Council of the New South Wales Bar Association v EFA (a pseudonym)

[2021] NSWCA 339

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339

Hearing dates:

8 October 2021

Decision date:

21 December 2021

Before:

Bathurst CJ; Leeming JA; Simpson AJA

Decision:

1. Appeal dismissed with costs.

2. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2020 (NSW), on the grounds stated in s 8(1)(c) of the said Act, publication of information tending to reveal the identity of the first respondent as a party to the proceeding in the Civil and Administrative Tribunal of NSW on 10 and 11 December 2020 and 4 March, 12 May and 18 June 2021, and in the NSW Court of Appeal on 8 October 2021 is prohibited in Australia for a period of 20 years from the date hereof, except to the extent that such disclosure is required for purposes in connection with the first respondent’s professional indemnity insurance arrangements.

3. Order 2 does not apply to any person, body or entity to whom it is necessary to disclose the information referred to in Order 2 for the purpose of the legislation, regulations and rules applying from time to time for regulating the legal profession, for the assessment of costs and for the enforcement of judgments.

Catchwords:

ADMINISTRATIVE LAW – particular administrative bodies – New South Wales Civil and Administrative Tribunal – Occupational Division – subject matter of power or decision – disciplinary decisions – legal practitioners – barristers – misconduct and discipline – professional misconduct – where respondent engaged in demeaning, humiliating and inexcusable conduct towards a female clerk at a dinner – where the Tribunal found that the respondent had not engaged in professional misconduct – whether the Tribunal erred in failing to find that the respondent’s conduct would justify a determination that the respondent was not a fit and proper person to engage in legal practice – whether the Tribunal erred in its assessment of the seriousness of the respondent’s conduct by imposing only a formal reprimand

OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – disciplinary proceedings – professional misconduct – where respondent is a practising barrister – respondent engaged in demeaning, humiliating and inexcusable conduct towards a female clerk at a dinner – New South Wales Civil and Administrative Tribunal found that the respondent had engaged in “unsatisfactory professional conduct” – respondent alleged to have said the words “suck my dick” to the female clerk – where immediate verbal complaint made by female clerk to a colleague – where the events of the dinner were recorded by closed circuit television cameras – where the Court was in as good a position as the Tribunal to determine questions of fact – whether the respondent said to H the words “suck my dick”

OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – professional misconduct – where professional misconduct is defined in s 297 of the Legal Profession Uniform Law (NSW) – where that definition is expressed to be “inclusive” of the traditional definition of “professional misconduct”’ at common law – where the Court has inherent jurisdiction to supervise members of the legal profession in New South Wales – where the admission, suspension or removal of legal practitioners in exercise of that jurisdiction considers whether a person is a “fit and proper to engage in legal practice” – where the applicant contended that Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 created a distinct category of “professional misconduct” at common law – whether there is a distinct category of professional misconduct at common law beyond that which is incorporated into s 297 of the Legal Profession Uniform Law (NSW)

OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – professional misconduct – where s 297 of the Legal Profession Uniform Law (NSW) defines “professional misconduct” as including conduct “that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice” – where conduct that would justify a finding of unfitness is not necessarily conduct that must result in such a finding – where unfitness is not measured by the objective circumstances of the conduct alone but also by consideration of character – whether the respondent’s conduct would justify a finding that he was not a fit and proper person to engage in legal practice

OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – professional misconduct – grounds for disciplinary orders – where respondent said the words “suck my dick” to a female clerk – where the respondent’s conduct and words warranted severe condemnation – where the Court has and will have no tolerance for conduct of legal practitioners that does not recognise and meet appropriate standards in respect of the treatment of women – where the objective of disciplinary orders is protective and not punitive – where the Tribunal found that the respondent’s conduct was an isolated instance of departure from accepted norms – where the respondent has suffered significant personal, emotional and financial cost as a result of his conduct – whether the Tribunal erred in its assessment of the seriousness of the respondent’s conduct by imposing only a formal reprimand

STATUTORY INTERPRETATION – definitions – “means” and “includes” – definition of “professional misconduct” in Legal Profession Uniform Law (NSW), s 297 – where that section was intended to incorporate “the traditional common law definition” of professional misconduct

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Court Suppression and Non-publication Orders Act 2010 (NSW), s 97

Legal Practitioners Act 1898 (NSW)

Legal Profession Act 1987 (NSW)

Legal Profession Uniform Law (NSW), ss 296, 297, 302

Supreme Court Act 1970 (NSW)

Veterans’ Entitlement Act 1986 (Cth)

Cases Cited:

A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750

Berger v Council of the Law Society of New South Wales [2019] NSWCA 119

Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40

Council of the Law Society of New South Wales v Parente [2019] NSWCA 33,

Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407

Council of the New South Wales Bar Association v EFA [2021] NSWCATOD 21

Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145

Council of the NSW Bar Association v Costigan [2013] NSWCA 407

Council of the NSW Bar Association v EFA (No 2) [2021] NSWCATOD 84

Ex parteLenehan (1948) 77 CLR 403; [1948] HCA 45

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Griffin v Council of the Law Society of New South Wales [2016] NSWCA 364

In Re Davis (1947) 75 CLR 409; [1947] HCA 53

Law Society of NSW v Foreman (1994) 34 NSWLR 408

Law Society of NSW v Walsh [1997] NSWCA 185

Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited (2019) 266 CLR 129; [2019] HCA 38

Myers v Elman [1940] AC 282

New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284

NSW Bar Association v Evatt (1968) 117 VLR 177 [1968]

NSW Bar Association v Maddocks

Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201

Prothonotary of the Supreme Court of NSW v McCaffery [2004] NSWCA 470

Prothonotary v Comeskey [2018] NSWCA 18

Prothonotary v Gregory [2017] NSWCA 101

Re Veron; Ex Parte Law Society of NSW (1966) 84 WN (NSW) 136

Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch Inc (2000) 48 NSWLR 548; [2000] NSWCA 65

Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679

Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279; [1957] HCA 46

Category:

Principal judgment

Parties:

Council of the NSW Bar Association (Appellant)
EFA (a pseudonym) (First Respondent)
NSW Legal Services Commissioner (Second Respondent)

Representation:

Counsel:
C A Webster SC/P A Maddigan (Appellant)
K Richardson SC/A Horvath SC (First Respondent)
T L Wong SC/D Levi (Second Respondent)

Solicitors:
Hicksons (Appellant)
Moray & Agnew (First Respondent)
Office of the Legal Services Commissioner (Second Respondent)

File Number(s):

2021/90028

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

NSW Civil & Administrative Tribunal

Jurisdiction:

Occupational Division

Citation:

[2021] NSWCATOD 21; [2021] NSWCATOD 84

Date of Decision:

4 March 2021
18 June 2021

Before:

Cole DCJ, Deputy President
P Callaghan SC, Principal Member
E Hayes, General Member

File Number(s):

2019/00380341

HEADNOTE

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

The respondent EFA is a practising barrister. On 21 July 2017, a dinner was held to mark the conclusion of a conference of barristers’ clerks. The dinner was attended (in addition to barristers’ clerks) by barristers and other invited guests. The barristers in attendance at the dinner included the respondent, a male friend of the respondent known as A, a clerk W and an assistant clerk H. H was not known to the respondent.

Just before 11pm, the respondent approached a table at which A and H were seated. The respondent engaged A in a ritualised greeting which, in part, parodied oral sex. The respondent then moved closer to H, stood behind her, and placed his left hand on the back of her head. The Council alleged that the respondent took hold of the back of H’s head, moved her head “to and from his crotch area” and said the words “suck my dick”. The respondent denied these allegations. These events were recorded in their entirety from two different angles on two closed circuit television cameras, neither of which was equipped with audio recording capabilities.

By application filed in the NSW Civil and Administrative Tribunal on 3 December 2019, the appellant Council sought a finding that, by virtue of his conduct towards H at the dinner, the respondent was guilty of unsatisfactory professional conduct within the meaning of s 296 of the Legal Profession Uniform Law (NSW) (the Uniform Law) professional misconduct within the meaning of s 297 and/or at common law; consequential orders under s 302 and an order that the respondent pay the Council’s costs of the proceedings.

By Stage 1 decision made on 4 March 2021, the Tribunal found that the respondent’s conduct did not amount to professional misconduct, either at common law or under statute, but instead amounted to unsatisfactory professional conduct. In reaching this conclusion, the Tribunal found that the respondent had not placed his right hand near his crotch area whilst standing behind H, that he had not guided her head towards his crotch, but that he had said the words “suck my dick” to H. The Tribunal placed significant reliance upon a close examination of the CCTV footage, in addition to H’s immediate complaint to W, in making these findings of fact.

By Stage 2 decision, delivered on 18 June 2021, the Tribunal formally reprimanded the respondent under 299(1)(b) of the Uniform Law, and ordered that he pay the Council’s costs. The Tribunal declined to impose a fine on the respondent, or to order that he undertake a course of counselling.

The Council appealed against both of the Tribunal’s decisions. In respect of the Stage 1 decision, it sought an order that the respondent’s conduct at the dinner constituted professional misconduct at common law and/or pursuant to ss 297 and 298 of the Uniform Law. In respect of the Stage 2 decision, and in addition to the formal reprimand, the Council sought an order that the respondent pay a fine, and undertake a course of counselling.

The respondent filed a Notice of Contention challenging the Tribunal’s finding that he said to H the words “suck my dick”.

The principal issues on appeal were:

1. whether the respondent said to H the words “suck my dick” (the Notice of Contention);

2. whether there is a distinct category of “professional misconduct” at common law, beyond what is incorporated into s 297 of the Uniform Law (the professional misconduct issue);

3. whether the respondent’s conduct would justify a finding that he was not a fit and proper person to engage in legal practice (the fitness issue); and

4. whether the Tribunal erred in its assessment of the seriousness of the respondent’s conduct by imposing only a reprimand (the penalty issue).

The Court held (Bathurst CJ, Leeming JA and Simpson AJA), dismissing the appeal with costs and dismissing the Notice of Contention:

As to the Notice of Contention

Per the Court:

1. The Court was in as good a position as the Tribunal to determine the factual issue of whether the respondent said to H the words “suck my dick”. Having undertaken a close examination of the CCTV footage, the Court was satisfied that the respondent made the offensive remark to H as alleged by the Council. There was simply no explanation for H’s immediate distress and complaint to W other than that it was an accurate reflection of what the respondent said to her: [97], [102].

   Lee v Lee (2019) 266 CLR 129; [2019] HCA 38; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22, considered.

As to the professional misconduct issue

Per the Court:

1. The “traditional common law definition” of professional misconduct is incorporated into the inclusive definition in s 297 of the Uniform Law: [118].

2. There does not exist, in the common law of New South Wales, a distinct category of professional misconduct that can be defined by conduct that is regarded as “disgraceful or dishonourable” by professional peers, and divorced from the test of a “fit and proper person to engage in legal practice”. What is recognised is a category of professional misconduct, judged by the test of “fitness”, which may or may not justify or require removal from the roll of practitioners: [149]–[151], [156].

   Allinson v General Council of Medical Education and Registration [1894] 1 QB 750; Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145; A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1; In Re Davis (1947) 75 CLR 409; [1947] HCA 53; Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46; Re Veron; Ex Parte Law Society of New South Wales [1966] 1 NSWLR 511; Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201; New South Wales Bar Association v Maddocks (Court of Appeal (NSW), 23 August 1988, unrep); New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284; Prothonotary v Gregory [2017] NSWCA 101; Council of the Law Society of New South Wales v Parente [2019] NSWCA 33; Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470; Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407; Prothonotary v Comeskey [2018] NSWCA 18, discussed.

3. “Professional misconduct” determined against the “critical criterion” of a “fit and proper person to engage in legal practice” is indistinguishable from “professional misconduct” as defined in s 297(1)(b) of the Uniform Law. This “critical criterion” extends beyond the sole consideration of conduct by encompassing character, and the circumstances relevant thereto: [160].

   Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46, referred to; Re A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253; [2005] HCA 1.

As to the fitness issue

Per the Court:

1. Conduct that would justify a finding of unfitness to engage in legal practice is not necessarily conduct that must result in such a finding. There is a range of conduct that would justify, but not necessarily result in, such a finding, and there is a range of conduct with respect to which reasonable minds might differ on whether it did, in fact, demonstrate unfitness. Section 297(1)(b) of the Uniform Law is concerned with the capacity of conduct to establish unfitness: [164].

2. As “poorly judged, vulgar and inappropriate” as the Tribunal correctly found the respondent’s conduct to be, the Tribunal did not err in finding that it was not conduct that would justify a finding of unfitness on the part of the respondent. Unfitness is not measured by the objective circumstances of the conduct alone and, on the evidence before the Tribunal, the respondent had engaged in an isolated instance of appalling conduct. There was nothing, on the evidence, to add to the respondent’s conduct that would warrant a finding of unfitness for the purposes of s 297(1)(b) of the Uniform Law: [171]–[173].

   Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46; A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1, referred to.

As to the penalty issue

Per the Court:

1. The Tribunal recognised the seriousness of the respondent’s conduct, including by characterising it as “poorly judged, vulgar and inappropriate”. Saying the words “suck my dick” elevated the respondent’s conduct into a dimension warranting severe condemnation beyond merely a formal reprimand: [180]–[181].

2. Given the significant financial penalty already levelled against the respondent by his insurer, the imposition of a fine was not necessary in light of the protective (and not punitive) objective of disciplinary orders. As abhorrent as the respondent’s conduct was, rightly warranting condemnation, on the evidence before the Tribunal it represented an isolated instance of departure from accepted societal and professional norms of conduct. In considering the penalty issue, the conduct needed to be seen in proportion to what it had already cost the respondent in personal, emotional and financial terms: [195]–[197].

   Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46; A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1, considered.

Judgment

1. THE COURT: The respondent to this appeal is a lawyer practising as a barrister in Sydney and elsewhere. In December 2019 the appellant (the Council of the NSW Bar Association, to which we will refer as “the Council”) filed in the Occupational Division of the NSW Civil and Administrative Tribunal (“the Tribunal”) an Application for “Disciplinary Findings and Orders” arising out of conduct of the respondent at an event that took place in July 2017. The Council sought:

• a finding that the respondent was guilty of professional misconduct within the meaning of s 297 of the Legal Profession Uniform Law (NSW) (“the Uniform Law”) and/or at common law;

• consequential (but undefined) orders under s 302 of the Uniform law; and

• an order that the respondent pay the Council’s costs of the proceedings.

2. On 4 March 2021 the Tribunal found that the respondent’s conduct did not amount to professional misconduct, either at common law or under statute, but did amount to unsatisfactory professional conduct within the meaning of s 296 of the Uniform Law: Council of the Bar Association v EFA [2021] NSWCATOD 21 (“the Stage 1 decision”) (at [83]-[84]). In a subsequent decision given on 18 June 2021 the Tribunal reprimanded the respondent and ordered him to pay the Council’s costs of the proceedings: Council of the Bar Association v EFA (No 2) [2021] NSWCATOD 84 (“the Stage 2 decision”). The Tribunal declined to impose a fine, and declined to order that the respondent undertake a course of counselling, both of which the Council had sought (although not specified in the Application).

3. The Council now appeals against each decision. The appeal is as of right (Griffin v Council of the Law Society [2016] NSWCA 364 at [37]; Civil and Administrative Tribunal Act 2013 (NSW) Sch 5, Pt 6, cl 29(2)(b)). By Amended Notice of Appeal the Council asks this Court:

1. to set aside the finding of the Tribunal that the respondent’s conduct did not amount to professional misconduct, and to substitute a finding that the conduct of the respondent constituted professional misconduct under any or all of the common law, ss 297 and 298 of the Uniform Law. (The original Application did not expressly seek a finding of professional misconduct under s 298);

2. alternatively, to remit the matter to the Tribunal for rehearing and

3. to order, in addition to the reprimand,

1. that the respondent pay a fine, and

2. that the respondent undertake, at his own expense, a course of sexual behaviour counselling.

4. The appeal is governed by s 75A of the Supreme Court Act 1970 (NSW). It is an appeal by way of rehearing (subs (5)); the Court has the powers and duties of the Tribunal, including the power and duty to make findings of fact and draw inferences (subs (6)). The power to make findings of fact inconsistent with those made by the Tribunal is constrained by the principles stated by the High Court in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679; Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited (2019) 266 CLR 129; [2019] HCA 38.

Non-publication orders

5. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) the Tribunal made orders prohibiting, subject to specified exceptions, the disclosure of the names of individuals who had participated in the proceedings, and certain entities that had been identified; restricting access to documents and evidence filed in the proceedings; and, specifically, prohibiting publication of the identity of the respondent as a party to the proceedings and of any material tending to reveal his identity. Each individual and entity was assigned a letter of the alphabet by which he, she, or it was referred to. The Tribunal ordered that in relation to the Tribunal proceedings, the respondent continue to be referred to as “EFA”. In these reasons those forms of identification have been adopted.

6. On 30 June 2021, by consent, the Registrar of the Court of Appeal made an interim order under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the Non-publication Orders Act”) to the effect that, until the day of the hearing of the appeal, the name of the respondent not be published without leave of the court and that the respondent be referred to as “EFA”; and that the names of the persons and entities to whom the Tribunal had assigned letter identification not be published without the leave of the court and that they be referred to by the pseudonyms (the letters of the alphabet) previously assigned. On 15 July 2021 those orders were amended by the specification of s 8(1)(c) of the Non-publication Orders Act as the ground for the order concerning the respondent, and s 8(1)(e) as the ground for the order concerning the other individuals and entities. Each order was expressed to operate until the conclusion of the day of the hearing of the appeal. During the hearing of the appeal, those orders were extended so as to apply up to the conclusion of one business day after the publication of the judgment.

7. On 29 September 2021, by notice of motion, the respondent sought further orders, to similar effect, specifying that the non-publication orders with respect to his name, and the assignment of the pseudonym “EFA”, continue for a period of 20 years, and the restriction of disclosure of documents and evidence filed in the proceedings. Paragraphs (c) and (e) of s 8(1) of the Non-publication Orders Act were specified as the grounds on which the orders were sought.

8. The appeal was fixed for hearing on 8 October 2021. Shortly after the hearing had commenced the Court received a copy of a communication from the Legal Services Commissioner (a statutory officer whose role is mentioned below) to the President of the NSW Bar Association, advising that he considered that, notwithstanding any order that might be made by this Court under s 7 of the Non-publication Orders Act, he was under a statutory duty to publish certain information on a Record of Disciplinary Action on the website of his Office, that information being the name of the barrister concerned, other identifying particulars and any disciplinary action taken. The Legal Services Commissioner cited the Legal Profession Uniform Law Application Act 2014 (NSW) (“the Uniform Law Application Act”), s 157(3), as the source of the duty.

9. As a consequence the Court directed that the Legal Services Commissioner be joined as a party to the proceedings, and directed that he indicate to the Court what he proposed with respect to publication prior to determination of the appeal. In response, the Legal Services Commissioner indicated that he did not intend to make any publication prior to delivery of the judgment. He was given the opportunity to provide submissions with respect to his contention that the Uniform Law Application Act required him to enter the details on the publicly accessible record. The Legal Services Commissioner has complied with that direction. His submissions and those received from the Council and the respondent will be considered below.

10. Consideration of the respondent’s notice of motion (to which the Council consents) is best deferred until resolution of the substantive matters on this appeal.

Background facts

11. The events that gave rise to the Council’s application took place at a social function (a dinner) on 21 July 2017, following a barristers’ clerks’ conference. The dinner was attended by barristers’ clerks, barristers and some invited guests. At a late stage in the evening the respondent, in a state of intoxication, engaged in the conduct in question. Some of what was alleged by the Council is uncontroversial; some is disputed. The Tribunal made relevant findings of fact to which it will be necessary to refer in due course.

12. It is uncontroversial that, just before 11pm, the respondent approached a table at which were seated a male friend of his (to whom the Tribunal referred as “A”) and a female assistant clerk (to whom the Tribunal referred as “H”). A was a member of a floor of barristers, “Floor Y”. H was the assistant clerk to Floor Y. The respondent did not know H. The respondent greeted A in a fashion that the Tribunal interpreted as “a ritualised greeting which, in part, parodied oral sex”. The respondent then moved closer to H, stood behind her, and placed his left hand on the back of her head. What took place thereafter is the subject of some dispute. The Council alleged (and the respondent denied) that the respondent took hold of the back of H’s head, moved her head “to and from his crotch area” and said “suck my dick”.

13. The whole of the event was recorded from different angles on two closed circuit television cameras, but without audio recording.

14. H made almost immediate complaint of the respondent’s conduct. She spoke to the clerk (“W”) of Floor Y and recounted what she said had taken place. Both H and W, within a few days, made written statements about the event. The allegations made by the Council in the Application were based, almost exclusively, on these statements.

15. On 3 August 2017 the respondent made a written apology to H.

16. Further detail of what was alleged against the respondent, what was admitted and what was disputed, and the findings of the Tribunal, will be given below. It is necessary to understand the statutory context in which the Council’s allegations were made, and the course of events following the dinner (on 21 July 2017) and the hearing in the Tribunal (on 10 and 11 December 2020).

The relevant statutory provisions

17. The principal legislation relevant to the proceedings is the Uniform Law, Ch 5 (ss 260 – 322) which is concerned with “Dispute resolution and professional discipline”. Section 260 states three objectives of Ch 5, as follows:

(a)   to provide a framework for the timely and effective resolution of disputes or issues between clients and lawyers or law practices; and

(b)   to provide a scheme for the discipline of the Australian legal profession, in the interests of the administration of justice and for the protection of clients of law practices and the public generally; and

(c)   to monitor, promote and enforce the professional standards, competence and honesty of the Australian legal profession.

18. Part 5.4 (ss 295 – 305) of Ch 5 is directed to “Disciplinary matters”. For “disciplinary” purposes the Uniform Law draws a distinction between “unsatisfactory professional conduct” and “professional misconduct”. By s 296, “unsatisfactory professional conduct” is defined to include:

…conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.

By s 297(1) “professional misconduct” is defined to include:

(a)   unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b)   conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice.

By subs (2) of s 297:

For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.

19. The definitions of both unsatisfactory professional conduct and professional misconduct are expanded in s 298 to include further specified categories of conduct. The chapeau to s 298 reads:

Without limitation, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct … .

Thereafter, in pars (a)-(j), ten categories of conduct are nominated. Relevantly, by par (b), conduct consisting of a contravention of “the Uniform Rules” is specified as conduct capable of constituting either unsatisfactory professional conduct or professional misconduct.

20. The relevant Uniform Rules are the Legal Profession Uniform Conduct (Barristers) Rules made under Pt 9.2 of Ch 9 of the Uniform Law. Relevantly, r 8 provides:

A barrister must not engage in conduct which is:

(a)   dishonest or otherwise discreditable to a barrister,

(b)   prejudicial to the administration of justice, or

(c)   likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.   

21. Part 5.2 (ss 265 - 284) of Ch 5 of the Uniform Law establishes a formalised process by which complaints about lawyers may be made, investigated, and dealt with. By s 266(1) any person or body may make a complaint that relates to any dispute or issue about any conduct to which Ch 5 applies; by s 266(2) the “designated local regulatory authority” may initiate a complaint containing a disciplinary matter only. By s 267(1) a complaint (which by subs (2), must be in writing, identify the complainant and the lawyer about whom the complaint is made, and describe the alleged conduct the subject of the complaint) is made to or by the designated local regulatory authority.

22. By s 11 (Table 1) of the Uniform Law Application Act the “designated local regulatory authority” is, for the purposes of Ch 5 of the Uniform Law, the Legal Services Commissioner (“the Commissioner”) appointed under Pt 3, Div 2 of the Uniform Law Application Act. The Commissioner may, by s 282(1) of the Uniform Law, investigate the whole or part of a complaint, or may, by s 282(2), appoint a suitably qualified person to conduct an investigation.

23. The Commissioner has power, by s 299(1) of the Uniform Law, to find that a lawyer has engaged in unsatisfactory professional conduct, and to make any of a number of specified orders, which (relevantly) include caution (par (a)) and reprimand (par (b)) and the imposition of a fine not exceeding $25,000 (par (f)). The Commissioner may, by s 406(1) of the Uniform Law, delegate its Ch 5 functions to an entity which, by s 405(2), may be a professional association (which includes the NSW Bar Association).

24. By s 300 the Commissioner may initiate and prosecute proceedings against a lawyer in “the designated tribunal” if of the opinion that:

(a)   the alleged conduct may amount to unsatisfactory professional conduct that would be more appropriately dealt with by the [Tribunal]; or

(b)   the alleged conduct may amount to professional misconduct.

25. By s 11 (Table 2) of the Uniform Law Application Act, the Tribunal is “the designated tribunal”. Section 302 of the Uniform Law empowers the Tribunal, if it has found a lawyer guilty of unsatisfactory professional conduct or professional misconduct, to make any orders that it thinks fit, (specifically including orders that may be made by the Commissioner under s 299(1)) and specifies a number of orders additional to those stated in s 299(1). The additional orders that the Tribunal may make include an order recommending that the name of the lawyer be removed from a roll kept by the Supreme Court (s 302(1)(f)) (s 22 of the Uniform Law requires the Supreme Court to maintain a roll of Australian lawyers admitted to practice). Where the Tribunal finds the lawyer guilty of professional misconduct the Tribunal may impose a fine not exceeding $100,000 (s 302(1)(l)).

The course of events following the dinner

26. On 25 July 2017 the events of the dinner were brought to the attention of Mr Greg Tolhurst, the Executive Director of the NSW Bar Association, by a director of Floor Y. The director provided copies of statements by H, W, A and F (another barrister from Floor Y). On 2 August 2017 Mr Tolhurst wrote to the respondent, advising him that the matter of his conduct at the dinner was under consideration. The following day, 3 August, Mr Tolhurst wrote to the Local Area Commander of NSW Police, providing copies of the relevant statements. He did this in what he considered to be compliance with s 465 of the Uniform Law, which requires certain persons (including the Council), if they suspect that a person has committed a serious offence, to report the suspected offence to police and to make available relevant information and documents. There was no evidence of any response to this communication and no evidence that any criminal action was taken against the respondent.

27. On 3 August 2017 the respondent wrote to H with an “unconditional apology”; he said that he did not recall the events other than what he described as “horsing around” with A but had no reason to disbelieve that it had occurred and that H had become swept up in it. He expressed his deep embarrassment and remorse. In this letter the respondent did not explicitly address the allegations that H had made about his conduct towards her. He said:

“The actions attributed to me, directed toward you, are not in keeping with my personality and character. I acknowledge that you are not well known to me and that in the circumstances the behaviour referred to is inappropriate and disrespectful. I am sorry that you became the subject of my behaviour with my friend and given my limited recollection I am unable to offer a further explanation.”

28. On 7 September 2017 the Council resolved:

“…pursuant to s 266 of the [Uniform Law] to make a complaint against [the respondent] alleging that [the respondent] has engaged in sexually inappropriate conduct in that, on 21 July 2017 when attending a function attended by barristers, barristers clerks and other people, [the respondent] approached [H] and made a sexually inappropriate advance involving physical contact.”

29. On 8 September 2017 the Tribunal notified the Commissioner of the complaint. On 12 September 2017 (presumably under s 406(1) of the Uniform Law) the Commissioner referred the complaint to the Bar Association for assessment, investigation and determination. On 21 November 2017 a Professional Conduct Committee of the Bar Association resolved that the complaint proceed to an investigation pursuant to s 282 of the Uniform Law.

30. On 2 March 2018 the respondent provided a reply to the complaint. The investigation continued until 17 April 2018 when the Professional Conduct Committee reported, with a recommendation that the Council resolve pursuant to s 300 of the Uniform Law that proceedings be initiated and prosecuted against the respondent in the Tribunal to determine whether he had engaged in unsatisfactory professional conduct or professional misconduct.

31. On 12 June 2018 the respondent provided, in some detail, a response to the Report. On 9 August 2018 the Council resolved to refer the complaint back to the Professional Conduct Committee for further consideration. (The evidence does not disclose the basis for the resolution or the issues in respect of which further consideration was sought).

32. On 23 August 2018 the Council resolved to withdraw the complaint of 7 September 2017. It then resolved:

“…pursuant to s 266 of the [Uniform Law] to make a complaint against [the respondent] alleging that [the respondent] engaged in sexually inappropriate conduct in that, on 21 July 2017 when attending a function attended by barristers, barristers clerks and other people, [the respondent] made sexually inappropriate advances, including physical contact and words spoken, to an assistant clerk [H] and to another in her presence, in particular, that he:

1.   held [A’s] head and pulled it backwards and forwards towards [the respondent’s] crotch, in the presence of an assistant clerk [H];

2.   stood over [H] when she was seated and took hold of the back of her head;

3.   applied pressure to the back of [H’s] head, with his hands;

4.   moved [H’s] head to or towards his crotch area;

5.   at the same time as the conduct in [3] and [4] said the words ‘suck my dick’.”

33. On 24 August 2018 the Council notified the Commissioner of the resolutions of 23 August. On 29 August the Commissioner referred the new complaint to the Bar Association for assessment, investigation and determination. On 10 September 2018 the Professional Conduct Committee resolved that the complaint of 23 August proceed to an investigation pursuant to s 282 of the Uniform Law. On 12 September the Council notified the respondent of that decision and invited him to make further submissions to be provided by 4 October 2018. An extension of that time (due to the respondent’s ill health) to 19 October was granted by email of 25 September. The investigation proceeded until 18 December 2018 when the Professional Conduct Committee provided a draft report. It recommended that the Council resolve, pursuant to s 300 of the Uniform Law, to initiate and prosecute proceedings in the Tribunal “in relation to the Grounds (a), (b), (c), (d) and (e) of the complaint made by [H]” on the basis that Council was of the opinion that the alleged conduct may amount to unsatisfactory professional conduct more appropriately dealt with by the Tribunal, or conduct that may amount to professional misconduct. (The reference to “Grounds (a), (b), (c), (d) and (e) of the complaint made by [H]” was clearly intended to be a reference to the 5 grounds stated in the Council’s second resolution of 23 August). On 4 February 2019 solicitors acting for the respondent provided a detailed response to the draft report.

34. On 21 May 2019 the Professional Conduct Committee provided its final report. It essentially confirmed the recommendations of the draft report. On 6 June 2019 the Council resolved in the terms recommended to it by the Professional Conduct Committee.

35. On 3 December 2019 the Council filed the Application in the Tribunal.

The Council’s case

36. The Council’s case as presented to the Tribunal was that the respondent’s conduct:

• was in breach of Uniform Rules (Barristers) r 8(a), being conduct that was “discreditable to a barrister”, and r 8(c), being conduct that was likely to bring the legal profession into disrepute, and, accordingly, constituted unsatisfactorily professional conduct or professional misconduct under s 298(b) of the Uniform Law;

• constituted professional misconduct at common law;

• constituted professional misconduct within s 297(1)(b) of the Uniform Law;

• alternatively, constituted unsatisfactory professional conduct within s 296 of the Uniform Law.

37. The Application set out, in detail, the particulars upon which the Council relied. These included a recitation of the conduct in which the respondent was alleged to have engaged with A. The Council alleged that the respondent approached the table at which A and H were seated, “stuck his middle finger of his right hand up and towards A”, pulled A’s head backwards and forwards towards his (the respondent’s) crotch, and then moved to a position standing between and slightly behind A and H.

38. The salient particulars were those involving the respondent’s conduct towards H, and were that:

• the respondent leaned towards H and placed his left hand on the back of her head (particular 18);

• the respondent’s body was turned towards H (particular 19);

• the respondent placed his right hand near his crotch (particular 20);

• the respondent guided H’s head towards his crotch (particular 21);

• the respondent said to H words to the effect of “suck my dick” (particular 22).

39. By particular 23 the Council asserted that the conduct occurred in connection with the practice of law. As discussed below, this allegation was important to the Council’s contention that the respondent’s conduct constituted professional misconduct at common law; it also recognised the s 296 definition of unsatisfactory professional conduct, and the s 297(1)(a) definition of professional misconduct, each of which requires that the conduct have that quality. Connection with the practice of law is not, however, necessary for proof of professional misconduct either as defined in s 297(1)(b) or as defined in s 298, the latter of which, as mentioned above, identifies specific categories of conduct which, “without limitation”, is capable of constituting unsatisfactory professional conduct or professional misconduct and which (in par (b)) includes conduct constituting a contravention of the Uniform Rules.

40. The Council framed its complaint in the following terms:

“The Respondent is guilty of professional misconduct, or in the alternative, unsatisfactory unprofessional conduct, as the Respondent engaged in sexually inappropriate conduct in that, on 21 July 2017 when attending a function attended by barristers’ clerks and (by invitation) barristers, the Respondent made sexually inappropriate advances, including gestures, physical contact and words spoken, to an assistant clerk, H, and to another in her presence.”

41. The respondent filed a Reply to the Application. He expressly admitted, in paragraph 15(b), that his attendance and conduct at the dinner were in connection with the practice of law.

42. He substantially admitted the Council’s allegations, so far as they concerned his conduct towards A. He disputed part of the Council’s allegations so far as they concerned his conduct towards H. He denied that, in his contact with H, he placed his left hand near his crotch (particular 20); he denied that he specifically guided H’s head towards his crotch (particular 21); and he denied that he said words to the effect of “suck my dick” (particular 22).

43. He contended that the allegation that he placed his right hand near his crotch was beyond the scope of the proceedings for determination by the Tribunal because it was not part of the Council’s complaint of 30 August 2018 (sic: 23 August) or the Council’s resolution of 6 June 2019.

The proceedings in the Tribunal

44. As is usual in disciplinary proceedings in the Tribunal, the hearing was conducted in two stages. The first is directed to factual determination of the allegations made, and to the proper characterisation of the conduct in question (professional misconduct, unsatisfactory professional conduct, or neither). The second stage (which only occurs if a finding of professional misconduct or unsatisfactory professional conduct is made) is concerned with consequential orders, and, particularly, what (if any) orders ought to be made under s 299 or s 302 of the Uniform Law.

Stage 1

45. The hearing in Stage 1 of the proceedings was thus concerned with whether the Council had established a basis for all or any of the Disciplinary Findings and Orders that it had sought in the application. A hearing dealing with that issue was conducted over 2 days, 10 and 11 December 2020, and proceeded in the first instance by way of affidavit evidence. To an affidavit sworn by Mr Tolhurst were exhibited a number of documents, including statements made by H, A and others in the days and weeks after the event, and documentary evidence of the chronology set out above.

46. Affidavits subsequently sworn or affirmed by H, A and others were read. No material difference between the content of the statements and the affidavits was identified. Video footage from the CCTV cameras played a significant role in the proceedings.

47. H’s initial account of the events, given in a statement made on 25 June 2017 was to the following effect. She recorded that she had been seated at a table with W (the clerk of Floor Y), and 8 barristers of that floor, one of whom was A, who was sitting next to her. H said that shortly before 11pm the respondent (whose name she did not know) approached the table and engaged with A in a jovial fashion, to which she paid little or no attention. H said that she looked away and then looked back and saw that the respondent had hold of A’s head and was moving A’s head to and from his (the respondent’s) crotch area. This lasted for a few seconds. She said that she looked elsewhere for a moment and turned her head back. She said that the respondent was standing over her, took hold of the back of her head with one hand, and started to move it towards his crotch area. While doing so, he said “suck my dick”.

48. H said that after a few seconds she pulled away. She said that A was looking “awkward and embarrassed”. She said that after she pulled away the respondent said, in an attempt at humour “oh, don’t report me to the Bar Association”. H said that she said something like “what the fuck”, and A motioned towards the respondent and said “he needs to go”.

49. H said that the respondent left the table a few seconds later. She said that she then left the table and found W and told him what had happened. Although W did not witness the event, he largely confirmed H’s account of her complaint to him. W said that H approached him, said that she needed to tell him something and said “you won’t believe what’s just happened to me”. W described H as “visibly shaken”, and recalled that her hands were trembling. He said that she told him that she was “so very angry, upset, embarrassed and humiliated”.

50. No other witness, apart from the respondent, was able to throw real light on the incident.

51. On 30 June 2020 the respondent swore an affidavit in which he acknowledged that his conduct with A (which he at the time thought was “high spirited and jovial”) was in fact inappropriate and unacceptable. Having by that time viewed the CCTV footage, he accepted that his conduct with A was “coarse, inappropriate, sexualised” and took place in the presence of H. The respondent denied both statements attributed to him (“suck my dick” and “don’t report me to the Bar Association”). He did, however, accept that he said something to H that caused her offence (for which he expressed regret). He denied pushing or guiding H’s head towards his crotch. He said that he had not intended to offend or harass H. He accepted that he briefly touched the back of H’s head and that that was unwelcome. He said that having watched the video footage, he was reinforced in his denials. He reiterated his apology to H.

52. In cross-examination H accepted that her statement (“[the respondent] … started to move my head to and from his crotch area”) was wrong, in attributing more than one movement to the respondent; she acknowledged, having seen the video footage, that “it was just the one action”. She maintained, however, that the respondent “grabbed my head and pulled it towards his crotch”.

53. Two barristers from Floor Y (A and G) gave evidence. Both had been sitting at the same table as H and W. G was able to give no useful evidence, having not observed the conduct in question. A’s account of the events was initially given in a “memo” dated 25 July 2017. He said that the respondent was a good friend of his but that he (A) had been intoxicated and had no recollection of the incident. He then (on 9 April 2020) swore an affidavit having had the benefit of viewing the video footage and having been informed of the allegations made by H. He confirmed that he had no recollection of the incident. He did not recall the respondent saying to H “suck my dick” and believed that, if he had heard that, he would not have continued “horsing around” with the respondent. He did not recall H saying “what the fuck” and did not recall saying to H (of the respondent) “he needs to go”. He did not recall the respondent saying to H, or anybody else “don’t report me to the Bar Association”.

54. H, A, G and the respondent gave oral evidence and were cross-examined. The concession made by H in cross-examination has already been noted. Otherwise, cross-examination did little to elucidate the factual issues.

The decision of the Tribunal

55. The Tribunal, in effect, divided the allegations against the respondent into two segments, the first being his interaction with A, the second being his conduct towards H.

56. The conduct of the respondent towards A was not in issue. The area of factual dispute was therefore narrow, but important. It concerned:

• whether the respondent, when standing behind H, had placed his right hand near his crotch (particular 20); the Tribunal was satisfied that that did not happen (at [38]);

• whether the respondent guided H’s head towards his crotch (particular 21); the Tribunal was satisfied that he did not do so (at [39]);

• whether the respondent said to H “suck my dick” (particular 22).

57. The Tribunal spent several paragraphs of its decision analysing the evidence in respect of this final contested matter and ultimately (at [49]) accepted that the allegation had been made out. It gave detailed reasons for that conclusion, for which it relied on a close examination of the video recording, and H’s immediate report to W.

58. The Tribunal turned to the “characterisation of [the respondent’s] conduct”. As stated above, it considered that the way the respondent behaved towards A appeared to be “a ritualised greeting which, in part, parodied oral sex” (at [56]), that it was inappropriate at a barristers’ clerks’ dinner, even late in the evening, and that it had potential to offend onlookers. The Tribunal noted that there was no evidence that anybody (including H) was in fact offended by that conduct. The Tribunal considered that that conduct did constitute inappropriate sexual conduct (at [57]).

59. With respect to the respondent’s conduct towards H, the Tribunal concluded:

“58.   H was offended by the pushing of her head by [the respondent] and the words ‘suck my dick’ which, we have found, he said to her as he did it. [The respondent’s] action and his words self-evidently had a sexual character and were inappropriate conduct towards a clerk who was previously unknown to him in the context of the barristers’ clerks’ dinner. [The respondent’s] words and actions were not, however, in context, an ‘advance’. [The respondent] was not actually inviting H to have oral sex with him. It seemed, rather, from the CCTV footage, that he was extending to her an abridged echo of the greeting he had offered to A. He was including her in the horseplay he had engaged in with A. It was very poorly judged, doubtless on account of [the respondent’s] significant level of intoxication. [The respondent] failed to take into account H’s likely feelings of anger, embarrassment and humiliation. Using the words of the Application, [the respondent’s] conduct was ‘sexually inappropriate conduct’ (or, more accurately, inappropriate sexual conduct), but it was not ‘a sexually inappropriate advance’ or any kind of advance at all.

59.    The pushing of H’s head and the speaking of the words ‘suck my dick’ was unwelcome conduct of a sexual nature towards H. A reasonable person, having regard to all of the circumstances, would have anticipated that H would be offended and humiliated. H was, in fact, offended and humiliated. This was a reasonable and proportional response.”

60. The Tribunal then proceeded to consider the Council’s contentions that the conduct amounted to:

• professional misconduct at common law;

• professional misconduct within the meaning of s 297(1)(b) of the Uniform Law;

• unsatisfactory professional conduct or professional misconduct under s 298(b) of the Uniform Law; or

• unsatisfactory professional conduct within the meaning of s 296 of the Uniform Law.

61. The Tribunal rejected the Council’s contention that the conduct was professional misconduct at common law. It did this by reference to the decision of this Court in Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407, in which Gleeson JA, with the concurrence of Macfarlan JA and Sackville AJA, said:

“79.    In exercising its inherent jurisdiction to discipline legal practitioners the Court is not bound by any statutory definition of ‘professional misconduct’. Rather ‘it has the capacity to determine, and act on the basis of, unfitness, where appropriate, without any need to stretch the concept of professional misconduct beyond conduct having some real and substantial connection with professional practice’: Prothonotary of the Supreme Court of NSW v Alcorn [2007] NSWCA 288 ...”

(The quoted passage was, in fact, as Gleeson JA acknowledged, virtually a direct quote from the judgment of the High Court in A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253; [2004] HCA 1, to which further reference will be made.)

62. The Tribunal considered that while the dinner “had a connection with the Bar” (by reason of the profession of the attendees),

“…attendance at the dinner could not be said to have ‘some real and substantial connection with professional practice’ (our emphasis) in the relevant sense.”

63. The Tribunal held, therefore, that the respondent’s conduct did not come within the common law concept of professional misconduct. The Tribunal then found it unnecessary to determine whether it had jurisdiction to make a finding of professional misconduct at common law (an issue that had been raised on behalf of the respondent). It also considered (correctly, in our opinion) that, in most cases, conduct that falls within the common law definition also falls within the statutory definition, meaning that a determination of whether the conduct came within the common law concept of professional misconduct was superfluous.

64. The Tribunal then turned its attention to the definition of professional misconduct in s 297(1)(b) of the Uniform Law (conduct that, whether or not occurring in connection with the practice of law, would, if established, justify a finding that the lawyer “is not a fit and proper person to engage in legal practice”) and the extended categories of conduct capable of constituting unsatisfactory professional conduct or professional misconduct stated in s 298. It asked itself, applying s 297(1)(b), whether the respondent’s conduct would justify a finding that he was not a fit and proper person to engage in legal practice (at [70]).

65. The Tribunal noted that an order for removal of a lawyer’s name from the roll may only be made if it is demonstrated that the lawyer is probably permanently unfit to practise law, citing Berger v Council of the Law Society of NSW [2019] NSWCA 119 at [367], in turn citing Ex parte Lenehan (1948) 77 CLR 403; [1948] HCA 45.

66. The Tribunal then expressed its view of the respondent’s conduct at the dinner in the following terms:

“76.    [The respondent’s] conduct was poorly judged, vulgar and inappropriate. He failed to consider H’s likely reaction to his actions. His level of intoxication was also inappropriate at a function connected with the practice of law. However, we do not consider that [the respondent’s] actions during the incident on the night of 21 July 2017 indicate that he has a character flaw which would render him unfit to practice [sic] the law for any length of time, let alone permanently. Had his actions and words to H actually constituted a sexual advance, we would have characterised it differently, but we are satisfied that his actions and words were not a sexual advance.”

67. The Tribunal found (at [77]) that the Council had failed to establish that the respondent:

“…is not a fit and proper person to engage in legal practice under s 297[(1)(b)] of the Uniform Law.”

68. The Tribunal rejected an argument advanced on behalf of the respondent that rule 8 of the Uniform Rules was inapplicable because it appears in a part of the Rules dealing with “Advocacy”, and concluded that the conduct was a breach of each of pars (a) (conduct that is discreditable to a barrister) and (c) (conduct that is likely to bring the legal profession into disrepute) of that rule. The Tribunal did not, however, consider that the breaches were sufficiently serious to constitute professional misconduct because the conduct did not indicate that the respondent was not a fit and proper person to practise law (at [81]). The Tribunal finally concluded that the conduct did amount to unsatisfactory professional conduct.

Stage 2

69. Having found that the respondent’s conduct amounted to unsatisfactory professional conduct, it was necessary for the Tribunal to proceed to a further enquiry, as to the consequential orders that ought to be made. The available orders are those stated in ss 299 and 302 of the Uniform Law. The Stage 2 hearing took place on 12 May 2021.

70. For the purposes of that enquiry the respondent swore a further affidavit. He tendered two reports of Dr Kelly Bowers, a clinical psychologist, dated
    25 March 2021 and 28 April 2021, a report of Dr Olav Nielssen, a psychiatrist, dated 30 April 2021, and five character references from professional associates. Enclosed with Dr Nielssen’s report were two media articles, one of which recorded the Tribunal’s Stage 1 decision, the other reporting comments made in general terms by a Sydney senior counsel.

71. In his affidavit the respondent reiterated his frequently expressed regret for his conduct. He acknowledged the Tribunal’s disapproval of his level of intoxication at the dinner. He said that he had taken steps to “improve my lifestyle and lifestyle choices” including by controlling his alcohol consumption and attending a detoxification and health retreat. He said that his marriage had come to an end, his wife citing the “humiliation and vulnerability that I have exposed the family to [and] the shame that I have caused”. His access to his children has been limited. He expressed concern about the impact of the findings on his practice and therefore his income.

72. The testimonials of professional colleagues were consistent in expressing the view that the conduct of the respondent was out of character.

73. Dr Bowers was asked by the respondent’s solicitors to express views on a number of questions. She recorded symptoms of low mood, irritability, unrelenting intrusive negative thoughts, loss of appetite, loss of enjoyment of previously enjoyed activities and substantial insomnia. She recorded that the respondent told her that he experienced feelings of isolation and loneliness, impairment in his capacity to work and suicidal ideation. (Dr Bowers assessed the risk of suicide as low, principally because of the respondent’s concern for his family and his determination to secure their long-term welfare.)

69. Dr Bowers considered that the respondent met the criteria for a Major Depressive Disorder and that his symptoms resulted in clinically significant impairment in his social, occupational and personal areas of functioning.

70. Dr Nielssen expressed similar views and concurred with the diagnosis of Major Depressive Disorder.

The decision of the Tribunal

76. The Tribunal noted, and accepted, the evidence of the respondent concerning the steps he had taken towards what might be called “rehabilitation”. It considered that there was no “appreciable risk” of repetition of the conduct in question and that the respondent had a clear and detailed understanding of why his behaviour constituted unsatisfactory professional conduct for which he was “truly repentant and contrite” (at [18]).

77. The Tribunal recognised (citing Law Society of NSW v Walsh [1997] NSWCA 185, per Beazley JA) that the orders to be made consequential upon a finding of unsatisfactory professional conduct are protective (of the community), not punitive or retributive, and are not equivalent to a penalty or sentence imposed for criminal conduct (at [5]-[7]). Notwithstanding that, the Tribunal considered that “general deterrence” (a concept directly borrowed from the criminal law of sentencing) is a significant factor in protecting the public from similar conduct by other practitioners (see, for example, at [19]). It noted the consequential orders sought by the Council, those being:

• a reprimand;

• that the respondent undertake, at his own expense, counselling with respect to sexual harassment; and

• the imposition of a fine.

78. The Tribunal, in effect, repeated its view that the incident concerning H did not involve an unwanted sexual advance or an attempt to:

“35.   … obtain sexual (or other) cooperation by intimidation, threats or other pressure, or even a deliberate decision to humiliate anyone … .”

Had the incident involved any of those things, the Tribunal said, the disciplinary orders would have been more onerous than those it was considering. The Tribunal repeated its view of the conduct of the respondent as:

“35.   … an ill-judged attempt by [the respondent], late in the evening, after consuming a considerable quantity of alcohol, to include H in a jokey greeting ritual engaged in by [the respondent] with a friend.”

79. The Tribunal reiterated its confidence that the respondent would never behave in a like manner again.

80. In light of that conclusion the Tribunal rejected the Council’s request for an order that the respondent undertake counselling. It further considered that general deterrence would not be enhanced by the imposition of a fine. It considered that the seriousness of the conduct warranted a reprimand rather than a caution. It made an order to that effect and ordered the respondent to pay the Council’s costs as assessed or agreed.

The notice of appeal

81. By amended notice of appeal filed on 12 July 2021 (following delivery of the Stage 2 decision) the Council challenges:

• the conclusion of the Tribunal in the Stage 1 decision that the respondent’s conduct did not constitute professional misconduct; and

• the Tribunal’s assessment of the seriousness of the respondent’s conduct in the Stage 2 decision, resulting in the imposition of a reprimand rather than a more severe disciplinary order.

82. Five grounds of appeal against the Stage 1 decision were identified. They may be encapsulated as:

1. failure to apply the “correct test” for professional misconduct at common law;

2. failure to find that the respondent’s conduct constituted professional misconduct at common law;

3. failure to find that the respondent’s conduct occurred in connection with the practice of law;

4. and (5) failure to find that the respondent’s conduct constituted professional misconduct, within the meaning of s 297(1)(b) of the Uniform Law.

83. The essence of three stated grounds of appeal against the Stage 2 decision was that, having regard to the findings of the Tribunal, the imposition of the reprimand alone was an inadequate response.

The notice of contention

84. By notice of contention filed on 23 July 2021 the respondent challenges the factual finding that he said to H “suck my dick”.

85. By Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 51.40 a notice of contention may be filed by a party who wishes to support the decision on grounds other than those relied on by the court (or tribunal) below. It may be, as senior counsel for the respondent suggested, that a notice of contention was not the appropriate mechanism for challenging the factual finding. It was, nevertheless, a practical vehicle to crystallise what became an important issue in the appeal.

86. Since the comment was an integral and highly significant aspect of the respondent’s conduct, on which the Tribunal’s decision was based, the most convenient course is to resolve that question first. That is because, if this Court were to conclude that the factual finding was not justified on the evidence, much of the Tribunal’s reasoning would fall away and it would be necessary either to remit the matter to the Tribunal for rehearing, or to proceed, under s 75A(5) of the Supreme Court Act, to a rehearing in this Court and the exercise of the Court’s powers under subs (6) of s 75A.

Consideration

87. The only direct evidence that the offensive remark was made to H was that of H herself. No other witness heard the remark, and the CCTV cameras did not record sound.

88. The substance of the contention made on behalf of the respondent was that, the Tribunal having rejected H’s account in a number of respects where it was inconsistent with what could be seen on the CCTV recording, her evidence could not be accepted, to the requisite degree, as reliable with respect to this remark. It is convenient, then, to refer to those parts of H’s evidence referable to this allegation. In paragraph 8 of her original statement she said:

“[The respondent] took hold of the back of my head with one hand and started to move my head to and from his crotch area. While he did this he said, ‘suck my dick’.”

89. In her affidavit, H elaborated slightly on this. She said:

“The Respondent was standing to my right, leaning over me. The Respondent grabbed the back of my head firmly and moved my head towards his crotch area.”

90. The particulars provided by the Council did not precisely accord with H’s account. The relevant particulars given were:

“19.   The Respondent’s body was turned towards H.

20.   The Respondent placed his right hand near his crotch.

21.   The Respondent guided H’s head towards his crotch.

22.   At the time the Respondent engaged in the conduct referred to in paragraphs 18 to 21 above, the Respondent said to H words to the effect of ‘suck my dick’.”

91. In making its findings of fact the Tribunal relied heavily on the CCTV footage. Although the Tribunal considered that H was making every effort to convey her best recollection of the events, where her account was contradicted by the video footage it relied on the latter. The Tribunal found at [37] of the Stage 1 decision (in contrast to what was alleged in particular 19) that:

“With his hand, [the respondent] lightly pushed [H’s] head forward towards the table. Her head did not, as a result, get any closer to him. Rather, her head moved forward, away from [the respondent], and then she moved it back to where it had been before it was pushed.”

92. The Tribunal rejected particular 20, declaring itself satisfied that the respondent did not place his right hand near his crotch. It rejected particular 21, declaring itself satisfied that the respondent did not guide H’s head towards his crotch. As indicated above, the Tribunal did accept that the respondent used the offensive language attributed to him in particular 22.

93. This conclusion was only partly based on the CCTV footage. The Tribunal observed that the footage showed that the respondent “said a few words” to H as he pushed her head. It considered that the CCTV footage showed “a look of shock” on H’s face but that it did not show her saying (as she had asserted “what the fuck” or anything else. The Tribunal put together the finding that the respondent “said a few words” with H’s evidence, including her initial complaint to W, to accept that the words “suck my dick” were spoken. The Tribunal placed considerable weight on H’s immediate report to W of what the respondent had said.

94. The most recent statement of the High Court on appellate review of factual findings is to be found in Lee v Lee. As the appeal to this Court is a rehearing, the Court is bound to conduct “a real review” (Fox v Percy; Robinson Helicopters). As noted in Lee v Lee the restraints imposed on interference with first instance findings are:

“55   …as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.”

95. Thereafter, the joint judgment said, the appellate court is in as good a position as the trial judge to decide on the proper inferences to be drawn from facts that are undisputed or, having been disputed, found.

96. This is not a case in which the fact-finding exercise depended to any significant extent on the advantage of the Tribunal in seeing and hearing the witnesses as they gave their evidence. Although not criticising H as untruthful, the Tribunal clearly doubted her reliability. For that reason, it depended on objective evidence in order to reach its conclusion that the offensive remark had been made. The objective evidence was the CCTV footage which showed that the respondent said something to H, H’s immediate reaction (looking shocked) and her almost immediate complaint, using those words, to W.

97. This Court is in as good a position as the Tribunal to determine this factual issue. Like the Tribunal, we have watched the CCTV footage several times, including in close up and slow motion. We agree with the Tribunal that, contrary to the Council’s particulars, the footage shows that the respondent “lightly pushed [H’s] head towards the table” (and away from him); that he did not place his right hand near his crotch; and that he did not guide H’s head towards his crotch.

98. The Tribunal was correct to reject those particulars that alleged that he had done those things.

99. Senior counsel for the respondent made much of the rejection by the Tribunal of the particular allegations made by the Council, submitting that it reflected adversely on the credibility of H. It is true that, in her statement, H said that the respondent had taken hold of her head with his own hand and started to move it to and from his crotch area, and, on the basis of the objective evidence, the Tribunal rejected that evidence. Senior counsel also relied on the rejection of particular 20, that the respondent “placed his right hand near his crotch”. The trouble with that submission is that the particular does not reflect anything said in either H’s statement or her affidavit. Similarly, the Tribunal rejected particular 21, that the respondent “guided [H’s] head towards his crotch”. That also does not appear to be drawn from either H’s statement or her affidavit. It reflects the interpretation made by the Council.

100. The allegation is one of utmost importance and requires proof to a commensurate degree: see Evidence Act 1995 (NSW), s 140.

101. We agree with the Tribunal that the video shows that, immediately after the event, H appeared shocked. When the video image is magnified, H can clearly be seen with her mouth open. Moreover, it was very shortly after the incident that she left the table to find W. W’s evidence was that at that time she was “visibly shaken” and her hands were trembling. She reported to W that she was “so very angry, upset, embarrassed and humiliated”. Another factor that supports this conclusion is the Tribunal’s finding (not challenged by the respondent) that his immediately preceding interaction with A was a parody of oral sex. The linkage, or association, is obvious.

102. The most compelling evidence that the offensive remark was made is H’s immediate and obvious shock, her almost immediate report of it, in precise terms, to W, and W’s description of the condition of H when he met her. These circumstances persuade us, although not without hesitation, that the offensive remark, or something very similar, was made by the respondent. In reaching that conclusion we are influenced by the unlikelihood that H would have fabricated or imagined a remark of that kind. There is simply no explanation for her immediate distress and report to W other than that it was an accurate reflection of what the respondent said to her. We do not, accordingly, uphold the notice of contention.

The appeal

Grounds 1, 2 and 3: professional misconduct at common law

103. Grounds 1, 2 and 3 concern the Tribunal’s rejection of the Council’s contention that the respondent’s conduct constituted professional misconduct at common law. By ground 1 the Council asserted error by the Tribunal in failing to apply the correct test; by ground 2 it asserted error “in failing to find that the respondent’s conduct … occurred in connection with the practice of law”; by ground 3 it asserted error in the conclusion that the respondent’s conduct did not constitute professional misconduct at common law.

104. Ground 2 was ineptly formulated; it did not reflect the proposition the Council sought to advance. The Council’s real complaint, as articulated in both written and oral submissions, was directed to the Tribunal’s express finding, in [68] of the Stage 1 reasons, that the respondent’s attendance at the dinner:

“…could not be said to have had ‘some real and substantial connection with professional practice’ (our emphasis) in the relevant sense.”

105. The Tribunal preceded that finding by expressly accepting that, by reason of the professions of the invitees, the dinner “had a connection with the Bar”. Plainly, the Tribunal considered that the fact that the function at which the conduct took place “had a connection with the Bar” was not sufficient to connect the respondent’s conduct with the practice of law. The issue of the necessity for a connection between the conduct in question and legal practice can, for the moment, be passed over.

106. It is clear that the Tribunal considered that the finding that the respondent’s conduct lacked a connection with legal practice was a sufficient foundation for it to dispose of the Council’s contention that the conduct constituted professional misconduct at common law. The Tribunal did not, therefore, proceed to consider whether, on the basis that the respondent’s conduct did take place in connection with legal practice, it had the defining characteristics of professional misconduct at common law.

107. The finding that the respondent’s conduct did not occur in connection with the practice of law was in direct contradiction to the admission made by the respondent in par 15(b) of the Reply. We accept that the Tribunal erred in this respect. It could not (at least without signalling to the Council that it contemplated departing from the respondent’s express admission) proceed on the basis that the conduct in question did not take place in connection with legal practice. What flows from that error is, however, another matter, to be considered below.

108. The question of professional misconduct at common law occupied a disproportionate amount of the hearing time of the appeal. The respondent offered three responses. The first raised a jurisdictional issue, that the Tribunal, being a (purely) statutory body charged with the task of applying the Uniform Law, lacked any inherent jurisdiction to determine allegations of professional misconduct at common law. The appropriate, and the only appropriate, forum for such determination, the respondent asserted, is the Supreme Court exercising its inherent jurisdiction.

109. The second response was that, even if the Tribunal had jurisdiction to make a finding of professional misconduct at common law, it was correct to conclude that the respondent’s conduct did not meet the relevant test. (That leaves open the question of what test the Tribunal, assuming that it had jurisdiction, ought to have applied.)

110. The respondent’s third response was that, in its consideration of professional misconduct within s 298(b) of the Uniform Law (contravention of the Uniform Rules), the Tribunal necessarily took into account the fact that the conduct took place at a function connected with the practice of law.

111. The absence of an inherent jurisdiction in the Tribunal is not an answer to the Council’s contention. The Council did not purport to invoke an inherent jurisdiction in the Tribunal (which, plainly, it does not have). Rather, the Council pointed to the statutory definition, in s 297 of the Uniform Law, of professional misconduct, which is framed inclusively (so the Council argued) so as to import professional misconduct at common law in addition to the statutory formula.

112. There is some force in the Council’s contention that the concept of professional misconduct as it was understood at common law is imported into the s 297 definition. Until 1987 the legislation governing the legal profession was the Legal Practitioners Act 1898 (NSW) (“the 1898 Act”). By amendment in 1935 (Legal Practitioners (Amendment) Act 1935 (NSW)) Pt X was introduced into the 1898 Act, by which a Statutory Committee of the Incorporated Law Institute of NSW (the predecessor of the Law Society of NSW) was created “for the purpose of hearing charges of professional misconduct upon the part of solicitors”. By s 77 the Statutory Committee was given power to make orders striking off the roll or suspending from practice (conditionally or otherwise) any solicitor who had been referred to it or imposing a fine not exceeding £200. No definition of “professional misconduct” was incorporated by the amendment. Some categories of conduct (for example, failure, without reasonable excuse, to produce documents in response to a statutory request) were declared to be professional misconduct.

113. The 1898 Act was repealed and replaced by the Legal Profession Act 1987 (NSW) (“the 1987 Act”). A definition of professional misconduct was, for the first time, enacted in s 123. As enacted, that definition is in the following terms:

“Professional misconduct’ includes –

(a)   conduct (whether consisting of an act or omission and whether occurring in connection with the practice of law or otherwise) that falls short of the standard of conduct that a member of the public is entitled to expect of a legal practitioner; and

(b)   conduct that is declared to be professional misconduct by any provision of this Act.”

114. The Council relied on the inclusive nature of the definition for its contention that the concept of professional misconduct, as it was previously understood, was imported into the statutory definition.

115. A definition framed inclusively generally – but not always – expands the meaning of the word or phrase defined beyond its ordinary meaning: Dilworth v Commissioner of Stamps [1899] AC 99, cited in YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395; [1964] HCA 12. The nature of an inclusive definition is, commonly, a word or phrase that is well understood, to the ordinary meaning of which are added concepts that would not, ordinarily, be understood as coming within that word or phrase. Whether it does so, or, notwithstanding the verb “includes”, is to be taken as exhaustive or exclusive depends on the context of the Act in which it appears: see, generally, YZ; Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628; [1966] HCA 74; Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [38]-[43].

116. Section 123 of the 1987 Act (in which the inclusive definition then appeared) gave no clue as to what, if anything, besides the conduct described in the body of the definition, was imported. Section 34 of the Interpretation Act 1987 (NSW) permits resort to extrinsic material in determining the meaning of a provision that is ambiguous or obscure.

“30 … ‘necessary’ is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Perish [(1980) 43 FLR 129 at 133] that the collocation of necessity to prevent prejudice to the administration of justice and the necessity to prevent prejudice to the security of the Commonwealth ‘suggests Parliament was not dealing with trivialities’.”

225. The application for orders 1(a) and (b) depends on the evidence of the respondent’s precarious mental health. The relevance of the media publications lies in the level of publicity and hostility that they demonstrate, generated and directed towards the (so far, at least theoretically, anonymous) perpetrator of the conduct. That ties in with the opinions of Dr Neilssen and Dr Bowers.

226. Dr Neilssen directed his attention specifically to the risk of suicide if the respondent’s identity is made public. That may be in recognition of the approach taken by this Court in DEJ v Council of the NSW Bar Association [2021] NSWSC 72, at [196]-[200]. Necessity to protect the safety of any person, as required before a non-publication order may be made on the grounds stated in s 8(1)(c) does not depend solely on the risk of suicide. The likelihood of harm to mental health, falling short of risk of suicide, may, in an appropriate case, be sufficient to justify an order.

227. Two differing approaches to the application of s 8(1)(c) have emerged. One has been dubbed “the probable harm” approach; the other “the calculus of risk” approach: see AB (a pseudonym) v R(No 3) [2019] NSWCCA 46 at [56]-[58].

228. Put briefly, the “probable harm” approach requires proof of the probability of harm in the absence of an order. The “calculus of risk” approach requires a more nuanced consideration, taking into account the nature, imminence and degree of likelihood of harm to occur to the relevant person. The “calculus of risk” approach appears, in the decided cases, to have gained ascendency as the preferred approach: see AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2019] HCA 6; AB (No 3) (NSWCCA); Wilson v Basson [2020] NSWSC 512 at [18].

229. We likewise prefer the calculus of risk approach. The evidence established that, were the identity of the respondent to be publicly revealed, his mental health would be at risk. That conclusion would favour the making of an order restricting publication of identifying information. Against that has to be balanced the important consideration of open justice. More particularly, what has to be considered is the degree to which an order that would restrict identification of the respondent would encroach upon that principle. That encroachment would be minimal. Such an order would not restrict publication of the salient facts of the proceedings, that a barrister was the subject of disciplinary proceedings, the nature of the conduct that underlay the disciplinary proceedings, and the outcome of the disciplinary proceedings.

230. Having regard to the media commentary to which we have referred, it is likely that disposition of the appeal will revive media interest in the subject, and that some of the reporting will repeat the inaccuracies that have characterised past reporting and commentary. The psychiatric and psychological evidence is that further reporting, and identification of the respondent, would cause further damage to his already fragile mental health, and exacerbate the conditions diagnosed by Drs Bowers and Nielssen.

231. Inaccuracy of reporting was a consideration in the decision of the Court of Criminal Appeal to make a non-publication order in AB (a pseudonym) v R (No 3). True it is that the level of abusive and inflammatory reporting in that case exceeded even the worst of the instances in the present case, and appeared to have resulted in physical attacks on AB and his family.

232. The Court (Hoeben CJ at CL, Price and Adamson JJ) said:

“101   The public interest in open justice is served by reporting of court proceedings and their outcomes. Open justice normally requires the identity of the offender to be revealed. The media, when it reports such proceedings fairly and accurately, deserves the description that it is the eyes and ears of the public. That is why fair and accurate reporting of court proceedings is protected and why, as Spigelman CJ said in John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344; [2004] NSWCA 324 at [20];

‘[20] … nothing should be done to discourage fair and accurate reporting of proceedings.’

102   In the present case, the ‘reporting’ of the proceedings by the Daily Telegraph was neither accurate nor fair and contained information or imputation that was significantly misleading and emotive. Its reports were further distorted on social media.

103   The only relevant effect that a non-publication order would have in the present case is to prevent the further identification of the applicant and his family in connection with these proceedings with the aim of eliminating or minimising vigilante conduct engendered by the misreporting of the proceedings.”

Those remarks are apposite in the present case.

233. We have come to the view, while taking into account the primary objective of safeguarding the public interest in open justice, that a limited order, restricting publication of identifying information, is, within s 8(1)(c) of the Non-publication Orders Act, necessary to protect the safety of the respondent. We propose to make such an order.

234. Order 1(c) is more easily dealt with. The respondent advanced no submission that could conceivably justify an order for suppression of, effectively, the whole of the Tribunal proceedings (and, presumably, the appeal to this Court). The Council made something of an attempt at justification although the argument postulated related to “harm” to H, and, possibly, to the respondent. Section 8(1)(e) is not concerned with harm; it is concerned with the public interest. No public interest consideration was identified by either the respondent or the Council. There is no reason to accede to the application for order 1(c). Whether the Tribunal maintains its s 64 order is a matter for it.

235. We propose to make an order in the following terms:

Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2020 (NSW), on the ground stated in s 8(1)(c) of the said Act, publication of information tending to reveal the identity of the first respondent as a party to the proceeding in the Civil and Administrative Tribunal of NSW on 10 and 11 December 2020 and 4 March, 12 May and 18 June 2021, and in the NSW Court of Appeal on 8 October 2021 is prohibited in Australia for a period of 20 years from the date hereof, except to the extent that such disclosure is required for purposes in connection with the respondent’s professional indemnity insurance arrangements.

236. It is common ground that, in the event that this Court makes an order pursuant to the Court Suppression and Non-publication Orders Act, the Legal Services Commission must nonetheless record the disciplinary action taken against EFA in the Register of Disciplinary Action maintained under s 152 of the Uniform Law Application Act. The parties are of the view that making an order under the Non-publication Orders Act will have the effect that the entry in the register should not be published including being made available online. The Legal Services Commissioner is of the view that the register must be published, including being made available online. The parties and the Legal Services Commissioner provided written submissions on this issue.

237. Part 12 of the Application Act deals with “Registers and publicising disciplinary action”. Section 152 provides:

“152 Register of Disciplinary Action

(1) The NSW Commissioner must keep a register (in this Act referred to as the Register of Disciplinary Action) of—

(a) disciplinary action taken under a law of this jurisdiction against lawyers, and

(b) disciplinary action taken under a corresponding law against lawyers who are or were enrolled or practising in this jurisdiction when the conduct that is the subject of the disciplinary action occurred, and

(c) disciplinary action taken under a corresponding law against lawyers who are enrolled or practising in this jurisdiction if the disciplinary action was recorded on a register of disciplinary action kept under the corresponding law when the lawyer became enrolled or commenced to practise in this jurisdiction.

(2) The register may include the details that may be included in the register under section 435 of the Legal Profession Uniform Law (NSW) and must not include the details that must not be included in the register under that section. Subsection (3) prevails over this subsection in the event of an inconsistency.

(3) The local regulations may make provision for or with respect to the information that may or must be included in the register.

(4) The register may be kept in a form determined by the NSW Commissioner.

(5) The register is to be made available for public inspection on—

(a) the internet site of the NSW Commissioner, or

(b) an internet site identified on the internet site of the Commissioner.

(6) Information recorded in the register may be provided to members of the public in any other manner approved by the NSW Commissioner.

(7) The NSW Commissioner may cause any error in or omission from the register to be corrected.

(8) The requirement to keep the register applies only in relation to disciplinary action taken after the commencement of section 577 of the Legal Profession Act 2004, but details relating to earlier disciplinary action may be included in the register.

(9) A Council or NCAT must provide to the NSW Commissioner sufficient information to enable the Commissioner to exercise the Commissioner’s functions in respect of the register.”

238. The reprimand issued by the Tribunal, and the orders sought by the Council on appeal, are “disciplinary action”. For the purposes of s 152(3), local regulations have been made, in the form of cl 62 of the Legal Profession Uniform Law Application Regulation 2015, which provides:

“62 Register of Disciplinary Action—section 152 of the application Act

For the purposes of section 152 (3) of the application Act, the following particulars must be included in the Register of Disciplinary Action in relation to a person against whom disciplinary action is taken:

(a) the person’s professional capacity (for example, barrister or solicitor) in which the conduct complained of occurred and, if different, the person’s professional capacity in which the complaint was made against the person,

(b) the local regulatory authority that took the disciplinary action,

(c) the date of the decision or determination of the local regulatory authority to take the disciplinary action and, if different, the date the disciplinary action was taken,

(d) a description or summary of the conduct that is the subject of the disciplinary action,

(e) the date and jurisdiction of the person’s first and each later admission to the legal profession.”

239. The second sentence of s 152(2) provides that the particulars required by cl 62 prevail to the extent of any inconsistency over any requirements in the Uniform Law. For present purposes, it suffices to note that the effect of the provisions is that the practitioner’s name and a description or summary of the conduct which is the subject of the disciplinary action must be recorded in the register.

240. Subsection (5) imposes an obligation upon the Commissioner to make the register available for public inspection on an internet site. Further to that obligation, s 152(6) empowers the Commissioner to make information in the register available to members of the public in any other manner approved by the Commissioner. Further to and separately from that power, s 153(1) empowers the Commissioner or a Council to publicise the disciplinary action in any manner the Commissioner or Council sees fit.

241. It will be seen that the provisions distinguish between the Commissioner’s obligation to keep a register, and the powers to publish information contained in the register. The same distinction may be seen in s 155, which confers an immunity in relation to various aspects of the Part. The submissions of the parties draw upon that distinction.

242. Section 156 makes special provision for action not to be recorded in the register where action was taken “because of the person’s inability properly to carry out the requirements of legal practice and the inability arises wholly or principally from infirmity, injury or mental or physical illness”. It is common ground that this is inapplicable.

243. Section 157 is the last section in Part 12. It deals specifically with the interrelationship between the provisions of the Part and non-disclosure orders. It provides as follows:

“157 Effect of secrecy provisions and non-disclosure orders

(1) The provisions of this Part apply despite any confidentiality or secrecy provisions of this Act or the Legal Profession Uniform Law (NSW).

(2) The provisions of this Part are subject to any order made by—

(a) NCAT in relation to disciplinary action taken under the Legal Profession Uniform Law (NSW), or

(b) a corresponding authority in relation to disciplinary action taken under provisions of a corresponding law that correspond to that Law, or

(c) a court or tribunal of this or another jurisdiction,

so far as the order prohibits or restricts the disclosure of information.

(3) Despite subsection (2), the name and other identifying particulars of the person against whom the disciplinary action was taken, and the kind of disciplinary action taken, must be recorded in the Register of Disciplinary Action in accordance with the requirements of this Part and may be otherwise publicised under this Part.”

244. What is the effect of those provisions in the event that this Court makes an order preventing the publication of the respondent’s name or information identifying him? The parties’ submissions ranged more widely, including as to the power of the Commissioner to maintain a “back end” of the Register not available to the public, and the precise particulars proposed to be made available. It is neither necessary nor appropriate to resolve all the matters raised. The parties’ submissions on the central question, which is an important question of principle, were quite brief.

The parties’ submissions

245. The Council emphasised the express words of s 157(2), giving primacy to a non-publication order, and noted that such an order would only be made if the criterion of necessity in the Non-publication Orders Act were satisfied. The Council said that this was to be achieved “by interpreting [s 157] as concerned with the publication (including on the internet) but not the recording of ‘disciplinary action’ as defined on the Register”. The Council did not address the concluding words of s 157(3).

246. The first respondent helpfully elaborated upon the Council’s submissions. He drew upon the immunity provisions in s 155(1) and (2) in support of the proposition that “the legislature intended there to be a difference between the recording, as opposed to publishing of information in Part 12”, the same distinction as is drawn by s 157(3). We agree. Unlike the Council, the respondent gave detailed attention to s 157(3), contending that the opening words require that the Commissioner’s obligations to record the name, other identifying particulars and the kind of disciplinary action must be recorded on the register, even if a non-publication order were made. The first respondent observed that in contradistinction with the obligation to record matters in the register despite a non-publication order, the concluding words of s 157(3) confer a power to publish falling short of a legislative mandate that the information be published. He submitted that:

“In this way, a harmonious construction of the Application Act and the Court Suppression Act can readily be reached. The Commissioner’s discretion to publish is subject to any order under the Court Suppression Act to the contrary. The Court would be slow to construe s 157(3) as requiring the Commissioner to publish the Limited Particulars (or the particulars listed in [17]-[18] above) on the RoDA where a contrary order had been made under the Court Suppression Act.”

247. That conclusion is supported by what were said to be absurd conclusions. If a lawyer were convicted for breaching the Intelligence Services Act 2001 (Cth) and a court made a suppression order prohibiting the publication of the lawyer’s name in the interests of national security when, inevitably, disciplinary proceedings were brought, then on the Commissioner’s construction, the Commissioner would be required nonetheless to publish the lawyer’s name. The first respondent observed that if a counselling order were made, on the Commissioner’s construction that order would be required to be published, which might in turn make it easy to identify a decision requiring a lawyer to be counselled.

248. The first respondent also pointed to the flexibility of the Commissioner’s power to maintain the Register in the manner the Commissioner sees fit and the Commissioner’s statutory right to appear and make submissions in disciplinary cases, including concerning non-publication orders. The first respondent also challenged the assumption that the Register must in its entirety by made available for public inspection.

249. It is not necessary separately to summarise the Commissioner’s submissions, which invoked the text and purpose of the section, and which in large measure are reflected in what follows.

Construction of the provisions

250. We start with the text. Unusually, s 157 deals explicitly with the interaction between a non-disclosure order and the obligations in Part 12 to make information available to the public. Section 157 provides in terms that some but not all of the obligations in Part 12 remain in place despite a non-disclosure order. Both the parties and the Commissioner accept that those words mean what they say. We agree. This is a case where the Legislature has spoken with clarity about what will occur when the statute requires information to be made available and an order requires that it be kept confidential. In large measure (s 157(2)) the order prevails. But that is subject to s 157(3). That is the unambiguous meaning of the words “Despite subsection (2)” with which s 157(3) commences.

251. Subsection 157(3) has two limbs. The first is the obligation to record name and identifying particulars and the kind of disciplinary action taken in the register. The second is the power to publicise under Part 12. Both the obligation and the power are excluded from the effect of s 157(2). That is to say, the section operates distributively, as if it were worded:

“Despite subsection (2), the name and other identifying particulars of the person against whom the disciplinary action was taken, and the kind of disciplinary action taken, must be recorded in the Register of Disciplinary Action in accordance with the requirements of this Part.

Despite subsection (2), the name and other identifying particulars of the person against whom the disciplinary action was taken, and the kind of disciplinary action taken, may be otherwise publicised under this Part.”

252. As the Commissioner noted, the word “otherwise” must be given meaning. A construction which confined the scope of s 157(3) merely to the obligation to record matters in the Register would be inconsistent with the further power authorising the lawyer’s name, identifying particulars and the kind of disciplinary action taken to be “otherwise” publicised under the Part. It follows that both the obligation and the power are excluded from the subjection effected by s 157(2) of the provisions of Part 12 to any non-disclosure order. That is to say, both the obligation and the power are unaffected by the operation of the non-disclosure order.

253. The first respondent’s hypothetical example of the lawyer who is convicted of an offence under the Intelligence Services Act 2001 (Cth) is just that, namely, a hypothetical and rather extreme example far removed from the facts of the present case, and one which introduces federal considerations. Arguments based on extreme examples are commonly of little weight, as was observed in Waste Recycling and Processing Corporation v Global Renewables Eastern Creek Pty Ltd [2009] NSWCA 315 at [40] and [77]. Turning to the practical operation of the construction in the event that a counselling order is made, this does not arise. For the reasons given above, no order requiring counselling will be made. Nevertheless, we accept the force in the balance of the respondent’s submission that to some extent the construction of these provisions may serve to assist a person who wishes to identify the barrister from conducting searches to do so. But that submission is diminished by the facts that (a) the events giving rise to these proceedings took place in public, in plain sight of other guests at the event, (b) the first respondent’s own evidence that he believes that “his identity is already well known within legal circles, including among prospective clients”.

252. There are express powers to publicise disciplinary action taken against a lawyer under s 152(6) and s 153(1). Further, there is plainly implied power to make the information recorded in the register available for public inspection, which is necessarily conferred in order for the Commissioner to comply with the obligation in s 152(5). Those powers, both express and implied, apply notwithstanding this Court’s non-publication order.

253. That said, it is to be expected that the Commissioner and the Council will exercise those powers sensitively, in light of the evidence received and the reasons given for making the non-publication order. The premise of the making of a non-publication order under the statute is that such an order is “necessary” in the sense earlier described. It is not lightly made, and indeed but for the most recent evidence from those treating the first respondent, it may not have been made. However, it is clear from the affidavit of the Legal Services Commissioner (which proposes a relatively limited form of publication) that he is conscious of the need to balance the public interest in publishing information of disciplinary action with the interests protected by the order made.

254. The orders of the Court are:

1.   Appeal dismissed with costs.

2. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2020 (NSW), on the ground stated in s 8(1)(c) of the said Act, publication of information tending to reveal the identity of the first respondent as a party to the proceeding in the Civil and Administrative Tribunal of NSW on 10 and 11 December 2020 and 4 March, 12 May and 18 June 2021, and in the NSW Court of Appeal on 8 October 2021 is prohibited in Australia for a period of 20 years from the date hereof, except to the extent that such disclosure is required for purposes in connection with the first respondent’s professional indemnity insurance arrangements.

3.   Order 2 does not apply to any person, body or entity to whom it is necessary to disclose the information referred to in Order 2 for the purpose of the legislation, regulations and rules applying from time to time for regulating the legal profession, for the assessment of costs and for the enforcement of judgments.

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Decision last updated: 21 December 2021