Council of the New South Wales Bar Association v Siggins

[2021] NSWCA 40

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Council of the New South Wales Bar Association v Siggins [2021] NSWCA 40

Hearing dates:

15-17 September 2020

Decision date:

25 March 2021

Before:

Payne JA, McCallum JA, Beech-Jones J

Decision:

In the Bar Council’s proceedings (2019/94353), the Court:

(1) declares that Julian Phillip Siggins is not a fit and proper person to remain on the roll of Australian lawyers maintained by the Supreme Court in accordance with s 22 of the Legal Profession Uniform Law (NSW);

(2)   orders that the name Julian Phillip Siggins be removed from the roll; and

(3)   orders that Mr Siggins pay the Council of the New South Wales Bar Association’s costs of the proceedings.

In the proceedings commenced by Mr Siggins in the Federal Court that were cross-vested to this Court (2019/195328), the Court orders that:

(1)   the proceedings be dismissed; and

(2)   Mr Siggins pay the Council of the New South Wales Bar Association’s costs of the proceedings.

Catchwords:

LEGAL PRACTITIONERS – Court’s inherent jurisdiction to supervise and discipline legal practitioners – application for removal of barrister’s name from the roll of Australian lawyers maintained by the Supreme Court of New South Wales – where barrister practised principally in New South Wales for six years holding a practising certificate from Queensland – whether representations to the Queensland Bar Association as to the barrister’s principal place of practice were made dishonestly – whether barrister a fit and proper person to remain on the Supreme Court roll

CONSTITUTIONAL LAW – challenge by barrister to validity of certain provisions governing the legal profession in Tasmania and Queensland – where disciplinary proceedings against the barrister did not involve any allegation of breach of any of the impugned provisions – whether there is any “matter” arising under the Constitution in respect of the impugned provisions

CONSTITUTIONAL LAW – challenge to validity of certain provisions governing the legal profession in New South Wales or their application to the barrister – whether impugned provisions have any extra‑territorial effect – whether s 117 of the Constitution operates to render the impugned provisions inapplicable to the barrister – whether impugned provisions invalid as contrary to s 92 of the Constitution – whether impugned provisions inconsistent with various provisions of the Judiciary Act 1903 (Cth) – whether impugned provisions inconsistent with Chapter III of the Constitution as compromising the institutional integrity of Federal and State Courts

Legislation Cited:

Australia Act 1986 (Cth), s 2

Commonwealth Constitution, ss 76, 92, 109, 117, Ch III

Evidence Act 1995 (NSW), s 140(2)

Family Law Act 1975 (Cth), s 122

Judiciary Act 1903 (Cth), ss 30, 39, 39B, 55A, 55B, 55D, 78, 78B, 86(1)(ga), Part VIIIA

Jurisdiction of Courts (Cross‑vesting) Act 1987 (Cth), s 4

Legal Practitioners Act 1893 (WA)

Legal Profession Act 2004 (NSW), s 45, Part 2.4 Div 11

Legal Profession Act 2007 (Qld), s 48, 49

Legal Profession Act 2007 (Tas), s 48

Legal Profession Uniform Law (NSW), ss 22, 42, Sch 3 cl 5, Sch 3 cl 12

Cases Cited:

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

APLA Limited v Legal Services Commissioner of New South Wales (2005) 224 CLR 322; [2005] HCA 44

Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106; [1992] HCA 45

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

Betfair Pty Limited v Racing New South Wales (2012) 249 CLR 217; [2012] HCA 12

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Butler v Attorney-Generalfor the State of Victoria (1961) 106 CLR 268; [1961] HCA 32

Clubb v Edwards; Preston v Avery (2019) 267 CLR 171; [2019] HCA 11

Cole v Whitfield (1988) 165 CLR 360; [1988] HCA 18

Council of the Law Society of New South Wales v Jafari [2020] NSWCA 53

Council of the New South Wales Bar Association v Power (2008) 71 NSWLR 451; [2008] NSWCA 135

Council of the New South Wales Bar Association v Siggins [2019] NSWCA 258

Croome v The State of Tasmania (1997) 191 CLR 119; [1997] HCA 5

Cunliffe v The Commonwealth (1994) 182 CLR 272; [1994] HCA 44

De Pardo v Legal Practitioners Complaints Committee (2000) 97 FCR 575; [2000] FCA 335

Gratwick v Johnson (1945) 70 CLR 1; [1945] HCA 7

Henry v Boehm (1973) 128 CLR 482; [1973] HCA 32

In re The Judiciary Act 1903-1920 and In re The Navigation Act 1912-1920 (1921) 29 CLR 257; [1921] HCA 20

Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; [1995] HCA 68

Law Society of New South Wales v McNamara (1980) 47 NSWLR 72

Legal Profession Board of Tasmania v Haque (2015) 23 Tas R 434; [2015] TASSC 5

McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34

Mobil Oil Australia Pty Limited v The State of Victoria (2002) 211 CLR 1; [2002] HCA 27

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; [1992] HCA 46

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

NSW Bar Association v Meakes [2006] NSWCA 340

Palmer v Western Australia [2021] HCA 5

Prothonotary v Comeskey [2018] NSWCA 18

Prothonotary v Holt [2008] NSWCA 136

Prothonotary v Montenegro [2015] NSWCA 409

Prothonotary of the Supreme Court of New South Wales v Nikolaidis [2010] NSWCA 73

Street v Queensland Bar Association (1989) 168 CLR 461; [1989] HCA 53

Telstra Corporation Ltd v Worthing (1999) 197 CLR 61; [1999] HCA 12

Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2

Category:

Principal judgment

Parties:

Council of New South Wales Bar Association (applicant in proceedings 2019/94353 and respondent in proceedings 2019/195328)
Julian Phillip Siggins (respondent in proceedings 2019/94353 and applicant in proceedings 2019/195328)

Representation:

Counsel:
E Cheeseman SC; D Habashy (Council of the New South Wales Bar Association)
In person (Julian Phillip Siggins)
Solicitors:
Norton Rose Fulbright (Council of the New South Wales Bar Association)

File Number(s):

2019/195328; 2019/94353

Publication restriction:

Nil

HEADNOTE

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

Mr Siggins was admitted as a lawyer in New South Wales in 2007. He intended to practise as a barrister. To be eligible to practise as a barrister in NSW, it was necessary to pass the NSW Bar exams and attend the Bar Practice Course. In 2008 and 2009, Mr Siggins sat, but did not pass, the NSW Bar exams. Between 2008 and 2017 Mr Siggins practised as a barrister in NSW.

In 2008 and 2009 Mr Siggins obtained an annual practising certificate issued by the Law Society of Tasmania. Between 2010 and 2017 Mr Siggins obtained an annual practising certificate issued by the Queensland Bar Association.

In each of the six years between 2011 and 2017 when Mr Siggins was living in Sydney and practising as a barrister in NSW, he made annual applications to the Bar Association of Queensland for a practising certificate. In each of those applications Mr Siggins represented that his principal place of practice for the next 12 months would be Queensland.

The Council of the New South Wales Bar Association commenced proceedings in the inherent jurisdiction of the Court contending that, between late 2008 and mid-2017, Mr Siggins’ principal place of practice as a barrister was NSW and that each time he applied for a practising certificate from another jurisdiction he intended to continue practising principally in NSW. The Bar Council alleged that Mr Siggins repeatedly and dishonestly misrepresented the true position about his proposed place of practice for the following 12 months to those regulatory authorities.

The Bar Council sought a declaration that Mr Siggins was not a fit and proper person to remain on the roll of Australian lawyers maintained by the Supreme Court of NSW and an order for the removal of his name from the roll. In separate proceedings heard at the same time, Mr Siggins sought a declaration that sections of the Legal Profession Uniform Law (NSW) and the Legal Profession Acts of NSW, Queensland and Tasmania were invalid as being contrary to ss 92, 109 and/or 117 of the Commonwealth Constitution.

The Court held, declaring that Mr Siggins is not a fit and proper person to remain on the roll and removing his name from the roll:

1. The evidence did not establish to the requisite standard that Mr Siggins was dishonest in the representations he made to the Law Society of Tasmania in 2008 and 2009, nor was it proven that any representation he made to the Bar Association of Queensland before mid-2011 was dishonest: [46], [49], [53], [62], [70], [186].

2. From June 2011 until August 2017, Mr Siggins’ principal place of practice was New South Wales. The seven representations he made to the Queensland Bar Association between June 2011 and May 2017 were false to his knowledge and dishonest in that Mr Siggins applied for a practising certificate knowing that it was not his intention to practise in Queensland in the following year: [112].

3. By his failure to apply for a New South Wales practising certificate immediately prior to the commencement of each financial year from 2012/2013 to 2016/2017, Mr Siggins contravened s 45(6) of the Legal Profession Act (NSW) and cl 5 of sch 3 to the Legal Profession Uniform Law (NSW): [118].

4. As to Mr Siggins’ constitutional challenge to s 48 of the Legal Profession Act (Tas) and s 49 of the Legal Profession Act 2007 (Qld), there was no controversy, dispute or matter that arose between Mr Siggins and the Bar Council about any immediate right, duty or liability concerning Mr Siggins under those Acts: [130].

Croome v The State of Tasmania (1997) 191 CLR 119; [1997] HCA 5; Inre Judiciary and Navigation Acts (1921) 29 CLR 257 at 265-267; [1921] HCA 20, applied.

1. As to Mr Siggins’ challenge to s 45(6) of the Legal Profession Act 2004 (NSW) and cl 5 of sch 3 of the Legal Profession Uniform Law (NSW) pursuant to s 117 of the Constitution, no interpretation of the meaning of “resident in a State” led to the conclusion that Mr Siggins was a resident in any State other than NSW between February 2011 and August 2017: [147].

Street v Queensland Bar Association (1989) 168 CLR 461; [1989] HCA 53, considered and applied.

1. Assuming without deciding that Mr Siggins was resident in a State that was not NSW between July 2009 and February 2011, the burden of the requirement that he obtain a NSW practising certificate because he practised principally in NSW would have been unaffected had he moved from Tasmania or Queensland to NSW: [151].

2. As to s 92 of the Constitution, no attempt was made to demonstrate any discriminatory aspect of s 48(6) of the Legal Profession Act 2004 (NSW) nor that it was of a protectionist character: [153]. The provision was not directed to discriminating against, nor in fact did it discriminate against, interstate intercourse: [160].

Cole v Whitfield (1988) 165 CLR 360; [1988] HCA 18; Palmer v Western Australia [2021] HCA 5, considered and applied.

1. As to s 109 of the Constitution, there was no inconsistency between the impugned NSW provisions and the provisions of the Judiciary Act 1903 (Cth) relied on by Mr Siggins: [176].

De Pardo v Legal Practitioners Complaints Committee (2000) 97 FCR 575; [2000] FCA 335; Telstra Corporation Ltd v Worthing (1999) 197 CLR 61; [1999] HCA 12; APLA Limited v Legal Services Commissioner of New South Wales and Another (2005) 224 CLR 322; [2005] HCA 44, considered and applied.

1. Mr Siggins’ dishonest conduct was incompatible with the characteristics of honesty and integrity required of a barrister. He is currently unfit to practise as a barrister. His name should be removed from the roll: [191].

Judgment

1. THE COURT: Julian Phillip Siggins was admitted as a lawyer in New South Wales in 2007. He hoped to practise as a barrister. In order to obtain a barrister’s practising certificate in New South Wales, he was required to pass the Bar exams set by the New South Wales Bar Association. Those exams test a wide range of knowledge of ethics, substantive law and practice and procedure. They carry a pass mark of 75%.

2. Mr Siggins sat the Bar exams twice, in 2008 and 2009, but failed both times. In the meantime, and in the years following his second failed attempt, he took steps each year to obtain a practising certificate from another jurisdiction, first Tasmania and then Queensland. For six years between 2011 and 2017 he practised as a barrister from chambers in New South Wales holding a Queensland practising certificate. Each application to the Bar Association of Queensland during that period included a representation by Mr Siggins to the effect that Queensland would be his principal place of practice for the next 12 months. He now practises as a barrister in Victoria.

3. The Council of the New South Wales Bar Association contends that, between late 2008 and mid-2017, Mr Siggins’ principal place of practice was New South Wales and that each time he applied for a practising certificate from another jurisdiction during that time, he intended to continue practising principally in New South Wales for the term of the relevant practising certificate. The Bar Council alleges that Mr Siggins repeatedly misrepresented the true position to regulatory authorities, dishonestly so. By these proceedings, the Bar Council seeks a declaration that Mr Siggins is not a fit and proper person to remain on the roll of Australian lawyers maintained by the Supreme Court of New South Wales and an order for the removal of his name from the roll.

Issues in the proceedings

4. The Bar Council’s amended summons specifies 12 separate representations alleged to have been false to the knowledge of Mr Siggins at the time he made them (identified as A-L in the amended summons). There is also an allegation of failure to comply with statutory obligations as to practising certificates. The particulars of those allegations are that Mr Siggins:

1. dishonestly represented to the Law Society of Tasmania:

1. in correspondence dated 26 November 2008 and 16 January 2009 that Tasmania was his principal place of practice as at those respective dates; and

2. in a practising certificate application dated 22 May 2009 that Tasmania was his expected principal place of practice for the year ended 30 June 2010;

2. dishonestly represented to the Bar Association of Queensland in practising certificate applications dated 24 March 2010, 18 June 2010, 30 June 2011, 28 May 2012, 27 May 2013, 3 June 2014, 20 May 2015, 20 May 2016 and 23 May 2017 that Queensland was his intended principal place of practice during the prospective periods covered by those applications; and

3. contravened s 45(6) of the Legal Profession Act 2004 (NSW) from 1 July 2009 to 30 June 2015 and cl 5 of Sch 3 to the Legal Profession Uniform Law (NSW) from 1 July 2015 to 30 June 2017, by failing to apply for a New South Wales practising certificate throughout that period.

5. Although the allegations date back to 2008, the Bar Council’s submissions focused primarily on the period from June 2011. The Council submitted in its written submissions that inferences of dishonesty are “most readily drawn” in respect of the seven representations made to the Bar Association of Queensland between then and May 2017. It was submitted that, if the Court is satisfied that Mr Siggins knowingly misrepresented the true position when making those representations, that finding would warrant an order that his name be removed from the roll.

6. There is no contest as to the content of the relevant representations, all of which are in writing. The central issues in the proceedings are whether the representations were made dishonestly and, if so, whether a declaration of unfitness and an order for the removal of Mr Siggins’ name from the roll should be made.

7. Mr Siggins’ written submissions did not engage with the substance of the Bar Council’s case on those issues. He responded to the Council’s 12 volumes of evidence and 29 pages of written submissions (excluding detailed annexures summarising the documentary evidence) with a glib three-page submission in which he contended that, in the application of certain provisions of the Legal Profession Uniform Law, he has no case to answer.

8. There is no merit in the “no case” submission. Mr Siggins made two points in support of that submission. First, he invoked cl 12 in Part 4 of Sch 3 to the Legal Profession Uniform Law, which disapplies the provisions dealing with professional discipline to “conduct of a lawyer that has occurred within a non-participating jurisdiction”. The argument was based on the “rules of postage”, by reference to which Mr Siggins contends that, if the Tasmanian or Queensland authorities were misled, they were misled in the place where the misleading applications were received, not the place from which they were sent. Mr Siggins submitted that, by virtue of the provisions referred to, the discretion and authority to prosecute or take action in respect of any alleged misrepresentation in a non-participating jurisdiction was vested in the regulatory authority of that jurisdiction.

9. Mr Siggins’ reliance on those provisions reveals a fundamental misconception as to the nature of the case against him. The Bar Council’s central contention is that Mr Siggins is not a fit and proper person to remain on the roll in New South Wales because he has been dishonest in his dealings with authorities. The question of fitness is indifferent to borders or the location of the alleged dishonesty. Even if the provisions relied on have any relevance in the proceedings, which is disputed, they do not oust the Court’s inherent jurisdiction to supervise and discipline members of the legal profession, which is the jurisdiction invoked by the Bar Council’s application. That jurisdiction is expressly preserved by s 264(1) of the Legal Profession Uniform Law.

10. Secondly, Mr Siggins submitted that the Bar Council’s factual case, which is largely circumstantial, could not satisfy the onus of proof. He relied on the fact that the relevant regulatory authorities in Tasmania and Queensland each provided him with a “certificate of fitness”, which he appears to contend is direct evidence that he is a fit and proper person to remain on the roll in New South Wales. The certificates are plainly not determinative of that question. They indicate little more than that there were no complaints against Mr Siggins in those jurisdictions. In circumstances where the evidence is that he practised mostly in New South Wales, the certificates are of little weight even on that narrow question. The Court must consider all of the evidence. It is unnecessary to say anything further about the “no case” submission.

11. Separately, Mr Siggins has identified what he contends is a matter arising under the Constitution. The matter was raised in an originating application filed by Mr Siggins in the Federal Court on 1 May 2019 seeking a declaration that certain provisions of the legislation that governs the legal profession in Australia are contrary to ss 92 and 117 of the Constitution and therefore invalid. That application was subsequently transferred to this Court to be heard together with the Bar Council’s application. On 25 November 2019, an order was made that evidence in each case be evidence in the other. Mr Siggins put no separate written submissions in support of his Constitutional application. He relied on his amended notice pursuant to s 78B of the Judiciary Act 1903 (Cth).

12. In his evidence and submissions at the hearing, Mr Siggins denied any dishonesty. In short, the effect of his evidence was that, throughout the relevant period, he was endeavouring to establish a practice wherever the work took him and accordingly that his current or proposed “principal place of practice” at any given time was a fluid notion and that he was “simply going where the work is”.

13. We have concluded that the evidence does not establish on the balance of probabilities (and having regard to the seriousness of the allegations) that Mr Siggins was dishonest in the representations made before mid-2011 relied upon by the Bar Council. However, we are satisfied to the requisite standard that from at least mid-2011 Mr Siggins’ principal place of practice was New South Wales; that he made seven representations to the Queensland Bar Association between June 2011 and June 2017 to the effect that Queensland was his intended principal place of practice for the following financial year; that those representations were made dishonestly and that, by practising in New South Wales for six years without a New South Wales practising certificate, Mr Siggins contravened s 45(6) of the Legal Profession Act 2004 and later cl 5 of Sch 3 to the Legal Profession Uniform Law. We have also concluded that Mr Siggins’ constitutional challenge should be rejected. In all the circumstances of the case, we are satisfied that those conclusions warrant the removal of Mr Siggins’ name from the roll. Our reasons for those conclusions are as follows.

Dishonesty

14. The representations of Mr Siggins relied on by the Bar Council are identified in [4]. In respect of each of those representations the Bar Council pleaded that each of them “was, to the respondent’s knowledge, false”. This is an allegation of fraud and is a form of dishonesty (as to which see Berger v Council of the Law Society of New South Wales [2019] NSWCA 119 at [239] to [242]) and hence we have described it as such. In that regard, although the standard of proof is to the civil standard, the nature of the proceedings, being disciplinary proceedings, and the subject matter as well as the gravity of the allegation, being dishonesty, have been taken into account in our consideration of whether the Bar Council’s allegations have been established (Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–362; [1938] HCA 34; Evidence Act 1995 (NSW), s 140(2)).

15. The first two of the dishonest representations alleged by the Bar Council concern an existing state of affairs namely whether, at the time of the representation, Mr Siggins’ principal place of practice was Tasmania. It follows that, to establish its case in relation to those representations, the Bar Council has to establish that Mr Siggins intended to convey that representation, that it was false and he knew it was false (Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; [1995] HCA 68 at 578-579). The other eight dishonest representations concern a statement of Mr Siggins’ future intentions, or his current belief as to his future intentions, namely what was his intended or proposed principal place of practice in the immediate proceeding period. To establish its case in relation to such a representation, the Bar Council had to demonstrate that he intended to convey that representation and that it did not represent his actual belief or intention as to his future place of practice. In that regard, while it is relevant to consider whether Mr Siggins had any reasonable basis for believing each year that in the following year he would practise principally in Tasmania or Queensland as the case may be, that is only to be considered as a basis for inferring what his actual belief or intention was at the relevant time. An absence of reasonable basis for a belief is not synonymous with the state of mind pleaded by the Bar Council.

16. It is also necessary to note that the Bar Council did not make any allegation about Mr Siggins’ state of mind when he allegedly breached the statutory provisions noted in [4(c)]. The text of those provisions is set out below. In summary, the Bar Council’s allegations involve breaches of provisions that impose an obligation on legal practitioners to obtain local practising certificates in certain circumstances. A failure to comply with those provisions does not constitute an offence and no mental element appears to be required to demonstrate they were contravened (other than the holding of a reasonable expectation as to the place of practice in the following financial year). Nowhere in its pleading or submissions did the Bar Council identify whether the alleged contravention was either wilful, reckless, negligent or inadvertent. In those circumstances we have not sought to do so either. In the end result, our findings in relation to the breaches of those provisions do not add much to our assessment of Mr Siggins’ fitness to practise.

Summary of the evidence

17. While the Bar Council’s submissions invited the Court to focus on Mr Siggins’ conduct from mid-2011, the assessment of that conduct is very much informed by preceding events. For that reason, it is helpful to consider all of the relevant circumstances in chronological order. Some parts of the summary that follows are drawn almost verbatim from the chronology provided by the Bar Council.

Completion of law degree and the move back South

18. Mr Siggins was born in Victoria. He moved to Sydney in 1999. He completed a Bachelor of Laws at the University of Western Sydney between 2003 and 2006, graduating in April 2007. He was about 35 when he began his law degree, having previously worked in advertising.

19. Mr Siggins gave evidence that he moved to Tasmania at the end of 2006, at the completion of his studies but before graduation. He and his wife acquired real property in Tasmania before and during 2007. In July 2007, Mr Siggins completed the practical legal training component for admission as an Australian lawyer at the New South Wales College of Law. He said he completed that course online apart from a two-week campus component during which he stayed with friends in Sydney. He was admitted as a lawyer of the Supreme Court of New South Wales and had his name entered on the roll on 24 August 2007. On 27 August 2007, Mr Siggins obtained an “employee practising certificate” from the Law Institute of Victoria. He gave evidence that he was working for a criminal firm in Victoria at that time.

20. Mr Siggins’ evidence that he spent his time in Tasmania and Melbourne during the year or so following the completion of his studies is not directly contradicted by any evidence in the Bar Council’s case and is not inherently implausible. There is no reason to disbelieve that evidence.

First attempt to pass the New South Wales Bar exams

21. As already noted, in order to obtain a practicing certificate issued by the New South Wales Bar Association, Mr Siggins needed to pass the Bar exams. In November 2007, while still working in Melbourne, he applied to sit the Bar exams the following February.

22. The exams were fixed for the Monday, Wednesday and Friday of the week commencing 18 February 2008. Mr Siggins sat the first two exams but did not sit the third. He failed the two he sat, by a significant margin. Mr Siggins accepted in cross-examination that, when he enrolled to sit the exams, it was his hope or intention to practise in New South Wales. However, he said that changed when his mother became ill and moved to Tasmania in the period between when he applied to sit the exams and when he sat them. He said by the time the exams came around he had formed the view that he would more likely stay at the Bar in Tasmania. He said he nonetheless considered that “the information [from sitting the Bar exams] would be useful moving forward”.

23. Mr Siggins agreed in cross-examination that he had not previously mentioned his mother in his explanation as to where he practised from time to time. He explained that he had no intention of calling her as a witness, saying that he was not going to “put her through this”.

24. Whether that is the reason Mr Siggins chose not to sit the third Bar exam in February 2008 is another matter. It was put to Mr Siggins in cross-examination that he did not sit that exam because he knew (without needing to await the results) that he had probably failed the first two. That seems more probable than his explanation that he sat two of the exams, but not the third, merely for “information”. However, it is not possible to reach a firm conclusion on that issue.

Tasmanian practising certificate issued in April 2008

25. On 11 March 2008, less than a month after failing the Bar exams, Mr Siggins was admitted as a barrister and solicitor of the Supreme Court of Tasmania. On 15 April 2008, he applied to the Law Society of Tasmania for a barrister’s practising certificate. The evidence is silent as to whether he had obtained any practising certificate before that date other than the “employee practising certificate” obtained from the Law Institute of Victoria on 27 August 2007.

26. In his application to the Law Society of Tasmania, Mr Siggins gave an address in Deloraine, Tasmania as his “intended practice details”. He gave evidence at the hearing that the address he had nominated was the residential address where his mother was living at the time. Despite the reason he gave for not sitting the third exam in Sydney (his mother’s ill health), Mr Siggins was not living in Tasmania when he completed that application. He said, “we were still in Melbourne at that stage”. Mr Siggins owned another property in Tasmania which he said was being rented out while he was working in Melbourne.

27. On 28 April 2008 the Law Society of Tasmania issued a practising certificate to Mr Siggins that was valid until 31 December 2008. He was not required to sit any examinations or undertake any courses in order to obtain that practising certificate.

28. In August 2008, Mr Siggins’ name was entered into the Register of Practitioners in the High Court of Australia.

29. Mr Siggins affirmed in his affidavit in these proceedings that, from the time he first obtained a Tasmanian practising certificate in April 2008 until 24 March 2010, when he surrendered that practising certificate, he considered his principal place of practice to be located in Tasmania. He accepted that he did not take chambers in Tasmania during that time; he was practising from home.

30. In mid-2008, Mr Siggins decided to relocate to Sydney. His affidavit in the proceedings did not address that decision. In correspondence created at the time he explained that his father-in-law offered to assist him financially if he could find a place in chambers in Sydney to obtain some mentoring. He agreed in cross-examination that, at that time, he was aware of the provisions of Part 2.4, div 11 of the Legal Profession Act 2004 (NSW) (now repealed), which enabled an interstate barrister to practise temporarily in New South Wales.

31. In August 2008, Mr Siggins took a residential lease in Sydney. He lived at those premises with his wife. At around the same time he became a full-time “floater” (a barrister permitted to practise from chambers without taking a room) at Chalfont Chambers. Mr Siggins said that, while he was at Chalfont Chambers, he was under the supervision of senior members of the floor in “an informal type of arrangement”. He said that was the reason he went to Chalfont Chambers “on a temporary basis”, because he didn’t have “a mentor type situation in Tasmania”.

Complaint in New South Wales

32. Mr Siggins came to the attention of the New South Wales Bar Association on 10 November 2008 when the Legal Services Commission of New South Wales wrote to the Director of Professional Conduct at the Bar Association referring a complaint against Mr Siggins arising out of a matter in which he had appeared in the New South Wales Administrative Decisions Tribunal on 17 October 2008. It may be noted that, after giving evidence to the Court that he was informally supervised during his time as a floater at Chalfont Chambers and that he appeared unled only for mentions, Mr Siggins was forced to agree that the complaint related to a hearing in which he had appeared unled (within only months of coming to Sydney supposedly for mentoring).

33. The letter from the Legal Services Commissioner referring the complaint noted that inquiries had revealed Mr Siggins did not hold a practising certificate in New South Wales. A few days after receiving the complaint, Ms Helen Barrett of the New South Wales Bar Association contacted the clerk of Chalfont Chambers to enquire whether Mr Siggins was a member of that floor. She was told that he was and that he had become a member approximately a month earlier.

34. The receipt of that information prompted correspondence between the New South Wales Bar Association and the Law Society of Tasmania concerning Mr Siggins’ principal place of practice. On 13 November 2008 the Law Society of Tasmania wrote to Mr Siggins seeking that information. In cross-examination, Mr Siggins accepted that he appreciated that the letter raised an important issue in relation to his practising certificate. Mr Siggins’ response to that letter is addressed below.

Meetings with Mr Selth

35. The following week, on 20 November 2008, a meeting was arranged between Mr Siggins and the late Mr Selth, who was at that time Executive Director of the New South Wales Bar Association.

36. It is necessary to explain something about the status of Mr Selth’s evidence. Mr Selth was the Executive Director of the Bar Association for almost 20 years. He swore two affidavits in the proceedings which were served on Mr Siggins. At some point, Mr Siggins was informed that Mr Selth was suffering from a terminal illness and arrangements were made for any evidence by way of cross-examination to be taken on commission by Basten JA in advance of the hearing. However, Mr Siggins subsequently informed the Bar Council that, having reviewed Mr Selth’s affidavits, he no longer required him for cross-examination. Mr Selth died before the hearing. His affidavits were read without objection. In the circumstances, it is appropriate to proceed on the basis that his evidence is unchallenged and may readily be accepted.

37. Mr Selth stated in his affidavit that he arranged the meeting by telephone, asking Mr Siggins to come to see him. He said the head of Chalfont Chambers attended the meeting with Mr Siggins, although Mr Selth was not expecting him. Mr Selth’s notes of the meeting record that he told Mr Siggins he was not at that time concerned with the complaint that had been referred by the Legal Services Commissioner.

38. Mr Selth said in his affidavit that he recalled saying at an early point in the meeting “what are you doing in my sandpit without a ticket?” He said the conversation then included words to the following effect:

“Mr Siggins:   This is just one-off. I am still trying to work out whether to practise in New South Wales or in Tasmania.

Mr Selth:   You cannot have New South Wales as your principal place of practice without a New South Wales practising certificate. Your Tasmanian practising certificate allows you to practise in New South Wales, but your principal place of practice cannot be New South Wales. If New South Wales is to be your principal place of practice you need to sit the Bar exams here and obtain a New South Wales practising certificate. Also, new legislation will soon come into force in Tasmania which will require you to declare your principal place of practice.”

39. That account is consistent with Mr Selth’s handwritten notes made at around the time of the meeting.

Particular A: 26 November 2008 representation to the Tasmanian Law Society

40. The first representation relied upon by the Bar Council as a dishonest representation was contained in a letter dated 26 November 2008 sent by Mr Siggins to the Tasmanian Law Society following that meeting. The letter provided Mr Siggins’ response to the Tasmanian Law Society’s earlier request for information as to his principal place of practice. Mr Siggins’ letter opened with the following statement:

“With reference to your inquiry my principal place of practice remains in the State of Tasmania as stated in my email of 30 September 2008.”

41. Mr Siggins proceeded to give a lengthy account of his connections with Tasmania. He said he had been practising only temporarily at Chalfont Chambers. He implied that he had only registered for the New South Wales Bar exams in order to obtain the examination materials, which he considered would be “extremely useful” for his practice generally. He said at the time of sending for those materials he had “no intention of practising in New South Wales” and that he “deliberately did not sit all of the NSW exams” for that reason. That account of course was at odds with his evidence in this Court summarised above.

42. Mr Siggins gave evidence that he had “CC’d” that letter to Mr Selth. He denied having any further meeting with Mr Selth after the meeting of 20 November 2008. Mr Selth’s records (the reliability of which should be accepted) indicate that there was a second meeting. In an internal email dated 26 November 2008 sent by Mr Selth to other officers of the Bar Association, Mr Selth stated:

“[Mr] Siggons (sic) and Alun Hill came to see me again today about the difficulty Siggons has with his Tasmanian PC. Siggons and Hill have decided that Siggons will return to his practice in Tasmania – and sit our exams and attend our [Bar Practice Course] in the second half of next year.”

43. The email noted that Mr Siggins would “continue as a ‘floater’ at Chalfont”. It may be seen that the picture Mr Siggins was presenting to Mr Selth was quite different from the picture he was presenting to the Law Society of Tasmania. The indication that he would attempt the exams again the following year was completely inconsistent with his assertion to the Tasmanian authority that he had no intention of practising in New South Wales.

44. In cross-examination at the hearing, Mr Siggins appears to have conflated the two meetings with Mr Selth. He stated that, upon being informed of the New South Wales Bar Association’s confusion as to his principal place of practice, he contacted Mr Selth. He said he told Mr Selth that he was “a Tasmanian barrister” and explained the background set out in the letter, “in order to clear up any misconceptions that may have arisen while being temporarily in Sydney.” The suggestion was that there was never any doubt in Mr Siggins’ mind that he was a Tasmanian barrister visiting Sydney temporarily to acquire experience and that he never suggested otherwise to Mr Selth.

45. The chronology of events attested to by Mr Selth is more plausible. He kept careful contemporaneous records of two separate meetings. According to Mr Selth’s account, Mr Siggins said in the first meeting that he was still trying to work out whether to practise in New South Wales or in Tasmania. Mr Selth gave Mr Siggins various pieces of information, including the fact that he could not have New South Wales as his principal place of practice without a New South Wales practising certificate and that, in order to obtain a New South Wales practising certificate, he would have to sit the Bar exams. Mr Selth said he also warned Mr Siggins that new legislation was about to come into force in Tasmania which would require him to declare his principal place of practice. On Mr Selth’s account, Mr Siggins returned six days later and said he had decided to return to his practice in Tasmania and would try the Bar exams again the following year. All the indications are that, until he was called upon to explain himself to Mr Selth, Mr Siggins had every intention of establishing his principal practice in Sydney.

46. However, it does not necessarily follow that Mr Siggins was dishonest in his representation to the Law Society of Tasmania made in his letter of 26 November 2008. He clearly did convey and mean to convey that his then principal place of practice was Tasmania. However, having regard to the limited material available in relation to his practice during that period, we are not satisfied that the representation was false, much less false to Mr Siggins’ knowledge. It is clear enough that at that time he was endeavouring to find a way to practise in Sydney. However, at that stage at least, he appears to have been trying to do so within his understanding of the rules. Such an intention was not necessarily inconsistent with the representation about his current place of practice.

Renewal of Tasmanian practising certificate until 30 June 2009

47. On 5 December 2008, Mr Siggins applied to the Law Society of Tasmania to renew his Tasmanian practising certificate. The residential address, practice address and postal address provided in that application were all addresses in Deloraine. Mr Siggins agreed in cross-examination that, after returning to Tasmania (which he puts at early 2009), he continued to use the Chalfont Chambers letterhead and did not include any Tasmanian address on his letterhead. He also agreed that he used the New South Wales Bar Association’s professional standards scheme disclaimer. He also used the form of costs agreement required by New South Wales legislation, not the Tasmanian legislation. There may be cause for scepticism as to Mr Siggins’ level of commitment to practising in Tasmania at that time but there is no cogent evidence to establish that the Tasmanian practising certificate was a complete ruse.

Particular B: 16 January 2009 representation to the Tasmanian Law Society

48. The second representation relied upon by the Bar Council as a dishonest representation was made in a further letter dated 16 January 2009. The Law Society of Tasmania issued a further practising certificate to Mr Siggins for the period 1 January 2009 to 30 June 2009. However, by 15 January 2009, he had still not received it. He called to chase it up. The issue of his “whereabouts” was evidently raised again. On 16 January 2009, Mr Siggins sent a letter to the Law Society of Tasmania responding to the “confusion” as to his whereabouts by referring to his letter of 26 November 2008 and confirming that he was on holidays and was in the process of organising his return to Tasmania. The letter included the following statement:

“Accordingly, I expect to be in Deloraine on or about Saturday 30 January next whereupon, I will resume practice from my principal place of residence which was and still is 37 Tower Hill Street Deloraine.” (Emphasis added.)

49. The Bar Council contends that this statement was dishonest in the sense discussed above. For the reasons given in respect of the letter dated 26 November 2008, the evidence does not establish to the required standard of proof that the reiteration of the position stated in the November letter as to his then principal place of practice was dishonest as at 16 January 2009.

Particular C: 22 May 2009 application to the Tasmanian Law Society

50. The third representation relied upon by the Bar Council as a dishonest representation was made in an application for renewal of the Tasmanian practising certificate. On 11 May 2009, Mr Siggins applied to sit the New South Wales Bar exams in July of that year. Later that month, on 22 May 2009, he applied to the Law Society of Tasmania to renew his practising certificate for the period ending 30 June 2010. The application form included his former practice address in Deloraine but that was changed by hand on the completed form to an address in Devonport. Mr Siggins also gave a residential address in Devonport. The form included the following section for completion by the applicant:

“3.    Eligibility to Apply for a Practising Certificate

(See section 48 of the Legal Profession Act 2007. (Note 1)

I am eligible to apply for a practising certificate under the Legal Profession Act 2007 on the basis indicated:

�   Tasmania �   Another State or Territory (specify) �   Outside Australia; or

(a) I reasonably expect to be engaged in legal practice solely or principally in the following jurisdiction during the currency of the certificate being applied for:

(b) My place of residence in Australia is in:

�   Tasmania �   Another State or Territory (specify) �   Outside Australia”

In each paragraph, Mr Siggins ticked “Tasmania”.

51. The Bar Council contends that the representation that Tasmania would be Mr Siggins’ principal place of practice for the intended period of the practising certificate was dishonest.

52. Mr Siggins gave evidence that he was practising in Devonport during 2009. The Bar Council went to considerable lengths to obtain documents in an attempt to establish where Mr Siggins was living and appearing as a barrister throughout the lengthy period the subject of these proceedings. The records it obtained are not complete, but they paint a picture. They were conveniently summarised in schedules attached to the Bar Council’s written submissions.

53. One of the schedules provides a table showing the apparent geographical location of matters on which Mr Siggins worked in the period 2008 to 2017 to the extent disclosed by the material the Council has been able to obtain. The material summarised in that table provides slender support for the assertion that Mr Siggins was practising in Devonport throughout 2009. There are records of only four appearances in Tasmania during that year. In the same year there are many records of appearances in New South Wales including records of what appear to have been substantial hearings in the Federal Magistrate’s Court in rural centres in New South Wales. On balance, however, the evidence is not of sufficient cogency to sustain a finding that the representation made in the 22 May 2009 application for a Tasmanian practising certificate was dishonest. As already noted, the representation concerned Mr Siggins’ state of mind in May 2009 about his place of practice for the period 30 June 2009 to 30 June 2010. The fact that he appeared in some matters in Tasmania in that period but more matters in New South Wales does not demonstrate that as at May 2009 he did not intend principally to practise in Tasmania for that period. Barristers may hope to get briefs in one place and end up receiving them from somewhere else. We are not satisfied to the requisite standard that Mr Siggins’ application for renewal in May 2009 falsely stated his intention or belief as to his principal place of practice for the forthcoming financial year.

Second attempt to pass the NSW Bar exams

54. In July 2009, Mr Siggins attempted the New South Wales Bar exams for the second time. He failed all three exams. He received notice of that result on 13 August 2009. Based on his conversations with Mr Selth in late 2008, it may comfortably be inferred that Mr Siggins appreciated that, as a consequence of failing the exams again, he could not participate in the New South Wales Bar Practice Course and would not be granted a barrister’s practising certificate in New South Wales at that time.

Queensland Practice Course

55. On 11 January 2010, Mr Siggins commenced the Queensland “Practice Training Course at the Bar Practice Centre”. He completed that course on 19 February 2010. His affidavit in these proceedings did not explain his apparent decision to turn his attention to Queensland as a place to practise as a barrister. In cross-examination, when asked “why Queensland?”, Mr Siggins said:

“Well, I’d, I’d half grown up there. My mother moved, was a teacher there for a, for a long time. My brother lived up in, up in Queensland and so I had some family connections to Queensland before my mother moved, moved down to Tasmania, but she was made redundant in the 90s under the Victorian Kennett scheme as a teacher and could only teach in Queensland. So I, I had a, I had a base there and I moved there from Tasmania because I just wasn’t getting any work in Tasmania. I was, it, going, going idly by.”

56. Although Mr Siggins denied it, the obvious, more likely explanation is the fact that there was at that time no requirement to sit any examinations for admission as a barrister in Queensland.

Particular D: 24 March 2010 application to the Bar Association of Queensland

57. The fourth representation relied upon by the Bar Council as a dishonest representation was made in Mr Siggins’ first application for a practising certificate from Queensland. On 24 March 2010, having completed the Queensland practice course, Mr Siggins applied to the Bar Association of Queensland for a practising certificate for the period ending 30 June 2010. In response to a multiple-choice question on the application form, “which of the following most describes your profession for the next twelve months?”, he ticked “practising principally as a barrister at the private bar in Queensland”. An alternative choice was “other – please specify” but that was not ticked. In answer to a further question, “will practising as a barrister be your principal endeavour?”, he responded “yes”. Mr Siggins said in his affidavit that, at that time, he intended to practise in Queensland.

58. In light of subsequent events, the truthfulness of the representation that practising principally as a barrister at the private Bar in Queensland best described Mr Siggins’ future practice at that time may be doubted. However, it is not possible to reach a firm conclusion on that issue.

59. Mr Siggins wrote to the Law Society of Tasmania the same day noting that he was making an application for admission to the private Bar in Queensland and wished to surrender his Tasmanian practising certificate. Two days later, the Law Society of Tasmania confirmed to the Bar Association of Queensland that Mr Siggins had surrendered his Tasmanian practising certificate.

60. On 30 March 2010, Ms Barrett of the New South Wales Bar Association contacted Chalfont Chambers and was told that Mr Siggins was a member of those chambers. However, the evidence does not establish whether that was merely as a door tenant or whether Mr Siggins was based in Sydney at that time.

61. On 31 March 2010 the Bar Association of Queensland issued a practising certificate to Mr Siggins which was valid until 30 June 2010. That practising certificate was subject to a condition that Mr Siggins undertake pupillage until 31 March 2011.

62. Mr Siggins stated in his affidavit that, for most of 2010, he and his wife lived in Brisbane. The records obtained by the Bar Council record only four matters in Queensland during that calendar year and many more in New South Wales. However, he undertook the Queensland practice course and it appears he subsequently satisfied the Bar Association of Queensland that he had completed his pupillage, evidently on the basis of information received from his pupil master. On balance, while there is a basis for scepticism, the evidence is not of sufficient cogency to sustain a finding that the representation made on 24 March 2010 that Mr Siggins would be practising principally as a barrister at the private Bar in Queensland until 30 June 2010 was dishonest.

Particular E: 18 June 2010 application to the Bar Association of Queensland

63. The fifth representation relied upon by the Bar Council as a dishonest representation was made in Mr Siggins’ application for renewal of the Queensland practising certificate. On 18 June 2010, Mr Siggins applied to have the Queensland practising certificate renewed for the period ending 30 June 2011. Again, the application form asked, “which of the following most describes your profession for the next twelve months?” Mr Siggins again ticked “Practising principally as a barrister at the private bar in Queensland.” A further practising certificate was issued, subject to the same pupillage condition as before.

64. As already noted, there are records of only four appearances in Queensland for the 2010 calendar year, the last being in August of that year. On 25 October 2010 Mr Siggins applied to join 7 Windeyer Chambers in Sydney commencing in February 2011. Mr Siggins said in his affidavit that, on 27 October 2010, he contacted Mr Selth concerning the possibility of taking the room in Windeyer Chambers. He said he informed Mr Selth that he had failed the Bar exams in 2009 but that he had since completed the Queensland Bar Practice Course and now held a Queensland barrister’s practising certificate. According to Mr Siggins’ affidavit, Mr Selth said to him:

“once you have an unconditional practising certificate, I will give you an unconditional New South Wales barrister’s certificate if you want one”.

65. Mr Siggins said he then asked Mr Selth whether he would have to re-sit the Bar exams prior to being granted a New South Wales barrister’s certificate. He said he explained that, if he was required to sit the exams again, he would sit them before moving to Sydney as he could not afford to move again. Mr Siggins asserts that Mr Selth replied:

“as you have now completed the Queensland Bar Practice Course, I won’t require you to sit the exams”.

66. Mr Siggins stated in his affidavit that, “on that assurance”, he informed Mr Selth that he expected to have an unconditional practising certificate by March or April 2011 and would move down to Sydney around February or March.

67. In an affidavit affirmed 18 November 2019, Mr Selth stated that he did not have a conversation with Mr Siggins to that effect. He said the statements attributed to him by Mr Siggins were contrary to the views he held at the time and that he was certain he never gave Mr Siggins “any comfort about obtaining an unconditional practising certificate without passing the New South Wales Bar examinations.”

68. Mr Siggins’ evidence on this issue is implausible and must be rejected. In their earlier conversations, Mr Selth had been at pains to make clear to Mr Siggins that he would have to pass the Bar exams if he wished to practise in New South Wales. It is doubtful whether it would have been within Mr Selth’s authority to waive that requirement. Even if it was, it is highly unlikely that he would have done so for Mr Siggins, who had shown two years in a row that he could not pass the exams. The failure of Mr Siggins to avail himself of the opportunity to cross-examine Mr Selth on this issue is also highly relevant to our rejection of Mr Siggins’ account.

69. In November 2010, there was correspondence between Mr Siggins and the Queensland Bar Association concerning returned mail. Mr Siggins explained that he had been working from home as he had been “quite ill”. He foreshadowed having new chambers in the next few weeks. On 14 December 2010 he wrote to the Queensland Bar Association providing the address for his “new chambers” in Brisbane. That explanation may have been disingenuous. There is no evidence of Mr Siggins ever having had an active practice in any chambers in Brisbane.

70. As with the representation made on 24 March 2010, the truthfulness of Mr Siggins’ representation to the Queensland Bar Association made on 18 June 2010 that “practising principally as a barrister at the private Bar in Queensland” best described his profession for the following 12 months may be doubted. However, having regard to the fact that he had in fact taken the step of completing the Queensland practice course and in due course satisfied the Bar Association of Queensland that he had completed his pupillage, it cannot be concluded to the requisite standard that the representation was dishonest.

Application for a NSW practising certificate based on the Queensland certificate

71. From at least February 2011, Mr Siggins was living in Sydney. It is common ground that, from that time until August 2017, his place of residence was always Sydney. Mr Siggins commenced practice from 7 Windeyer Chambers in Sydney in February 2011. His wife started working as a clerk at Chalfont Chambers from at least that time, where she remained until October 2013. Mr Siggins moved to Chalfont Chambers in May 2011 where he remained until mid to late 2017, when he moved to Victoria.

72. On 2 May 2011, Mr Siggins wrote to the Bar Association of Queensland advising that his period of pupillage had ended and requesting an unconditional practising certificate. An unconditional practising certificate was issued that day, effective until 30 June 2011.

73. On 8 June 2011 Mr Siggins wrote to the Bar Association of Queensland informing the Association that his practice was “likely to become more and more Sydney focused in the 2011 – 2012 practising year”. He requested a certificate of fitness for admission to the New South Wales Bar. He stated (implausibly) that he had been advised by the New South Wales Bar Association to let his Queensland practising certificate lapse.

74. On 21 June 2011 Mr Siggins applied to the New South Wales Bar Association for a practising certificate for the period 1 July 2011 to 30 June 2012. In that application, he declared that practising as a barrister in another state or territory best described his current profession and that practising as a barrister in New South Wales would be his principal endeavour.

Requirement to sit the NSW Bar exams for a third time

75. On 27 June 2011 Mr Siggins was issued with a New South Wales practising certificate for the following financial year. However, contrary to what Mr Siggins asserts was his understanding based on alleged conversations with Mr Selth, the Bar Association imposed a condition that, no later than 31 March 2012, Mr Siggins undertake and pass to a standard of 75% the three exams conducted by the New South Wales Bar Association (which he had by then failed twice).

Particular F: 30 June 2011 application to the Queensland Bar Association

76. The sixth representation relied upon by the Bar Council as a dishonest representation was made in a further application to the Bar Association of Queensland. Following receipt of the news that he would have to sit the New South Wales Bar exams again, and contrary to his earlier indication that his practice was “likely to become more and more Sydney focused in the 2011 – 2012 practising year”, Mr Siggins instead applied to the Queensland Bar Association for a practising certificate for the period ending 30 June 2012. In that application, contrary to his application to the New South Wales Bar Association only nine days earlier, Mr Siggins nominated “practising principally as a barrister at the private Bar in Queensland” as the occupation that most described his profession for the next 12 months. He nominated a practice address in Brisbane. Mr Siggins agreed in cross-examination that he never actually sat at that address as it was in fact a “virtual office” (T115).

77. The Bar Association of Queensland issued Mr Siggins with an unconditional practising certificate. The following day, on 5 July 2011, Mr Siggins wrote to the New South Wales Bar Association asking them to delay the issue of his New South Wales practising certificate until he had had an opportunity to take advice concerning the requirement that he sit the Bar exams. The letter noted that, in the meantime, Mr Siggins had renewed his unconditional Queensland practising certificate.

78. Mr Siggins was cross-examined at length as to his apparent change of heart in first applying for a practising certificate in New South Wales on the basis of a representation that New South Wales would be his principal place of practice for the next twelve months and then, when told of a requirement to sit the New South Wales Bar exams again, applying instead to Queensland on the basis of a representation that Queensland would be his principal place of practice. Mr Siggins provided no satisfactory explanation for that abrupt change in position. He came close to acknowledging that he had questioned the decision in his own mind in the following answer:

“I had a conversation with Ms Barrett and she said, ‘It’s going to be some time, you may wish to renew your Queensland one.’ And I said, ‘Well, how, how can I, how can I do this in good faith?’ So it was all a very confusing time as to what was going on, but I knew that I would be out of practice by 30th of, 30 June, I had to close up shop if I didn’t have a practising certificate.”

79. However, he persistently denied any dishonesty in the representation that his principal place of practice would be Queensland.

Particulars G to L: repeated renewal of Queensland practising certificates

80. Mr Siggins did not sit the New South Wales Bar exams for a third time. Instead, in May or June of each of the following six years, he applied to renew his Queensland practising certificate, declaring in each application that practising principally as a barrister at the private Bar in Queensland most described his profession for the next 12 months. In each of those years, until 2017, he was issued with an unconditional practising certificate valid until 30 June the following year, the final Queensland practising certificate being valid until 30 June 2017. Those are the remaining six representations relied upon by the Bar Council as dishonest representations.

The Queensland Bar Association seeks information

81. Mr Siggins made his final application to the Queensland Bar Association on 23 May 2017 for a practising certificate for the period from 1 July 2017 to 30 June 2018. At that point, the Queensland Bar Association responded by asking Mr Siggins to provide a written response to certain questions regarding his eligibility for a Queensland practising certificate having regard to the “principal place of practice” requirements in Queensland. Mr Siggins responded on 30 May 2017 that he had work commitments that day but would provide a response as soon as possible. That night Mr Siggins wrote to his professional indemnity insurer asking whether there would be any further payment due if he applied for a New South Wales practising certificate.

81. On 7 June 2017 Mr Siggins applied to the New South Wales Bar Association for a barrister’s practising certificate for the period from 1 July 2017 to 30 June 2018. In that application, he declared that practising as a barrister in another state or territory best described his current profession and that practising as a barrister in New South Wales would be his principal endeavour.

The NSW Bar Council seeks information

83. On 24 July 2017, Mr Tolhurst of the New South Wales Bar Association wrote to Mr Siggins informing him that information received by the Bar Council suggested that at all relevant times since at least 2010 his principal place of practice had been New South Wales. The letter sought information regarding Mr Siggins’ principal place of practice in previous years and sought a response by 7 August 2017. Mr Siggins sought an extension of time for his response but that was refused and he was asked to provide such information as he was able to provide, to identify material he did not have and to provide any further material when he received it. He was also invited to make submissions as to whether he was a fit and proper person to hold a practising certificate.

Move to Victoria

84. On 7 August 2017, Mr Siggins wrote to Ms Barrett of the New South Wales Bar Association stating that he was unable to comply with the deadline. The letter concluded “I therefore withdraw my application for a 2017/18 practising certificate”. Later the same day he wrote to the Bar Association of Queensland requesting that the certificate of good standing provided to him on 7 June 2017 be amended so as to address the Victorian Bar (rather than the New South Wales Bar).

85. On 9 August 2017 Mr Siggins wrote to his insurer stating that, for personal reasons, he had decided to return to his family and relocate to Victoria. On 14 August 2017 Mr Siggins applied for a practising certificate from the Victorian Bar. He gave evidence in his affidavit that he moved to Victoria at around that time.

Commencement of proceedings

86. On 17 September 2018, the solicitor for the New South Wales Bar Association wrote to Mr Siggins inviting him to provide as much of the information requested in its letter of 24 July 2017 as he was able to. That request was repeated on 3 December 2018 but there was no response. The Bar Council’s proceedings were commenced on 26 March 2019.

Six years of practice in NSW with a Queensland practising certificate

87. As already noted, the Bar Council focused on Mr Siggins’ conduct in 2011 and following. Mr Siggins accepts that, in seven practising certificate applications from that time, he represented to the Bar Association of Queensland that his intended principal place of practice for the prospective periods covered by those applications was Queensland (applications dated 30 June 2011, 28 May 2012, 27 May 2013, 3 June 2014, 20 May 2015, 20 May 2016 and 23 May 2017).

88. It follows from what is noted at the outset of this judgment that to establish its case in relation to those representations, the Bar Council must demonstrate that Mr Siggins intended to convey the effect of the representation each time, which he clearly did, and that each representation was knowingly false in that it did not represent his actual belief or intention as to his future place of practice as at the time it was made. As already noted, by 30 June 2011 Mr Siggins was residing in New South Wales, had chambers in New South Wales and his wife worked in New South Wales at different chambers.

89. The Bar Council came to court understanding that Mr Siggins admitted that, in each of the relevant years, his principal place of practice was in fact New South Wales: Notice to Admit, Court Book 3 Tab 9, Notice Disputing Facts Court Book 8 tabs 175 and 179; Council of the New South Wales Bar Association v Siggins [2019] NSWCA 258 at [7] (White JA).

90. However, in his evidence in the proceedings, Mr Siggins sought to qualify that admission. For example, in the notice to admit facts he admitted that, in the year 1 July 2011 to 30 June 2012, his principal place of practice as a barrister was in New South Wales. In response to questioning from the Court, he said that admission was qualified by being confined to Commonwealth matters. Mr Siggins said that it was his understanding at that time that he could practise in any Federal Court as a barrister due to his admission as a practitioner in the High Court. He said he had had that understanding since having his name entered on the High Court Register in 2008 because it was on his High Court admission certificate that he was entitled to practise in any Federal Court.

91. The cross-examiner confronted Mr Siggins with the fact that he had made the admission in unqualified terms in the context of resisting the production of documents. Where documents were sought by the Bar Council as to Mr Siggins’ place of practice, he repeatedly responded “conduct admitted/production not relevant to any fact in issue.” Senior Counsel for the Bar Council put to Mr Siggins on that basis that he in fact had conceded that his principal place of practice was New South Wales for the entirety of the period from 1 July 2011 to 30 June 2017 inclusive. Mr Siggins did not accept that proposition. He said, “No, because I’m, I’m accepting that it’s in New South Wales and not in Commonwealth jurisdictions located in New South Wales.” The answer is non-sensical but the argument appears to be that, whilst residing and practising in NSW, he only practised in Federal matters conducted in NSW. That is contradicted by the evidence summarised in the table referred to above.

92. As already noted, the Bar Council tendered a substantial volume of financial and telephone records and other documents directed to establishing the location of Mr Siggins’ practice during the period in question. In light of Mr Siggins’ admissions (and notwithstanding his implausible explanation about only practising in Federal matters conducted in NSW), it is not necessary to consider that material in detail. The evidence that New South Wales was in fact Mr Siggins’ principal place of practice for the whole period between mid-2011 and mid-2017 is overwhelming.

93. Mr Siggins nonetheless claimed that he still considered at the time of each application that Queensland would be his principal place of practice during the coming year, notwithstanding his experience to the contrary the previous year. His evidence included the following exchange with the Court:

“Q. So in every one of those years between 2011 and 2017 it turned out that your principal place of practice was New South Wales but you intended each year, you tell us, to principally practise in Queensland in the following 12 months; it just didn’t turn out that way?

A. Well, that, that would, that sums it up quite, quite negatively but that, that, that sums it up. I had the view that, you know, transferring from one State to another, for example, when I transferred from, from Tasmania to Queensland I, I wasn’t transferring on any promise of work. I was transferring on, on the view that I would be, have chambers there, that I’d be a part of the Bar Association there. I would do whatever I could to get work that was within the realms but certainly it, yeah, the promise or the prospect of work is a, is a rather intangible, is a rather intangible thing.

Over those years it seems this document should also say that I advertised where permissible in Queensland like as, as a lot of my colleagues did. I attended various functions. I did pro bono work. I was a member of QPILCH. I was part of the duty lawyer Legal Aid scheme in New, in New South Wales. I undertook, you know, the, the training for, for both of those, both of those situations to be a duty lawyer in New South Wales. As I said, I, I advertised at various times. I had on my website, you know, my available in New, in, in Queensland. It, it was really an issue of market forces.”

94. The Bar Council submitted that, contrary to that assertion, the evidence establishes that Mr Siggins’ residence in Sydney throughout the period from February 2011 to August 2017 was the result of a deliberate decision to settle in Sydney with his family on a permanent basis and to practise as a barrister in NSW from Sydney chambers. The submission should be accepted.

95. As noted by the Bar Council, Mr Siggins applied for chambers at 7 Windeyer Chambers in October 2010. In his application letter dated 25 October 2010, Mr Siggins addressed his entitlement to practise in New South Wales. It is appropriate to set out the relevant passage in full:

“On Monday the 27th September 2010 I contacted Mr Philip Selth of the NSW Bar Association to confirm my eligibility to practise in NSW in the short and long term. During that conversation I explained to Mr Selth my current practising status as a Barrister in Queensland and my intention to lease [a barrister’s] room in the New Year if I was accepted to chambers.

I further explained to Mr Selth that while I would continue to hold a Queensland practising certificate, I would be in NSW in the New Year on a semi-permanent basis for some months building my practice. I also explained that depending on my ability to maintain my existing practice in Brisbane; I may then apply for a NSW practising certificate in the next Legal year for reasons that my principal place of practice had become NSW.

As a result of those discussions, Mr Selth confirmed my entitlement to practise in NSW and upon my request confirmed with me that should I wish to transfer my existing principal place of practice from Queensland to NSW, he would issue me with a NSW practising certificate without the need for me to undertake the NSW admission exams or the NSW Bar Practice Course on the proviso that I held an unrestricted practising certificate in Queensland.

As confirmation of our discussions Mr Selth referred me to the provisions of Part 2.4 Division 11 of the Legal Profession Act 2004 (NSW), as I am a barrister who holds a practising certificate issued in another Australian state or territory and I am therefore entitled to practise in NSW by virtue of my Queensland practising certificate.”

96. In his second affidavit, Mr Selth stated that he did not recall a conversation with Mr Siggins on 27 September 2010. He emphatically denied that any conversation to the effect alleged in Mr Siggins’ letter (set out above), based on his (Mr Selth’s) views as to the proper construction of the legal profession legislation, the fact that he would not have supported exempting a prospective applicant in the position of Mr Siggins in particular from the requirement to pass the NSW Bar exams (noting that Mr Siggins had twice failed the exams and that he had been the subject of two complaints by mid-2010) and other reasons he gave for thinking he would have recalled such a conversation if it had taken place.

97. In due course Mr Siggins entered into a formal arrangement with 7 Windeyer Chambers. The commencement of that accommodation coincided with the commencement of his wife’s employment as clerk of Chalfont Chambers and his residence at an address in Turramurra. All of those events commenced from February 2011.

98. Further, throughout the six-year period during which Mr Siggins admits that, in some respect at least, New South Wales was his principal place of practice, it appears his only presence in Queensland was virtual. Each time he renewed his Queensland practising certificate, he nominated as his chambers an address at AMP Place in Brisbane, which was a virtual office. At no stage during that period did he have physical chambers in Queensland or a residential address in that State. The Bar Council noted that, throughout that period, so far as the documents produced in the proceedings reveal, his invoices did not use the Queensland virtual office address.

99. Owing to the difficulties obtaining documents from Mr Siggins, the Bar Council does not pretend to have presented a complete picture of the matters in which he was briefed during that time. The table attached to the Bar Council’s written submissions (explained above) is nonetheless significant in this context. It shows that, so far as the material the Bar Council was able to obtain reveals, Mr Siggins was not briefed in any matters in Queensland during the period 1 July 2011 to 30 June 2017. Almost all of the matters recorded in the table throughout that period were conducted in New South Wales.

100. Senior Counsel for the Bar Council cross-examined Mr Siggins at some length on that issue. Contrary to his assertion outlined above (that outside Queensland he only appeared in Federal matters), a number of the matters to which he was taken were matters in New South Wales that were not Federal matters. Mr Siggins’ evidence on that issue was vague and evasive. For example, this exchange:

“Q.    If you look at the 31st, this is a printout for the month of October 2012, there is an entry ‘9am Robinson plea, midrange PCA’?

A.    Yes, I, I don’t - I don’t believe they took place in New South Wales. But if it did, I believe my instructor was a, a Tasmanian solicitor.

Q.    You don’t need to go to this, but can I give you the reference in volume 10 tab 25 to your invoice in this matter issued on 15 October 2012 to Mr Clive Mills, a solicitor with an address at St Leonards?

A.    I’m sorry my mistake. Yes, that - that’s correct then. The invoice is the correct invoice.

Q.    The matter is New South Wales Police v Simon Robinson, as described on your invoice?

A.    Yes.”

101. Mr Siggins claimed to have done some criminal matters in Queensland in the period 1 July 2011 to 30 June 2017 (approximately “under ten”). He said he had not given any documents about those matters to the Bar Association because he “simply [doesn’t] have them”. We find that, by June 2011, Mr Siggins was well and truly committed to practice as a barrister in NSW from his base in Sydney. He had acquired chambers in Sydney; his wife had secured employment in Sydney and he was living in Sydney. So far as the material before this Court reveals, he appears to have worked almost exclusively in NSW and taken possibly only one case in Queensland after that point. As submitted by the Bar Council, if the practitioner fails to give an explanation as to matters peculiarly within their knowledge, inferences from proved facts can more safely be drawn: NSW Bar Association v Meakes [2006] NSWCA 340 at [58], [70]-][78] (Tobias JA, with whom Bryson JA agreed), Council of the New South Wales Bar Association v Power (2008) 71 NSWLR 451; [2008] NSWCA 135 at [13] to [29] (Hodgson JA, with whom Beazley and McColl JA agreed); Prothonotary of the Supreme Court of New South Wales v Nikolaidis [2010] NSWCA 73 at [75] (Allsop P, McColl and Young JJA).

102. Finally, the Bar Council noted that, in 2013, Mr Siggins’ parents-in-law left New Zealand and came to live with Mr Siggins and his wife on a permanent basis.

103. In the face of overwhelming evidence that Mr Siggins was practising as a barrister in New South Wales from 2011 to 2017, his persistence in the assertion that his principal place of practice was in Queensland during that whole period is left to rest on little more than the fact that he maintained (virtual) chambers in Queensland during that time. The phrase “principal place of practice” must be given its ordinary meaning. It plainly refers to the jurisdiction in which a barrister principally practises the profession of a barrister; where he or she sits and works, sees clients and solicitors, gives legal advice and appears in courts or tribunals (it is not necessary for present purposes to consider the impact of the pandemic on the nature of legal practice). It is clear that Mr Siggins understood the phrase in this way.

104. The Bar Council invited the Court to infer that Mr Siggins knew each time he renewed his Queensland practising certificate that it was deliberately false to represent that “practising principally as a barrister at the private Bar in Queensland” most described his profession for the next 12 months in that it did not represent his belief or intention. The evidence to support that inference is overwhelming and we have no hesitation in making that finding.

105. As already noted, Mr Siggins claimed to have been told by Mr Selth, before he came to Sydney in early 2011, that he would be given a New South Wales practising certificate on the basis of his unconditional Queensland practising certificate and that he would not need to sit the Bar exams again. That is one of the issues on which Mr Siggins could have cross-examined Mr Selth. He chose not to. Mr Selth in his affidavits could not have been clearer in strongly denying that he had ever said any such thing.

106. A further significant piece of evidence on this issue is the terms of Mr Siggins’ letter to the Bar Association of Queensland dated 8 June 2011, right at the beginning of the relevant period. In that letter he said:

“My practice is likely to become more and more Sydney focussed in the 2011-2012 practising year; I wish to apply for a certificate of fitness for admission to the New South Wales Bar in accordance with the Rules relating to principal place of practice.” (Emphasis added.).

107. It is appropriate to set out part of Mr Siggins’ evidence on this issue, given in response to questioning from the Court:

“Q.   What did you mean by the phrase ‘rules relating to principal place of practice’?

A.    Well I presumed that because I was going - I was intending to do State matters in New South Wales, that then I would be obliged to have a New South Wales practising certificate and I wasn’t going to be practising in Queensland if, if I was granted a practising certificate my intention was that I wasn’t going to be practising in Queensland to any, to any extent.

Q.    So you understood, leaving aside the nuances of the regime for practising certificates, it boiled down to this, that if your principal place of practice was in a particular State, you needed a State practising certificate, subject to the caveat that it didn’t matter where it was if you were doing Federal matters, is that right?

A.    Yes. Yes, your Honour. I was doing State matters principally. It was my intention to practise in, in criminal law. I - that was, that was what I wanted my main focus to be, not family law. So it was my intention to do that, I would have to have a New South Wales practising certificate. Also because I wasn’t going to be practising in Queensland if, on that eventuality of being granted a practising certificate.”

108. Two weeks later, Mr Siggins made a similar representation in his application for a New South Wales barrister’s practising certificate, stating that “practising as a barrister in New South Wales” would be his “principal endeavour” for the following 12 months. It was only after he was informed that the practising certificate would be subject to a condition that he pass the New South Wales Bar exams by March the following year that he reverted to representing to the Bar Association of Queensland that he would practise principally in that State. That his decision to seek to hold a practising certificate from Queensland rather than New South Wales was prompted by the requirement to sit the Bar exams for a third time may be inferred from the terms of his letter to the Bar Council asking it to delay the issue of a New South Wales practising certificate until he had had the opportunity of “taking advice concerning the condition”.

109. However, although the narrative changed, nothing else did. Mr Siggins said at the time he was informed of the condition requiring him to sit the exams again that he would reply fully to the letter within two weeks after obtaining advice about the imposition of such a condition. However, he did not reply to the letter. He made no complaint at any stage of any alleged change of tack by Mr Selth. During his cross-examination, Mr Siggins was asked by the Court whether he complained about the imposition of the condition. The exchange continued:

152. Second, a law that discriminates against interstate intercourse may be justified if it goes no further than is reasonably necessary to achieve a legitimate object (at [50] per Kiefel CJ and Keane J; at [93], [97] and [131] per Gageler J; at [192] per Gordon J).

153. Third, the test of reasonable necessity is to be applied using the “structured proportionality” analysis articulated in relation to the implied freedom of political communication in McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34. That is, structured proportionality will be used to determine whether the burden can be justified as proportionate to the non-discriminatory legitimate purpose of the law which is sought to be achieved (at [62] per Kiefel CJ and Keane J; at [264] per Edelman J; contra at [94] and [140]-[150] per Gageler J; [198]-[199] per Gordon J).

154. In this case, the only burden that s 48(6) of the Legal Profession Act 2004 or clause 5 of Sch 3 to the Legal Profession Uniform Law (or any other provision of that legislation) might be seen as placing on interstate intercourse in the form of movement between States or communications is in the sense explained above, namely, the possibility that a legal practitioner located interstate, whose principal practice is nevertheless within NSW and thus travels or communicates across State borders, might have to obtain a practising certificate in NSW. However, that burden is no greater than that imposed on intrastate intercourse. Neither of the impugned provisions is directed to discriminating against or in fact discriminates against interstate intercourse (see Palmer). This aspect of the challenge to the impugned provisions fails.

Inconsistency

161. Mr Siggins also contended that the impugned NSW provisions were inconsistent with various provisions of the Judiciary Act 1903 (Cth), specifically ss 39(2), 39B, 55A, 55B, 55D, 78 and 86(1)(ga), as well as s 122 of the Family Law Act 1975 (Cth).

162. The test for applying s 109 binding on this Court is set out in the following passage from Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2 at [31]-[34] (per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ):

“[31]   In Victoria v The Commonwealth (‘The Kakariki’), Dixon J referred to two approaches which might be taken to the question whether an inconsistency might be said to arise between State and Commonwealth laws. They were subsequently adopted by the Court in Telstra Corporation Ltd v Worthing, Dickson v The Queen and Jemena Asset Management (3) Pty Ltd v Coinvest Ltd.

[32]   The first approach has regard to when a State law would ‘alter, impair or detract from’ the operation of the Commonwealth law. This effect is often referred to as a ‘direct inconsistency’. Notions of ‘altering’, ‘impairing’ or ‘detracting from’ the operation of a Commonwealth law have in common the idea that a State law may be said to conflict with a Commonwealth law if the State law in its operation and effect would undermine the Commonwealth law.

[33]   The second approach is to consider whether a law of the Commonwealth is to be read as expressing an intention to say ‘completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed’. This is usually referred to as an ‘indirect inconsistency’. A Commonwealth law which expresses an intention of this kind is said to ‘cover the field’ or, perhaps more accurately, to ‘cover the subject matter’ with which it deals. A Commonwealth law of this kind leaves no room for the operation of a State or Territory law dealing with the same subject matter. There can be no question of those laws having a concurrent operation with the Commonwealth law.

[34]   The question whether a State or Territory law is inconsistent with a Commonwealth law is to be determined as a matter of construction. In a case where it is alleged that a State or Territory law is directly inconsistent with a Commonwealth law it will be necessary to have regard to both laws and their operation. Where an indirect inconsistency is said to arise, the primary focus will be on the Commonwealth law in order to determine whether it is intended to be exhaustive or exclusive with respect to an identified subject matter.” (Footnotes omitted.)

163. In his oral submissions, Mr Siggins confirmed that he relied on both of these approaches, ie “direct inconsistency” and “indirect inconsistency” or “cover the field”. In relation to direct inconsistency, a unanimous High Court stated in Telstra Corporation Ltd v Worthing (1999) 197 CLR 61; [1999] HCA 12 at [27] (“Telstra Corporation v Worthing”):

“[27]   The applicable principles are well settled. Cases still arise where one law requires what the other forbids. It was held in Wallis v Downard-Pickford (North Queensland) Pty Ltd [(1994) 179 CLR 388; [1994] HCA 17 at 398] that a State law which incorporated into certain contracts a term which a law of the Commonwealth forbad was invalid. However, it is clearly established that there may be inconsistency within the meaning of s 109 although it is possible to obey both the Commonwealth law and the State law. Further, there will be what Barwick CJ identified as ‘direct collision’ where the State law, if allowed to operate, would impose an obligation greater than that for which the federal law has provided. Thus, in Australian Mutual Provident Society v Goulden [(1986) 160 CLR 330; [1986] HCA 24 at 339], in a joint judgment, the Court determined the issue before it by stating that the provision of the State law in question ‘would qualify, impair and, in a significant respect, negate the essential legislative scheme of the Life Insurance Act (Cth). A different result obtains if the Commonwealth law operates within the setting of other laws so that it is supplementary to or cumulative upon the State law in question [citing Ex parte McLean (1930) 43 CLR 472 at 483; [1930] HCA 12; Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47 at 57-58; [1986] HCA 42]. But that is not this case.” (Emphasis added.)

164. Sections 39, 39A and 39B of the Judiciary Act are found within Part VI and address the vesting of federal jurisdiction in State courts and the original jurisdiction of the Federal Court. Their operation has already been referred to. Concerned as they are with the jurisdiction of courts, no question of inconsistency arises between those provisions and the impugned NSW provisions.

165. Sections 55A, 55B and 55C are found within Part VIIIA of the Judiciary Act which is headed “Legal Practitioners”. Section 55A confers an entitlement “to practise in any federal court as a barrister or solicitor, or as both” to someone so admitted under rules made under s 86(1)(ga). Such rules existed from 1956 until 1982 when they were repealed (see De Pardo v Legal Practitioners Complaints Committee (2000) 97 FCR 575; [2000] FCA 335 at [14] per French J; “De Pardo”). Subject to the balance of s 55A, s 55B(1) confers on, inter alia, a person who “is for the time being entitled to practise as a barrister or solicitor, or as both, in the Supreme Court of a State”, a “like entitlement to practise in any federal court”. Section 55B(3) qualifies that entitlement such that it only applies to persons whose names appears in the Register of Practitioners kept under s 55C. Section 55B(4) extends that entitlement to a “right of audience” in any court of a State in relation to the exercise by that court of federal jurisdiction and to any court of an internal territory in relation to the exercise by that court of “federal-type jurisdiction”. (This is supplemented by s 122 of the Family Law Act 1975 (Cth) which provides that, if a person is entitled to practise in any federal court as a barrister or solicitor, or as both, they have the like right to practise in any State court exercising jurisdiction under that Act.) The balance of s 55B provides for the maintenance of a register by each Supreme Court of a State or Territory of the persons who are entitled to the “right of audience” referred to in s 55B(4) and, where there is such a register, that person’s entitlement does not arise unless they are so registered (s 55B(5)) (see De Pardo at [50] per French J).

166. Section 55C provides for the maintenance of the Register of Practitioners at the Registry of the High Court by the Chief Executive and Principal Registrar of the High Court. Section 55C(5) provides for the High Court to order that a person’s name be struck from the Register or that their entitlement to practise be suspended where to the satisfaction of the High Court they have been guilty of conduct that justifies it in so doing.

167. In APLA, a majority of the High Court rejected a challenge to the constitutional validity of a prohibition on advertising by barristers and solicitors that promoted their availability to provide legal services in relation to personal injury claims including a challenge based on an alleged inconsistency with the above provisions of the Judiciary Act 1903 (Cth) (at [44] per Gleeson CJ and Heydon J, [193]-[194] and [212] per Gummow J, [375] per Hayne J and [482]‑[486] per Callinan J).

168. In their judgment in APLA, Gleeson CJ and Heydon J noted the State and Territory based systems for the regulation of the legal profession (at [21]) and described the operation of Part VIIIA of the Judiciary Act 1903 (Cth) (at [22]). Their Honours observed that the “entire system of State regulation of the provision of services which include representing people in courts exercising federal jurisdiction … assumes that such regulation is not of itself inconsistent with the Constitution or with federal law” (at [23]). Their Honours also stated (at [24]):

“[24]   Any State regulation of the provision of legal services is likely to have an effect upon the supply of services in relation to rights and obligations under federal law, or claims brought in courts exercising federal jurisdiction. Whatever system exists in relation to the structure, organization and regulation of the legal profession, it forms part of the context in which federal laws operate, and in which the judicial power of the Commonwealth is exercised.” (Emphasis added.)

169. Similarly, Callinan J concluded (at [482]):

“[482] … The entitlement to practise stated in ss 55A, 55B and 55D operates, as the Commonwealth submits, upon a range of legislative schemes which from time to time regulate the right to practise in State and Territory courts: the Commonwealth provisions are supplementary to or cumulative upon State laws regulating the legal profession.” (Emphasis added.)

170. In De Pardo, the Full Court of the Federal Court rejected the contention that there was an inconsistency between, on the one hand, the above provisions of the Judiciary Act1903 (Cth) and provisions of the Family Law Act 1975 (Cth) concerning practitioners costs and, on the other, provisions of the Legal Practitioners Act 1893 (WA) to the extent they authorised an investigation into misconduct in the form of overcharging in family law proceedings (at [54] per French J, [60] per Whitlam J and [108] per Carr J).

171. In De Pardo, French J (as his Honour then was) described the interaction between the above provisions of the Judiciary Act 1903 (Cth) and the State and Territory laws regulating the legal profession as follows (at [49]):

“[49]   The provisions of Pt VIIIA of the Judiciary Act are concerned with rights of practice in ‘courts’, the relevant courts being federal courts and the courts of States or internal territories exercising federal or ‘federal-type’ jurisdiction respectively. The rights of practice to which the Act applies, confined as they are to practice in ‘courts’, are considerably narrower than the rights of practice with which the State Supreme Courts as admitting authorities are concerned. The scheme of the Judiciary Act in relation to rights of practice in federal courts and courts exercising federal jurisdiction is, as noted earlier, complementary to the various State and Territory arrangements for the admission of practitioners within their several jurisdictions.” (Emphasis added.)

172. This description of the relationship between Part VIIIA of the Judiciary Act1903 (Cth) and the provisions of State legislation regulating legal practitioners was endorsed by Gummow J in APLA (at [185]).

173. We have already accepted that the obligation imposed by s 45(6) of the Legal Profession Act 2004 and cl 5 of Sch 3 to the Legal Profession Uniform Law on a legal practitioner, whose sole or principal place of practice or intended practice is in New South Wales, to obtain a local practising certificate includes the circumstance that such practice concerns litigation conducted in federal courts physically located in this State. Nevertheless, once it is accepted that the State based systems of regulation of the legal profession complement the above provisions of the Judiciary Act 1903 (Cth), Mr Siggins’ contention that there is an inconsistency under s 109 falls away. His reliance on indirect inconsistency is clearly untenable. The above passages from APLA and De Pardo confirm that it was not intended that the ss 55A to 55C of the Judiciary Act1903 (Cth) would be exhaustive or exclusive with respect to an “identified subject matter”, specifically the conduct of legal practitioners in any geographical area including so much of the conduct that may involve litigation in federal courts.

174. So far as direct inconsistency is concerned, the best that might be said on behalf of Mr Siggins is that, if he obtains a right of practice in federal courts via his admission to practice in Queensland, then a requirement to obtain a practising certificate in New South Wales where his practice principally concerns federal courts located in this State alters, impairs or detracts from his rights of practice in those courts conferred by s 55B. This appears to be the effect of a supplementary written submission made by Mr Siggins to the Court on 24 September 2020.

175. One answer to Mr Siggins’ contention is that it is clearly possible simultaneously to comply with both ss 55B of the Judiciary Act and 45(6) of the Legal Profession Act 2004 (or cl 5 of Sch 3 to the Legal Profession Uniform Law). However, as the above passage from Telstra v Worthing makes clear, that is not determinative of a claim of direct inconsistency.

176. The better answer is that, having regard to the discussion in APLA and De Pardo, the rights of practice and audience conferred by s 55B are premised on the existence of a system of regulation of legal practitioners by the various States and Territories. The requirement that practitioners whose principal place of practice within those jurisdictions obtain a practising certificate is part of the system of State based regulation assumed by s 55B. This premise is expressly acknowledged by the reference in s 55B to a “like entitlement”, suggesting that entitlements to practise conferred in federal courts do not travel higher than those conferred by the State systems, and the fact that rights of practice referred to in these provisions only concerns the rights of practices “in” the nominated courts, whereas the conduct of legal practice including those of barristers often extends beyond that concept. The above passages from APLA and De Pardo confirm that the interaction between the Judiciary Act and the Legal Profession Act 2004 and the Legal Profession Uniform Law in relation to practising certificates is an instance of the proposition stated in Telstra v Worthing at [27] namely, a circumstances where “the Commonwealth law operates within the setting of other laws so that it is supplementary to or cumulative upon the State law in question”. It follows that there is no inconsistency between the impugned NSW provisions and the provisions of the Judiciary Act relied on by Mr Siggins within the meaning of s 109 of the Constitution.

Integrity of Federal and State Courts

177. As noted, Mr Siggins contends that the impugned NSW provisions are inconsistent with Chapter III of the Constitution as they are said to “compromise the institutional integrity of Federal and State Courts”. This argument was not developed. It appears to be a variation on an argument that was rejected in APLA (at [35] per Gleeson CJ and Heydon J, [86] per McHugh J, [344] per Kirby J, [384] per Hayne J and [473] per Callinan J). Given the interaction between Part VIIIA of the Judiciary Act and the State systems of regulation of legal practitioners, including by the grant and refusal of practising certificates, it is untenable.

Conclusion

178. It follows that all of Mr Siggins’ bases of challenge to the validity of the impugned NSW provisions, or their application to him, fail. His proceedings must be dismissed.

Whether the Court’s findings warrant removal of name from the roll

179. As submitted by the Bar Council, the ultimate issue is whether the practitioner is shown, at the time of the hearing, not to be a fit and proper person to be a legal practitioner of the Supreme Court: Council of the Law Society of New South Wales v Jafari [2020] NSWCA 53 at [31] (per Bell P with whom White JA and Emmett AJA agreed). Mr Siggins did not address any substantive submissions to that issue.

The decision in Haque

180. The Bar Council drew the Court’s attention to a decision of the Supreme Court of Tasmania (Blow CJ) in Legal Profession Board of Tasmania v Haque (2015) 23 Tas R 434; [2015] TASSC 5 (“Haque”), in which a practitioner misrepresented his expected principal place of practice in four practising certificate applications submitted to the Law Society of Tasmania. The Court declined to order that Mr Haque’s name be removed from the roll in that case. The Bar Council submitted that the circumstances of that case were very different from those of the present case. We agree. Mr Haque was not practising as a lawyer anywhere during the periods covered by his four practising certificates in Tasmania; he was not attempting to make any personal gain or circumvent a requirement for practice in another state; his misstatements did not prejudice the interests of any member of the public and the evidence was that he had made many trips to Tasmania and many enquiries about practising there, which the Court relied upon to find that he hoped he would practise in Tasmania one day.

Expectations of a barrister: honesty and integrity

181. It should go without saying that qualities of honesty, integrity and a preparedness to comply with the law are essential requirements for being a fit and proper person to be a legal practitioner. If authority were needed for that proposition, it may be found (at least) in the decisions cited in the Bar Council Council's written submissions, Prothonotary v Montenegro [2015] NSWCA 409 at [66] (Meagher and Leeming JJA and Emmett AJA); Prothonotary v Holt [2008] NSWCA 136 at [15] (Gzell J, with whom Tobias and McColl JJA agreed); New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at [19] (Spigelman CJ, with whom Mason P and Handley JA agreed).

182. Applications for admission do not carry a lower standard of honesty. In Prothonotary v Comeskey [2018] NSWCA 18 dishonest statements and omissions to an admission authority were held to warrant removal from the roll.

Seriousness of the allegations

183. The Bar Council relied on a number of features of the present case to warrant the conclusion that Mr Siggins’ name should be removed from the roll. We will address each of those submitted features in turn.

184. First, it was submitted that the misrepresentations were dishonest rather than inadvertent and were made multiple times over a period of years. We agree. That is a significant factor warranting Mr Siggins’ removal from the roll.

185. Secondly, the Bar Council noted that the misrepresentations to the Bar Association of Queensland were accompanied by statutory declarations attesting that the information in the application was true. We find that the requirement for a statutory declaration brought home to Mr Siggins the solemnity of the representations.

183. Thirdly, the Bar Council submitted that, since at least his meeting with Mr Selth on 20 November 2008, Mr Siggins must have been acutely conscious of the requirements relating to “principal place of practice”. However, that awareness does not exclude the possibility that Mr Siggins held a genuine (if misconceived) belief for a period of time that he could legitimately take advantage of the possibility of obtaining a practising certificate in Queensland and then relying on his admission in Queensland as the basis for an entitlement to practise in New South Wales. There may be a basis for suspecting that Mr Siggins appreciated that the Bar Council might take a different view. However, for the reasons already explained, we are not satisfied that the evidence establishes that the representations made before June 2011 were made dishonestly.

184. In our view, the point after which Mr Siggins appreciated that he was dishonestly misrepresenting his place of practice was after he received notice on 27 June 2011 of the fact that he would still be required to pass the Bar exams notwithstanding his provision of a certificate of fitness from the Bar Association of Queensland. After that point, Mr Siggins can have been in no doubt as to the fact that he needed either to pass the exams or stop practising in New South Wales. He did neither, choosing instead to circumvent the system by making knowingly false, and thus dishonest, representations.

185. The fourth matter relied upon by the Bar Council was the fact that Mr Siggins’ misrepresentations were made to regulatory authorities in response to specific questions in practising certificate applications and queries raised directly in relation to his principal place of practice. We find that the representations were more serious for having been made “in the face of requests” and “in the face of reminders” of the requirements relating to the principal place of practice: cf Comeskey at [61] (Macfarlan JA with whom Simpson JA agreed).

186. The next matter relied upon by the Bar Council was the fact that the purpose of the dishonest conduct was to circumvent a requirement in New South Wales for the grant of a practising certificate (passing the New South Wales Bar exams). We accept that submission. That matter is consistent with and underlines our finding that Mr Siggins was conscious of, and dishonestly sought to avoid, the requirements concerning the principal place of practice from at least June 2011.

187. Finally, the Bar Council relied upon the fact that the misrepresentations were made for personal gain. It was submitted that the ultimate purpose of the dishonesty was to enable Mr Siggins to practise as a barrister principally in New South Wales for a period of several years when he would otherwise not have been entitled to do so. We accept this submission and conclude that it is a factor that indicates serious misconduct. A lie for personal gain may readily be seen as being more serious than, for example, a lie told in extenuating circumstances for the purpose of protecting an innocent or vulnerable person.

Current indications of lack of fitness

191. There are a number of aspects in respect of which the Bar Council contends that Mr Siggins’ conduct is incompatible with the characteristics of honesty and integrity required of a barrister. The matters specified were directed to establishing that the “deficiencies in character” revealed by the dishonest conduct continue and have not been addressed by Mr Siggins. We agree with the Bar Council’s submission that Mr Siggins’ conduct is incompatible with the characteristics of honesty and integrity required of a barrister and that he is currently unfit to practise as a barrister.

192. First, Mr Siggins has never conceded any wrongdoing. Secondly, Mr Siggins maintains his denial of wrongdoing and demonstrates no remorse or contrition. Thirdly, Mr Siggins’ approach to these proceedings created the need for extensive factual investigations which included the need to obtain volumes of material from third parties in order to harness the body of evidence required to establish a circumstantial case of dishonesty when the true position was known to Mr Siggins at all times. In this context, the remarks of Hutley JA in Law Society of New South Wales v McNamara (1980) 47 NSWLR 72 at 78 are apposite:

“The assumption which seems sometimes to have been made that the accused cannot be expected to tell the truth to his own detriment in criminal proceedings has no place in proceedings before the Statutory Committee, which is not punitive but for the benefit of the public.”

193. The evidence in the proceedings included no evidence from any person with whom Mr Siggins has practised since mid-2007 suggesting that his character and conduct have changed: cf Montenegro at [81].

194. Finally, the Bar Council submitted that, throughout the proceedings, Mr Siggins has repeatedly resisted the production of documents centrally relevant to the case without any meritorious basis for doing so. In support of that contention, the Bar Council relied upon the contents of the affidavit of Rebecca Whittle sworn 4 March 2020 at [5]. Ms Whittle’s affidavit annexed the Notice to Produce and Subpoena to Produce served by the Bar Council on Mr Siggins and lists the documents produced by him in response. Paragraph [5] of Ms Whittle’s affidavit asserts in conclusory terms that it is apparent from that material that the documents ultimately produced by Mr Siggins were produced “in a piecemeal fashion and across a protracted period of time”.

195. The process of obtaining documents from Mr Siggins certainly appears to have been protracted; his approach adversarial. It is not possible for this Court to assess the submission that the resistance to production of documents was “without any meritorious basis”. However, it may be accepted that Mr Siggins’ approach to the present proceedings appears to have been lacking in candour, having regard to the nature of disciplinary proceedings and Mr Siggins’ status as an officer of the court.

196. We are satisfied that it has been demonstrated that, at the time of the hearing, Mr Siggins was not to be a fit and proper person to be a legal practitioner of the Supreme Court of New South Wales.

Conclusion

197. In all the circumstances, we are satisfied that the orders sought by the Bar Council should be made. In the Bar Council’s proceedings (2019/94353), the Court:

1. declares that Julian Phillip Siggins is not a fit and proper person to remain on the roll of Australian lawyers maintained by the Supreme Court in accordance with s 22 of the Legal Profession Uniform Law (NSW);

2. orders that the name Julian Phillip Siggins be removed from the roll; and

3. orders that Mr Siggins pay the Council of the New South Wales Bar Association’s costs of the proceedings.

198. In the proceedings commenced by Mr Siggins in the Federal Court that were cross-vested to this Court (2019/195328), the Court orders that:

1. the proceedings be dismissed; and

2. Mr Siggins pay the Council of the New South Wales Bar Association’s costs of the proceedings.

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Decision last updated: 25 March 2021