Mitry v New South Wales Bar Association (LSD)

[2000] NSWADTAP 9

Set aside by Appeal: Set aside by appeal on 28/8/01 (Court of Appeal)

Appeal Panel

CITATION:	Mitry -v- New South Wales Bar Association (LSD) [2000] NSWADTAP 9 revised - 02/04/2001
PARTIES:	APPELLANT Richard Mitry RESPONDENT Council of the New South Wales Bar Assocition
FILE NUMBER:	999015
HEARING DATES:	30/11/99, 14/04/2000
SUBMISSIONS CLOSED:	04/14/2000
DATE OF DECISION:	06/30/2000
DECISION UNDER APPEAL:	Principal matter
BEFORE:	O'Connor K - DCJ (President); Blackman J - Judicial Member; Bubniuk L - Member
CATCHWORDS:	bias - no evidence
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	9721
DATE OF DECISION UNDER APPEAL:	08/30/1999
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Barwick v Law Society of New South Wales [2000] HCA 2; (2000) 74 ALJR 419 New South Wales Bar Association v Hamman [1999] NSWCA 404 Wentworth v New South Wales Bar Association (1992) 176 CLR 239 Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Prothonotary of the Supreme Court of NSW v Costello [1984] 3 NSWLR 201 at 203) Ziems v Prothonotary of the Supreme Court of New South Wales) [1957] 97 CLR 279 Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 In re Davis (1947) 75 CLR 409 Prothonotary v Pangallo (1993) 67 A Crim R 77 Law Society of New South Wales v Bannister (1993) 4 LPDR 24 House v The King (1936) 55 CLR 449 Murray v Legal Services Commissioner (1999) 46 NSWLR 224 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Carver v Law Society of New South Wales (1997) 43 NSWLR 71 (CA) Dovade P/L v Westpac Banking Group (1999) 46 NSWLR 168 (CA) R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet (No 2) Aussie Airlines P/L v Australian Airlines P/L (1996) 65 FCR 215 Re Polites; Ex parte Hoyts Corporation P/L (1991) 173 CLR 78 Re JRL; Ex parte CJL (1986) 161 CLR 342 Trustees of the Christian Brothers v Cardone (1995) FCR 345
REPRESENTATION:	APPELLANT W G Hodgekiss, barrister RESPONDENT P R Garling SC, barrister
ORDERS:	1. Decision under appeal affirmed; 2. The costs of the Respondent to be paid by the Appellant, as agreed or assessed.

1 On 30 August 1999 the Legal Services Division of the Tribunal (the Tribunal) found Richard Mitry guilty of professional misconduct as a barrister. The Tribunal ordered that his name be removed from the Roll of Legal Practitioners, and that he pay the costs of the applicant, the Council of the New South Wales Bar Association (the Council).

2 Mr Mitry was admitted as a solicitor in May 1978, and joined the Bar on 14 September 1978. In his professional career he has mainly practised as a barrister. For two years, 1986 to 1988, he practised as a solicitor. He ceased to practise either as a barrister or a solicitor between 1992 and 1994 before resuming practice as a barrister. He again ceased to practise in either capacity in 1996, resuming practice as a solicitor in 1997. At the time of the Tribunal’s order, he was practising as a solicitor.

3 Mr Mitry was convicted in 1996 of being knowingly concerned, between 7 August 1990 and 30 November 1990, by virtue of transactions involving Christopher Donlon, an officer of Red Anchor Resources Limited (Red Anchor), in contraventions of s 129(1)(i)(A) of the Companies (NSW) Code (the Code) by Red Anchor in that Red Anchor did in a manner not expressly provided by the Code give financial assistance in connection with the acquisition by Selmit Pacific Property Holdings Pty Ltd (Selmit Pacific) of shares in Red Anchor contrary to s 129(5) of the Companies Code and s 38(1) of the Companies and Securities (Interpretation and Miscellaneous Provisions) (NSW) Code. Selmit Pacific was a company of which Mr Mitry was a director.

4 The information in relation to the offence was laid in the Local Court on 4 August 1995 and was heard on 15 April 1996. Mr Mitry pleaded guilty and a statement of facts tendered by consent. On 20 June 1996 Mr Mitry was convicted. After expressing the view that the offence warranted imprisonment, the Court ordered Mr Mitry to perform 400 hours community service.

5 There was an all grounds appeal to the District Court. However it was conducted as if it were an appeal against severity. On 14 August 1996 Judge Phelan quashed the order for community service and imposed in lieu a fine of $2500. The Court made it clear that the sentence which was imposed sought to reflect parity with the sentence imposed on Mr Donlon who was the principal in the transaction.

6 Pursuant to the Legal Profession Act 1987 (the Legal Profession Act) the Council commenced an investigation of Mr Mitry’s conduct by formal resolution on 24 April 1996 in response to a newspaper report on 16 April 1996 referring to Mr Mitry’s conviction. Section 138(1) of the Legal Profession Act provides that a complaint may only be made within 3 years after the conduct is alleged to have occurred. Mr Mitry’s conduct had occurred in and around 1990. In these circumstances it is necessary for the complaint to be accepted by the Legal Services Commissioner exercising his discretion under s 138(2) before it can proceed. Section 138(2) provides that the Commissioner may accept a complaint made after that time if the Commissioner is satisfied that it is just and fair to do so or he is satisfied that the complaint concerns an allegation of professional misconduct and it is in the public interest to investigate it.

7 Consequently the Council resolved on 15 November 1996 to request the Legal Services Commissioner to accept the complaint pursuant to s 138(2), which he agreed to do on 5 February 1997. On 6 March 1997 the Council resolved to refer the complaint to the Tribunal.

8 On 27 June 1997 by the Council filed its information in the Tribunal. The first two days of hearing occurred on 23 and 24 February 1998. The original information formed the basis for the proceedings at their commencement. After two days of hearing the Council sought leave to file an amended information which was opposed. Argument was heard and leave granted on 23 July 1998. The hearing resumed and continued on 3, 4, 6 and 7 May 1999.

9 The Tribunal reserved its decision. It was delivered on 30 August 1999. The Tribunal found that Mr Mitry was guilty of professional misconduct and ordered that he be struck off.

10 Mr Mitry appealed against the decision to the Appeal Panel of the Tribunal (the Appeal Panel) pursuant to s 113 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act).

11 At the appeal hearing he was represented by Mr Hodgekiss. The Council was represented by Mr P Garling SC. There were written and oral submissions from both parties. Oral submissions were heard on 30 November 1999. The appellant raised four appeal points. One of those points concerned the validity of the Tribunal’s decision to grant leave for the amended information to be filed. This decision was seen as affected by the decision of the Court of Appeal in Barwick v Law Society of New South Wales (BC9803164, 16 July 1998). That decision was reversed on 3 February 2000 by the High Court: Barwick v Law Society of New South Wales [2000] HCA 2; (2000) 74 ALJR 419 (Barwick). In consequence, the parties sought and were given leave to make further written and oral submissions in relation to the point seen as affected by Barwick. A further hearing was held on 14 April 2000.

12 The Tribunal Act, s 113(2) permits an appeal to be made on any question of law (para (a)), and, with the leave of the Appeal Panel, the appeal may extend to the merits. There was no application to re-consider the merits of the case. The application was purely an appeal on a question of law.

13 Counsel for Mr Mitry contended that the Tribunal’s decision was affected by error in the following respects:

(a) The findings of fact made by the Tribunal are not capable of constituting ‘professional misconduct’.
(b) If professional misconduct was properly found, the order for removal should not have been made.
(c) The Tribunal proceedings were flawed because a member, Deputy President Needham, should have disqualified herself because of a reasonable apprehension of bias.
(d) The Council had filed its complaint out of time, and the Tribunal erred in permitting the Council to amend it.

14 The Tribunal heard extensive evidence as to Mr Mitry’s understanding of the transaction that gave rise to the conviction. The essential allegations giving rise to the conviction were that the company, Red Anchor, had lent money to two companies of which Mr Mitry was a director, to enable them to use the money for investments. Investment agreements were executed. Those funds were in turn immediately transferred to another company connected with Mr Mitry. The third company (Selmit Pacific) then used the funds to purchase shares in Red Anchor. This strategy was designed to assist Red Anchor in demonstrating to the Stock Exchange that it had sufficient investors to justify public listing.

15 In forming a view as to Mr Mitry’s role in these matters, the Tribunal had regard to the agreed statement of facts presented to the magistrate as well as the evidence led by Mr Mitry on that occasion.

16 Before the Tribunal Mr Mitry sought to diminish the force of the conviction by contending to the Tribunal that he did not have the requisite intent at the time to support a conviction. He claimed that at the time he was unaware of the Companies Code, had a depressive illness and made no financial benefit from the transaction. He sought to suggest that he was an unwitting pawn of a strategy devised by Mr Donlon. The Tribunal made a number of findings adverse to these contentions.

17 For example, the Tribunal said at [14] of its decision:

‘In our opinion, Mr Mitry was fully aware of the reasons for this method of enabling Selmit [the third company] to make the share purchases and he knew that the investment agreements were a sham, since he knew at all times that Valdese and Tamsalu [the first two companies] had no capacity to engage in investment activity, no interest in borrowing money and he in fact suggested that he should endorse the bank cheques because if money were paid into either account, the bank would use it to reduce the company’s indebtedness to the bank.’

18 The transaction referred to took place during August and September 1990. In November 1990 auditors of Red Anchor made enquiries as to the purpose of the funds transferred to the two companies connected with Mr Mitry. They asked Mr Mitry to confirm the bona fides of the transaction. At that time Mr Mitry was a practising barrister. Mr Mitry’s conduct in response to the auditors’ enquiries was examined by the Tribunal.

19 The Tribunal made the following findings at [17]:

‘By letter of 8 November 1990, written in his own hand and on letterhead proclaiming him to be a barrister at law, Mr Mitry replied to the auditor, confirming that the investments were genuine and not in breach of the Companies (New South Wales) Code . What he wrote in this letter was clearly false and was intended, in our opinion, to deceive the auditor. This letter was just another step in the sham transactions which are detailed above. We cannot accept, despite Mr Mitry’s claims to innocence, that he did not fully appreciate that he was involved in a series of sham transactions which were illegal and designed to deceive the Stock Exchange into giving permission to list a company which did not comply with the listing requirements.’

20 The Tribunal then examined Mr Mitry’s first and second reply to the information filed by the Council. The Tribunal was satisfied that the first reply admitted the truth of the facts alleged against him. Those facts, the Tribunal considered, amounted to professional misconduct. On the other hand the second reply denied professional misconduct and denied the truth of the facts.

21 In that reply he raised a new matter, that at the time of the events giving rise to the information he was suffering from a significant cognitive impairment giving rise to an untreated depression caused by the death of a young brother and a sister, in close succession, late in 1989. It is against this background that leave was given to the Council to file an amended information, a matter to which we return later in these reasons.

22 The overall conclusion of the Tribunal is given at [26]:

‘When all the facts and circumstances are given consideration, it is obvious that there was no basis at all for Mr Mitry to claim that he was not guilty of the offence. It is also clear, in our opinion, that what was done by him was done deliberately and with an intention to help Mr Donlon perpetrate a dishonest scheme which involved deceiving an auditor, the Australian Stock Exchange and the investing public.’

23 For ‘professional misconduct’ to be found the conduct in question must be of a kind which is regarded as ‘disgraceful and dishonourable’ by a practitioner’s ‘professional peers’. The Legal Profession Act in s 127(1)(b) refers to the situation of conduct that occurs otherwise than in the course of a legal practitioner’s practice of his or her profession. The Legal Profession Act defines ‘professional misconduct’ as including:

‘conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law, which, if established, would justify a finding that a legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners.’

24 In a recent Court of Appeal case, New South Wales Bar Association v Hamman [1999] NSWCA 404, Mason P explained the purpose of disciplinary proceedings against legal practitioners in these terms.

‘20 The claimant [the Council of the Bar Association] moves to have the barrister struck off having regard to the conviction and sentence and the underlying misconduct. It is submitted that the offences are such as to require removal from the roll.

21 The general principles are not in contest. Disciplinary proceedings against a legal practitioner are concerned with the protection of the public (Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 250-251). Their object is not to punish the practitioner but to protect the public and to maintain proper standards in the legal profession. The fact that the misconduct is not directly involved with practice in the law makes no difference where, as is conceded in the present case, the practitioner's behaviour would reasonably be regarded as disgraceful and dishonourable by professional brethren of good repute and competency (Allinson v General Council of Medical Education andRegistration [1894] 1 QB 750; Prothonotary of the Supreme Court of NSW v Costello [1984] 3 NSWLR 201 at 203). The leading case is Ziems [Ziems v Prothonotary of the Supreme Court of New South Wales) [1957] 97 CLR 279], to which I shall return.

22 Although the claimant is the moving party and although the barrister is entitled to have his conduct as a barrister taken into account in deciding fitness, the Court is entitled and required to ask whether the practitioner whose character and conduct is under review can properly be held out as a fit and proper person to remain a practitioner of the Court (Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 at 681; Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 442-444).’

25 In the present case, we have no doubt that the findings of the Tribunal are sufficient to support a finding of professional misconduct. Mr Mitry engaged in a course of conduct which spread over several months. It involved large sums of money. It consisted of a round-robin of transactions constructed as a legitimate commercial loan but in fact designed to enable the funds to be used to buy shares in the lending company for the purpose of deceiving the Stock Exchange and the investing public as to the extent of support from the market for the company. Mr Mitry actively sought to deceive the auditors as to the true nature of the transaction, calling in aid his status as a barrister to convince them of his honesty.

(2) Whether if professional misconduct was properly found, the order for removal should have been made

26 The principal authority relevant to this question is Ziems case. There Dixon CJ (in a dissenting judgment as to penalty) at 285-286 said that if a barrister:

‘… is adequately to perform his functions and serve the interests of the community, he should be able to command the confidence and respect of the court, of his fellow counsel and of his professional and lay clients. When a barrister is justly convicted of a serious crime and imprisoned the law has pronounced a judgment upon him which must ordinarily mean the loss by him of the standing before the court and the public which, as it seems to me, should belong to those to whom are entrusted the privileges, duties and responsibilities of an advocate. There may be convictions for a crime of which this is not true, but I cannot think the present is one of them.’

(Cited with approval by Mahoney JA in Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 445.)

27 In Ziems at 297-298 Kitto J (a member of the majority favouring reduction of the penalty from disqualification to suspension) observed:

‘The issue is whether the appellant is shown not to be a fit and proper person to be a member of the Bar of New South Wales. It is not capable of more precise statement. The answer must depend upon one's conception of the minimum standards demanded by a due recognition of the peculiar position and functions of a barrister in a system which treats the Bar as in fact, whether or not it is also in law, a separate and distinct branch of the legal profession. It has been said before, and in this case the Chief Justice of the Supreme Court has said again, that the Bar is no ordinary profession or occupation. These are not empty words, nor is it their purpose to express or encourage professional pretensions. They should be understood as a reminder that a barrister is more than his client's confidant, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. He is, by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations. If a barrister is found to be, for any reason, an unsuitable person to share in the enjoyment of those privileges and in the effective discharge of those responsibilities, he is not a fit and proper person to remain at the Bar.

Yet it cannot be that every proof which he may give of human frailty so disqualifies him. The ends which he has to serve are lofty indeed, but it is with men and not with paragons that he is required to pursue them. 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. But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which did not spell unfitness for the Bar; and to draw the dividing line is by no means always an easy task.’

28 In Ziems case, the barrister had committed a personal crime rather than one connected with his professional work. While intoxicated he had driven and collided with an oncoming motor bike, killing the rider. He was convicted of manslaughter and gaoled for 2 years.

29 The recent case, Hamman, cited above, also involved a personal crime; on this occasion involving understatement of income in returns to the Australian Taxation Office. The practitioner pleaded guilty to five charges covering income tax returns in 1990, 1991 and 1992 that, in total, understated income by $656,636. There were numerous testimonials in favour of the character of the barrister and attesting to his character. There was evidence that his management of his financial affairs was chaotic and disorganised. In extenuation there was evidence of his co-operation with the Tax authorities and pleas of guilty. He was sentenced, following variation on appeal, to imprisonment for 14 months.

30 In Hamman at [69] to [72]Mason P reviewed the differences in views as between the majority (Kitto, Fullagar and Taylor JJ) and the minority (Dixon CJ and McTiernan J) in Ziems case. In the case of the majority Fullagar and Taylor JJ held reservations about the adequacy of the criminal trial giving rise to Ziems’ conviction, and saw as a significant mitigating factor that Ziems had been severely assaulted prior to the offence. Kitto J drew a distinction between a personal crime that was not premeditated and one that was calculated and involved directly questions of probity. There was also a submission from the Bar Association that Ziems be suspended for the period of his sentence rather than disbarred.

31 Mason P concluded at [73] - [75]:

‘73 The facts of Ziems are totally removed from the present case. Ziems undoubtedly establishes that conviction and sentence are not necessarily determinative. The Court must look at the true facts. But nothing in the judgments cast doubt upon the earlier decision of In re Davis (1947) 75 CLR 409, in which Dixon J, with whose reasons Williams J agreed, said (at 420):

The Bar is no ordinary profession or occupation. The duties and privileges of advocacy are such that, for their proper exercise and effective performance, counsel must command the personal confidence, not only of lay and professional clients, but of other members of the Bar and of judges. It would almost seem to go without saying that conviction of a crime of dishonesty of so grave a kind as housebreaking and stealing is incompatible with the existence in a candidate for admission to the Bar of the reputation and the more enduring moral qualities denoted by the expression 'good fame and character', which describe the test of his ethical fitness for the profession.

74 In Ziems, Dixon CJ (at 286), Fullagar J (at 287), Kitto J (at 298) and Taylor J (at 302) emphasised that the Bar's standards were necessarily high because of the Bar's unique and indispensable function in the administration of justice.

[The President referred to the passage from Kitto J already cited and continued at [75]]

75 Referring to Ziems' conviction, Kitto J said (at 299):

It is not a conviction of a premeditated crime. It does not indicate ... any lack of probity. It has neither connection with nor significance for any professional function.

See also Prothonotary v Pangallo (1993) 67 A Crim R 77 at 85-6.’

32 In Hamman Mason P also gave considerable emphasis to the ruling of the Court Appeal (Gleeson CJ, Handley JA and Sheller JA) in Law Society of New South Wales v Bannister (1993) 4 LPDR 24. In that case a solicitor took $3000 for costs from a compensation payment made to a client. He had no entitlement to do so. He then claimed costs against the employer without the client’s knowledge. He did not pay the $3000 into the firm’s trust account, thereby cheating his partners.

33 At [79] in Hamman Mason P cited with approval the following dicta of Giles AJA in Foreman (at 470-1):

‘But the object of protection of the public also includes deterring the legal practitioner in question from repeating the misconduct, and deterring others who might be tempted to fall short of the high standards required of them. And the public, and professional colleagues who practise in the public interest, must be able to repose confidence in legal practitioners, so an element in deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with.’

34 At [81] in Hamman Mason P concluded:

‘An offence of clear dishonesty would demonstrate unfitness to practise, a fortiori if conviction and sentence followed. (See the passages from Ziems quoted above and Pangallo at 83-4 per Clarke JA (Kirby P and Priestley JA agreeing).)’

35 In Hamman the Court (Mason P, Priestley JA and Davies AJA) ordered that the barrister be struck off.

36 Hamman’s case involved a more serious set of circumstances than the present ones. That case involved misconduct spread over several years and a very large sum that was understated. There was a sentence of imprisonment of two years.

37 In this case, the fine ultimately imposed on Mr Mitry by the District Court was a relatively modest one, $2,500. The offence involves a personal crime, in the way that category is identified in Ziem’s case. But the matter is complicated by the fact that when pressed by auditors for an explanation of the purported loan to the companies with which he was associated, he took advantage of his standing as a barrister to meet their concerns and to deter further enquiry. Moreover, in further contrast to Ziem’s case, Mr Mitry was found to have engaged in a premeditated and deliberate course of conduct, one involving financial deception.

38 The Tribunal’s summary of the principles developed by the courts that it took account are set out in [33] of its decision. The personal factors relevant to Mr Mitry that it took into account are set out at [30] to [33].

39 Decisions in relation to penalty involve the exercise of discretion. It is not the role of the Appeal Panel to substitute its judgment on a matter of discretion for that of the primary Tribunal unless it can be shown that there is such a miscarriage of discretion that it amounts to an error of law warranting intervention: see generally House v The King (1936) 55 CLR 449.

40 We are satisfied that the Tribunal adequately informed itself as to the relevant principles and as to the nature of Mr Mitry’s conduct and his personal circumstances. There were, we consider, factors present in this case sufficient to permit a primary Tribunal to reach the conclusion that an order for striking off was justified.

(3) Whether the Tribunal proceedings were flawed because a member, Deputy President Needham, should have disqualified herself because of a reasonable apprehension of bias

41 This ground of appeal received the most attention at the hearing of submissions that took place on 30 November 1999.

42 To begin with, it should be explained that at the time the hearing commenced on 23 February 1998 the proceedings were before the predecessor body to the present Legal Services Division of the Administrative Decisions Tribunal, namely the Legal Services Tribunal (the Legal Services Tribunal). The Legal Services Tribunal comprised Mr M Finnane QC as the presiding member, with Ms Needham as the professional barrister member and Mr O’Grady as the member representing the interests of the community.

43 While the matter was part-heard, the Legal Services Tribunal was abolished and its jurisdiction transferred to the Legal Services Division of this Tribunal (effective 6 October 1998): see Tribunal Act s 19, and Administrative Decisions Legislation Amendment Act 1997, Sched 3. Ms Needham was appointed Deputy President of this Tribunal and Divisional Head of the new Legal Services Division. As a consequence it was necessary to reconstitute the hearing panel, so that Ms Needham became the presiding member. Mr Finnane became a non-presiding judicial member, with Mr O’Grady continuing in a similar capacity to his previous one.

44 Mr Mitry objected to the fact that Ms Needham had not disqualified herself from the proceedings because of alleged personal associations between her and the principal offender, Mr Donlon, and Mr Donlon’s co-directors of Red Anchor Resources, associations that he said existed in 1990 at the time of the transactions giving rise to the offences in issue. The co-directors to whom he referred were Robert Marshall McLennan, Gordon Walker and Graeme Phillip. Mr Mitry also saw as relevant her association with Neil College, who he said had been an adviser to the company. He also saw as relevant the personal and work association that her former husband, a lawyer (Mr Burke), had with some of these people, in particular Mr Walker, also a lawyer.

45 The thrust of Mr Mitry’s objections was that a reasonably minded member of the public might apprehend that Ms Needham’s impartiality could be affected by her personal acquaintance with persons connected with Red Anchor Resources.

46 There were three points in the proceedings were the issue of Ms Needham’s personal associations received consideration. The relevant passages are found in the transcript at page 9 (for day 1, 23 February 1998), pages 82-85 and separate transcript of Ms Needham’s decision (for day 2, 24 February 1998) and pages 189-192 (for day 3 of the substantive hearing, 3 May 1999).

47 At the opening of the hearing on day 1, Ms Needham drew the parties’ attention to her association with Mr Walker. Counsel for Mr Mitry responded that his client did not object to her continuing to sit. On day 2, counsel for Mr Mitry in light of additional information as to her association with Mr Walker raised concern as to her continuing to sit. Ms Needham declined to disqualify herself. On day 3, some 15 months after day 2, Mr Mitry, now unrepresented, drew the attention of the Tribunal (with Ms Needham now presiding) to further information which he had incorporated into an affidavit sworn by him that he saw as requiring Ms Needham to disqualify herself. She declined to disqualify herself.

48 The bias issues arose as follows in the proceedings:

(i) Day 1 : Ms Needham disclosed at the outset of the hearing after admitting into evidence a statement made by Mr Walker that she had a previous association with Red Anchor director, Mr Walker, that that information had been conveyed to the parties prior to commencement of the hearing by the Registrar and no objection had been taken. She went on to state that she had known Mr Walker at the time she was a member of the Faculty of Law at the University of Sydney. During that time Mr Walker was a colleague of hers and a personal friend. Counsel for both parties stated that they had no objection to her continuing to sit.

(ii) Day 2: At the beginning of day 2 counsel for Mr Mitry referred to Ms Needham’s statement the previous day, and stated that ‘[t]he results of our inquiries suggest that the involvement of Ms Needham in this matter extends significantly further than has been indicated’ (transcript 82). Counsel then stated that Ms Needham had introduced her then husband, Mr Burke, who was then a solicitor with the firm Freehills to Mr Walker. Mr Walker subsequently joined Freehills and, counsel said, became friendly with Mr McLennan and Mr College. McLennan and Walker were both directors of Red Anchor. He said that Mr College was the proposed underwriter of the flotation. (The flotation provides the context within which the dealings giving rise to Mr Mitry’s offence occurred.) Counsel said that there was a clash in relation to the affairs of Red Anchor between Mr College and Mr Donlon. (Donlon was the instigator of the transactions giving rise to Mitry’s offence, in relation to which Donlon was also convicted.) Mr Donlon, it was said, was involved in an attempt to oust College as the underwriter. Counsel said that Ms Needham was at this time ‘closely related and associated with College.’ He said that her friends, Walker, McLennan and College comprised a clique which at that time were trying to oust Donlon from the board. Counsel submitted that Ms Needham should withdraw, if his instructions were correct, on the basis that she had prior knowledge of the parties to the Red Anchor float at the time which provided the context for the transaction that has provided the basis for the show cause proceedings brought against Mr Mitry. He submitted that she ‘did not come to this matter with an uninformed mind but a preconception arising from the association with different people involved in different ways in this matter’ (transcript 84-85).

In reply, Ms Needham stated that it was incorrect to say that in 1990 she had a close association with Mr College. The proceedings were adjourned to allow Ms Needham to consider the objection.

She declined to disqualify herself. Her reasons for decision are the subject of a separate transcript for day 2 (24 February 1998). She stated that at no time had she had what she would describe as a close association with Mr College. She said that she did not recall any regular contact with Mr College in 1990. She said she had no actual knowledge, apart from that connected with the hearing of the current case, of the company Red Anchor or of the involvement of Mr College with any split in the company. She referred to Mr Burke, and said that until counsel’s submissions earlier that day she had been unaware that he had any involvement with Red Anchor, though she was aware that many years ago he had had some business dealings with Mr Walker. She said she was also unaware until today that Mr College had had any involvement with Red Anchor. In declining to disqualify herself, she also referred to other factors in particular that the alleged involvement of these persons in the affairs of Red Anchor does not in any way bear on the dealings in issue in this matter involving Red Anchor and companies associated with Mr Mitry.

As to her association with Mr College, she explained how she came to meet him in the early 1980’s and that after a mutual friend returned to New Zealand in the early 1980’s she had little further regular contact with him, though he did visit her in the early 1990’s to introduce his wife and their child.

49 Day 3: On the third day of the substantive hearing, 3 May 1999, Mr Mitry referred to an affidavit sworn by him and filed that day in which he referred to communications between him and Mr Walker and Mr Donlon.

50 Mr Mitry referred in this affidavit to having telephoned Mr Walker in New Zealand on 29 April 1999. He set out the material parts of the conversation with Mr Walker in which Mr Walker made a number of statements relating to Ms Needham’s associations with College, Donlon and himself. Mr Walker is reported as believing that Ms Needham has a negative view of him. According to Mr Mitry, Mr Walker had said to him that Ms Needham and Mr College had been dating for a while.

51 Mr Mitry then contacted Mr Donlon who sent him a fax, annexed to the affidavit, from his address in Suva, Fiji in which he set out his recollections of his contact with Ms Needham. Mr Donlon said that he was a student at Sydney University Law School when Ms Needham was a tutor and lecturer there between 1980 and 1985. He said he attended tutorials and lectures given by Ms Needham. He said he was in attendance on a number of occasions when College, Walker and Ms Needham met around the Law School and at the Universities and Schools Club. These events had occurred about the time of his involvement in Red Anchor and its associated entities. He said he was introduced socially to Ms Needham by Walker and College.

52 Ms Needham dealt with the objection as follows:

53 ‘DEPUTY PRESIDENT: Mr Mitry, I have read the affidavit of yours of 3 May, that is today. Is there anything you want to say about that or any other matters you wish to put?

54 MR MITRY: No, I think the affidavit says it all.

55 DEPUTY PRESIDENT: I refuse the application to disqualify myself. I will give reasons later. The reason I don’t want to give the reasons at the moment, I am very anxious not to further delay the hearing of this matter. There have been so many applications for adjournment on various bases and it is very important that the Tribunal hear the matter in the time this week allotted to it.

56 MR MITRY: May I say that the Act allows for the continuation of the hearing even if one of the members vacates.

57 DEPUTY PRESIDENT: The matters raised in the affidavit I have considered and read. I do not believe they are grounds for disqualification and I can’t see at the moment, although I will give it further consideration before giving my reasons, that there is any fresh material in here except with regard to Mr Donlon, who I don’t have any present recollection of having as a student. It may be that if he gives evidence, when I see him it may jog my memory, but certainly for the moment I do not have any memory of him. I will give reasons in due course.’

58 Our search of the transcript, and counsel agreed at hearing, indicates that no reasons were given. Mr Mitry represented himself on day 3 and for the final three days of hearing later that week (4, 6 and 7 May 1999). Ms Needham’s omission in not providing further reasons for her ruling on 3 May 1999 was not raised.

59 Counsel for Mr Mitry emphasised that his submission was not one alleging any actual bias on the part of Ms Needham but that a reasonable apprehension of bias would be raised in the mind of the reasonable member of public based on the facts as they now stood. There was also an issue arising from what might be perceived as the lack of complete disclosure of the extent of her relationship with those associated with the affairs of Red Anchor.

60 Our starting point is that the statements of Ms Needham as to the extent of her personal associations must be accepted. There is a difficulty, however, in relation to the matters alleged in Mr Mitry’s affidavit of 3 May 1999. She answered specifically the matters relating to Donlon, but she did not answer specifically the matters relating to Walker and College. The statements attributed to Walker, College and Donlon are in the form of hearsay conveyed by Mr Mitry.

61 As these allegations have not been answered, we have decided to proceed on the assumption that they are true, as this is the course most protective of Mr Mitry’s interests.

62 Proceeding on that basis, the sum total of the circumstances upon which Mr Mitry relies is as follows. Ms Needham was a university teacher for many years. She and her former husband, Mr Burke, and Mr Walker were colleagues at the Sydney University Law School in the late 1970’s and early 1980’s. She does not recall Mr Donlon. He says he was a student of hers around 1980 to 1985. Mr Walker was a director of Red Anchor in or about 1990. At that time she remained a social friend of Walker and College. The period of these friendships is not clearly stated, but if Walker’s statements through Mr Mitry are accepted it covered part of the 1970’s and the whole of the 1980’s. Mr Walker returned to New Zealand some years ago. Ms Needham is aware that there were business dealings between her former husband and Mr Walker. In the early 1990’s Mr College had made an isolated social visit to Ms Needham to introduce his wife.

63 Impartiality and the appearance of impartiality are key attributes of the principle of open justice: see for example Murray v Legal Services Commissioner (1999) 46 NSWLR 224 at 242 [68]; and generally Spigelman, ‘Seen to be Done: The Principle of Open Justice’ (2000) 74 ALJ 290 (pt 1); 378 (pt 2).

64 In this case there were two lines of attack on Ms Needham’s continued participation in the hearing.

65 The first challenge made on day 2 alleged that Ms Needham had, through her personal associations, knowledge of the affairs of Red Anchor at the time of the transactions involving Mr Mitry such that she could be said to have prejudged the question of misconduct now before her even though the question had arisen approximately eight years after the conduct in issue.

66 Ms Needham answered that objection on day 2 by indicating that she had no knowledge of the affairs of Red Anchor at any time prior to the proceedings. Consequently this is not a case where bias principles as they have developed in relation to prejudgment of issues are relevant.

67 The second challenge related to whether Ms Needham’s personal associations with people connected with the affairs of Red Anchor. It was said that they were sufficient in themselves to raise in the minds of the parties or the public a ‘reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the question involved in [the proceedings]’: Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294. For recent surveys of the authorities see Carver v Law Society of New South Wales (1997) 43 NSWLR 71 (CA) and Dovade P/L v Westpac Banking Group (1999) 46 NSWLR 168 (CA).

68 We have noted in his affidavit of 3 May 1999 in which he supplied the further information that he considered relevant to the question of Ms Needham’s perceived impartiality, Mr Mitry made a reference in the margins to the House of Lords decision in R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet (No 2). That case involved the issue of whether a judge, by dint of his associations with Amnesty International (an intervening party in proceedings relating to the validity of warrants for extradition of a former head of State to a third country) had a direct interest in the outcome of the proceedings. The bias claim in this case is not made on that basis. For further analysis of Pinochet see Dovade, cited earlier, at 185-187.

69 In our view the bias test needs to be applied to the totality of the facts as they emerged at hearing before the Tribunal. On these facts, the connection between Ms Needham and Mr Donlon, the other person charged (and convicted) and the principal in the events giving rise to Mr Mitry’s conviction, is extremely thin. It is essentially that of teacher and student in a large Faculty and goes back to the period 1980-85, several years before Red Anchor sought investors and many more years before the proceedings against Mr Mitry.

70 Mr Walker is referred to in the evidence and material filed in the proceedings. Ms Needham disclosed to the parties on day 1 a social acquaintance with Mr Walker. They did not object to her continuing to sit. That is not surprising in that the focus of the disciplinary proceedings was Mr Mitry’s conduct. The architect of the scheme that led Mr Mitry to behave as he did was Mr Donlon. There is no reference to any action having been taken by the regulatory authority against Mr Walker or other directors of Red Anchor.

71 Ms Needham had no knowledge of the existence or activities of Red Anchor. She knew some persons, who like her were lawyers in Sydney, at about the time Red Anchor was being promoted. She did not know of their business interests in Red Anchor. She had no recollection of Mr Donlon, the director who was instrumental in the conduct that gave rise to Mr Mitry’s offence that forms the basis of these proceedings.

72 A reasonable member of the public, seized of these facts, would we consider conclude that Ms Needham’s connection with Mr Mitry and the circumstances that have given rise to these proceedings is extremely tenuous. A reasonable member of the public would not apprehend that her ability to deal impartially with the issues before the Tribunal was affected.

73 One further possible objection remains. Was there a failure on the part of Ms Needham in light of the information ultimately placed before the Tribunal to disclose fully her association with Mr Walker and others, sufficient in its own right to give rise to an adverse conclusion in relation to her impartiality?

74 A failure to disclose facts of significance in relation to the possibility of apprehended bias could, we consider, in principle found a successful objection even though the totality of the circumstances ultimately disclosed would not in their own right justify disqualification. See Aussie Airlines P/L v Australian Airlines P/L (1996) 65 FCR 215 per Merkel J at 758-9.

75 This is a case where the member under challenge recalled additional matters when prompted. Given the remoteness in time of the circumstances said to impinge on the case before her, and the remoteness of her social friendships from the matters in issue in the proceedings, we do not regard it as surprising that the degree of detail ultimately provided did not form part of the disclosure on the first two occasions.

76 As we read the affidavit filed by Mr Mitry on 3 May 1999 and the exchange which followed, Ms Needham was in effect prompted by Mr Mitry’s records of his exchanges with Mr Walker and Mr Donlon to recall some further information.

77 She gave no specific reply to the information provided in the affidavit by Mr Walker and Mr College.

78 While that is unfortunate, there is nothing, in our view, in the information attributed to Mr Walker and Mr College to suggest that their relationship with Ms Needham was any more than one of social friendship. There is no suggestion, for example, that she had been informed of, had any knowledge of, or taken any interest in, the affairs of Red Anchor.

79 Our conclusion is that Ms Needham sought to deal with what she saw as the only potential problem of apparent bias at the outset. Later, further possibilities were raised to which she responded at a general level and in most instances at a specific level.

80 We note in these regards that there is an important public interest in judges and members of tribunals not putting at risk the ‘inevitable commitment of costs and resources’ incurred by parties to proceedings in situations where an objection is made after proceedings are well advanced and where a disqualifying factor has not been established: per Brennan, Gaudron, McHugh JJ at 82: see Re Polites; Ex parte Hoyts Corporation P/L (1991) 173 CLR 78. We also note Mason J’s observaton in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 that a reasonable apprehension of bias must be ‘firmly established.’ We also note the comments of Ryan J at [14] of his judgment in Trustees of the Christian Brothers v Cardone (1995) FCR 345:

‘It is not enough that an apprehension of bias may be said to arise in that convoluted way. It must be open to the parties or to a member of the public to entertain a reasonable apprehension in the light of all the circumstances, including statements made at the time when the judicial officer refuses to disqualify himself or herself. That the suspicion or apprehension must be reasonably, and not fancifully, entertained has been emphasised by a number of authorities.’

(4) Whether the Council had filed its complaint out of time, and the Tribunal erred in permitting the Council to amend it

81 After two days of the hearing had taken place the Council was granted leave to file an amended information. The amended information was, as previously noted, presented because Mr Mitry had changed his position in relation to whether he continued to admit the facts that had been the subject of an agreed statement of facts at the time of the conviction. The annexure to the original information setting out the facts and circumstances relied upon referred first to the details of the charge. It then referred to the Magistrate’s ruling and the District Court ruling. It went on to refer to the Council resolution to initiate a complaint, the request to the Legal Services Commissioner to accept the complaint out of time, the decision of the Legal Services Commissioner and the resolution of the Council to refer the complaint to the Tribunal.

82 The particulars of the amended information were much more extensive in their detail. The particulars contained in the annexure to the amended information were headed ‘facts and circumstances surrounding the offence to which the barrister pleaded guilty’. The particulars extended over 61 paragraphs.

83 Paragraphs 1 to 37 referred to each of the events making up the transaction that gave rise to Mr Mitry’s conviction. They contained allegations as to Mr Mitry’s knowledge at the time of each of the events, as relevant to the charge ultimately laid against him by the Australian Securities Commission. In paragraph 38 the Council contended that by virtue of the particulars set out in the preceding paragraphs Mr Mitry was guilty of professional misconduct. The particulars then went on in paragraphs 39 to 44 to refer to the charge laid, the conviction and the orders made by the Magistrate and by the District Court. It alleged that these matters proved that Mr Mitry was engaged in professional misconduct.

84 There was then a section of the particulars which alleged that if Mr Mitry was found not to have had actual knowledge of the matters where it was said that they existed, then these were matters of which he should have had knowledge, and that failure amounted to professional misconduct. The next section, paragraphs 48 to 57, dealt with the grounds upon which Mr Mitry’s conduct as a director might be found to constitute professional misconduct. The final paragraphs set out formal particulars as to the Council’s resolutions and the decision of the Legal Services Commissioner under s 138(2) of the Legal Profession Act.

85 The submission on behalf of Mr Mitry is that the Tribunal’s decision to permit the amended information constituted an error of law for the reason that the information itself was out of time.

86 The power to amend is given to the Tribunal by s 167A of the Legal Profession Act which provides:

‘(1) The Tribunal may, on the application of a Council or the Commissioner who laid an information, vary the information laid so as to omit allegations or to include additional allegations if the Tribunal is satisfied that, having regard to all the circumstances, that it is reasonable to do so.

(2) Without limiting subsection (1), when considering whether or not it is reasonable to vary an information, the Tribunal is to have regard to whether varying the information will affect the fairness of the proceedings.’

87 The key parts of the Tribunal’s decision to grant leave made on 23 July 1998 on this point follow:

‘The question of amendment is dealt with in the Legal Profession Act 1987, s 167A. It is clear in our opinion that the application of the Bar Council to vary the information to include additional allegations, having regard to all the circumstances, is reasonable. We are also required to have regard to whether the information will affect the fairness of the proceedings.

Having considered the matter at length and considered every argument which was put, we are of the opinion that it is reasonable for the information to be varied to include the additional allegations that are made. We have considered whether this would affect the fairness of the proceedings and if these amendments were not allowed the proceedings would continue in an atmosphere which is somewhat unreal, since some of the matters the Bar Association substantially raised against the barrister would not directly appear in the information.

It is desirable that all matters that could be raised against the barrister should be raised in this one set of proceedings. It was put by the barrister that if some matters were raised, there would be a possibility of further proceedings in which other matters would be raised, particularly when all the matters could be said to have arisen out of the same set of facts.’

88 In Barwick, previously cited at para 11 above, the High Court found that the Law Society’s handling of a complaint against a solicitor (initiated by the Law Society itself after a routine audit inspection revealed possible misconduct) was defective in two respects.

89 First, the Law Society had initiated the formal complaint more than 3 years after the conduct upon which it relied. This was a clear contravention of s 138(1). The Law Society did not move to have the Legal Services Commissioner accept the complaint out of time.

90 Secondly the Law Society did not conduct any investigation of the complaint, once formally laid, but instead immediately resolved to refer it to the Tribunal for inquiry. While there had been a substantial investigation prior to formally laying the complaint, the Court held that the Society had failed to conduct the investigation required by s 148 to be undertaken after the formal laying of the complaint and before any referral to the Tribunal. The Court observed that not every departure from procedure would constitute a fatal error, but it considered that a failure to investigate after the laying of the complaint involved such an error because, in particular, it had the effect of preventing the Legal Services Commissioner from exercising the supervisory role in respect of the adequacy of the complaints process conferred on him by s 155.

91 It was plain in Barwick that the Society’s complaint was made more than 3 years after the time the conduct was alleged to have occurred (the time limit specified by s 138(1)). The reason that the power to amend informations (given to the Tribunal by s 167A) came into focus was because the Society sought to justify its failure to obtain an extension of time by referral to Legal Services Commissioner under s 138(2) by arguing that the Tribunal’s decision to permit the amendment of the information out of time under s 167A overcame that problem. The amendment covered allegations as to conduct that were more than three years old.

92 We agree with the submission of Mr Garling SC for the Council in these proceedings that care must be taken in applying the reasoning in Barwick to the circumstances of this case. The exercise of discretion by the Tribunal here is not affected by the defect of procedure identified in Barwick. The part of the High Court decision of direct relevance to this case are those passages which deal with the effectiveness or otherwise of the use of the amendment discretion of the Tribunal to overcome the failure to comply with s 138(1). In the main judgment, Gleeson CJ, Gaudron and McHugh JJ, referred at [31] to the s 167A point in these terms:

‘The third area of the dispute relates to the power to amend informations given by s 167A. The appellant argued that assuming the time limit applied in the present case, the power of amendment could not be used to add to an information allegations of conduct occurring more than three years before the relevant complaint.’

93 Critically, their Honours said at [74]:

‘The consequences of s 138 can not be negated by an exercise by the Tribunal of its power of variation of an information under s 167A. The matters to be considered by the [Legal Services] Commissioner in deciding whether to exercise its discretion under s 138(2) are not repeated in s 167A. It simply applies the test of reasonableness. What is there involved is a discretion of a different character.’

94 In his submissions Mr Hodgekiss, counsel for the applicant, contended that s 167A ‘cannot be utilised to negate the consequence of s 138 even in the circumstances in [this case] where an extension of time had been granted under s 138(2).’ He noted that when the amendment of the information was challenged in the proceedings before the Tribunal counsel for the Council specifically relied on the Court of Appeal decision in support of the amendment. As that decision had now been reversed by the High Court it followed, Mr Hodgekiss submitted, that the decision of the Tribunal permitting the amendment should be reversed. Mr Hodgekiss submitted that the High Court decision in Barwick establishes that amendments cannot and should not be permitted under s 167A particularly in the case where it would relate to matters which would have fallen to be considered under s 138 and by the Legal Services Commissioner in the exercise of his discretion under s 138(2).

95 Mr Hodgekiss’s submissions have a superficial persuasiveness. But it is significant that in this case the original information referring to conduct that was out-of-time had been laid after the procedure required by s 138(2) had been undertaken, with the Legal Services Commissioner accepting the complaint.

96 Accordingly the Tribunal was properly seized of the discretion given by s 167A. It is required by s 167A(1) that the Tribunal satisfy itself that it is ‘reasonable’ to allow the variations sought to the original information ‘having regard to all the circumstances.’ Sub-section (2) of s 167A also requires it to have regard to ‘whether varying the information will affect the fairness of the proceedings.’

97 It is the case that the revised particulars were much more extensive than the particulars given in the original information. But they remained within the compass of the original information. They simply set out the events and circumstances which had formed the basis of Mr Mitry’s plea of guilty before the Magistrate. The more extensive information was drafted when it became clear that Mr Mitry no longer unequivocally admitted the facts that had formed the basis of his plea of guilty before the Magistrate in 1996, in particular in relation to the question of intent. The particulars also contained some allegations in the alternative to take account of Mr Mitry’s contention that his plea of guilty should now be disregarded because of circumstances that affected him at the time of the events giving rise to the charge. The Tribunal dealt fairly with the application under s 167A. There is no basis for disturbing its exercise of discretion.

Determination

98 The appeal is dismissed. The decision under appeal is affirmed.

99 The above order omitted to deal with the question of costs. The usual application has been made by the respondent and notified to the appellant. There have been no submissions in reply. Accordingly the usual order in the case of professional disciplinary proceedings is made.

100 The costs of the Respondent to be paid by the Appellant, as agreed or assessed.