Council of the NSW Bar Association v Costigan
[2013] NSWSC 339
•17 April 2013
Supreme Court
New South Wales
Medium Neutral Citation: Council of the NSW Bar Association v Costigan [2013] NSWSC 339 Hearing dates: 28/03/2013 Decision date: 17 April 2013 Jurisdiction: Common Law Before: Garling J Decision: (1) Order that pursuant to s.720 of the Legal Profession Act 2004, John Bernard Costigan be, and hereby is, restrained from engaging in legal practice in contravention of s 14 of the Legal Profession Act 2004.
(2) Order that Mr Costigan pay the plaintiff's costs of and incidental to these proceedings.
(3) Order pursuant to s.7 of the Court Suppression and Non Publication Orders Act 2010 that the witness deposing to events in the Local Court at Waverley on 26 July 2012 and 30 August 2012 in an affidavit sworn 8 November 2012 be known only as 'MH'.
(4) Order pursuant to s 7 of the Court Suppression and Non Publication Orders Act 2010 that any publication or any manner of disclosure of any evidence relied upon in these proceedings tending to identify MH or his former wife be, and hereby is, prohibited.
(5) Order that the affidavit of MH sworn 8 November 2012 be treated as confidential, placed in a sealed envelope, only to be opened on the order of a judge of the Court.
Catchwords: LEGAL PRACTITIONER - wilfully engaging in prohibited conduct-real prospect of continued engagement in conduct requiring a practising certificate - need for the protection of the public - no issue of general principle Legislation Cited: Court Suppression and Non-publication Orders Act 2010
Legal Profession Act 2004Cases Cited: Council of the NSW Bar Association v Perry [2007] NSWCA 111;
Mee Ling v The Law Society of NSW [1974] 1 NSWLR 490Category: Principal judgment Parties: Council of the NSW Bar Association (P)
John Bernard Costigan (D)Representation: Counsel:
C A Webster SC (P)
No appearance (D)
Solicitors:
Hicksons Lawyers (P)
No appearance (D)
File Number(s): 2012/348826 Publication restriction: Pursuant to s 7 of the Court Suppression and Non Publication Orders Act 2010 any publication or any manner of disclosure of any evidence relied upon in these proceedings tending to identify MH or his former wife is prohibited.
Judgment
The Council of the NSW Bar Association, by a summons filed on 8 November 2012, seeks orders pursuant to s 720 of the Legal Profession Act 2004, that John Bernard Costigan be restrained from engaging in legal practice in contravention of s 14 of that Act.
Mr Costigan, although served with the proceedings in January 2013, did not appear to contest the proceedings.
The proceedings were heard before me on 28 March 2013. At the conclusion of the proceedings, I made orders to give effect to the relief sought by the Bar Council. Those orders were made for the reasons which follow.
Mr Costigan's Professional History
On 4 August 1989, Mr Costigan was admitted as a legal practitioner. His name remains on the Roll of Lawyers of the Supreme Court of NSW.
From the time of his admission until 26 April 2012, Mr Costigan held a barrister's practising certificate, issued by the Bar Council.
On 16 March 2012, Mr Costigan sent to Ms Helen Barrett, the Deputy Director of Professional Conduct for the Bar Council, an email in which he said:
"I am at present discussing with my family as to whether I wish to continue as a practising member of the NSW Bar.
I will inform the Association by next Friday 23 March 2011 as to my decision.
If it be my decision not to continue as a member of the Association, I shall return my practising certificate to the Association on that day."
On 26 March 2012, Mr Costigan sent to Ms Barrett an email in which he informed her that he had that morning, as a result of the presentation of a creditor's petition in the Federal Magistrate's Court of Australia, been the subject of a sequestration order.
On 23 April 2012, in response to an email from Mr Peter Smith, the Deputy Director of Professional Conduct of the Bar Council, Mr Costigan said:
"I am no longer in Chambers and in accordance with previous emails to Ms Barrett after the shameful event of my estate being sequestrated in March, I shall not be applying to renew my practising certificate.
I am at the moment not working due to ongoing mental health issues, and in view of same I am unable to comply with your direction. It has all become simply too much for me."
On 26 April 2012, the Bar Council, by resolution, suspended Mr Costigan's practising certificate for 56 days as a consequence of the receipt of a complaint from Mr Ross Mercer.
After Mr Costigan received notice of the suspension of his practising certificate, he wrote a further email to the Bar Association in which he said:
"As indicated to you in my previous electronic mail, I have decided not to renew my local practising certificate, therefore your Notice of Suspension for 56 days is noted.
Notwithstanding same, I shall not make any representations, nor do I wish to be contacted again by you or the Association.
All future conduct as I have been instructed, should be through by my Trustee, as I am a non-person."
On 21 June 2012, the Bar Council, by resolution, pursuant to s 67(6)(a) of the Legal Profession Act, cancelled Mr Costigan's practising certificate.
Since that time, Mr Costigan has not appealed against the suspension of his practising certificate or its ultimate cancellation. He has not applied for, nor has he been issued with, a current practising certificate.
He is not entitled to engage in legal practice in NSW whilst he is not in possession of a current practising certificate: s 14(1) Legal Profession Act.
Non-publication Order
The conduct of Mr Costigan, upon which the Bar Council relies, took place at the Waverley Local Court in proceedings which involved matters arising between parties to a former marriage and which involved their children.
Milledge LCM, appropriately, made orders which had the effect of, to the extent possible, anonymising the names of the parties in the proceedings before her, and precluding publication of any material which may lead to the identification of the children of the marriage.
The Bar Council here seeks to rely upon the evidence of what occurred at the Local Court on that day and subsequently, from one of the parties to the marriage. In respect of that witness, the Bar Council seeks orders which permit the witness, and also his former wife, to be referred to by pseudonyms, and a non-publication order which prevents publication of any information which may tend to reveal the identity of the witness, his former wife or their children.
The full identity of the witness is known to Mr Costigan and he is at no disadvantage if such an order is made.
Any order of the kind sought is made pursuant to the Court Suppression and Non-publication Orders Act 2010. Section 8 of that Act sets out the grounds for the making of any such order.
The first question is whether the Court should make a non-publication order. If persuaded so to do, it would follow that the Court would make the pseudonym order, because such an order is necessary to give effect to the non-publication order.
Courts have always been concerned in proceedings involving children, to ensure that the identity of a child is not revealed, unless there are exceptional circumstances warranting that course. And that concern extends to whether the child is merely a witness, or else is a party to the proceedings. It includes all cases in which the child is a victim of the conduct which is the subject of the proceedings. Speaking generally, this approach is adopted because it is seen to be in the best interest of, and the welfare of, the child.
In this case, it is the conduct of Mr Costigan which is in issue. The Bar Council seeks orders against him. The children of the witness, and the witness himself, are not central to those issues. It is neither essential nor necessary for their identities to be broadly known. That is not in their interests. Importantly, there is no particular public interest in identifying the witness or the children, except for the general public interest in open justice.
As well, having regard to the fact that the Local Court made a non-publication order, a refusal to make a similar order here would have the effect of nullifying, or setting at nought, that order in circumstances where the order was regularly made, and has not been challenged by an appeal or application for review.
In all of the particular circumstances of this case, I am satisfied that it is necessary to make a non-publication order to prevent prejudice to the proper administration of justice, and also because I am satisfied that such an order is otherwise necessary in the public interest, and that public interest significantly outweighs the public interest in open justice.
Accordingly, I will refer throughout this judgment to the evidence of the witness by a pseudonym, MH. I will refer to his former wife by the pseudonym Ms S. I will not refer to the names, or ages, of the children.
Mr Costigan's Conduct
The evidence before the Court with respect to Mr Costigan's conduct on 26 July 2012, establishes the following matters:
(a) On that day, Mr Costigan appeared in the Local Court at Waverley before Milledge LCM. He informed the Magistrate that he was representing a Ms S, who was the defendant in proceedings before the Court brought by her former husband, MH;
(b) Amongst other things, on that day, Mr Costigan said to the Magistrate this:
"As to the previous detail of any offer from [MH], I was not aware of it. If [MH] has something in writing which he can give me so I can give some advice to Ms S, we may be able to wrap this up finally in the next two or three minutes, if not, then I will take some other instructions."
(c) The Court adjourned to enable the discussions to occur. Outside the Court, Mr Costigan approached the complainant in the Local Court, MH, and asked him to put in writing what he was proposing by way of court orders, and to then give it to him. When this was done, Mr Costigan, upon being handed the document, said to MH:
"I'll take this to my client".
Upon return to MH, he said
"No, we cannot agree with this"
(d) When the Court resumed, Mr Costigan said this to the Magistrate:
"Thank you for your indulgence your Honour. [MH] has shown me a document. It is a document that I am not able to advise my client to accept for a number of reasons ... I am informed by [MH] that he wishes to continue with his application. The application is opposed, both on a final and an interim basis."
(e) At a later point during the hearing on that day, a question arose as to what, if any, interim orders ought to be made. Mr Costigan, on behalf of Ms S, opposed any orders, and made submissions to the Magistrate on questions of disputed fact, in order to persuade the Court not to make any interim orders.
(f) At the end of the proceedings, Mr Costigan agreed to the request of the Magistrate that he would "...have a good talk to your client ..."
(g) At no time during the proceedings on this day, did Mr Costigan inform Milledge LCM that he was not a practising barrister, nor that he did not have a right to practice as a barrister, or solicitor, in the Local Court.
The evidence also satisfies me that on 30 August 2012, when the parties were back before the Local Court at Waverley, Mr Costigan was again in attendance as the representative of Ms S. The evidence satisfies me that he did at least the following:
(a) He approached MH and enquired of MH where his statement was that he had been ordered to file. When challenged, he said words to the effect:
"We're going to have the matter kicked [out] today, because you haven't filed. ..."
(b) Mr Costigan approached the Court staff at a table which was set up in the foyer of the Court so that appearances could be recorded. He said to the staff:
"Can I have the Court file for the [S] matter please?"
One of the Court staff said:
"Are you legal counsel, are you representing one of the parties?"
Mr Costigan then said:
"Yes, I am the barrister in this matter, I am briefed by the Duty Solicitor".
He was observed to point in the direction of one of the duty solicitors on duty that day at the Court.
Although the matter proceeded that day before the Magistrate, Mr Costigan did not seek to appear for Ms S for the contested proceedings.
On 3 October 2012, Mr Costigan sent an email to MH in the following terms:
"I have been asked by your former wife, Ms [S], to write to you (as her friend) to inform you that she will move the Court for orders tomorrow to vary the interim ADVO pursuant to ss 72 and 73 of the Crimes (Domestic and Personal Violence) Act 2007, by seeking to have Order 13 deleted.
I am in sending this email, neither purporting to act for Ms [S] nor am I providing her with legal advice.
I have been informed by your former wife that the basis of her application is that the restriction imposed upon her by the making of the order is affecting detrimentally her ability to financially care for the children and each of them. This is particularly acute in circumstances where you are also financially impecunious as demonstrated by your arrears in childcare in the amount of some $10,000 and your continued inability to meet your obligations with respect to childcare on an ongoing basis for the children....
I have been asked by your former wife (as her friend) to inform you that you should treat this email as notice of her application as outlined above.
...
I wonder as a courtesy if you might inform me (so that I can on pass it to Ms [S], as to whether you intend to oppose her application to have the interim orders varied?"
On the following day, 4 October 2012, Mr Costigan sent an email to MH in the subject line of which was the following "Please find enclosed statement prepared by Ms [S] which she will file in Court this morning." Attached to that email was the document which was so described.
By a further email a few minutes later, Mr Costigan sent to MH written submissions which were to be relied upon in the Local Court. The subject line of the email read "Please find attached written submissions to be relied upon by Ms S at court this morning. I have been asked to send this to you as she is in transit back to Sydney."
Although in the email of 4 October 2012, Mr Costigan asserted that he was not acting for Ms S or providing her with legal advice, the terms of the email and the terms of the following emails and the contents of the following emails, namely, documents to be filed in court by way of statement and/or submissions, are all typically work performed by a barrister. Having regard to the pre-existing relationship previously asserted by Mr Costigan to the Local Court Magistrate of lawyer and client, and of his acting for Ms S, I am satisfied that the emails were sent by Mr Costigan because he regarded himself as acting for Ms S and, in that capacity, doing all he could to protect and to advance her interests.
Mr Costigan's Participation in these Proceedings
On Wednesday 23 January 2013, Mr Mark Hall was instructed to personally serve Mr Costigan with the summons in these proceedings, together with the affidavits in support. Although he attempted to evade service, I am satisfied that Mr Costigan was served with those documents by Mr Hall at that time.
Despite further emails to Mr Costigan from the solicitors for the Bar Council about these proceedings, no response was received. Mr Costigan was informed at all stages of the existence of the proceedings, the dates upon which they were before the Court, and what was intended to happen.
At no time has Mr Costigan filed any evidence in the proceedings. He has not denied the aspects of his conduct which have been put before the Court. He has not proffered any explanation in an attempt to justify what occurred.
However, late in the evening of Tuesday 26 March 2013, Mr Costigan sent an email to the solicitor for the Bar Council.
Since it contains what it seems Mr Costigan wishes the Court to take into account, it is best if I set it out in full (omitting formal parts). It is in these terms:
"I have just read your email to me dated today. Please let me reiterate what I told your process server in or about February of this year:-
1: I have no intention of seeking the renewal of my practising certificate as I am mentally unwell and continue to be treated by a consultant psychiatrist for Depression and Adult Onset ADHD, for which I am medicated.
2: I do not, nor have I ever, opposed the Order by which your client, my Association, seeks to have my name removed from the roll of local lawyers.
3: I do oppose the order sought by your client in the nature of prohibition that I be 'prohibited from engaging in legal practice when not entitled', as it is redundant in that it merely seeks to have the Court make an Order in terms of the general prohibition as contained within the Legal Profession Act.
The Order as contemplated is clearly being sought by your client not in the protection of the Public Interest but rather as a provision which at some point in the future proceedings in the nature of 'contempt' might be preferred as against me.
As you are no doubt aware I am a Bankrupt and as a result of same and the subsequent suspension and thereafter cancellation of my Local Practising Certificate on or about 28 June 2012, I have been unemployed with little or no chance of employment.
I am presently in receipt of the New Start allowance in the amount of about $533:00 per fortnight.
I am not able to meet any award for costs should the Court be asked to make such an Order.
Further to your electronic mail of today's date and in particular paragraph 19 of your affidavit as attached I am not, contrary to the belief of Mr. Hall, residing at 3/5A Denham Street, Bondi.
I left Sydney some months ago and the motor vehicle HP 46 AH registered in my name but owned by former wife Marissa Perkins is garaged at Bondi awaiting repossession by Audi Australia.
I do not other than this prepaid mobile which I am able to purchase credit for only once a month do not have access to electronic mail, hence my writing to you today.
As I said to Mr Hall via telephone in or about January 2013, I have no interest as a result of my mental health condition in these proceedings.
My illness has cost me my marriage, my family and now my profession I wish only to be left alone.
J B Costigan."
I take it from the email of Mr Costigan, that he does not intend again to undertake practice as a lawyer, and will in due course consent to have his name removed from the Roll, but he opposes the order which the Bar Council seeks because he fears that it will be used inappropriately against him. He also contends that it is redundant.
The Legal Profession Act 2004
Section 720 of the Act, is in the following terms:
"(1) Where a person has engaged, is engaging or is proposing to engage in conduct that constituted, constitutes or would constitute:
(a) a contravention of this Act, or
(b) attempting to contravene this Act, or
(c) ...
the Supreme Court may, on the application of ... a Council, grant an injunction, on such terms as the Court thinks appropriate, restraining the first-mentioned person from engaging in the conduct and, if in the opinion of the Court it is desirable to do so, requiring that person to do any act or thing.
.......
(5) The power of the Supreme Court to grant an injunction restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind, and
(b) whether or not the person has previously refused or failed to do that act or thing, and
(c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing.
(6) The Supreme Court must not require the ... Council or any other person, as a condition of granting an interim injunction, to give an undertaking as to damages."
Section 14 is in the following form:
"(1) A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner.
Maximum penalty: 200 penalty units.
(2) Subsection (1) does not apply to engaging in legal practice of the following kinds:
(a) legal practice engaged in under the authority of a law of this jurisdiction or of the Commonwealth,
(b) legal practice engaged in by an incorporated legal practice in accordance with Part 2.6 (Incorporated legal practices and multi-disciplinary partnerships),
(c) the practice of foreign law by an Australian-registered foreign lawyer in accordance with Part 2.7 (Legal practice by foreign lawyers),
(d) legal practice engaged in by a complying community legal centre,
(e) conveyancing work carried out in accordance with a licence in force under the Conveyancers Licensing Act 2003 ,
(g) the drawing of instruments by an officer or employee in the service of the Crown (including the Public Service) in the course of his or her duty,
(h) legal practice of a kind prescribed by the regulations.
(3) Subsection (1) does not apply to:
(a) a person who as an employee provides legal services to his or her employer or a related entity if he or she:
(i) so acts in the ordinary course of his or her employment, and
(ii) receives no fee, gain or reward for so acting other than his or her ordinary remuneration as an employee, or
(b) a person or class of persons declared by the regulations to be exempt from the operation of subsection (1).
(4) A person is not entitled to recover any amount in respect of anything the person did in contravention of subsection (1) and must repay any amount so received to the person from whom it was received.
(5) A person may recover from another person, as a debt due to the person, any amount the person paid to the other person in respect of anything the other person did in contravention of subsection (1).
(6) The regulations may make provision for or with respect to the application (with or without specified modifications) of provisions of this Act to persons engaged in legal practice of a kind referred to in subsection (2) (other than subsection (2) (b)-(f)) or persons referred to in subsection (3). "
Applicable Legal Principles
The principles of law which are applicable are, as I understand them:
(a) That the Court ought regard the issue and existence of an annual practising certificate not as a mere formality, nor a device to raise revenue. The legislative scheme makes it clear that the existence of a practising certificate involves the protection of the public: Mee Ling v The Law Society of NSW [1974] 1 NSWLR 490 at 498D per Reynolds JA (Moffitt P agreeing);
(b) Although Mee Ling dealt with the existence of practising certificates under previous legislation, there is no doubt that the scheme set out under the Legal Profession Act 2004, which involves barristers obtaining practising certificates, serves important functions and exists for the protection of the public: Council of the NSW Bar Association v Perry [2007] NSWCA 111 at [20] per Mason P (Hodgson and Santow JJA agreeing).
Discernment
The evidence as to what occurred at the Waverley Local Court on 26 July 2012 and 30 August 2012, admits of no other conclusion but that Mr Costigan was practising as a barrister and holding himself out as practising as a barrister.
He knew that he was not in possession of a practising certificate because his previous communications with the Bar Council acknowledged that fact. As well, those communications acknowledged the fact that he did not intend to apply to renew his certificate for the period of time after his certificate was suspended.
I am also satisfied that his emails on behalf of Ms S to MH, although he professed them not to have been sent in any capacity as a barrister, bear all of the hallmarks of practising as a barrister, and demonstrate that Mr Costigan continued so to do, at a time when he knew that he did not have a current practising certificate.
Although s 720 of the Legal Profession Act does not require the Court to be satisfied, as a precondition of the grant of an injunction, that Mr Costigan intends to engage in conduct of that kind again, I am satisfied that there is a real prospect that he will.
Although the contents of Mr Costigan's email of 26 March 2013 suggests that he recognises that he should not oppose any order for the removal of his name from the Roll, his submissions with respect to the necessity or otherwise for the Court to make an order of the kind sought by the Bar Council, do not convince me that he has sufficient insight into the nature of the order sought and the role which it has to play in the protection of the public interest, as to dispense with the need for the Court to make such an order.
In those circumstances, I am reinforced in my view as to the likely prospect of his continuing to practise as a barrister, although he does not possess a practising certificate.
The authorities make clear that the making of an order such as the one sought by the Bar Council, is primarily for the protection of the public.
As the events at the Local Court at Waverley demonstrate, a number of people can be affected where a person in the position of Mr Costigan, practises as a barrister without a practising certificate. The protection of the public involves more than just the person for whom Mr Costigan purports to act, even if that person knowing that Mr Costigan does not have a practising certificate, engages him to act for them.
In all of the circumstances, I am satisfied that the Court should make the orders which were sought by the Bar Council, and for those reasons the Court made the following orders on 28 March 2013:
(1) I order that pursuant to s.720 of the Legal Profession Act 2004, John Bernard Costigan be, and hereby is, restrained from engaging in legal practice in contravention of s.14 of the Legal Profession Act 2004.
(2) I order that Mr Costigan pay the plaintiff's costs of and incidental to these proceedings.
(3) I order pursuant to s.7 of the Court Suppression and Non Publication Orders Act 2010 that the witness deposing to events in the Local Court at Waverley on 26 July 2012 and 30 August 2012 in an affidavit sworn 8 November 2012 be known only as 'MH'.
(4) I order pursuant to s.7 of the Court Suppression and Non Publication Orders Act 2010 that any publication or any manner of disclosure of any evidence relied upon in these proceedings tending to identify MH or his former wife be, and hereby is, prohibited.
(5) I order that the affidavit of MH sworn 8 November 2012 be treated as confidential, placed in a sealed envelope, only to be opened on the order of a judge of the Court.
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Decision last updated: 13 May 2014
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