Hislop

[2019] NSWCA 302

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Council of the Law Society of New South Wales v Michael Arthur Hislop [2019] NSWCA 302
Hearing dates:	12 November 2019
Date of orders:	12 November 2019
Decision date:	10 December 2019
Before:	Bell ACJ at [1] Brereton JA at [16] Barrett AJA at [64]
Decision:	(1) Order that the name Michael Arthur Hislop be removed from the roll of Australian lawyers.  (2) The respondent pay the applicant’s costs of and incidental to the application.
Catchwords:	LEGAL PRACTITIONERS – disciplinary proceedings – practitioner convicted of aggravated robbery – whether fit and proper person – order removing name from roll – whether necessary to make declaration of unfitness – declaration not made   COSTS – whether there should be an order as to costs – discretion of the court as to costs – whether facilitating rehabilitation a sound basis for declining to make costs order
Legislation Cited:	Civil Procedure Act 2005 (NSW) ss 56(3), 98(1) Legal Profession Uniform Admission Rules 2015 (NSW) rr 10(1)(f), 16, 17 Legal Profession Uniform Law (NSW) ss 22, 264 Legal Profession Uniform Law Application Act 2014 (NSW) ss 48, 52, 53 Uniform Civil Procedure Rules 2005 (NSW) r 42.1
Cases Cited:	Board of Examiners v XY [2006] VSCA 190 Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 Northern Territory v Sangare (2019) 372 ALR 117; [2019] HCA 25 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Prothonotary v Gregory [2017] NSWCA 101 Re Evatt; ex parte New South Wales Bar Association (1967) 67 SR (NSW) 236 Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46.
Category:	Principal judgment
Parties:	Council of the Law Society of New South Wales (applicant) Michael Arthur Hislop (respondent)
Representation:	Counsel: C Webster SC (applicant) S Healy (respondent)   Solicitors: Council of the Law Society of New South Wales (applicant)
File Number(s):	2019/138538

Headnote

[This headnote is not to be read as part of the judgment]

The respondent was convicted of two offences of armed robbery, and sentenced to two years and six months imprisonment, with a non-parole period of 14 months. Following release to parole, the respondent committed a further two offences of robbery, and his parole was revoked. He was convicted and sentenced to an aggregate period of three years, with a non‑parole period of two years. He remains in custody.

The Law Society brought proceedings against the respondent claiming a declaration that the respondent is not a fit and proper person; an order that his name be removed from the roll; and an order to pay the Law Society’s costs.

The respondent conceded that he was not a fit and proper person to remain on the roll, but opposed the costs order sought by the Law Society, asking the Court to exercise its discretion that there should be no orders as to costs.

The Court (Bell ACJ, Brereton JA and Barrett AJA) granting the application:

Per Brereton JA, Bell ACJ and Barrett AJA agreeing:

(1) Conviction for serious crime accompanied by a sentence of imprisonment is incompatible with membership of the legal profession. At this stage, the respondent is unfit to practice: at [1], [45]–[46], [65].

Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46 applied.

(2) A conclusion of unfitness is inherent in the making of an order for removal, and a declaration to that effect is unnecessary: at [2], [48].

Per Bell ACJ, Barrett AJA agreeing:

(3) A successful party is ordinarily awarded costs against an unsuccessful party unless there is good reason for that presumption to be displaced. Impecuniosity is not relevant to the exercise of the Court’s discretion to award costs: at [4], [66].

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 applied. Northern Territory v Sangare [2019] HCA 25 considered.

Rehabilitation and impact of a compensation order are not relevant to the exercise of discretion as to costs in professional disciplinary proceedings: at [8], [66].

Per Brereton JA contra:

There is a significant public and professional interest in facilitating the respondent’s rehabilitation upon release, and an adverse costs order would be a considerable impediment upon release: at [60].

Judgment

1. BELL ACJ: On 12 November 2019, the Court made an order that the name of Michael Arthur Hislop (Mr Hislop) be removed from the roll of Australian lawyers maintained by the Court pursuant to s 22 of the Legal Profession Uniform Law (NSW) (the Roll). I agree with the reasons for the making of that order which appear in the judgment of Brereton JA.

2. I also agree with his Honour’s reasons for declining to make the declaration sought by the Council of the Law Society of New South Wales (the Law Society), namely that Mr Hislop is “not a fit and proper person to remain on the Roll”. That fact follows inevitably from this Court’s order to remove his name from the Roll and need not be the subject of a separate declaration.

3. In addition to seeking the order that Mr Hislop’s name be removed from the Roll, the Law Society sought an order that he pay its costs of and incidental to the proceedings. Mr Hislop, although accepting that his name should be removed from the Roll, nonetheless resisted the costs order sought by the Law Society. He contended that the discretion of the Court in relation to the costs of the proceedings would be appropriately exercised by the making of no order as to costs.

4. The Law Society’s submissions on the question of costs were straightforward. Whilst fully recognising that costs were in the discretion of the Court, Ms Webster SC, who appeared on behalf of the Law Society, relied on Oshlack v Richmond River Council (1998) 193 CLR 72 at 96-97; [1998] HCA 11 at [20], [35], [65]-[67], [120]-[121] and [134] (Oshlack) in support of the proposition that a successful party is ordinarily awarded costs against an unsuccessful party, unless there is good reason for that presumption to be displaced. Ms Webster also made reference to the High Court’s recent reaffirmation in Northern Territory v Sangare [2019] HCA 25 at [32] and [36] (Sangare) that impecuniosity is not relevant to the proper exercise of the Court’s discretion as to costs. In Sangare at [32], the Court said:

“Whether a party is rich or poor has, generally speaking, no relevant connection with the litigation. It may be said, by way of qualification to that general proposition, that a party's financial position may be relevant to the extent that it may inform the structure of a costs order. For example, impecuniosity may justify providing for the payment of costs over time in order to avoid inflicting unnecessary hardship while at the same time improving the likelihood of compliance with the order. That said, any such qualification was not invoked in the present case.” (footnote omitted).

5. It is also relevant to note that at [34]−[35] in Sangare, the Court said under the subheading “Futility”:

“It was erroneous for the Court of Appeal to decline to make the order sought because it perceived that the award would be futile. The making of an order for costs is no occasion to invoke the concern of the Court of Chancery that equity not act in vain. That concern is a consideration attending the exercise of the discretion to grant equitable remedies. In stark contrast, the courts do not regard the impecuniosity of a defendant wrongdoer as a reason for declining to order the payment of damages found to be due to an injured plaintiff. Likewise, the favourable exercise of the statutory power to award costs is not the grant of an equitable remedy in respect of which a likely failure of compliance is a relevant consideration.

In any event, as a matter of authority, the courts have consistently rejected the suggestion that a costs order should not be made against an impecunious party because it would be futile to do so. The circumstance that a person may not presently, or even foreseeably, be able to meet an order for costs has not been regarded as a reason to regard the creation of the debt as an exercise in futility. The very existence of the debt created by the order is a benefit to a creditor. The successful party is better off with the benefit of the order than without it. It simply cannot be assumed that the respondent will never have the means to pay the debt in whole or in part or that it might not otherwise be turned to valuable account by the appellant.” (footnotes omitted, emphasis added).

6. In his reasons, Brereton JA has set out Mr Hislop’s subjective circumstances, including his current status in custody as well as his extremely difficult background and upbringing, factors in respect of which it is impossible to be unsympathetic.

7. Brereton JA also refers to the remarks on sentencing by Pickering DCJ and his Honour’s refusal to make a compensation order in addition to a custodial sentence on the basis that to “put a compensation order on [Mr Hislop] and provide financial stress immediately upon release is not in the interests of justice and as such I am not prepared to grant the compensation order in the unique circumstances of this case”. In this context, it was submitted on Mr Hislop’s behalf that:

“The respondent is not merely poor. He is, by force of the law of NSW, in practical terms prevented from earning an income until at least February 2021.

The purpose of the legal professional disciplinary jurisdiction is ultimately to protect the public. One of the principal purposes of the criminal law is also to protect the public, albeit in a different context: see for example section 3A(c) and (d) of the Crimes (Sentencing Procedure) Act 1999 [(NSW)]. When the learned Court exercises its broad discretion as to costs, the respondent respectfully submits that it would be entitled to bear in mind that protection of the public, so far as takes form in the rehabilitation of the respondent, would not be advanced by him having to deal with a crushing debt from the first day of his release from a lengthy incarceration, in February 2021.”

8. It goes without saying that it would be highly desirable, both from the public perspective and in the interests of Mr Hislop himself, for him to emerge from his custodial sentence as someone who is rehabilitated or who has prospects of rehabilitation. It may also be accepted that having an outstanding debt in the form of a costs order in favour of the Law Society would be unlikely to assist in that hoped-for rehabilitation. But whether or not that is in fact the case may depend upon a number of imponderable factors including whether the Law Society assesses that the costs of enforcing the debt relative to the amount to be recovered justify that course and, even if it did, whether the Law Society sought, as would be open to it, to have the debt discharged by part payment or payment by instalments. In this respect, the reasoning of the High Court in Sangare extracted at [5] above points, by close analogy, against the exercise of discretion in the way contended for on behalf of Mr Hislop. Further, considerations of rehabilitation and the impact of a compensation order on Mr Hislop were no doubt relevant to the sentencing discretion of Judge Pickering in the District Court. I do not, however, see that they are relevant to the exercise of a discretion as to costs in professional disciplinary proceedings. The public interest considerations in a criminal sentencing context are quite distinct.

9. Counsel for Mr Hislop also emphasised as a factor in support of there being no order as to costs that his client had co-operated with the Law Society in joining in an agreed statement of facts and consenting to the making available and tender of exhibits from the criminal proceedings in which he was sentenced.

10. Mr Hislop’s co-operation is to his credit and will have no doubt resulted in a reduction of the costs which needed to be incurred in the preparation of the hearing. In many respects, the benefit of that co-operation will be translated into a reduced quantum of costs that needed to be incurred by the Law Society and for which, if a costs order is made, Mr Hislop would ultimately be liable. It does not seem to me, however, to furnish a reason for a departure from the usual rule as articulated in Oshlack. All litigants in proceedings in the Supreme Court of New South Wales have a duty under s 56(3) of the Civil Procedure Act 2005 (NSW) to assist the Court to further the overriding purpose of the Act, namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

11. Counsel for Mr Hislop also called in aid the decision of the Victorian Court of Appeal in Board of Examiners v XY [2006] VSCA 190; (2006) 25 VAR 193 (XY) which was a case where the Board of Examiners, though unsuccessful in the stance it took in the particular case, was not ordered to pay costs because it was deemed to be a statutory body that performed a quasi-judicial function in the public interest and appeared at appeals brought against its decisions not as a protagonist, but only for the purpose of assisting the court (at [25]). It was submitted on behalf of Mr Hislop that the true significance of that case lay in Chernov JA’s identification as a factor relevant to the question of costs the fact that the Board of Examiners did not act as a “partisan participa[nt]” in the hearing and that it was appropriate for the Board to remain as an active participant in the litigation even once the evidence was served which was ultimately decisive in favour of XY in the proceedings.

12. In my opinion, XY was a very different case to the present. The status of the Board in that case was an argument in favour of relieving the Board of any cost liability it may otherwise have had. It said nothing as to whether or not the Board or, in the context of the current case, the Law Society, should be deprived of a prima facie entitlement which it would otherwise have had to an order for costs as “following the event”.

13. In reaching this conclusion, I have also given consideration to the fact that the Law Society is entitled, pursuant to s 53 of the Legal Profession Uniform Law Application Act 2014 (NSW) to a payment of costs from the Public Purpose Fund (PPF). The PPF is established pursuant to s 48 of the same Act, with trustees consisting of four persons appointed by the Attorney General, of whom:

(i)   two are to be members of the Law Society Council nominated by the President of the Law Society, and

(ii)   one is to be a person whom the Attorney General considers to have the financial and investment expertise to act as a trustee, and

(iii)   one is to be a person whom the Attorney General considers to have appropriate qualifications and experience to act as a trustee, and

(iv)   the Secretary.

14. The funding of the Council in proceedings such as those before the Court in the first instance out of the PPF does not, in my opinion, alter the analysis. If and to the extent that the Law Society recoups costs awarded in its favour in disciplinary or removal proceedings, in my opinion, moneys recovered by the Law Society through the payout of a costs award are required by s 52(3) in combination with s 48(2)(b) of the Act to be paid into and thus replenish the PPF.

15. In all of these circumstances, and notwithstanding the arguments advanced on behalf of Mr Hislop and the careful analysis of Brereton JA, I would order that Mr Hislop pay the Law Society’s costs of and incidental to the application to have his name removed from the Roll.

16. BRERETON JA: Following the conclusion of the hearing on 12 November 2019, the Court ordered that the name of Michael Arthur Hislop be removed from the roll of Australian lawyers maintained by the Court pursuant to s 22 of the Legal Profession Uniform Law (NSW), reserved its reasons, and reserved judgment on the question of costs.

The respondent’s early history

17. The respondent Michael Arthur Hislop was admitted to practice as a legal practitioner on 5 July 2013, aged 35 years. This was a remarkable achievement, given the circumstances of his childhood. Born in 1978, his parents were both senior members of a cult then known as The Children of God, which would later become “The Family” and “The Family International”. The cult propagated an apocalyptic message, coinciding with the advent of the new millennium, salvation, and distrust of the outside world.

18. Mr Hislop was the eldest of his parents’ four children. Cult members lived in a very isolated environment, cut off from the outside world. As a child, Mr Hislop was known by the name Gideon. His schooling was within the cult community, and his reading was limited to cult publications. His family moved many times, and lived between India and Bangladesh in his early life, and later in the United States and then Canada. They lived in what Mr Hislop described as “high security situations”, with their movements always clandestine to escape detection by the authorities. They had “flee-bags” at the ready, in case of the need for a sudden departure, and he related memories of being “whisked out of one property while police came in the door” throughout his young life.

19. Upon a supposed doctrinal relationship between sex and religion, the cult sanctioned adult/child sex, and by the 1980’s sexual activity between adults and children was an accepted practice in a number of its communities. Mr Hislop was taught that it was “natural and normal for adults to have sex children”, and related memories of, as a child, being in a room with cult members “where every adult and every child would be engaged in sexual activity”, and from a very young age of his father “taking me around the women in the cult and asking them who would sleep with me tonight”. He observed that “ritual abuse was part of the daily practice and there was intercourse from the earliest age”. [1]

    1. The recollections attributed to Mr Hislop are referred to in the Remarks on Sentence of Pickering DCJ, and ultimately sourced in the reports of Mr Brian Bembrick, Client Assessment and Referral Consultant at Legal Aid NSW, and Dr Richard Furst, psychiatrist.

20. Mr Hislop’s parents separated when he was aged four. His mother came to Australia with his younger sisters and subsequently re-partnered and had a further three children. He remained with his father. At the age of ten he moved, with his father and brother, to the United States and lived for two years in Los Angeles and another two years in Texas, in communes of members of The Family.

21. At about the age of ten, through access to a hand-held radio, Mr Hislop became aware that the world outside the cult was different, and this information confronted him with the need to address what he had until then thought was normal. He began to express a desire to leave the cult, which resulted in his being referred for “retraining”, in a programme which involved isolation, hard labour and exorcisms, as well as beatings. At the age of 15, he was interviewed by a senior cult member who approved of him leaving the cult. His father remains a senior cult member and now lives in San Diego.

22. Upon exiting the cult Mr Hislop was sent to live with his paternal grandparents, who lived in Vancouver, Canada. Unsurprisingly, he encountered significant issues in adjusting to life outside the cult, which were exacerbated by his grandparents lack of understanding of what life in the cult had involved, and how the regime of brainwashing and isolation had completely permeated his life. He made efforts to integrate – including by “watching every television programme” – but was deeply troubled, engaged in self-harm and became suicidal.

23. The placement with his grandparents broke down, and he was sent to Australia to reside with his mother, who was living in Sydney, where he arrived shortly before his 16th birthday. That placement was short-lived, he said because his mother was in an abusive relationship and did not know how to handle her son. He said that he was “kicked out of home” at the age of 16. He became dependent on various substances, particularly cannabis.

Reformation

24. Mr Hislop then came into contact with a number of social work professionals whose intervention contributed to significant reformation in his life. Initially he enrolled in a university preparation programme, and subsequently, at the age of 24, commenced attending the University of New South Wales, graduating with a Bachelor of International Studies majoring in politics and globalisation. During these studies he lived in supported accommodation, and for a while in university residential accommodation. He completed an Honours thesis on African politics and sought employment in international affairs. However, encountering difficulty in finding work in that field, he enrolled in and completed a Juris Doctor, and then a post-graduate law degree, at the University of New South Wales. Finally, he completed a Graduate Diploma of Legal Practice, and was admitted to practice as a legal practitioner.

25. While he was undertaking his legal studies, he commenced regular psychotherapy with Dr Leonard Chin, a consultant psychiatrist. This was in response to his having become depressed after being unable to find full-time employment in international affairs, and a sense that he “felt betrayed that I couldn’t get rewarded having tried so hard”. Over a seven year period, he received regular psychotherapy and psychotropic medications to manage what Dr Chin described as:

“chronic mental health conditions that primarily relate[d] to his experiences within an abusive Christian cult as a child. He has a long history of depressed and unstable mood, high levels of anxiety and non-adaptive behavioural responses to interpersonal conflicts.”

26. In 2010, Mr Hislop commenced a relationship with the woman whom he would later marry in January 2013. There are two children of that marriage. The children provide a real sense of purpose for him, and he considers their wellbeing of the utmost importance.

27. Following his admission, Mr Hislop obtained employment with a number of law firms, and in February 2017 commenced employment with RMB Lawyers in Goulburn. He described himself as doing well, but referred to a “self‑destructive tendency when I’m doing best”.

Deterioration

28. In December 2016, Mr Hislop learnt that his brother, who had been living in British Columbia, had been reported missing, and in January 2017 he travelled to Canada in an attempt to find him, where he found him “on the street using crystal methamphetamine”. He tried, he felt without success, to convince his brother that life was worth living, but, feeling there was little more he could do, returned to Sydney. On returning, he was unable to re-establish contact with his brother, who was again missing.

29. These events and the associated stress and uncertainty triggered a deterioration in his mental state and he relapsed, and resumed using crystal methamphetamine (ice). This affected his marital relationship, and he and his wife finally separated in June 2017. He lost his job with RMB Lawyers at the same time; it is not entirely clear why, but it is clear enough that his mental health was deteriorating and it is likely that his work performance did so concomitantly.

30. In those circumstances, he went on what he described as a “massive bender”, injecting 0.5 to 1 gram of ice each day from June 2017, until his arrest, in the circumstances referred to below, in August 2017. He was also drinking heavily, and smoking three to four grams of cannabis each day. He went without sleep for days on end.

31. In August 2017 he was staying with a friend in Wollongong in order to be close to his children, but was not seeing much of them. On 11 August 2017, at about 8:20pm, he entered a Liquorland store in Warrawong and walked to the counter. When asked by an employee “Can I help you?”, he leant forward and grabbed the employee’s left forearm, producing a kitchen-style knife with his right hand which he thrust forward towards the employee, and demanded that the employee open the cash register. The employee pulled backwards and away from Mr Hislop, who brandished the knife in a threatening manner while demanding the employee open the cash drawer. The employee said that he would open the cash register, but only if he put away the knife. Mr Hislop appeared to conceal the knife behind his back, and the employee attempted to open the register but due to his nervousness was unable to do so. Mr Hislop became infuriated and made repeated demands of the employee to open the cash register. He leant forward, placed his hands on the till, and operated the touch pad to open the drawer. The employee moved out of the way while Mr Hislop reached forward and removed all bank notes from the drawer, amounting to $450, and then ran out of the store.

32. On 13 August 2017, at 3:32pm, Mr Hislop, with an accomplice, entered the BWS bottle shop in Unanderra, walked to the spirits section, and after a short time took a 700ml bottle of tequila from the shelf with his right hand, while keeping his left hand in his pocket. Both men remained in close proximity. An employee approached, asking “Can I help you with something?”, and received the reply “We know what we’re here for”. Mr Hislop and his accomplice walked to the fridge area and removed a 4-pack of Jim Beam and Cola from the fridge, which he held in his right hand along with the bottle of tequila. They then walked to the front counter and placed the items onto the counter. The accomplice stood immediately behind Mr Hislop, pacing backwards and forwards. While the employee was scanning the items, Mr Hislop leant forward, grabbed the employee by his shirt on his left shoulder and, pushing his left hand forward, exposed the end of a kitchen-style knife, described by the employee as a “large kitchen knife”, which had been concealed in his left sleeve. Mr Hislop then demanded that the employee open the till and hand over the cash in it. At the time, there were a number of customers standing behind him awaiting service. The employee opened the till drawer and handed $600 in cash to Mr Hislop who took hold of it, the tequila and cans of Jim Beam, and ran from the store with his accomplice close behind.

33. On 16 August 2017, Mr Hislop was arrested and charged with two offences against Crimes Act 1900 (NSW) s 97(1) (armed robbery), and placed into custody. On 7 March 2018, at the first opportunity, he pleaded guilty in the Local Court at Wollongong to the offence of 13 August 2017 and was committed for sentence to the District Court; the offence of 11 August 2017 was placed on a Form 1. On 4 July 2018, having adhered to his plea of guilty, he was sentenced by Pickering DCJ to imprisonment for two years and six months from 16 August 2017 expiring on 15 February 2020, with a non-parole period of 14 months expiring on 15 October 2018. The Crown sought a compensation order for the amount taken, totalling $1,123. His Honour said, “I’m tempted not to make the order, he’s in custody for two and a half years. I think that just adds to the problem of his release to be perfectly frank”, and concluded:

In my discretion I am not going to make a compensatory order. At the end of the day he is serving a head sentence of two and a half years with a non‑parole period of 14 months. To me to then put a compensation order on him and provide financial stress immediately upon release is not in the interests of justice and as such I am not prepared to grant the compensation order in the unique circumstances of this case.

34. On 25 July 2018, Mr Hislop notified the Law Society of the charges, his plea of guilty, conviction and sentence.

35. Mr Hislop was released to parole on 15 October 2018. Within days of his release, he relapsed into using both cannabis and ice. On 16 November 2018, he admitted himself to the Eloura Acute Mental Health Unit at Shellharbour Hospital, where he remained until 7 December 2018. He considers that he was discharged prematurely from Shellharbour Hospital – where he says his diagnosis of complex PTSD and cyclothymia was confirmed – without significant improvement, by doctors who told him that they could not address and cure his mental health issues but that over time he could learn to live with them. Following his discharge he did not have stable accommodation and spent weeks roaming the streets and couch-surfing. In December 2018 he was served with an application for divorce, and was refused contact with his children. His drug use became quite heavy in December 2018 and January 2019. On 8 February 2019, he admitted himself to the mental health unit at Sutherland Hospital, where he remained until 12 February 2019.

36. On 18 February 2019 at about 1:10pm Mr Hislop entered the Travel Money Oz currency exchange store in George Street, Sydney and walked to the first of several counters. In response to an employee’s question, he said that he had $5,000 USD to sell, and when the employee turned the computer monitor to face him and show that he would receive $6,366, he said, “Open your till”, leant over the counter, grabbed the employee’s shirt sleeve using his left hand and said, “I’m armed, open your till and give me your money”. The employee was unable to ascertain whether or not Mr Hislop was in fact armed because her view was obstructed; she opened the till slightly, so that only the first two currencies – Vietnamese Dong and United Arab Emirates Dirham – were visible. Mr Hislop released his hold of her shirt, grabbed the two currencies out of the till and ran out of the store with the money, the equivalent of approximately $3,156.76 AUD.

37. Later that day, at about 8:10pm, Mr Hislop entered the Allied Mart convenience store at Potts Point. An employee was stacking shelves at the rear of the store and moved to the area behind the service counter on hearing a buzzer ring to indicate that a customer had entered the store. The area behind the service counter was separated from the store by a small white swinging door. As the employee tried to close that door behind him, Mr Hislop entered the employee’s service area by grabbing the swinging door with his left hand and pulling it open and away from the employee, who was unable to close it. Mr Hislop walked towards the employee, forcing him to walk backwards into the area behind the counter, and said, “I’m armed”. Grabbing the employee’s right arm, around his bicep, with his left hand, Mr Hislop said, “I’m armed. Quickly open the till”. The employee caused the till to open, and Mr Hislop reached into the till and grabbed notes to the value of approximately $1,000, and ran out of the store.

38. Mr Hislop was arrested on 23 February 2019. He was charged with two offences against Crimes Act, s 94(a) (robbery) and placed into custody. His parole was thereupon revoked, and he has remained in custody since. On 20 June 2019, at the first opportunity, he pleaded guilty to those charges in the Local Court at Central, having also signed an agreed statement of facts on 19 June 2019. He was committed to the District Court for sentence, and on 26 August 2019, he was sentenced by Madgwick ADCJ to an aggregate sentence of imprisonment for three years, with a two year non-parole period, backdated to 23 February 2019 when his parole under the earlier sentence had been revoked. He will therefore next be eligible for parole on 22 February 2021, and will remain under sentence until 22 February 2022.

39. Mr Hislop says that he was not affected by alcohol or drugs at the time of the February 2019 offences. While his motivation is not entirely clear, he said:

By this stage, I was begging for help from everyone. Despite asking for help, I was unable to find appropriate assistance and relief for my ailments. I ended up ensconced in the Matthew Talbot Hostel in Woolloomooloo, and shortly thereafter reoffended.

The turmoil that had become my life was pervasive and oppressive. I was unable to gain significant relief from constant feelings of intense un‑wellness, unsafeness and suicidality. I repeatedly asked for and sought out help, but none of significance was found. I felt intensely alone and on the verge of death. By that I mean, I wanted to die. I had lost everything and everyone important to me, and was now living on the streets. The Hospitals wouldn’t help me, and it seemed that no one could help me. In a form of desperation, I resorted to two unplanned robberies, as a way of returning to prison. In a strange way, I felt that this was the only way that I would be able to stay alive.

40. According to Dr Furst, forensic psychiatrist, who provided reports in connection with both criminal proceedings, Mr Hislop has diagnoses of PTSD and substance use disorder. Dr Furst attributes the PTSD to “his severe and protracted childhood trauma history”, and that his periods of severe depression, mood instability and suicidal urges suggests a vulnerability to depression and a “complex” sub-type of PTSD, while his drug use and dependence on drugs remains a maladaptive pattern of coping under stress and/or when homeless.

The order for removal

41. On 17 January 2019, the Council of the Law Society resolved to commence proceedings for removal of Mr Hislop’s name from the roll. The summons and supporting affidavit were filed on 3 May 2019, and on 15 July 2019 the matter was fixed for hearing on 2 October 2019; it was later relisted for 12 November 2019 to enable the Law Society to file an amended summons referring to the convictions for the February 2019 offences, which was filed with Mr Hislop’s express consent on 16 August 2019, together with a statement of agreed facts which he had signed. By its amended summons, the Law Society claims a declaration that Mr Hislop is not a fit and proper person to remain on the roll of Australian lawyers maintained by the Court pursuant to Legal Profession Uniform Law (NSW) s 22; an order that his name be removed from that roll; and an order that he pay the Law Society’s costs.

42. The application is brought in the Court’s inherent supervisory jurisdiction, which is preserved by s 264 of the Uniform Law. The issue, on which the applicant bears the onus of proof, is whether it is shown that the respondent is not a fit and proper person to remain on the roll. [2]

    2. Re Evatt; ex parte New South Wales Bar Association (1967) 67 SR (NSW) 236; Prothonotary v Gregory [2017] NSWCA 101 at [25]; Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 at [44].

43. It is of course clear that unfitness may be manifested by conduct not directly connected with professional practice, because such conduct may show that the practitioner lacks requisite personal qualities for membership of the profession, including that a lawyer be of “good fame and character”. [3] Conviction for a serious offence, particularly if accompanied by a sentence of imprisonment, is often incompatible with “good fame and character”, not only because of the underlying conduct, but also because of the public disgrace involved. Thus:[4]

To oversimplify the position, persons who commit serious offences against the law are not readily accommodated in a profession that is beholden to upholding the laws and usages of this State.

3. Which is a relevant consideration on an application for admission: Legal Profession Uniform Admission Rules 2015 (NSW), r 10(1)(f); see also r 16(1), r 16(6), r 17(1) and r 17(7); see also Parente at [49].

4. Parente at [50].

44. And as was said by Kitto J in Ziems v The Prothonotary of the Supreme Court of New South Wales:[5]

Conduct may show a defect of character incompatible with membership of a self-respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily co-operation which the satisfactory working of the courts demands. A conviction may of its own force carry such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails.

5. (1957) 97 CLR 279 at 298; [1957] HCA 46.

45. That explains why convictions for serious crimes, accompanied by sentences of imprisonment, will often be incompatible with membership of the legal profession, although it is subject to his Honour’s following qualification:

But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar; and to draw the dividing line is by no means always an easy task.

46. In the present case, Mr Hislop rightly conceded that, whatever might have been the position had he not reoffended, the commission of and conviction for the February 2019 offences puts beyond argument that he is not a fit and proper person to remain on the roll. The commission of such offences, terrifying as they are to their victims, and involving use of force or the threat of force to intimidate for personal gain, is prima facie incompatible with the qualities required of a legal practitioner. And that is nonetheless so where the perpetrator is in the grips of an addiction or affected by a mental illness. The reoffending in February 2019 unfortunately shows that addressing these issues for Mr Hislop will not be at all easy, and when, if ever, he can achieve such rehabilitation that he will regain fitness to practice cannot currently be predicted, let alone known. Thus, as he conceded, his commission of and conviction for these four offences – and in particular the last two while on parole in respect of the first two – demonstrates present unfitness to practice, which is at this stage indefinite.

47. It was for those reasons that I joined in the order made by the Court on 12 November 2019, that Mr Hislop’s name be removed from the roll.

48. Although it has become conventional to seek and sometimes to make a declaration of unfitness, in my view[6] a conclusion of unfitness is inherent in the making of the order for removal, and a declaration of unfitness is unnecessary surplusage. Acknowledging that, even where an order for removal is unopposed, the Court should set out its findings of fact, so that on any later readmission application the basis on which it acted is clear, that is the function of the court’s reasons. Findings of fact – even ultimate findings of fact – are not and should not ordinarily be formulated as declaratory decrees. All that is necessary or appropriate is the order for removal, in which the conclusion that the practitioner is not fit to remain on the roll is implicit.

    6. See Parente at [45].

Costs

49. Although he consented to the order for removal (and, for that matter, to the declaration of unfitness), Mr Hislop opposed the costs order sought by the Law Society; he contended that there should be no order as to costs.

50. The relevant power is that conferred by Civil Procedure Act 2005 (NSW) s 98(1), which relevantly provides that subject to the rules and to that or any other Act, costs are in the discretion of the court, and the court has full power to determine by whom, to whom and to what extent costs are to be paid. Then, Uniform Civil Procedure Rules 2005 (NSW) r 42.1 relevantly provides that if the court makes any order as to costs, it is to order that the costs follow the event, unless it appears to the court that some other order should be made.

51. Accordingly, the power to award costs is a discretionary one. No rule of law entitles a successful party in civil proceedings to costs, but the discretion is usually exercised in favour of a successful party. That is because of two interrelated considerations. The first is that the successful party has either had to resort to the courts to obtain vindication or redress, or has been caused to incur costs by the prosecution against it of an unsuccessful claim, and in either case justice would be imperfect if the successful were required to bear the costs of vindicating its own position. The second is that it can be said that the unsuccessful party was responsible for or necessitated the incurring of the costs of the proceedings.

49. Those considerations have great force in ordinary inter partes litigation, and it is for that reason that, in such litigation, a successful party is rarely deprived of its costs. These proceedings, brought in the inherent jurisdiction of the court, by a professional association funded for that purpose by a public purpose fund,[7] are not ordinary inter partes proceedings. The effect of the provisions of the Uniform Law Application Act to which I have referred is that the costs of the proceedings are not borne by the Society from its general revenue, but from the statutory public purpose fund.

    7. See Legal Profession Uniform Law Application Act 2014 (NSW) ss 52, 53.

50. These considerations do not mean that, in proceedings of this kind, the court would not make a costs order in favour of the successful party. Indeed, it usually does. But they mean that the ambit of the discretion is more generous than it is in ordinary inter partes litigation. This greater flexibility in respect of costs in the court’s inherent or supervisory jurisdiction is also apparent in such areas as the parens patriae jurisdiction. It is illustrated by the case of Board of Examiners v XY,[8] in which the Board was unsuccessful in the Supreme Court of Victoria in resisting an appeal by an applicant for admission against its decision that the applicant was not a fit and proper person. Whereas the first instance judge had taken into account the applicant’s financial position in making a costs order in her favour, the Court of Appeal held that that was an irrelevant consideration and that the discretion had miscarried on that account and substituted no order as to costs, because the Board was a necessary party to the appeal, and the only contradictor, and the proceedings were not ordinary civil litigation nor a simple inter partes proceeding.

    8. [2006] VSCA 190.

51. For Mr Hislop, it was submitted that there was no alternative to these proceedings, that he was obliged to participate in them, that he did so in an entirely co-operative manner, and that he should therefore not be regarded as responsible for the incurring of costs. I cannot accept the argument so put. While entirely accepting that his involvement in the proceedings was unavoidable, proper, desirable and co-operative, and that he did nothing to increase the costs but, to the contrary, minimised them through adopting an agreed statement of facts and facilitating the production of documents, none of that alters the position that it was his offending and the consequent convictions which were the cause of the proceedings. If one asks which party was responsible for the incurring of costs in the proceedings, the only answer is that it was Mr Hislop. In almost every disciplinary proceeding of this kind in which the applicant succeeds, that will be the case, with the consequence that ordinarily there will be a costs order in favour of the successful applicant.

52. Why should the position be any different here? It must be accepted that neither the mere impecuniosity of the unsuccessful party, nor the futility of making a costs order because it could not be satisfied, is sufficient reason for declining to make such an order, where one is otherwise appropriate. In Northern Territory v Sangare, [9] the issue was “whether, in the exercise of the judicial discretion as to costs at the conclusion of litigation, the impecuniosity of the unsuccessful party is a consideration that, without more, may justify a decision to deny the successful party its costs”. [10] With reference to Board of Examiners v XY, the High Court referred to it being “basic justice that a successful party should be compensated for expenses it has incurred because it has been obliged to litigate by the unsuccessful party”, and added:[11]

That consideration of basic justice does not lose its compelling force simply because the successful party happens to be wealthy: the successful party, whether rich or poor, did not ask to be subjected to the expense of unmeritorious litigation.

9. (2019) 372 ALR 117; [2019] HCA 25.

10. Sangare at [1].

11. Sangare at [27].

56. The Court also referred to Oshlack v Richmond River Council [12] – in which, by majority, a decision of this court had been set aside and that of the Land & Environment Court that there be no order as to costs in respect of an appellant’s unsuccessful challenge to the local authority’s consent to a development application restored – explaining that the basis of that decision was that there was a “public interest” in the outcome of the litigation objectively speaking, and that it was not unfair to require the local authority to bear its own costs of litigation where it had an interest in resolving uncertainty attending the valid exercise of its powers. Those considerations were said to be of no relevance in Sangare, because “[t]he litigation here was brought to vindicate the respondent’s private interest in his reputation by the recovery of damages”. [13] The Court said that it was erroneous to decline to make the order sought because of a perception that the award would be futile, [14] concluding:

The circumstance that a person may not presently, or even foreseeably, be able to meet an order for costs has not been regarded as a reason to regard the creation of the debt as an exercise in futility. The very existence of the debt created by the order is a benefit to a creditor. The successful party is better off with the benefit of the order than without it. It simply cannot be assumed that the respondent will never have the means to pay the debt in whole or in part or that it might not otherwise be turned to valuable account by the appellant.

12. (1998) 193 CLR 72; [1998] HCA 11.

13. Sangare at [33].

14. Sangare at [34]–[35].

57. As I have observed, in the sentencing proceedings, Pickering DCJ declined to make a compensation order, because of its effect as an impediment to rehabilitation when the respondent is released. A costs order would have the same – and in terms of quantum, significantly greater – effect. Mr Hislop has stated a commitment to rehabilitation, appears to be making reasonable progress in prison, and has enlisted the support of his formerly estranged mother once he is released. He has in the past demonstrated a capacity to overcome enormous adversity. While his rapid relapse when first released on parole is a matter of concern, there is no reason to abandon hope that he might well be able once again to rebuild his life. To confront a substantial debt for costs upon his release on parole, with the likely consequence of bankruptcy, would – as Pickering DCJ foresaw – place yet another obstacle in the road to rehabilitation of a man who has already had to overcome much, and not infrequently been frustrated in his achievements.

58. The appalling circumstances of Mr Hislop’s childhood, the extraordinary deprivations and conditions which have affected his life, their life-long impacts on his psychological health and welfare, and his demonstrated capacity to reconstruct his life, are clamant considerations for maximising the prospects of his rehabilitation, so far as can be done consistently with upholding professional standards. There is a substantial public interest in this, and in affording him in the present a modicum of the support which he was denied in his formative years.

59. Moreover, while he has, with the court’s order for removal made at the conclusion of the hearing, ceased for the foreseeable future to be a member of the profession, the profession’s interest in the welfare of one who has once been a member does not necessarily end with removal from the roll. The profession has a measure of ongoing interest in the rehabilitation of those who have once been its members. It is difficult to imagine a more deserving case for that than the present. In that way, the interests of the profession, as well as of the public, will be served if Mr Hislop’s rehabilitation is facilitated.

60. There is therefore, in my view, a significant public and professional interest in facilitating Mr Hislop’s rehabilitation upon his release, and thus in not saddling him with the considerable impediment of an adverse costs order and the prospect of bankruptcy upon his release.

61. Declining to make a costs order will not deprive the Law Society of any practical benefit, as it is highly improbable that Mr Hislop would be able to satisfy it in the foreseeable future. The Law Society will in any event be indemnified from the public purpose fund, and for that reason, unlike Sangare, this is not a case in which the creation of the debt will itself confer a benefit on the Law Society. [15] That is not to say that his impecuniosity is of itself a reason not to make a costs order, but to observe that in declining to make a costs order for other reasons, no practical hardship will be done to the successful applicant.

    15. Cf Sangare at [35].

62. Accordingly, in my judgment, having regard to the public and professional interest in facilitating Mr Hislop’s rehabilitation, the effect which making a costs order would have in undermining the intention of the sentencing judge in declining to make a compensation order, and the absence of practical detriment to the Law Society, the interests of justice are best served by making no order as to costs.

63. I propose that there be no order as to costs, to the intent that each party bear its own costs.

64. BARRETT AJA: Mr Hislop has suffered greatly during his life. His childhood was grossly marred by the abuse to which he was subjected within a closed group or sect of which his parents were leading members and into which he was born. When he managed to extricate himself from that environment as a teenager, he had none of the skills and experience needed for normal living in the world. Nor did he find, at least initially, any form of stability that might have assisted his healing and growth. But he was intelligent and resilient. It is to his great credit that he applied himself, earned several university degrees, qualified as a lawyer, obtained work as a solicitor, married and became the father of two children. Regrettably, his path was not smooth: his childhood experiences and the great damage they had caused continued to weigh heavily on him and to affect his emotional well-being. He could not shake off substance dependencies and ultimately entered upon the course of criminal conduct that has now caused him to be excluded from membership of the legal profession and, it seems, has also brought his marriage to an end, although he continues to maintain a relationship with his children.

65. However, as he has himself accepted, these matters cannot prevent the exercise of the Court’s protective jurisdiction in relation to lawyers’ misconduct in a way that is adverse to him. The reasons given by Brereton JA reflect my own reasons for joining in the order that Mr Hislop’s name be removed from the roll of legal practitioners.

66. In relation to costs, however, I regret that I am unable to agree with Brereton JA. As much as one may sympathise with Mr Hislop and hope that he may in due course rehabilitate himself, those considerations do not provide any secure basis for departing from the prima facie course laid down by r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW). Departure is, in general, warranted only if matters connected with the litigation itself and the course it has taken provide good reason to deprive the successful party of the whole or some part of that party’s costs. It is well established that impecuniosity of an unsuccessful party and inability to pay do not, of themselves, provide any sound basis for departing from the general rule. Neither, in my opinion, does the fact that life has dealt harshly with the unsuccessful party and that he may be thought deserving of an opportunity to attempt to make a fresh start.

67. Nor is good reason provided by the circumstance that the costs incurred by the Law Society in prosecuting these proceedings will not be an impost on the Society’s own financial resources, and will instead be paid from the Public Purpose Fund established and maintained under Part 5, Division 2 of the Legal Profession Uniform Law Application Act 2014 (NSW). That fund derives its income from interest earned on solicitors’ trust accounts and associated statutory deposits and from income generated by the corpus of the fund itself. The fund exists for a number of public purposes. It provides financial support to Legal Aid NSW, community legal centres, LawAccess NSW and the Law and Justice Foundation of New South Wales, as well as the pro bono and legal assistance referral schemes administered by the Law Society and the Bar Association.

68. It is true that the Law Society, as an entity, will be reimbursed out of the Public Purpose Fund for costs incurred by it in this litigation. But it is also the case that the Law Society will be required to account to the Public Purpose Fund for any recovery it makes under a costs order in its favour. The financial benefits and detriments flowing from the costs outcome in the proceedings will thus accrue to a fund that exists to provide resources that would otherwise likely have to be provided from the public purse. There is no good reason why that fund and the bodies whose valuable work it finances should be deprived of such benefit as may arise from a costs order in the Law Society’s favour, regardless of views one might have about the prospects of ultimate recovery under such an order.

69. For the reasons thus briefly stated by way of supplementation of the reasons of the Acting Chief Justice, with which I agree, I am of the opinion that an order for costs should be made as his Honour proposes.

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Endnotes

Decision last updated: 10 December 2019