Council of the NSW Bar Association v Power

The Council of the NSW Bar Association (the Council) brought proceedings against Mr Power, a legal practitioner, before the Court of Appeal of New South Wales. The dispute concerned allegations of professional misconduct against Mr Power, leading to the Council seeking his removal from the Roll of Legal Practitioners.

The Court was required to determine whether the proceedings for removal from the Roll constituted proceedings for a civil penalty, and consequently, whether Mr Power could claim privilege against self-incrimination. Furthermore, the Court had to consider whether Mr Power's failure to provide evidence or an explanation regarding matters within his knowledge could be taken into account in drawing an adverse inference against him.

The Court reasoned that the proceedings were not for a civil penalty, but rather for the protection of the public and the reputation of the legal profession. Therefore, the privilege against self-incrimination did not apply in the same way as in civil penalty proceedings. The Court held that a practitioner's failure to give evidence or an explanation of matters within their knowledge, particularly when faced with allegations of professional misconduct, could indeed be taken into account in drawing an inference against them. This principle was applied to the facts of the case, where Mr Power had not provided a satisfactory explanation for his conduct.

Consequently, the Court declared that Mr Power was guilty of professional misconduct and was not a fit and proper person to remain on the Roll of Legal Practitioners. The Court ordered that Mr Power's name be removed from the Roll and that he pay the costs of the proceedings.