Council of the New South Wales Bar Association v Chen

[2024] NSWSC 349

Supreme Court

New South Wales

Medium Neutral Citation:

Council of the New South Wales Bar Association v Chen [2024] NSWSC 349

Hearing dates:

28 March 2024

Date of orders:

28 March 2024

Decision date:

28 March 2024

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1) Pursuant to s 447(2) and (3) of the Legal Profession Uniform Law 2014 (NSW), an injunction is to operate during the period in which Yu-Sheng (Alton) Chen, the defendant, does not hold a current Australian Practising Certificate, issued by the Council of the New South Wales Bar Association, including:

(a) Restraining the defendant from engaging in legal practice in New South Wales; and

(b) Restraining the defendant from advertising or representing, or doing anything that states or implies, that he is entitled to engage in legal practice in New South Wales.

(2) The defendant is to pay the plaintiff’s costs.

Catchwords:

OCCUPATIONS – legal practitioners – misconduct and discipline – barrister apparently practising without current practising certificate – injunction to restrain contraventions of Legal Profession Uniform Law

Legislation Cited:

Legal Profession Uniform Law 2014 (NSW), s 447

Category:

Principal judgment

Parties:

Council of the New South Wales Bar Association (Plaintiff)
Yu-Sheng (Alton) Chen (Defendant)

Representation:

Counsel:
P Griffin SC (Plaintiff)

Solicitors:
Hicksons Lawyers (Plaintiff)

File Number(s):

2023/452953

Publication restriction:

Nil

EX TEMPORE JUDGMENT (REVISED)

1. This matter comes before me today for the purposes of a hearing of a summons filed by the plaintiff on 15 December 2023 naming the defendant Yu-Sheng (Alton) Chen as the defendant.

2. The plaintiff, being the Council of the New South Wales Bar Association (“the Bar Association”), seeks orders pursuant to s 447(2) and (3) of the Legal Profession Uniform Law2014 (NSW) (“Uniform Law”) in the nature of an injunction to operate during the period in which the defendant does not hold a current Australian practising certificate issued by the Bar Association, including:

1. restraining the defendant from engaging in legal practice in New South Wales; and

2. restraining the defendant from advertising or representing or doing anything that states or implies that he is entitled to engage in legal practice in New South Wales.

3. In essence, the Bar Association is seeking an order restraining the defendant, formerly a barrister, from engaging in practice without a practising certificate.

4. In support of the summons, the plaintiff relies on five affidavits being:

1. an affidavit of Andreas Heger dated 13 December 2023;

2. two affidavits of Tayah Lee Stevenson dated 13 December 2023 and 27 March 2024;

3. an affidavit of Yu Chen dated 13 December 2023; and

4. an affidavit of Joseph Khoury dated 21 March 2024.

5. The proceedings were first listed on 14 December 2023, at which time Harrison CJ at CL made orders that the defendant be restrained from engaging in legal practice and further orders relating to an abridgement of time for service as well as the effecting of further service.

6. Thereafter, the matter came before Campbell J on 5 March 2024, at which time his Honour extended the interim restraining order and made orders in respect of service upon the defendant.

7. I have had regard to the affidavits of service and I am satisfied that service has been effected in accordance with the earlier orders of the Court. The matter was called today but there was no appearance by the defendant.

8. I note that there was a typographical error in the original affidavit of Ms Stevenson. She referred to the street number of the address as being 206 rather than 208. That has now been corrected. It is of no consequence because the documents were served at the correct address, that is unit 208.

9. I note also that every attempt to contact the defendant by the Bar Association has been met with silence, and, indeed, despite the Bar Association attempting to contact the defendant well before October 2023, it is apparent from the transcript of proceedings in the Local Court that the defendant was continuing to hold himself out as a barrister and, indeed, appear.

Background

10. The defendant was admitted as a legal practitioner of the Supreme Court of New South Wales on 7 December 2012. He was then called to the Bar on 29 August 2016 and held a valid practising certificate until 30 June 2022.

11. His practising certificate issued by the Law Society was terminated in 2017 and no further practising certificate has been issued by the Law Society.

12. He held a valid practising certificate with the Bar Association up to 30 June 2022.

13. On 28 June 2022, the Bar Association sent an email to him regarding renewal of his practising certificate for the next year, that is 2022 and 2023, and reminding him that if he did not renew his practising certificate, he would be unable to practice from 1 July 2022. The Bar Association received no response to that letter. The defendant did not renew his practising certificate. He has not held a practising certificate since 30 June 2022.

14. The basis of the orders sought by the plaintiff is that it has come to the attention of the Bar Association that the defendant may have continued to practice without a practising certificate.

15. The matter first came to the attention of the Bar Association when Steven Goldstein, a member of the defendant's former chambers (Edmund Barton Chambers), forwarded to the Bar Association a copy of a list of briefs which had been sent to Edmund Barton Chambers addressed to the defendant since 1 July 2022.

16. The Bar Association responded promptly seeking further information from Mr Goldstein as to whether the defendant may have been practising without a practising certificate. Mr Goldstein responded saying that he was unaware, and Edmund Barton Chambers was unaware, that the defendant had not renewed his practising certificate.

17. After further enquiries, it became apparent that, although the defendant may have paid some amount towards floor fees at Edmund Barton Chambers after his practising certificate had expired, he had not in fact attended Chambers at all since July 2022.

18. Indeed, Mr Goldstein forwarded copies of 26 emails sent by the clerk of Edmund Barton Chambers, Lorraine Byrnes, to the defendant during the period 4 July 2022 to 31 March 2023. The defendant had not responded to any of those emails and Ms Byrnes then had no contact with the defendant for a significant period of time.

19. The content of those emails and information provided by Edmund Barton Chambers seems to suggest that, despite not renewing his practising certificate, the defendant was continuing to practice as a barrister.

20. Specifically, there is correspondence dated 19 July 2022 from a police officer regarding the defendant's appearance in Court the next day and then further correspondence in July 2022 from the police officer tending to suggest that the defendant was appearing in a matter involving the police officer.

21. Then there was further correspondence in February and March 2023, again, tending to suggest that the defendant was still holding himself out as a barrister and was indeed continuing to practise as a barrister.

22. Specifically, information was also received from a solicitor, Mr Yu Chen, in relation to proceedings being undertaken in the Local Court. Mr Chen has provided an affidavit confirming that the defendant had been briefed in proceedings in the Local Court on 23 October 2023.

23. Further information was provided by Mr Chen as set out in his affidavit of 13 December 2023 which attests to the problems which he had with the defendant and, ultimately, his attempts to locate the defendant and obtain a file from him.

24. Again, the information provided by Mr Chen, tends to support the proposition that the defendant has continued to act as a barrister without holding a practising certificate.

25. Mr Chen attended Court today for the purposes of assisting the Court should any further information need to be provided.

26. As I said at the outset of these proceedings, the Court is grateful for his assistance. It is important that members of the profession promptly notify the Bar Association should they become aware of any matter of concern relating to the practice of a barrister.

27. On becoming concerned as to the defendant's conduct and whereabouts, Mr Chen contacted the Bar Association, and this has led to the Bar Association’s further enquiries and ultimately this application.

28. In any event, it is unnecessary to say much further about the evidence in support of the Bar Association's contention that the defendant has continued to practice without a practising certificate because the evidence is overwhelmingly to that effect. Indeed, there is a transcript of the proceedings in the Local Court at Parramatta on 14 October 2023 at which time the defendant appeared on behalf of an applicant for bail. The transcript reveals the defendant announcing his appearance and making submissions in this regard.

29. Having regard to the evidence presented in support of the application, I am satisfied that the defendant has been holding himself out as and has been continuing to practice as a barrister without having a practising certificate, albeit I am unable to determine to what extent or on how many occasions that has occurred.

30. The Bar Association seeks an injunction pursuant to s 447 of the Uniform Law. Section 447 is in the following terms:

447   Injunctions to restrain contraventions of Law or Uniform Rules

(1)  This section applies if a person has contravened, is contravening, or is likely to contravene this Law or the Uniform Rules.

(2)  The designated local regulatory authority may apply to the Supreme Court for an injunction.

(3)  On application under subsection (2), the Supreme Court may grant an injunction restraining the person from contravening this Law or the Uniform Rules (including by requiring the person to do something).

(4)  The Supreme Court may grant the injunction—

(a)  whether or not it appears to the Court that the person intends to contravene this Law or the Uniform Rules, contravene this Law or the Uniform Rules again or continue to contravene this Law or the Uniform Rules; and

(b)  whether or not the person has previously contravened this Law or the Uniform Rules; and

(c)  whether or not there is a likelihood of substantial damage to anyone else if the person contravenes this Law or the Uniform Rules; and

(d)  whether or not proceedings for a contravention of this Law or the Uniform Rules have begun or are about to begin.

…

31. The Bar Association asks the Court to grant an injunction pursuant to s 447(3) because the Court would be satisfied that the defendant has previously contravened the Uniform Law and may continue to contravene the Uniform Law if the orders are not made.

32. Again, I observe that there is ample evidence that although the defendant must know that he does not hold a practising certificate and although the defendant must know that the Bar Association has been attempting to contact him, he has continued to hold himself out as a barrister and performed work as a barrister. It is plainly in the public interest that he be restrained from doing so by orders of this Court.

33. In the circumstances, I make the orders sought by the plaintiff, being:

1. Pursuant to s 447(2) and (3) of the Legal Profession Uniform Law 2014 (NSW), an injunction is to operate during the period in which Yu-Sheng (Alton) Chen, the defendant, does not hold a current Australian Practising Certificate, issued by the Council of the New South Wales Bar Association, including:

1. restraining the defendant from engaging in legal practice in New South Wales; and

2. restraining the defendant from advertising or representing, or doing anything that states or implies, that he is entitled to engage in legal practice in New South Wales.

34. I also order that the defendant pay the Bar Association’s costs. There has been no appearance by the defendant in these proceedings. That has obviously been the defendant’s decision. The proceedings have been necessary because of the defendant's refusal in any way to respond to the Bar Association and his continued holding himself out as a barrister despite the fact he must be aware that he does not hold a practising certificate.

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Decision last updated: 04 April 2024