Gersten v The Law Society - [2002] NSWCA 344

Reported Decision:
(2002) 56 NSWLR 16

New South Wales

Court of Appeal

CITATION: Gersten v The Law Society [2002] NSWCA 344

FILE NUMBER(S): CA 41007/01

HEARING DATE(S): 22 July 2002

JUDGMENT DATE:
22 November 2002

PARTIES :

Joseph Morris Gersten
v
The Law Society of New South Wales

JUDGMENT OF: Handley JA at 1; Stein JA at 62; Davies AJA at 63

LOWER COURT JURISDICTION : Supreme Court - Common Law Division

LOWER COURT
FILE NUMBER(S) : CLD 10125/99

LOWER COURT
JUDICIAL OFFICER : James J

COUNSEL: Appellant - Paul Brereton SC
Respondent - John Griffiths SC/Nicholas Beaumont

SOLICITORS: Appellant - Oliveri Attorneys
Respondent - Raymond John Collins

CATCHWORDS: LEGAL PRACTITIONER - suspension from practice in foreign jurisdiction - SCR Pt 65A r 3 - automatic suspension in New South Wales unless court otherwise orders - fitness to practise primary consideration - foreign judgment not entitled to recognition - comity not relevant - PRIVATE INTERNATIONAL LAW - foreign order committing to prison - not entitled to recognition - foreign order striking off or suspending legal practitioner - not entitled to recognition

LEGISLATION CITED: SCR Pt 65A r 3

CASES CITED:
Clyne v The New South Wales Bar Association (1960) 104 CLR 186
The Queen v Australian Broadcasting Tribunal Ex parte 2HD Pty Limited (1979) 144 CLR 45
Huntington v Attrill [1893] AC 150
Witham v Holloway (1995) 183 CLR 525
re Welsh ex parte the Law Institute of Victoria (1896) 22 VLR 473
re A Solicitor ex parte Incorporated Law Society [1898] 1 QB 331
re A Solicitor [1993] QB 69
New South Wales Bar Assocation v Evatt (1968) 117 CLR 177
Harvey v The Law Society of New South Wales (1975) 49 ALJR 362
Weaver v Law Society of New South Wales (1979) 142 CLR 201
Wentworth v NSW Bar Association (1992) 176 CLR 239
Smith v NSW Bar Association (1992) 176 CLR 256
McCarthy v Law Society of New South Wales (1997) 43 NSWLR 42

DECISION: Leave to appeal granted. Appeal allowed. Orders made

- 16 -IN THE SUPREME COURT

41007/01
CLD 10125/99

HANDLEY JA
STEIN JA
DAVIES AJA

22 November 2002

JOSEPH MORRIS GERSTEN v THE LAW SOCIETY OF

NEW SOUTH WALES

LEGAL PRACTITIONER – suspension from practice in foreign jurisdiction – SCR Pt 65A r 3 – automatic suspension in New South Wales unless court otherwise orders – fitness to practise primary consideration – foreign judgment not entitled to recognition – comity not relevant

PRIVATE INTERNATIONAL LAW – foreign order committing to prison – not entitled to recognition – foreign order striking off or suspending legal practitioner – not entitled to recognition

SCR Pt 65A r 3 provides:

“Any legal practitioner … suspended from practising … as a lawyer outside the State … by reason of misconduct is suspended from practice … unless the Court otherwise orders”.

In 1998 the Supreme Court of Florida suspended the appellant in absentia from practising as an Attorney in that State on the ground that he had been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWCA 344
Decision Date: 22 November 2002

CaseChat Overview and Summary

Gersten applied to the Supreme Court of New South Wales for an order that he be permitted to continue to practise as a solicitor in New South Wales, notwithstanding his suspension from practice in the United Kingdom. The Law Society of New South Wales opposed the application. The primary judge dismissed Gersten's application. Gersten appealed to the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether the automatic suspension provisions of SCR Part 65A rule 3 applied to Gersten, or whether an order could be made permitting him to continue to practise. This involved considering the extent to which a foreign judgment striking off or suspending a legal practitioner, or an order committing a legal practitioner to prison, should be recognised or given effect in New South Wales. The court also had to consider the relevance of comity in this context and the primary consideration of a practitioner's fitness to practise.

The Court of Appeal held that the foreign judgment striking off or suspending a legal practitioner, or an order committing a legal practitioner to prison, was not entitled to recognition in New South Wales. The court reasoned that the fitness of a legal practitioner to practise in New South Wales was the primary consideration, and this required an independent assessment by the New South Wales courts. Comity was not a relevant consideration when determining whether a practitioner was fit to practise. The court found that the foreign judgment did not provide a sufficient basis for overriding the provisions of SCR Part 65A rule 3.

Leave to appeal was granted, and the appeal was allowed. The Court of Appeal made orders permitting Gersten to continue to practise as a solicitor in New South Wales.

Orders

Orders of the court

Leave to appeal granted. Appeal allowed. Orders made

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Gersten v The Law Society [2002] NSWCA 344
FILE NUMBER(S):	CA 41007/01
HEARING DATE(S):	22 July 2002
JUDGMENT DATE:	22 November 2002
PARTIES :	Joseph Morris Gersten v The Law Society of New South Wales
JUDGMENT OF:	Handley JA at 1; Stein JA at 62; Davies AJA at 63

LOWER COURT JURISDICTION :	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	CLD 10125/99
LOWER COURT JUDICIAL OFFICER :	James J

COUNSEL:	Appellant - Paul Brereton SC Respondent - John Griffiths SC/Nicholas Beaumont
SOLICITORS:	Appellant - Oliveri Attorneys Respondent - Raymond John Collins
CATCHWORDS:	LEGAL PRACTITIONER - suspension from practice in foreign jurisdiction - SCR Pt 65A r 3 - automatic suspension in New South Wales unless court otherwise orders - fitness to practise primary consideration - foreign judgment not entitled to recognition - comity not relevant - PRIVATE INTERNATIONAL LAW - foreign order committing to prison - not entitled to recognition - foreign order striking off or suspending legal practitioner - not entitled to recognition
LEGISLATION CITED:	SCR Pt 65A r 3
CASES CITED:	Clyne v The New South Wales Bar Association (1960) 104 CLR 186 The Queen v Australian Broadcasting Tribunal Ex parte 2HD Pty Limited (1979) 144 CLR 45 Huntington v Attrill [1893] AC 150 Witham v Holloway (1995) 183 CLR 525 re Welsh ex parte the Law Institute of Victoria (1896) 22 VLR 473 re A Solicitor ex parte Incorporated Law Society [1898] 1 QB 331 re A Solicitor [1993] QB 69 New South Wales Bar Assocation v Evatt (1968) 117 CLR 177 Harvey v The Law Society of New South Wales (1975) 49 ALJR 362 Weaver v Law Society of New South Wales (1979) 142 CLR 201 Wentworth v NSW Bar Association (1992) 176 CLR 239 Smith v NSW Bar Association (1992) 176 CLR 256 McCarthy v Law Society of New South Wales (1997) 43 NSWLR 42
DECISION:	Leave to appeal granted. Appeal allowed. Orders made