Council of the New South Wales Bar Association v Archer (No 13)
[2010] NSWADT 90
•9 April 2010
CITATION: Council of the New South Wales Bar Association v Archer (No 13) [2010] NSWADT 90 DIVISION: Legal Services Division PARTIES: APPLICANT
RESPONDENT
Council of the New South Wales Bar Association
Stephen John ArcherFILE NUMBER: 032019 HEARING DATES: On the papers SUBMISSIONS CLOSED: 4 February 2010
DATE OF DECISION:
9 April 2010BEFORE: Chesterman M - Deputy President; Norton S, SC - Judicial Member; Bennett C - Non-Judicial Member CATCHWORDS: Professional misconduct – failure to discharge civic and legal obligation to pay tax adequately – failure to make any or adequate provision to pay tax – whether barrister a fit and proper person to remain on Roll – costs LEGISLATION CITED: Administrative Decisions Tribunal Act 1987
Legal Profession Act 1987
Legal Profession Act 2004CASES CITED: Council of the New South Wales Bar Association v Archer (No 2) [2004] NSWADT 78
Council of the New South Wales Bar Association v Archer (No 3) [2004] NSWADT 232
Council of the New South Wales Bar Association v Archer (No 4) [2004] NSWADT 235
Council of the New South Wales Bar Association v Archer (No 5) [2005] NSWADT 72
Council of the New South Wales Bar Association v Archer (No 6) [2005] NSWADT 149
Council of the New South Wales Bar Association v Archer (No 7) [2005] NSWADT 223
Council of the New South Wales Bar Association v Archer (No 8) [2006] NSWADT 318
Council of the New South Wales Bar Association v Archer (No 9) [2007] NSWADT 214
Council of the New South Wales Bar Association v Archer (No 10) [2008] NSWADT 162Council of the New South Wales Bar Association v Archer (No 11) [2004] NSWADT 311
Council of the New South Wales Bar Association v Archer (No 12) [2009] NSWADT 283
Council of the New South Wales Bar Association v Archer (Unreported, Administrative Decisions Tribunal, 13 October 2004)
Council of the New South Wales Bar Association v Archer (2008) 72 NSWLR 236; [2008] NSWCA 164
Council of the Bar Association of New South Wales v Davison [2005] NSWADT 252
Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145
Davison v New South Wales Bar Association [2007] NSWCA 227
Re Dennis: in the matter of Legal Practitioners Act: motion for re-admission (Unreported, Court of Appeal, NSW, 23 December 1988, BC8801159)
Johns v Law Society of New South Wales [1982] 2 NSWLR 1
Malfanti v Legal Profession Disciplinary Tribunal & Anor (1993) 4 LPDR 17
New South Wales Bar Association v Archer [2004] NSWADT 38
New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284
New South Wales Bar Association v Hamman [1999] NSWCA 404
New South Wales Bar Association v Sahade [2005] NSWADT 159
New South Wales Bar Association v Sahade (No 3) [2006] NSWADT 39
New South Wales Bar Association v Somosi [2001] NSWCA 285
New South Wales Bar Association v Stevens [2003] NSWCA 261
New South Wales Bar Association v Young [2003] NSWCA 228REPRESENTATION: APPLICANT
RESPONDENT
C Adamson SC and M Lynch, barrister
In personORDERS: 1. The name of the Respondent is to be removed from the Roll of legal practitioners
2. The Respondent is to pay the Applicant’s costs of and incidental to these proceedings, as agreed or assessed under the Legal Profession Act 2004, subject to the following qualifications:-(a) This order does not extend to the costs of and incidental to the applications dealt with in Council of the New South Wales Bar Association v Archer (Unreported, Administrative Decisions Tribunal, 13 October 2004); Council of the New South Wales Bar Association v Archer (No 3) [2004] NSWADT 232 and Council of the New South Wales Bar Association v Archer (No 5) [2005] NSWADT 72.(b) The Respondent is to pay two-thirds of the Applicant’s costs of and incidental to the applications dealt with in Council of the New South Wales Bar Association v Archer (No 7) [2005] NSWADT 223. (c) The Respondent is to pay one-half of the Applicant’s costs of and incidental to the applications dealt with in Council of the New South Wales Bar Association v Archer (No 9) [2007] NSWADT 214 and Council of the New South Wales Bar Association v Archer (No 10) [2008] NSWADT 162.(d) The costs to be paid with respect to the application dealt with in Council of the New South Wales Bar Association v Archer (No 8) [2006] NSWADT 318 do not include the costs of retaining senior counsel.
REASONS FOR DECISION
Introduction
1 This is the thirteenth decision that we have published in these long-running disciplinary proceedings, in which the Council of the New South Wales Bar Association (‘the Bar Association’) is the Applicant and Stephen John Archer is the Respondent.
2 In our most recent decision (Council of the New South Wales Bar Association v Archer (No 12) [2009] NSWADT 283 – hereafter ‘Archer (12)’) – we found that, in the circumstances and for the reasons set out in the decision, the Respondent had been guilty of professional misconduct.
3 The present decision relates to two matters: (a) what consequential order or orders by way of penalty, if any, we should make by virtue of this finding and (b) what order, if any, we should make regarding the costs of the proceedings.
4 The Respondent was admitted as a solicitor of the Supreme Court on 4 June 1971. At his own request, his name was removed from the roll of solicitors on 5 September 1980 and he was admitted as a barrister of the Supreme Court.
5 On 26 February 2001, the Sydney Morning Herald published a number of articles alleging that six barristers practising in New South Wales, including the Respondent, had failed over a number of years to pay tax that they should have paid. Copies of these articles were admitted into evidence. They attracted a great detail of public attention, both immediately and during the ensuing months.
6 On 23 September 2001, the Respondent requested the Bar Council to cancel his practising certificate as from 30 September 2001, since he had ceased to practise as a barrister in New South Wales.
7 On 23 October 2001, the Bar Council resolved that the Respondent’s practising certificate should be cancelled for reasons set out in a report by a Professional Conduct Committee dated 5 October 2001.
8 On 29 August 2002, the complaint from which these proceedings stem was made by resolution of the Bar Council.
9 On 23 December 2002, the Bar Council resolved under section 137(2) of the Legal Profession Act 1987 (‘the LP Act’) that it was just and fair to deal with its complaint in so far as the complaint related to alleged conduct occurring more than three years before the complaint was made.
10 On 31 July 2003, the Bar Council resolved under section 155(2) of the LP Act that these proceedings should be instituted.
The present proceedings
11 These proceedings were instituted on 9 October 2003. On that day, the Bar Association filed in the Tribunal an Information under Part 10 of the LP Act against the Respondent.
12 Because this date of filing preceded the commencement of the Legal Profession Act 2004, this case falls wholly to be determined wholly under the LP Act even though it has been repealed: see Legal Profession Act 2004, Schedule 9, clause 15.
13 The Bar Association alleged in the Information that the Respondent, a legal practitioner within the meaning of section 128 of the LP Act, had been guilty of professional misconduct. In the Second Schedule to the Information, it requested the Tribunal (a) to find to this effect; (b) to find also that he is not a fit and proper person to remain on the Roll of Legal Practitioners; (c) to order that his name be removed from the Roll or, in the alternative, to make an order in terms of any one or more of sub-paragraphs (b), (c), (d), (e) or (f) of sub-section 171C(1) of the LP Act; (d) to order that its decision be published; and (e) to order that the Respondent pay its costs of these proceedings.
14 The two grounds on which the Bar Association sought a finding of professional misconduct were set out, with accompanying particulars, in the following terms in the First Schedule to the Information:-
1. Stephen John Archer failed to discharge his legal and civic obligation to pay income tax for the years ended 30 June 1988 to 30 June 2002, adequately or at all.Ground 1
Particulars
(a) A sequestration order was made on 18 December 1991 against the estate of Stephen John Archer following the presentation of a creditor’s petition by the Deputy Commissioner of Taxation.
(c) A sequestration order was made on 21 March 2002 against the estate of Stephen John Archer following the presentation of a creditor’s petition by the Deputy Commissioner of Taxation.(b) Stephen John Archer was made bankrupt on his own petition, which was filed on 7 April 1997. The Deputy Commissioner of Taxation was his most substantial creditor.
2. Stephen John Archer failed to make provision, or any adequate provision from income he had received, for the payment of income tax for the years ended 30 June 1988 to 30 June 2002.
Ground 2
Particulars
(a) Stephen John Archer, having entered into an agreement with his wife on 29 March 1988 which was registered under the Family Law Act 1975 (“the Agreement”), chose to make payments to his wife in purported performance of the Agreement, in circumstances where, had he approached the Family Court for an order to vary the Agreement, the Agreement would have been varied such that he could have, had he chose to do so, met his obligations under the Agreement and discharged his legal and civic obligations to pay tax.
(b) Stephen John Archer chose not to approach the Family Court to vary the Agreement, although he knew that he could not, or that it was unlikely that he would be able to, comply both with the Agreement and with his legal and civic obligation to pay tax.
(d) Stephen John Archer preferred to pay debts other than tax debts in circumstances where he knew that, irrespective of whether he paid his tax debt, he would continue to enjoy the benefits available to the public as a result of the expenditure of public funds, whereas if he were not to pay other debts, his standard of living would be adversely affected.(c) Stephen John Archer chose to incur debts in respect of goods and services and other items for his own benefit and that of his family and associates and to discharge those debts in preference to the debt which arose in favour of the Australian Taxation Office by reason of assessments issued to him from time to time, following filing of income tax returns by him.
15 At the substantive hearing of the Information, Ms Adamson SC, counsel for the Bar Association, indicated that the Bar Association did not press the final three words of Ground 1.
16 In his Reply to the Information, filed on 30 October 2003, the Respondent admitted in relation to Ground 1 that in some of the years between 30 June 1988 and 30 June 2001 (not 30 June 2002, the date contained in the Information) he did not pay all the income tax that he was assessed to be liable to pay. He also admitted the making of the two sequestration orders and his being made bankrupt on his own petition.
17 In relation to Ground 2, he admitted that in some of the years between 30 June 1988 and 30 June 2001 he did not make adequate provision for the payment of income tax. He also admitted that he entered into the Agreement referred to in the Particulars, that he did not approach the Family Court to vary the Agreement and that from time to time he both incurred debts in respect of goods and services and paid debts other than tax debts.
18 In relation to both Grounds, he denied the other matters alleged and claimed that none of the matters alleged was capable in law of constituting professional misconduct within the meaning of section 127 of the LP Act.
19 During the next five years or thereabouts, we delivered eleven published decisions and one unpublished decision on interlocutory applications filed by one or other of the parties. Relevant aspects of these applications and the decisions that we made are outlined below, in our discussion of the costs of these proceedings. On six days during May and June 2009, the substantive hearing of the Information took place. Written submissions were then filed.
20 On 13 November 2009, we delivered our decision in Archer (12). In that decision, we found the Respondent guilty of professional misconduct. The decision commences (at paragraphs [1 – 8]) with a summary of the case and of our findings. This summary included the following paragraph:-
6 Our principal findings on the matters alleged are as follows. The Respondent deliberately chose, during a significant number of years, to incur and pay debts in respect of goods, services and other items for his own benefit (direct or indirect) and that of his family, but not to pay tax debts. He engaged in this conduct even though substantial amounts of disposable income that was available to him rendered it practicable for him to pay and provide for his tax liabilities in addition to meeting his living expenses and his other financial commitments. He knew that his failure to discharge his tax liabilities was likely to result in his bankruptcy and that if he became bankrupt the assets owned by him that might be realised in order to pay his debts were of limited value. He became bankrupt three times, owing on each occasion a very substantial sum on account of income tax. The outcome was that he inflicted a very substantial loss on the revenue.
21 In Archer (12) at [231], we set out the following findings illustrating the scale of the Respondent’s tax default:-
2. At most, the total amount received by the ATO [the Australian Taxation Office] in discharge of these liabilities was $428,406.23. This figure was made up of payments made by him or on his behalf and dividends declared from his second bankruptcy out of contributions made by him.1. The aggregate of the Respondent’s primary income tax liabilities during the relevant period was $2,516,240. (This figure excludes penalties and interest, since we consider, in line with a submission by him, that the phrase ‘income tax’ in the Information might not include these extra charges.)
3. The ratio of the amount of tax received by the ATO to the amount of tax assessed against the Respondent was therefore 17% at most.
4. The amount of tax lost to the revenue because the ATO received only this proportion of the tax to which the Respondent was assessed was at least $2,087,834.
5. The average annual amount of this shortfall over the fifteen relevant years (1988 – 2002) was at least $139,189.
22 Our specific conclusions regarding the Grounds and Particulars in the Information were that Ground 1, with the three paragraphs of supporting Particulars, and Ground 2, with paragraphs (c) and (d) (but not paragraphs (a) and (b)) of the supporting Particulars, had been established.
23 Written submissions prepared by Ms Adamson SC and Mr M Lynch of counsel and filed by the Bar Association after the substantive hearing included material on the matter of consequential orders. Following delivery of our judgment in Archer (12), the Respondent, who through most of these proceedings has represented himself, filed submissions on consequential orders and costs. The Bar Association then filed submissions in reply on these two matters. It was foreshadowed at a directions hearing that a hearing on these matters would take place on 9 February 2010. But having been advised by both parties that they did not believe a hearing to be necessary, we determined that we would decide these matters ‘on the papers’, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.
CONSEQUENTIAL ORDERS
24 The Bar Association contended in its submissions that we should order that the Respondent’s name be removed from the Roll. The submissions did not refer to the order that the Association had sought in the alternative in the Information: namely, an order in terms of any one or more of sub-paragraphs (b), (c), (d), (e) or (f) of section 171C(1) of the LP Act.
25 The Respondent contended that the appropriate order was a reprimand under section 171C(1)(e).
26 At the material time, the terms of the relevant parts of section 171C(1) were as follows:-
171C Determinations of Tribunal
(1) If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct, the Tribunal may do any one or more of the following:
(a) order that the name of the legal practitioner be removed from the roll of legal practitioners if the legal practitioner is guilty of professional misconduct,…
(b) order that the legal practitioner’s practising certificate be cancelled,
(c) order that a practising certificate not be issued to the legal practitioner until the end of the period specified in the order,…
(e) publicly reprimand the legal practitioner or, if there are special circumstances, privately reprimand the legal practitioner,(d) order that the legal practitioner pay a fine specified in the order, not exceeding $50,000 if the legal practitioner is guilty of professional misconduct or not exceeding $5,000 if the legal practitioner is guilty of unsatisfactory professional conduct,…
(f) order that the legal practitioner undertake and complete a course of further legal education specified in the order,…
The Bar Association’s submissions
27 Except for two submissions made in reply to propositions urged by the Respondent, the Bar Association’s submissions were to the following effect.
28 The Respondent’s misconduct was such as to require an order of removal from the Roll, by virtue of principles stated in a series of Court of Appeal decisions which had provided the basis for the Bar Association’s successful contention that the conduct alleged and proved against him amounted to professional conduct. These decisions, which we discussed at some length in Archer (12), are New South Wales Bar Association v Hamman [1999] NSWCA 404, New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284, New South Wales Bar Association v Somosi [2001] NSWCA 285, New South Wales Bar Association v Young [2003] NSWCA 228, New South Wales Bar Association v Stevens [2003] NSWCA 261 and Davison v New South Wales Bar Association [2007] NSWCA 227.
29 In each of these six decisions, the name of the respondent, a barrister, was removed from the Roll following findings (in some instances, based wholly or partly on admissions) that as a result of intentional conduct the respondent had failed over a significant period of time to discharge substantial income tax obligations despite having ample resources with which to meet those obligations.
30 A number of passages in these decisions set out the reasons why, in the Court’s opinion, conduct of this nature required that the barrister’s name be removed from the Roll. The Bar Association cited one such passage from the judgment of Mason P in Hamman at [85]:-
[85] I emphatically dispute the proposition that defrauding `the Revenue' for personal gain is of lesser seriousness than defrauding a client, a member of the public or a corporation. The demonstrated unfitness to be trusted in serious matters is identical. Each category of `victim' is a juristic person whose rights to receive property are protected by law, including the criminal law in the case of dishonest interception. `The Revenue' may not have a human face, but neither does a corporation. But behind each (in the final analysis) are human faces who are ultimately worse off in consequence of fraud. Dishonest non-disclosure of income also increases the burden on taxpayers generally because rates of tax inevitably reflect effective collection levels. That explains why there is no legal or moral distinction between defrauding an individual and defrauding `the Revenue'.
31 The following passages from the judgment of Spigelman CJ in Cummins received significant emphasis in the Bar Association’s submissions:-
19 Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity.
20 There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.
29 The key admission in the statement of agreed facts is that for thirty-eight years, Mr Cummins did not lodge any taxation returns relating to his professional practice, or for any other personal income. This failure was an inexcusable pattern of illegal conduct in complete defiance of his civic responsibilities. Mr Cummins put no evidence before the Court which could explain, let alone excuse, this conduct. For almost four decades, Mr Cummins took advantage of the full range of public services made available by taxation, not least in the provision of the court system in which he earned his income. He left the burden of all of this to his fellow citizens. Throughout the four decades he engaged in the rank hypocrisy of advocating that other people should perform their legal obligations, while systematically refusing to perform his own.28 In the present case, I am satisfied that the barrister’s complete disregard of his legal and civic obligations with respect to the payment of income tax was such that he must be regarded, at the present time, as permanently unfit to practice.
32 As the Bar Association recognised, an important factor differentiating these Court of Appeal cases on which it relied (except for Davison) and the present case was that the respondent barristers in them were found to have committed offences under tax law whereas there was no such finding against the Respondent in these proceedings. The respondents in the Court of Appeal cases had failed to file tax returns (in the case of Cummins, over a period as long as 38 years) or had deliberately understated their income.
33 The Bar Association argued that this distinction was not significant in the present context. It did not have the consequence that the Respondent’s name could not or should not be removed from the Roll. The Association maintained that the considerations outlined by Mason P and Spigelman CJ in the passages just quoted from their judgments in Hamman and Cummins – notably in paragraphs [19 – 20] of the latter judgment– applied as much to the Respondent’s conduct as to the conduct of barristers who avoided the payment of tax through illegal or dishonest measures. In each case, the high standards of integrity that barristers were bound to observe were contravened and public confidence in the profession to which they belonged was damaged. The reason for this was that barristers who deliberately avoided paying tax to which they had been assessed, whether or not they achieved this purpose by criminal or dishonest means, left the burden of funding public services on their fellow-citizens, while they still enjoyed the benefit of those services. This defiance of civic and legal obligations to pay tax had indeed an element of ‘rank hypocrisy’, as pointed out by Spigelman CJ in Cummins.
34 In maintaining that the absence of any criminal or dishonest element in the misconduct alleged and proved against the Respondent did not justify departing from the conclusions reached in Cummins, the Bar Association relied on the judgment of Ipp JA in Davison. In that case, the Court of Appeal upheld an order for removal of the respondent barrister’s name from the Roll that had been made by the Tribunal (constituted by the same members as in the present proceedings) in Council of the Bar Association of New South Wales v Davison [2005] NSWADT 252.
35 The Bar Association cited the following passages from the judgment of Ipp JA, with whom Beazley JA and Hoeben J agreed (see [2007] NSWCA 227 at [110 – 113]):-
110 It is true that the barrister in Cummins failed to lodge taxation returns for 38 years, and the appellant in this case did lodge his returns (at least until 30 June 2002). But the barrister’s failure in Cummins to lodge his taxation returns and the appellant’s deliberate strategy that he adopted in order to enjoy his entire taxable income for his own personal ends and those of his family were aimed at the identical purpose, namely, avoiding the lawful tax liabilities that were accruing each year. I accept that the failure to lodge taxation returns is more serious professional misconduct than that committed by the appellant. That is because the failure to lodge returns means that the barrister’s existence and income is concealed from the tax authorities, while the appellant informed the authorities each year of his income (until 30 June 2002). But the appellant (like Mr Cummins and the other barristers in Somosi , Young and Stevens ), by his conduct, increased the burden on taxpayers generally “because rates of tax inevitably reflect effective collection levels” (see Hamman at [85]). The ultimate evil in the two respective situations is the same.
111 In Cummins , Spigelman CJ (at 286, [30]) said: “The conduct of a barrister, particularly a barrister who has received the distinction of a commission as one of Her Majesty’s Counsel, who has behaved in such complete disregard of his legal and civic obligations, was necessarily such as to bring the entire legal profession into disrepute.”
The Chief Justice thought that it was important that the public should be assured that conduct of this character cannot be, and is not, tolerated in the profession. These comments apply equally to the appellant.
113 In the present case, the appellant, from the period 1990 to at least 2004, deliberately and intentionally failed to pay or make appropriate contributions to his tax liabilities. He did so in complete disregard of his legal and civic obligations. As Senior Counsel for the State of New South Wales, his conduct was permeated with the hypocrisy to which Spigelman CJ referred in Somosi . Spigelman CJ’s comments in Somosi referred to in the preceding paragraph apply equally to the appellant.112 In Somosi , the barrister had neither filed any income tax returns nor paid income tax for 17 years …
36 The Bar Association also made a number of submissions referring to specific instances of the Respondent’s conduct since the commencement of its investigation of the matters that have been at issue in these proceedings. It contended that each of these instances reinforced the contention that the Respondent was not a fit and proper person to remain on the Roll.
37 Breach of the duty of candour. As outlined in Archer (12) at [49 – 56], the Respondent, in November 2002 and again in July 2003, rejected requests from the Bar Association to provide it with authorisation to the Australian Taxation Office to disclose information about his tax affairs to it. As the Association explained, it could not obtain such information without his authorisation. His letters conveying his refusal to do this included the following sentences:-
You may be assured that I will do nothing to help you to prove any of the allegations made in the draft report [i.e. the draft report to be submitted to the Bar Council recommending the institution of these proceedings] (5 July 2003).I acknowledge that in the years 1988 to 2001, I did not pay all the income tax that I was liable to pay. I paid substantial income tax but I have no intention of disclosing to the Bar Council what I paid and what I did not pay (19 November 2002).
38 In April and May 2006, the Association’s solicitor renewed this request by letter, but received no answer from the Respondent.
39 In cross-examination at the substantive hearing, the Respondent maintained that because the Bar Association had ‘deserted’ him by cancelling his practising certificate, in response to the media reports early in 2001 regarding the nature and extent of his tax defaults, he was not bound by any duty of ‘candour’ to assist the Bar Association in obtaining information regarding the allegations of professional misconduct being made against him.
40 The Bar Association submitted that the Respondent, through acting in this way, had been ‘deliberately obstructive’ and was ‘open to criticism’ for not acknowledging and complying with the duty of candour that legal practitioners owed in contexts such as disciplinary proceedings. It contested his claim that as soon as he ceased to hold a practising certificate he was not bound by any duty of candour.
41 In this connection, the Bar Association relied on the following passage from the Court of Appeal case of Malfanti v Legal Profession Disciplinary Tribunal & Anor (1993) 4 LPDR 17. It submitted that this passage in the judgment of Clarke JA (with whom Meagher and Handley JJA agreed) at 19, described ‘precisely what Mr Archer has done’:-
Of course it is true to say that disciplinary proceedings before the Tribunal are different in principle from criminal and civil, inter partes, proceedings and as has been said by this Court it is not open to a solicitor when called upon to show cause as an officer of the Court to ‘lie by and engage in a battle of tactics. . . and endeavour to meet the charges by mere argument’ (Re Veron, ex parte Law Society (1966) 84 WN (NSW) (Part 1) 136, at 141-142).
42 Refusal to acknowledge importance of meeting tax obligations and nature and seriousness of his wrongdoing. A contention on which the Bar Association placed significant emphasis was that the Respondent had consistently refused to acknowledge the importance of meeting one’s tax liabilities and the harm done to the legal profession and to the community by his deliberate conduct resulting in substantial tax defaults.
43 In maintaining that the legal profession’s reputation did indeed suffer harm, the Bar Association drew our attention to the large quantity of adverse publicity that the Respondent’s conduct, along with that of five other barristers, received through and in consequence of the publication in February 2001 of the Sydney Morning Herald articles referred to above at [5].
44 As evidence of the attitude displayed by the Respondent, the Bar Association pointed to the following two extracts from letters written by him to the Association in April 2001 and November 2002:-
I say that such bankruptcy [the second bankruptcy] was entirely unrelated to the discharge of my professional obligations but arose entirely out of personal circumstances that I tried very hard to avoid but which eventually overtook me (3 April 2001).
My financial obligations to the Commissioner of Taxation are only of concern to the Commissioner and me. There is no public interest in them, legitimate or otherwise. There is no public interest in a consideration of the extent to which I did not discharge those obligations, either before or after 29 August 1999 (19 November 2002).
45 The Bar Association also cited the following four segments of the evidence given by the Respondent during cross-examination by Ms Adamson at the substantive hearing on 30 June 2009.
46 First, in the course of this cross-examination, the Respondent said that during 1999 he ‘went to great pains’ to pay tax to which he had been assessed to the Australian Taxation Office (Transcript, page 52, line 36). According to the Bar Association’s submissions, this showed that he regarded the payment of tax as ‘optional’ and ‘a matter for approbation’, rather than as an obligation.
47 Secondly, the Respondent denied that his payment of only 16.8% of the tax due from him affected his fitness to practise (Transcript, page 60, line 15).
48 Thirdly, when questioned about the proposition that the courts in which he appeared as barrister were funded by other citizens who paid tax, the ‘pedantry’ in which the Respondent engaged was ‘eloquent’. He displayed that he had ‘no real appreciation of his tax obligations and what breach of them says about his fitness to practise’ and no capacity for ‘appreciating the similarities between his own situation and that of others who have been removed from the Roll for conduct no more egregious than his’. The questions and answers to which these submissions by the Bar Association referred were as follows (Transcript, p 60, lines 18 to 46):-
Q. Now would you agree that in the period covered by the information you took advantage of the full range of public services made available by taxation?
A. I don’t know what that means so I can’t agree with it.Q. Do you agree that during that period you were a practising barrister appearing in courts and tribunals both in Western Australia and New South Wales?
A. Yes.Q. And you understand that those courts and tribunals are paid by the public purse?
A. Yes.Q. And they are paid in the main from monies obtained from people who pay their tax?
A. No, they’re paid by the State Government in most cases.Q. All right. And you know that the State Government receives grants from the Federal Government to pay for the courts?
A. I know that, I know the State Government receives money from the Federal Government, of course I know that.Q. All right. And it’s paid for because people pay income tax under the Income Tax Assessment Act, correct?Q. And from time to time you appeared in the Federal Court didn’t you?
A. Yes, paid, which is paid for by the Federal Government.
A. And a lot of other things really.
49 Fourthly, the Respondent continued to deny the existence of a connection between fulfilment of a barrister’s tax obligations and fitness to practise as a barrister (Transcript, p 61, lines 26 to 36):-
Q. Would you mind turning to paragraph 72 of Exhibit 2 [the Respondent’s affidavit]. You say in paragraph 72: ‘All that I have not done is to pay all the tax that I have been assessed to pay.’
A. That’s right.Q. And it has nothing to do with your fitness to practise?Q. And you say that notwithstanding that you continued to believe you’re a person of good fame and character?
A. Yes.
A. Nothing whatever to do.
50 Absence of contrition. The Bar Association emphasised that neither in his affidavit, in cross-examination or in his submissions did the Respondent express any contrition for the harm done to the legal profession or to the community at large by his deliberate conduct resulting in substantial tax defaults. It argued that statements in his affidavit sworn in these proceedings, to the effect that he regretted going bankrupt and felt ‘deeply humiliated’ both by this occurrence and by the publicity given to his bankruptcies in February 2001, were motivated only by concerns about his reputation and about the embarrassment caused to his family.
51 No attempt to rectify the situation. The Bar Association pointed out that there was no evidence before the Tribunal to suggest that the Respondent had made any attempt to rectify his failure to comply with his civic and legal obligations regarding tax over a long period of time.
The Respondent’s submissions
52 The core of the Respondent’s relatively brief submissions relating to consequential orders comprised four ‘fundamental principles’, which he formulated as follows:-
1. To the extent that the Informant seeks an order removing the Respondent’s name from the Roll of legal practitioners, the onus is on the Informant to show that the Respondent is not a fit and proper person to remain on the Roll: Re Evatt; Ex parte NSW Bar Association (1967) 67 SR (NSW) 236.
2. The question of the Respondent’s fitness to practise must be determined at the present time, and not at some anterior point of time: A Solicitor v Council of the Law Society of NSW [2004] HCA 1 at [21].
4. An order striking off the Roll should only be made when the probability is that the practitioner is permanently unfit to practise: Prothonotary v Richard (Unreported, NSW Court of Appeal, 31 July 1987, BC8701242); NSW Bar Association v Maddocks (Unreported, NSW Court of Appeal, 23 August 1988, BC8801576); Prothonotary v P [2003] NSWCA 320 at [17(2)].3. The powers of the Tribunal are to be exercised solely for the protection of the public and must not involve any element of punishment of the Respondent for the conduct that he has been found to engage in: Clyne v NSW Bar Association (1960) 104 CLR 186 at 201-202; NSW Bar Association v Evatt (1968) 117 CLR 177 at 183-184.
53 With reference to the first, second and fourth of these propositions, the Respondent pointed out that the matters found against him related to events ending, at the latest, on 31 August 2001, some eight and a half years ago. There was, he said, no evidence to show that he was not presently a fit and proper person to remain on the Roll or that he had not been a model citizen since he ceased to practise as a barrister. He had paid all his taxes and lived a ‘blameless personal and commercial life’. Accordingly, he claimed, the Tribunal ‘could not rationally conclude that the Respondent is presently, let alone will be permanently, unfit to practise as a barrister’, and the only consequential order that it could properly make was a reprimand pursuant to section 171C(1)(e) of the LP Act.
54 With reference to the third proposition, the Respondent argued that the only harm caused by his conduct was that ‘the public did not receive the indirect benefit’ of the tax that he did not pay. It followed that removal of his name from the Roll could not, in any sense, be ‘protective’ of the public. It would instead amount to ‘punishment pure and simple’ and would be both ‘malevolent’ and ‘unjust’. It would deprive him of the prospect of employment (other than practice as a barrister which, as he has sworn, he does not intend to undertake again) in other areas open to an Australian lawyer.
The Bar Association’s response
55 In its submissions in reply, the Bar Association responded as follows to these arguments.
56 With particular reference to the number of years that has passed since the conduct of the Respondent on which our finding of professional misconduct is based, the Association submitted that the Tribunal ‘can have no confidence that he has reformed’. It relied on the reasoning set out in the following passage in the judgment of Moffitt P in Johns v Law Society of New South Wales [1982] 2 NSWLR 1 at 9-10:-
Where there is misconduct prima facie requiring at that time a striking off order on the basis of then unfitness, the substance of the question whether when the matter comes for decision some years later is not dissimilar to the question arising upon an application for re-admission, namely whether it appears that there is material before the court to lead it to conclude that the past proved unfitness has been changed to fitness. The ultimate onus is on the Law Society, but where there is admitted professional misconduct and a claim of rehabilitation or of fitness replacing unfitness, the court will look to what evidence there is to establish this change and will expect he who claims there is such a change to point to the evidence that there is.
57 The Association also cited observations by the Court of Appeal in Dennis: in the matter of Legal Practitioners Act: motion for re-admission (Unreported, 23 December 1988, BC8801159). In this case, a solicitor applied for re-admission to the profession after having been struck off some seven years earlier. Samuels JA stated that the application must be rejected
… because the solicitor has never accepted the validity of the findings made against him and because the evidence (and particularly the solicitor's own evidence) fails to discharge the burden of proving the necessary change in his moral character and professional attitude.
58 His Honour added:-
Acknowledgment of error does not itself displace the unfitness which error manifests. But it is an indispensable starting point.
59 The Bar Association accepted that the Respondent had a statutory right to appeal to the Court of Appeal from our finding of professional misconduct and indeed to seek leave to appeal to the High Court. It submitted, however, that his refusal to accept this finding or to acknowledge that what we found to be misconduct by him reflected on his professional fitness meant that he could not discharge the onus that lay on him according to the above-quoted passage from Johns. It also reiterated that he had not shown any contrition whatsoever regarding his tax defaults.
60 In reply to the Respondent’s claim that removal of his name from the Roll would not be in any sense protective of the public, but would simply amount to punishment, the Bar Association argued that this took no account of what the courts had said about the importance of adherence by professional people to their professional obligations. It suggested, referring specifically to Spigelman CJ’s judgment in Cummins at [19 – 22], that judicial statements on this matter could be reduced to the following propositions:-
(a) There is a public interest in the reputation of the legal profession.
(c) Public confidence in the profession cannot be established and maintained without professional regulation and enforcement.(b) The public must have confidence in the legal profession because of the central role the profession plays in the administration of justice.
61 It followed, the Bar Association argued, that removal of the Respondent’s name from the Roll was the only order by the Tribunal that would ‘tend to restore public confidence in the profession that has undoubtedly been diminished by the professional misconduct of which he has been found guilty’.
Our conclusions
62 In our opinion, the arguments advanced by the Bar Association are soundly based and persuasive. They sufficiently rebut the contrary submissions advanced by the Barrister. Accordingly, the order that we make is that the name of the Respondent be removed from the Roll under section 171C(1)(a) of the LP Act. We will add only the following observations.
63 We have given particularly careful consideration to the Respondent’s arguments stemming from the fact that more than eight years have passed since the behaviour by him to which our finding of professional misconduct relates came to an end.
64 Save in Hamman, no period of comparable length intervened between the date on which the relevant misconduct ceased and the strike-off decision in any of the Court of Appeal cases relating to tax avoidance by barristers on which the Bar Association principally relied. In Hamman, a case of fraudulent understatement of income for which the respondent barrister was convicted and sentenced, the period was about seven years. Although the barrister’s ‘response to detection, conviction and sentence’ was described as ‘creditable’ and as showing ‘genuine contrition’ (see Mason P at [101]), his name was removed from the Roll. In Johns, the equivalent period was about five years.
65 We agree with the Bar Association that the Respondent’s consistent refusal to acknowledge the implications of his misconduct or to display contrition, coupled with the absence of any other relevant evidence, lead to the conclusion that he has not discharged the onus that lay on him according to the above-quoted passage from Johns.
66 We wish to make it clear at this point that the ‘onus’ referred to here is an evidentiary onus only, not an onus of proof. The concluding sentence in this passage from Johns reiterates the basic proposition in disciplinary proceedings that the ‘ultimate onus’ lies on the professional body or other authority that institutes the proceedings. It then states that the ‘onus’ on the Respondent in this particular situation is merely to ‘point to’ evidence of ‘rehabilitation’ or ‘fitness replacing unfitness’.
67 On account of the nature of this onus, we treat the dicta quoted above from Dennis as providing indirect guidance only. Here, in contrast to the respondent in Johns, the legal practitioner did bear the onus of establishing that he was a fit and proper person to be a member of the legal profession.
68 We do not think that the Respondent discharged the evidentiary onus placed upon him simply by asserting in his affidavit (without any challenge in cross-examination) that he has paid all the taxes to which he has been assessed in recent years and has lived a ‘blameless life’. In addition to the evidence relied on by the Bar Association – that is, the evidence of his refusal to acknowledge the damage caused by his conduct to the legal profession and the public at large – we note that although he claimed in his affidavit to enjoy the respect of a number of judges and senior legal practitioners, he tendered no affidavit evidence by such people to support any claim by him of ‘rehabilitation’ or of ‘fitness replacing unfitness’.
69 It is useful here to contrast the facts of the present case with those of New South Wales Bar Association vSahade (No 3) [2006] NSWADT 39. In an earlier decision (New South Wales Bar Association vSahade [2005] NSWADT 159), the Tribunal had found that the respondent barrister had acted dishonestly and in a deceptive way when making multiple applications for shares in the ‘Telstra 2 Share Offer’ made by the Commonwealth Government during 1999. He had used fictitious names in order to evade the operation of a principle, stated in the documents making the Share Offer, that the Government reserved the right to reject multiple applications that appeared to be from the same person. In this earlier decision, the Tribunal found that at the time of this conduct he was not of ‘good fame and character’ and that he had committed professional misconduct under paragraph 1(b) of section 127 of the LP Act. This paragraph brought the following conduct within the definition of professional misconduct:-
… conduct (whether consisting of an act or omission) 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 proper person to remain on the roll of legal practitioners…
70 In Sahade (No 3), the Tribunal delivered its decision regarding the consequential orders that it should make. It took into consideration statements in an affidavit by the respondent to the effect that he was very sorry for his prior deceitful conduct and that he had been forthright and honest in all other aspects of his life. It also took into account a number of affidavits from professional colleagues (including senior barristers) who knew of his past misconduct but nonetheless attested to his good character. The Tribunal decided that he should not be struck off the Roll but that he should be publicly reprimanded and should pay a fine of $10,000. Its reasons for so deciding included the following, at [116 – 119]:-
116 The sheer number of referees and the force with which they express their opinions cannot be ignored.
117 It was very obvious that when he testified at the most recent hearing, the barrister was a changed person. He conceded his wrongdoing without qualification. He had the appearance of a man who had been suffering extreme anxiety for a long time.
119 In so far as one that can be confident about the future behaviour of any human being, we are confident that the Barrister will not offend against the ethics of his profession again. It appears that the experience has tempered the character of the barrister in such a way that he now has a better understanding of the conduct required by the profession.118 Another matter of significance is the fact that now, in 2006, we are considering the conduct of a man in 1999: some six or seven years ago. These are years in the barrister's twenties when one would expect some maturing of his attitudes to what is right and what is wrong.
71 The Council of the Bar Association appealed against this decision, claiming that the name of the respondent should be removed from the Roll. The Court of Appeal dismissed the appeal (Council of the New South Wales Bar Association vSahade [2007] NSWCA 145). In the course of explaining (at [84 – 92]) the Court’s reasons for concluding that the penalties imposed by the Tribunal were within an appropriate range, Basten JA (with whom Mason P and Santow JA agreed) said at [85 – 86]:-
86 … It would be wrong in the present case simply to assume that a reasonably brief period of deceptive conduct in relation to private investments, is of weighty significance in relation to the practice of law. Furthermore, the Tribunal was correct to place weight on the fact that the conduct occurred when the Barrister was 27 years of age and, as he stated in his first affidavit, relatively inexperienced personally in financial and commercial matters.85 Further, the Tribunal was undoubtedly right to identify the evidence in the character affidavits as having significant weight. Several members of the Bar of significant seniority, and with knowledge of the specific conduct complained of, have given the Barrister unqualified support for the purposes of the second hearing as well as, to a lesser degree, at the first hearing. The Tribunal correctly identified these matters as having weight.
72 In the present case, evidence such as persuaded the Tribunal in Sahade (3) to impose lesser penalties than an order removing the respondent’s name from the Roll is conspicuously lacking.
73 Finally, we reproduce (as we did in Archer (12)) a passage from Ipp JA’s judgment in Council of the Bar Association of New South Wales v Davison [2005] NSWADT 252 to which the Bar Association did not advert. This passage confirms, according to our reading of it, that the Respondent’s conduct with regard to his tax obligations showed that he lacked the requisite ‘ethical fitness’ to remain a member of the legal profession and provides grounds for an order of removal from the Roll:-
105 These statements emphasise the following relevant factors:100 While dishonesty has often been a ground for removing legal practitioners from the roll, it is merely a means of determining whether a broader set of criteria has been met. These criteria are well established and well understood. I shall refer to some of the leading statements of principle in this regard….
115 In re Davis [(1947) 75 CLR 409] Dixon J, with whose reasons Williams J agreed, referred (at 420) to “the reputation and the more enduring moral qualities denoted by the expression, ‘good fame and character’, which described the test of [the practitioner’s] ethical fitness for the profession.” The conduct of the appellant, in my view, demonstrates that he does not reach the requisite level of ethical fitness. That is the case, even though his conduct did not involve either the commission of criminal offences or dishonesty, in the sense of knowingly making false representations.
(a) A barrister holds a special position of trust in the system of administration of justice; the position carries exceptional privileges, obligations and responsibilities.(b) Whether a barrister is not a fit and proper person to be a member of the Bar of New South Wales depends on the minimum standards demanded by a due recognition of that special position.
(c) Only persons worthy of public confidence as meeting those standards should remain on the roll.
(e) Conduct showing a defect of character incompatible with membership of the Bar is relevant; or short of that, conduct showing unfitness to co-operate with the profession and the judiciary in the working of the courts.(d) Both conduct leading to convictions for criminal offences and other forms of conduct can lead to removal from the roll.
74 As we indicated in Archer (12) at [185 – 187], the Respondent, in the written submissions on the issue of professional misconduct that he filed as recently as 10 September 2009, demonstrated that he did not accept this statement of legal principle by Ipp JA. In our opinion, this provides support for the Bar Association’s submission that he has not shown contrition.
COSTS
75 The Bar Association applied for the costs of these proceedings (subject to a qualification noted below) on a party/party basis. Its application was based on section 171E(1) of the LP Act. At the material time, section 171E stated:-
171E Award of costs by Tribunal
(1) The Tribunal may make orders requiring a legal practitioner whom it has found guilty of unsatisfactory professional conduct or professional misconduct to pay costs (including the costs of the Commissioner, the appropriate Council and the complainant).
(3) An order for costs:(2) If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the practitioner is not guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may (but only if it considers that special circumstances so warrant) order payment from the Public Purpose Fund to the practitioner of the legal practitioner’s costs.
(a) may be for a specified amount or an unspecified amount, and(c) may specify the terms on which costs must be paid.(b) if for an unspecified amount, may specify the basis on which the amount is to be determined, and
76 It should be noted that this section does not authorise us to make an order in the Respondent’s favour with respect to any of the costs of the proceedings. Subsection (2) states that such an order can only be made when ‘the Tribunal is satisfied that the practitioner is not guilty of unsatisfactory professional conduct or professional misconduct’.
77 The Respondent’s submissions on costs acknowledged this. What he contended was that some at least, if not all, of the costs for which the Bar Association applied should not be awarded.
78 With reference to the fact that the Bar Association tendered a very substantial quantity of financial records relating to the Respondent, the Association maintained that this was necessitated to a significant extent by the Respondent’s refusal, discussed above at [37 – 41], to permit it to obtain information about his tax affairs from the Australian Taxation Office. It also maintained that its retention of a chartered accountant, Mr Denis Robertson, to prepare an affidavit, with annexed schedules, analysing aspects of these records was justified because of the scope and complexity of the information contained in them. (The nature of the analysis that Mr Robertson carried out is explained in Archer (12) at [41].)
79 Underlying these specific submissions by the Bar Association was a broader argument that the Tribunal, in order to decide the matters alleged in the Information, was required to make findings as to the amount of the Respondent’s tax defaults. It contended that it could not simply rely on his admission in his Reply (see [16] above) that he did not pay all this tax. It referred in this context to a concession made by a solicitor, Mr Cuddy, who at that time represented the Respondent, to the effect that the matters in issue in the proceedings included how much tax the Respondent had paid. This concession is recorded in our first interlocutory decision in these proceedings, New South Wales Bar Association v Archer [2004] NSWADT 38, at [22].
80 These contentions prevail, in our opinion, against an argument, put by the Respondent, that the Bar Association should not obtain any of its costs because it had ‘used and misused the procedures of the Tribunal to try to make out a case – any case – against the Respondent’. We do not accept his claims that we ‘only found against him, as a matter of fact, that he had failed to pay a large amount of income tax’ or that ‘the simple facts about non-payment of tax were never in dispute’. As our decision in Archer (12) demonstrates, we needed to take into consideration considerably more material relating to his financial affairs in order to reach the conclusions that we summarised in the passages from Archer (12) quoted above at [20] and [21].
81 For these reasons, we hold that the Bar Association should have an order for payment of its costs of and incidental to the substantive hearing in this matter (in relation to which we gave the decision that we have called Archer (12)) and its costs incurred in preparing and filing its submissions relating to the present decision.
82 We turn now to the costs of the earlier decisions that we have given. We gave, as indicated above at [19], eleven published decisions and one unpublished decision on interlocutory applications in these proceedings. The first published decision was New South Wales Bar Association v Archer [2004] NSWADT 38. The next in sequence was the unpublished decision: Council of the New South Wales Bar Association v Archer (Unreported, Administrative Decisions Tribunal, 13 October 2004). The remaining published decisions were all entitled Council of the New South Wales Bar Association v Archer, followed by a number. Their citations are as follows: (No 2) [2004] NSWADT 78; (No 3) [2004] NSWADT 232; (No 4) [2004] NSWADT 235; (No 5) [2005] NSWADT 72; (No 6) [2005] NSWADT 149; (No 7) [2005] NSWADT 223; (No 8) [2006] NSWADT 318; (No 9) [2007] NSWADT 214; (No 10) [2008] NSWADT 162; and (No 11) [2008] NSWADT 311.
83 In relation to two of these interlocutory decisions, No 3, and No 5, the Bar Association, having been wholly or predominantly unsuccessful, does not seek costs.
84 In the first decision in point of time, New South Wales Bar Association v Archer [2004] NSWADT 38, an application by the Respondent for an order setting aside summonses to produce documents was almost entirely unsuccessful. We agree with the Bar Association that it should have its costs relating to this application.
85 In the unreported decision given on 13 October 2004, we allowed an application by the Bar Association leave to file the Information outside the time limit prescribed by section 42(b) of the Administrative Decisions Tribunal Act 1997. Although at an earlier directions hearing the Respondent appeared to raise no objection to the late filing, we consider, in line with normal practice relating to such applications, that it is not appropriate for the Bar Association to have an order for costs.
86 In No 2, we dismissed an application by the Respondent for an order that the matters alleged in the Information were incapable of amounting to professional misconduct. The Bar Association, having been wholly successful, should have its costs.
87 In No 4 and again in No 8, we dismissed applications by the Respondent that we should disqualify ourselves (and in No 4 an accompanying application that Judicial Member Norton SC should disqualify herself) on the ground of actual or apprehended bias. Subject to a qualification, mentioned below, relating to No 8, the Bar Association should have its costs relating to these applications.
88 In No 6 and No 7, the principal orders that we made, on applications by the Bar Association, were that the Respondent and his wife, Ms Sarah Archer, should be examined in relation to their respective compliance with summonses to produce documents. In No 7, we also upheld in part an objection by the Respondent to production by the recipient of a summons, Barrington Partners, of documents described in the summons. In these circumstances, we consider that the Bar Association should have its costs relating to No 6 and two-thirds of its costs relating to No 7.
89 In so ruling, we take into account a submission by the Respondent that the examinations of himself and Ms Archer did not result in the production of any further documents. The principal explanation that they gave for not possessing any documents within the range of the summonses was that they had destroyed all such documents.
90 In No 9, we dealt with the following matters: (a) a claim by the Bar Association for privilege over documents produced under summonses and by Mr Robertson; (b) an application by the Bar Association for an order setting aside two paragraphs of the schedule to a summons to produce addressed to the Association; and (c) an application by the Respondent for an order that the Proper Officer of the Association be examined with respect to compliance with this summons.
91 With respect to (a), we held that the Bar Association could not sustain its claim of privilege without adducing further evidence. Following a further hearing, we then gave a decision – No 10 – in which we resolved the claim partly in favour of the Bar Association and partly in favour of the Respondent. It may be added, however, that at the substantive hearing the Association was not in a position to retain its claim of privilege and the documents to which the Respondent had sought access were tendered and admitted into evidence.
92 With respect to (b), our order was substantially in favour of the Respondent, but the Court of Appeal subsequently allowed an appeal by the Bar Association (Council of the New South Wales Bar Association v Archer (2008) 72 NSWLR 236; [2008] NSWCA 164). Consequently, the Bar Association was ultimately successful in resisting production of most of the documents required.
93 With respect to (c), our order was in favour of the Bar Association.
94 In relation to these two decisions – No 9 and No 10 – in which both parties were successful in part – we consider that the Bar Association should have one half of its costs.
95 In No 11, the Bar Association was held to be entitled to an order setting aside a summons addressed to it. Having wholly succeeded, it should have its costs.
96 The one remaining question to be considered is whether the engagement of senior counsel by the Bar Association during parts of these proceedings has been justified.
97 The Bar Association pointed out in its submissions that it was only in the hearings leading to the decisions from No 6 onwards that senior counsel was briefed. It argued that this was entirely justified, since (a) this was a complex case, in which professional misconduct was alleged and an order of removal from the Roll was sought, and (b) the interlocutory hearings in which senior counsel appeared were concerned with complex and novel issues for which little prior authority existed.
98 The Respondent argued that it had been unnecessary to retain senior counsel, ‘even upon minor and procedural applications’.
99 In our opinion, senior counsel was justified for the reasons advanced by the Bar Association, except at one interlocutory hearing. This was the hearing of the Respondent’s second application (which we rejected in No 8) that we should disqualify ourselves. While the Bar Association should have an order for costs relating to this application, they should not include the costs of senior counsel.
100 For the foregoing reasons, we make the following order on the Bar Association’s application for costs:-
The Respondent is to pay the Applicant’s costs of and incidental to these proceedings, as agreed or assessed under the Legal Profession Act 2004, subject to the following qualifications:-
(a) This order does not extend to the costs of and incidental to the applications dealt with in Council of the New South Wales Bar Association v Archer (Unreported, Administrative Decisions Tribunal, 13 October 2004); Council of the New South Wales Bar Association v Archer (No 3) [2004] NSWADT 232 and Council of the New South Wales Bar Association v Archer (No 5) [2005] NSWADT 72.
(b) The Respondent is to pay two-thirds of the Applicant’s costs of and incidental to the applications dealt with in Council of the New South Wales Bar Association v Archer(No 7) [2005] NSWADT 223.
(c) The Respondent is to pay one-half of the Applicant’s costs of and incidental to the applications dealt with in Council of the New South Wales Bar Association v Archer (No 9) [2007] NSWADT 214 and Council of the New South Wales Bar Association v Archer(No 10) [2008] NSWADT 162.
(d) The costs to be paid with respect to the application dealt with in Council of the New South Wales Bar Association v Archer (No 8) [2006] NSWADT 318 do not include the costs of retaining senior counsel.
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