Council of the NSW Bar Association v Rollinson

[2024] NSWCA 84

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Council of the NSW Bar Association v Rollinson [2024] NSWCA 84

Hearing dates:

On the papers

Date of orders:

19 April 2024

Decision date:

19 April 2024

Before:

Leeming JA, Stern JA, Griffiths AJA

Decision:

(1) Declare that Michael Kelvyn Rollinson is not a fit and proper person to remain on the roll of Australian lawyers maintained by the Supreme Court under s 22 of the Legal Profession Uniform Law (NSW).

(2) Order that the name of Michael Kelvyn Rollinson be removed from that roll.

(3) There is no order as to costs.

Catchwords:

OCCUPATIONS – Legal practitioners – Barristers – Removal from roll of barristers – where barrister repeatedly and wilfully disobeyed injunctions preventing him from legal practice and advertising or presenting that he was able to engage in legal practice – where he pleaded guilty and was found to have committed 16 counts of contempt for continuing to practise – where he committed 12 contraventions of suspended imprisonment conditions

Legislation Cited:

Legal Profession Uniform Law (NSW), ss 22, 23, 264, 303(1)

Cases Cited:

APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; [2005] HCA 44

Council of Law Society NSW v Jafari [2020] NSWCA 53

Council of the Law Society of NSW v Clarke [2022] NSWCA 57

Council of the Law Society of NSW v Green [2022] NSWCA 257

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

Council of the New South Wales Bar Association v Perry [2007] NSWCA 111

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

Council of the NSW Bar Association v Rollinson [2022] NSWSC 407

Council of the NSW Bar Association v Rollinson (No 2) [2023] NSWSC 1390

Garde-Wilson v Legal Services Board (2007) 27 VAR 125; [2007] VSC 225

Legal Practitioners Conduct Board v Trueman [2003] SASC 58

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

Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470

Prothonotary of the Supreme Court of New South Wales v Thomson [2018] NSWCA 230

Re B(a Solicitor) [1986] VR 695

RJA Cornall (in his capacity of Secretary of the Law Institute of Victoria) v JD Little (Supreme Court (Vic), Tadgell J, 11 June 1991, unrep)

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

Category:

Principal judgment

Parties:

Council of the New South Wales Bar Association (Applicant)
Michael Kelvyn Rollinson (Respondent)

Representation:

Counsel:
K Richardson SC/D Habashy (Applicant)
M Dennis (Respondent)

Solicitors:
Hicksons Lawyers (Applicant)
Gells Lawyers (Respondent)

File Number(s):

2022/265826

Publication restriction:

Nil.

HEADNOTE

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

The Council of the NSW Bar Association (the Council) sought a declaration that the respondent barrister, Michael Kelvyn Rollinson, was not a fit and proper person to remain on the roll of Australian legal practitioners maintained by the Court under s 22 of the Legal Profession Uniform Law (NSW). The Council also sought an order that the respondent’s name be removed from the roll. The Council alternatively sought a declaration that the respondent be found guilty of professional misconduct (which did not ultimately arise for consideration).

The respondent held a practising certificate as a barrister from 1995 until 30 June 2021. Notwithstanding that his practising certificate was not renewed because the respondent was unable to pay the fees, he continued to provide various legal services. In August 2021, he breached an undertaking he had given not to engage in legal services. Between 23 August 2021 and 20 October 2021, he breached the terms of an injunction restraining him from engaging in practice and advertising or representing that he was entitled to do so. In September 2021, he breached the terms of a further injunction by appearing in a matter in the Local Court. Two separate contempt proceedings were brought, culminating in findings of 16 counts of contempt. The first contempt proceeding resulted in a suspended sentence of imprisonment from 8 April 2022 for a period of three years. Sentencing proceedings for the second contempt proceeding were remanded to 13 November 2024.

Although the respondent consented to the relevant relief sought by the Council, the Court had to be satisfied that he nonetheless was not a fit and proper person so as to grant such relief.

The Court (Leeming JA, Stern JA and Griffiths AJA) held, allowing the application with no order as to costs:

1. In determining whether an order for removal from the roll should be made, the Court has to ask whether a practitioner is presently not fit to practise and is likely to be unfit to do so in the indefinite future. The Court must apply established principles reflecting the purpose of disciplinary proceedings, namely protecting the public and its confidence in the legal profession: [30]. A practitioner’s criminal conviction(s) or mental health are both features which may bear on their fitness to remain on the roll, but each case must turn on its own facts and circumstances: [31], [40].

   Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279; [1957] HCA 46; Council of the Law Society of NSW v Clarke [2022] NSWCA 57; Council of the Law Society of NSW v Green [2022] NSWCA 257, applied.

   Re B (a Solicitor) [1986] VR 695; RJA Cornall (in his capacity of Secretary of the Law Institute of Victoria) v JD Little (Supreme Court (Vic), Tadgell J, 11 June 1991, unrep); Legal Practitioner’s Conduct Board v Trueman [2003] SASC 58; Garde-Wilson v Legal Services Board (2007) 27 VAR 125; [2007] VSC 225; Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470; considered.

2. The respondent’s repeated and wilful contraventions of the Court’s injunctions, spanning a period of months, as well as breaches of the conditions of his suspended sentence, demonstrated his unpreparedness to comply with the law: [42]-[45]. It would be inimical to the profession’s reputation and public confidence in its integrity for his name to remain on the roll: [46]-[49] Medical evidence supported the fact that his repeated and flagrant conduct was causally affected by his poor mental health, and that this would likely deteriorate further over time: [50]-[52]. The combination of these circumstances were such that it was appropriate for the Court to grant the relief sought.

   New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284; Council of the New South Wales Bar Association v Siggins [2021] NSWCA 40, applied.

   APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; [2005] HCA 44, considered.

JUDGMENT

1. THE COURT: By its amended summons filed on 7 February 2024, the Council of the New South Wales Bar Association (the Council) seeks a declaration that Michael Kelvyn Rollinson, the respondent, is not a fit and proper person to remain on the roll of Australian lawyers maintained by the Court under s 22 of the Legal Profession Uniform Law (NSW) (LPUL), and an order removing his name from the roll.

2. The respondent is 64 years of age and commenced practice as a barrister in 1995. From that time until 30 June 2021, he continuously held a practising certificate from the NSW Bar Association which entitled him to practise as a barrister. He ceased holding a practising certificate when he was unable to pay the whole amount of the renewal fee by the cut-off date of 30 June 2021. But as will be developed, he continued to provide legal services and he has pleaded guilty to 16 counts of contempt of the Court in relation to that conduct.

3. Although the respondent consents to the grant of the relief described at [1] above and also admits that he is not a fit and proper person to remain on the roll, it is well settled that the Court must satisfy itself that it is appropriate to make the relevant orders sought by the Council (see Council of Law Society NSW v Jafari [2020] NSWCA 53 at [3] per Bell P, White JA and Emmett AJA agreeing). The Council’s application invokes the Court’s inherent jurisdiction (as preserved by s 264 of the LPUL and see also s 23) which, in this case, is exercised by the Court of Appeal.

4. The parties agreed that the matter should be dealt with on the papers. They each provided helpful written submissions. The Court was also assisted by a statement of agreed facts and admissions filed on 21 February 2024. Schedule 1 to the statement of agreed facts and admissions contained the following medical records relating to the respondent:

1. an initial report dated 18 February 2022 by Dr Andrew Ellis, forensic psychiatrist;

2. a report dated 7 March 2023 by Adjunct Professor Tuly Rosenfeld, geriatrician;

3. a supplementary report dated 6 April 2023 by Dr Ellis;

4. an addendum report dated 14 April 2023 by Dr Ellis;

5. a second addendum report dated 4 June 2023 by Dr Ellis; and

6. a supplementary report dated 8 June 2023 by Adjunct Professor Rosenfeld.

5. These medical reports were obtained for the purposes of sentencing and were referred to at some length by Payne JA in a related proceeding concerning the respondent (see at [7] below).

6. Before summarising the relevant facts, it is appropriate to state that, as submitted by the respondent’s solicitor advocate, the case is one of “great tragedy”. The background facts need to be read in the context of a former barrister who suffers from an insidious, progressive medical condition which developed slowly over a period of time and produced a cognitive impairment which significantly affected his judgment and actions and was a primary causative factor in his offending.

7. The basis for the Council’s application is that, between 6 August 2021 and 8 August 2022, the respondent engaged in conduct which has previously been held to amount to 16 counts of contempt of the Court (see Council of the NSW Bar Association v Rollinson [2022] NSWSC 407 per Beech-Jones CJ at CL (Rollinson Contempt No 1) and Council of the NSW Bar Association v Rollinson (No 2) [2023] NSWSC 1390 per Payne JA (Rollinson Contempt No 2)). In summary, the respondent repeatedly and wilfully contravened orders of the Court restraining him from engaging in legal practice or holding himself out as entitled to engage in legal practice, in circumstances where he did not hold a practising certificate.

Summary of relevant facts

8. This summary of the relevant facts draws on the statement of agreed facts and admissions filed on 21 February 2024.

9. As noted above, the respondent ceased holding a practising certificate after 30 June 2021. Although he was not entitled to do so, he continued to engage in legal practice.

10. On 6 August 2021, the respondent provided an undertaking to the Court not to engage in legal practice in New South Wales, or to advertise or represent, or do anything that states or implies, that he is entitled to do so (proceeding 2021/224727) (the Undertaking). The respondent was aware of the Undertaking and knew of his obligations under the Undertaking.

11. On 10 August 2021, in contempt of the Court, the respondent breached the Undertaking by sending an email and attachments to the Registrar of the New South Wales Court of Appeal and certain legal practitioners. The respondent engaged in that conduct, in wilful disobedience and contravention of the Undertaking.

12. On 16 August 2021, Wilson J made an order restraining the respondent from engaging in legal practice in New South Wales, and from advertising or representing, or doing anything that states or implies, that he is entitled to do so (proceeding 2021/224727) (the Injunction). The respondent was aware of the Injunction and knew of his obligations under the Injunction.

13. Between 23 August 2021 and 20 October 2021, in contempt of the Court, the respondent breached the Injunction by engaging in legal practice in New South Wales and representing or implying that he was entitled to engage in legal practice in the State. The respondent engaged in that conduct, in wilful disobedience and contravention of the Injunction.

14. On 16 September 2021, Campbell J made an order restraining the respondent from engaging in legal practice in relation to the specific matter of Vinja Holdings Pty Ltd v Style Investments Pty Ltd (proceeding 2021/265078) (the Further Injunction). The respondent was aware of the Further Injunction and knew of his obligations under that injunction.

15. Indeed, the transcript of the hearing before Campbell J included a discussion concerning the terms of the injunction about to be ordered as follows:

RICHARDSON:   …the effect of the injunction your Honour is about to order is that Mr Rollinson may not appear in any capacity in that matter in the Local Court? With leave as a lay person or otherwise, he may not appear at all tomorrow. Is that the intention?

HIS HONOUR:   That’s my intention. I’m sure Mr Rollinson understands that. And that’s the whole reason why I gave him a short adjournment to make a phone call, so that other arrangements can be made for another appearance. It’s certainly my intent that he is not to appear in the Local Court tomorrow.

RICHARDSON:   May it please the court.

HIS HONOUR:   I think, Mr Rollinson, you understand that well enough, do you not?

DEFENDANT:   Yes, your Honour.

16. Nonetheless, on 17 September 2021, in contempt of the Court, the respondent breached the Further Injunction in communicating with an employee or officer of the Local Court of New South Wales in relation to the matter of Vinja Holdings Pty Ltd v Style Investments Pty Ltd, appearing in that matter, and appearing as an advocate in the Local Court at Wollongong in that matter on that day. The respondent engaged in that conduct, in wilful disobedience and contravention of the Further Injunction.

17. On 8 April 2022, in Rollinson Contempt No 1, the Court:

1. Declared the respondent to be in contempt of the Court for breaching the Undertaking by his conduct on 10 August 2021 in sending an email and attachments to the Registrar of the Court of Appeal and certain legal practitioners.

2. Declared the respondent to be in contempt of the Court for breaching the Injunction by his conduct between 23 August 2021 and 20 October 2021 in engaging in legal practice in New South Wales and representing or implying that he was entitled to engage in legal practice in New South Wales.

3. Declared the respondent to be in contempt of the Court for breaching the Further Injunction by his conduct on 17 September 2021 in communicating with an employee or officer of the Local Court of New South Wales in relation to the matter of Vinja Holdings Pty Ltd v Style Investments Pty Ltd, appearing in that matter and appearing as an advocate in the Local Court at Wollongong in that matter on that day.

4. Committed the respondent to a correctional centre for a period of nine months commencing on the date of his arrest, and ordered that the terms of imprisonment be suspended on condition that for a period of three years from 8 April 2022, the respondent comply with the Injunction.

18. In Rollinson Contempt No 1, Beech-Jones CJ at CL described the respondent’s conduct as involving “wilful disobedience to the Court’s orders”, “public defiance of the Courts’ orders”, “disdain for the constraints imposed by Court orders”, “a deliberate refusal to comply with a Court order” and “a blatant disregard for Court orders”.

19. His Honour said the three counts of contempt referred to at [17] above “are all grave instances of contempt”. His Honour said that the respondent’s conduct overall “reveals a breathtaking and flagrant disregard for this Court’s authority”. His Honour described the third count as “equally breathtaking”, explaining that “[the respondent] was specifically told, and then ordered, by a Supreme Court judge not to appear in the Local Court at Wollongong the following day yet he did so”.

20. His Honour said that “[a] deliberate, wilful and public disobedience of Court orders by a barrister strikes at the heart of the Court’s authority”, that “each [instance of contempt] represented a serious challenge to the Court’s authority that was exacerbated by [the respondent’s] status as an officer of the very Court he deliberately and repeatedly defied”, and that “the conduct in this case, if left unchecked and undeterred, threatens the Court’s ability to function”.

21. When considering the appropriate punishment, his Honour said that “[t]he position has been reached that [the respondent] has been subject to highly specific Court orders precluding him from acting in a particular manner and he still chose not to comply”, that “the attack on the authority of the Court demonstrated by [the respondent’s] conduct is so grave that a term of imprisonment must be imposed”, and that “the only sanction that can be imposed on [the respondent] is a substantial custodial sentence”. As noted at [17(d)] above, his Honour ultimately suspended the sentence of imprisonment on condition that for a period of three years from 8 April 2022, the respondent comply with the Injunction.

22. On 11 August 2022, the Council filed a notice of motion and an accompanying statement of charge in each of:

1. proceeding 2021/224727, bringing seven charges of criminal contempt against the respondent, founded on breaches of the Injunction, based on conduct which occurred between 17 June 2022 and 8 August 2022;

2. proceeding 2021/265078, bringing one charge of criminal contempt against the respondent, founded on a breach of the Further Injunction, based on conduct which occurred on 9 July 2022.

23. On 31 August 2022, the respondent pleaded guilty to the eight charges of criminal contempt referred to at [22] immediately above. The respondent engaged in the offending conduct in wilful disobedience and contravention of the Injunction and the Further Injunction.

24. On 23 September 2022, the Council filed in proceeding 2021/224727 an amended notice of motion accompanied by an amended statement of charge, bringing five additional charges of criminal contempt against the respondent, founded on breaches of the Injunction, based on conduct which occurred between 6 July 2022 and 20 July 2022.

25. On 3 November 2022, the respondent pleaded guilty to the five additional charges of criminal contempt referred to at [24] immediately above. The respondent engaged in the offending conduct in wilful disobedience and contravention of the Injunction.

26. The respondent’s conduct comprising the 12 counts of contempt referred to in [22(a)] and [24] above also constituted contraventions of the condition of suspension of the terms of imprisonment that Beech-Jones CJ at CL ordered on 8 April 2022 (referred to in [17(d)] above).

27. On 15 November 2023, a hearing was conducted before Payne JA concerning:

1. sentencing of the respondent for the 13 counts of criminal contempt referred to in [22]-[25] above; and

2. consequences of the respondent’s breaches of the condition of suspension of the earlier sentence of imprisonment that the Court had imposed on the respondent on 8 April 2022 referred to in the paragraph immediately above.

28. On the same day, in Rollinson Contempt No 2 Payne JA remanded the proceedings for sentence to 13 November 2024 at 10am on the condition that the respondent enter into an agreement to comply with certain conditions.

29. It should be noted that the respondent had legal representation, including when he: (a) pleaded guilty to the various charges of contempt, (b) subscribed to each statement of agreed facts referred to at [1] of the statement of agreed facts and admissions filed on 21 February 2024, and (c) elected to proceed with a sentencing hearing in respect of the 13 charges of contempt referred to at [22] and [24] above after being granted an opportunity to obtain legal advice. In particular:

1. Mr Gregory Walsh OAM was acting for the respondent in proceedings 2021/224727 and 2021/265078 up until 23 November 2022, including when the respondent pleaded guilty to the 13 charges of criminal contempt referred to at [22] and [24] above, and when the previous statements of agreed facts referred to in [1] of the statement of agreed facts and admissions filed on 21 February 2024 were signed by the parties.

1. On 8 December 2022, the Court made timetabling orders in proceedings 2021/224727 and 2021/265078 to allow the respondent an opportunity to obtain legal representation and take advice in relation to his guilty pleas.

2. From approximately late December 2022 or January 2023, the respondent has been represented in proceedings 2021/224727 and 2021/265078 by Gells Lawyers, Tim Game SC and David Barrow SC.

3. On 21 July 2023, the respondent’s solicitors wrote to the Council’s solicitors advising that the respondent will proceed to a sentencing hearing in respect of the 13 charges of criminal contempt to which the respondent has pleaded guilty, as referred to at [22]-[25] above.

Relevant legal principles

30. In determining whether an order for removal from the roll should be made, the question is whether the respondent “is presently not fit to practise and is likely to be unfit in the indefinite future” (see Council of the Law Society of NSW v Clarke [2022] NSWCA 57 at [9] per Basten, Macfarlan JJA and Simpson AJA). “It is not capable of more precise statement” (see Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 at 298; [1957] HCA 46 per Kitto J). This requires the application of established principles reflecting the purpose of disciplinary proceedings, namely the protection of the public and its confidence in the legal profession (see Council of the Law Society of NSW v Green [2022] NSWCA 257 at [58] per Ward P, Kirk JA and Griffiths AJA).

31. Although the fact of a criminal conviction may not always disqualify a person from legal practice, the defects of character and the disgrace flowing from the conviction may be incompatible with continued practice (see Green at [62]). In Ziems at 298, Kitto J said:

…It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self-respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily co-operation which the satisfactory working of the courts demands. A conviction may of its own force carry such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails…

32. In RJA Cornall (in his capacity of Secretary of the Law Institute of Victoria) v JD Little (Supreme Court (Vic), Tadgell J, 11 June 1991, unrep), “a solicitor [Mr Little] of 30 years’ standing and a very well qualified lawyer”, refused to pay the prescribed fee for obtaining a practising certificate, and continued to practise without a practising certificate. The Supreme Court of Victoria made an order restraining Mr Little from practising, using a name or title implying that he is qualified to practise, or holding himself out as being qualified to practise, as a solicitor. Mr Little nonetheless continued to practise as a solicitor. He was later found guilty of contempt by the Supreme Court of Victoria for deliberate disobedience of its order. The Law Institute of Victoria then applied to strike Mr Little’s name off the roll.

33. Tadgell J found that Mr Little was “not a fit and proper person to remain on the roll”, and made an order for the removal of his name from the roll. In reaching that conclusion, his Honour said:

In seeking to administer justice according to law – that is to uphold the rule of the law – this Court cannot act alone. It requires the active assistance and support of the legal profession. A solicitor who contumaciously and repeatedly infringes an injunctive order made by the Court and directed to him is not, in my opinion, one upon whom the Court can count for the assistance and support without which it cannot function as a court of law. Conduct such as that is positively detrimental to the Court and stands in the way of the proper performance of its task … Mr Little’s conduct and the attitude to the Court that promotes it demonstrate, in my opinion, that he is not a fit and proper person to remain on the roll of practitioners of the Court.

34. In Garde-Wilson v Legal Services Board (2007) 27 VAR 125; [2007] VSC 225, the plaintiff, a young solicitor, was called to give evidence in a murder trial. She answered her summons and entered the witness box, but refused to answer questions for fear of reprisals from two dangerous criminals. She was convicted of contempt of court, not because she did not fear reprisals, but because the judge found she did not show the firmness of mind expected of an ordinary person. However, in view of many mitigating factors which the judge set out, his Honour did not sentence the plaintiff to jail, but to conviction without further penalty. In that context, Bell J made the following observations at [114]-[116] about contempt and fitness to practise (note that an appeal was allowed, but not on a basis which diminished the force of these observations):

[114]    …While contempt of court is an offence involving interference with the administration of justice, and while a lawyer who commits that offence places their entitlement to practice in serious jeopardy, a person is not a “fit and proper person” to hold or continue to hold a practising certificate, as that statutory expression is properly to be understood, by reason only of having committed, and been convicted for, that offence.

[115]   Not all contempts are the same. Take, for example, the contempt of refusing to answer questions on oath. Someone, such as the plaintiff, may be found guilty because they did not display a reasonably expected capacity to withstand a genuinely felt fear of answering. That is serious, but more serious may be the case of someone found guilty because their professed fear was not established subjectively, let alone objectively.

[116]   To properly apply the “fit and proper person” requirement in a case like the present, I think it is necessary to take into account not just the fact of the conviction, but also the nature of the contempt; the entirety of the circumstances surrounding its commission, as may be revealed by the evidence before and the findings of the trial judge; the sentence imposed, including any aggravating or mitigating circumstances found by the sentencing judge; and other relevant considerations, such as the lawyer’s history of practice, their remorse for committing the offence and the likelihood, if any, that he or she might reoffend. Depending on the nature of the case, there may, of course, be other relevant considerations, both for and against the applicant.

35. In Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470, Mr McCaffery deliberately practised without a practising certificate, knowing of his obligation to obtain that certificate. He made a deliberate decision, having regard to his financial circumstances, not to obtain a practising certificate at renewal time. Nonetheless, he represented that he was entitled to practise as a barrister, by appearing in various matters and rendering tax invoices in respect of those appearances.

36. The Court observed that “the obligation of frankness is one which the barrister is … expected to discharge in his or her dealings with the public and other members of the profession”, that the barrister’s “conduct struck at the heart of these obligations”, that “he misled the courts before which he appeared, he misled the members of the legal profession against whom he appeared and he mislead the clients for whom he appeared”, that “[h]e acted in flagrant disregard to his obligations to the administration of justice, to his obligations to the Court, the profession and the public” and that “[h]is deceit was only revealed when his conduct came to the attention of the Bar Association”.

37. The Court “accept[ed] that the contraventions occurred by reason of the financial and psychological constraints under which the [practitioner] was suffering and in circumstances where he sought to support his family”, that his “condition may also have had an operative effect in his conduct”, and that “[t]hese matters evoke sympathy”, but nonetheless said that these matters “cannot … be permitted to obscure the serious nature of the contraventions”. The Court also observed that “the seriousness and persistence of his conduct striking as it did at the heart of his role as a legal practitioner of this Court is such that, in my opinion, he is presently not a fit and proper person to be a legal practitioner”, that “[t]he courts and the public could not repose any confidence in a person who is prepared to betray the trust expected from those who practise the law”, and that “[b]oth the public and the profession should be protected by ensuring that the opponent can no longer hold himself out as a legal practitioner of this Court”. The Court ordered the removal of the barrister’s name from the roll.

38. In Council of the New South Wales Bar Association v Perry [2007] NSWCA 111 at [1], “[t]he nub of the complaint [was] that the [barrister] practised as a barrister without holding a practising certificate”. The Court made an order that the barrister’s name be removed from the roll.

39. In Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407 the Court observed that “a practitioner who purports to practice, or to hold himself or herself out as entitled to practice, without being the holder of a practising certificate may, by that fact alone, be guilty of professional misconduct”.

40. It is accepted that the respondent’s mental health has some bearing on his fitness to remain on the roll, but each case necessarily turns on its own particular facts and circumstances. An order removing someone’s name from the roll may be made in cases of mental illness or loss of faculties, as explained in Re B (a Solicitor) [1986] VR 695 at 699 per Brooking J. But there is no room for bright lines in this area. The issue can arise in a myriad of circumstances. The weight to be given to individual factors in making the evaluative judgment as to the effect of mental illness on a legal practitioner’s conduct is well reflected in the following observations by Doyle CJ in Legal Practitioners Conduct Board v Trueman [2003] SASC 58 at [23] (Duggan and Gray JJ agreeing):

I should add that it does not follow that an order for the striking off of a practitioner's name should be made as a matter of course whenever unprofessional conduct is attributable to a significant degree to a psychiatric disorder or to some mental disturbance. What is significant about the present case is that the evidence demonstrates that Mr Trueman has suffered from a significant disorder for a long time. He has not yet recovered from it. That disorder has played a part in him committing many acts of unprofessional conduct over a lengthy period. The unprofessional conduct cannot be regarded as occasional or isolated lapses of behaviour by a practitioner who has otherwise coped with his disorder or condition. Nor can the unprofessional conduct be regarded as unlikely to be repeated if all goes well. Nor can the disorder be treated as of a temporary or episodic nature, reasonably likely to be capable of management if properly treated and properly approached by the practitioner. The evidence shows that Mr Trueman has been unable to cope with his condition, and that it has led him into a sustained and significant pattern of unprofessional conduct.

41. Finally, it is appropriate to acknowledge that in the context of the Council’s particular application here (as opposed to the different context of sentencing the respondent for his criminal contempts), the Court is exercising a protective, not a punitive function. The protective nature of the function highlights the fact that the Court’s role is not to punish or shame the legal practitioner.

Consideration and determination

42. Having regard to the matters set out above, the primary relevant features of the respondent’s conduct may be summarised as follows. The respondent:

1. was aware of the Undertaking, Injunction and Further Injunction;

2. knew of his obligations under the Undertaking, Injunction and Further Injunction;

3. repeatedly and wilfully disobeyed the Court’s injunctions over a lengthy period spanning several months;

4. pleaded guilty to, and was found by the Court in Rollinson Contempt No 1 to have engaged in, three counts of contempt;

5. pleaded guilty to, and was found by the Court in Rollinson Contempt No 2 to have engaged in, 13 counts of contempt; and

6. committed 12 contraventions of the condition of suspension of the terms of the imprisonment that Beech-Jones CJ at CL had ordered on 8 April 2022.

43. Having regard to those matters and to the application of established legal principles to the circumstances here (which we shall shortly address), we consider that the relief sought in orders 1 and 2 of the amended summons should be granted (noting again that the respondent consents to that relief). Accordingly, order 3 which is in the alternative does not arise.

44. First, the respondent’s repeated and wilful contraventions of the Court’s injunctions, over a lengthy period spanning several months, including while serving a suspended sentence of imprisonment, demonstrates decisively that he lacks one of the “essential requirements for being a fit and proper person to be a legal practitioner”, namely “preparedness to comply with the law” (see Council of the New South Wales Bar Association v Siggins [2021] NSWCA 40 at [181] per Payne and McCallum JJA and Beech-Jones J).

45. Secondly, the removal of the respondent’s name from the roll is important for the protection of the “four interrelated interests” that Spigelman CJ identified in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at [20], namely:

There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.

46. As observed in McCaffery at [63]: “[t]he courts and the public could not repose any confidence in a person who is prepared to betray the trust expected from those who practise the law”; and “[b]oth the public and the profession should be protected by ensuring that the [respondent] can no longer hold himself out as a legal practitioner of this Court”. “[F]itness to practise requires an appreciation of the high degree of trust that the court, of necessity, reposes in legal practitioners and of their general and ongoing obligation of candour to the court in which they desire to serve as an ‘agent of justice’” (see Prothonotary of the Supreme Court of New South Wales v Thomson [2018] NSWCA 230 at [18] per Basten and Meagher JJA and Simpson AJA). The respondent’s conduct does not demonstrate any such appreciation and is inconsistent with it.

47. As observed in Green at [72], “it would be inimical to the reputation of the profession, and to public confidence in the integrity of the profession and the administration of justice, for the respondent’s name to remain on the roll”. And, as the Court observed in APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; [2005] HCA 44 at [21] per Gleeson CJ and Heydon J: “[t]he Supreme Court holds out those whose names are on its roll of practitioners as fit and proper persons to be entrusted with the duties and responsibilities of a legal practitioner”.

48. Thirdly, it should be noted that, in the course of the contempt proceedings, the Court contemplated that an application would eventually be made for the removal of the respondent’s name from the roll. Beech-Jones CJ at CL in Rollinson Contempt No 1 said at [77]: “I regard it as almost a virtual certainty that either by way of being refused a practising certificate or removed from the roll of practitioners (or both) [Mr Rollinson] will not (lawfully) practice again”, that “his conduct has destroyed his career”, that “he will suffer the destruction of his career from his actions regardless of the punishment imposed at this point” (at [102]), and that “[a]t some point in the medium term his removal from the profession should result in the cessation of any opportunity he may have to breach the Injunction” (at [84]). His Honour’s observations do not, of course, bind this Court, but they indicate that the respondent was put on early notice as to the possibility of further action being taken against him.

49. Fourthly, this case is not merely an instance of the fact described by Brooking J in Re B at 699 that “[r]etired practitioners grow old and may ultimately lose their faculties, becoming unfit to practise; they have no intention of practising; no-one would suggest that their incapacity requires them to be struck off the roll”. As Brooking J said, in such cases, “[t]here is no need for protection, for they intend neither to practise nor to take advantage in any other way of the standing which they have by reason of their admission”. Rather, here, the respondent has repeatedly engaged in legal practice and held himself out as entitled to do so: (a) contrary to repeated Court orders restraining him from doing so, (b) without holding a practising certificate, and (c) even after receiving a (suspended) sentence of imprisonment for his contraventions. Those facts demonstrate that it is apposite to apply in this case two further observations that Brooking J made in the same case, namely that “if a lawyer who is mentally ill intends to practise his profession, or to make some indirect use of his status as a person admitted to practise, the protective jurisdiction may well have to be invoked against him”, and that “[t]o say this is of course not to suggest that in the consideration of this ultimate question of fitness to practise regard may not be had to conduct”.

50. Fifthly, it is plain from the medical reports that the respondent’s repeated and flagrant conduct which resulted in the findings of multiple contempts of Court were causally affected by his mental illnesses and that it is likely that he will further deteriorate over time. Professor Rosenfeld diagnosed the respondent as suffering from “early but likely progressive vascular brain disease” which “has resulted in mild cognitive impairments and an early dementing illness”. Professor Rosenfeld described brain disease and cognitive impairments that accompany the progression of the respondent’s dementing illness as “insidious, gradual and progressive”. Professor Rosenfeld opined that the respondent “may continue to suffer with symptoms and problems relating to the progression of underlying vascular disease as well as issues related to the worsening of cognitive function”. He recommended ongoing support, treatment and management strategies for the respondent which he said “are likely to reduce the impact of, and reduce or delay problems relate [sic] to, the progression of his illness”.

51. In his report dated 6 April 2023 (which was finalised after the results became available of the respondent’s MRI Scan on 28 February 2022), Dr Ellis said that it was now clear that the respondent suffered from a mild neurocognitive disorder and had clearly demonstrated vascular damage to his brain. Dr Ellis said that he remained of the view that the respondent pre-morbidly suffered from a schizoid personality disorder. He added that, with the onset of cognitive problems related to the respondent’s vascular dementia, “it is likely that his personality deficits have been coarsened, and his ability to modify his behaviour in response to social cues has been further impaired…”.

46. In her written submission in respect of the Council’s application, the respondent’s solicitor candidly acknowledged that “the reality of the Respondent’s situation is that it will not improve sufficiently that he will be able to have the capacity to safely practice in the future”. That acknowledgement was properly given and is supported by the medical evidence.

47. Sixthly, it is relevant (but not determinative) that, in providing his consent to the relief sought in the Council’s amended summons, the respondent was (and is) represented by experienced legal practitioners who are familiar with the history of the respondent’s conduct the subject of the contempt proceedings. There is no evidence or submission to suggest that the respondent lacks legal capacity despite his diagnosis of early onset dementia. Dr Ellis said in his report dated 6 April 2023 that:

Despite his neurocognitive disorder he has a background legal knowledge and background intelligence, and the memory and executive function deficits are not to a point where he is likely to be considered unfit to be tried. This will need to be reviewed periodically if proceedings are prolonged, as he may deteriorate over time.

54. The Court is grateful to the legal representatives for both parties for the valuable assistance they provided in this vexed proceeding.

Costs

55. Normally, costs follow the event and are assessed on the ordinary basis unless the Court rules otherwise. Section 303(1) of the LPUL does not apply absent a finding of unsatisfactory professional conduct or professional misconduct.

56. It is relevant to note, however, that the Council did not press for an order as to costs in its favour.

57. In these circumstances, although in proceedings of this kind costs normally follow the event (see Green at [97]-[100]), there should be no order as to costs.

Conclusion

58. For all these reasons, the relief sought in orders 1 and 2 of the amended summons should be granted, such that there should be:

1. A declaration that Michael Kelvyn Rollinson is not a fit and proper person to remain on the roll of Australian lawyers maintained by the Supreme Court under s 22 of the Legal Profession Uniform Law (NSW).

2. An order that the name of Michael Kelvyn Rollinson be removed from that roll.

59. There should be no order as to costs.

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Decision last updated: 19 April 2024