New South Wales Bar Association v Caffrey (No 3)
[2008] NSWADT 85
•18 March 2008
CITATION: New South Wales Bar Association v Caffrey (No 3) [2008] NSWADT 85 DIVISION: Legal Services Division PARTIES: APPLICANT
RESPONDENT
Council of the New South Wales Bar Association
Bradford Arthur CaffreyFILE NUMBER: 032027 HEARING DATES: 11-12 February 2008 SUBMISSIONS CLOSED: 12 February 2008
DATE OF DECISION:
18 March 2008BEFORE: Blacket P SC - Judical Member; Wright R SC - Judical Member; Bennett C - Non Judicial Member CATCHWORDS: Barrister – disciplinary application MATTER FOR DECISION: Principal matter LEGISLATION CITED: Legal Professions Act 1987
Legal Profession Act 2004CASES CITED: Beevis v Dawson [1957] 1 QB 195
Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 200-201
Ex Parte Bellanto: re Prior (1962) 63 S.R.(N.S.W.) 190 at 204
Lewis v Judge Ogden (1984) 153 CLR 682 at 69
Prothonotary of the Supreme Court v Costello (1984) 3 NSWLR 201
Rondel v Worsley (1969) 1 AC 191 at 227REPRESENTATION: APPLICANT
RESPONDENT
P Skinner, barrister
M Barko, barristerORDERS: 1. Having made these findings and as requested by the parties, we now invite submissions in relation to any orders which the Tribunal should make and in particular whether the Tribunal should make an order that its decision be published and whether any reprimand should be public or private
2. The Tribunal would also like submissions in relation to all other ancillary orders including the question of costs
3. In order to save time and expense, we direct that both parties file their submissions within fourteen (14) days of this decision being published and that as soon as possible thereafter the Registrar be approached to fix a date for the further hearing and disposal of the matter.
REASONS FOR DECISION
1 In this matter the Council of the New South Wales Bar Association seeks orders under section 171C of the Legal Profession Act 1987 (“LPA”) against Mr Caffrey in respect of conduct of Mr Caffrey alleged to have taken place during a hearing of a matter by a Local Court Arbitrator on 28 February and 3 April 2000.
2 The information alleges that Mr Caffrey, a legal practitioner within the meaning of section 128 of the LPA, was guilty of unsatisfactory professional conduct on the grounds that:
3 In paragraph 8 of the first schedule to the information particulars of Mr Caffrey’s conduct alleged to amount to unsatisfactory professional conduct were given as follows:
a) He engaged in conduct which fell short of the standard of competence and diligence expected of a reasonably competent barrister; and/or
b) He engaged in conduct that was incompatible with the standard of conduct required of a barrister.
Background
8.1 On the second day the Barrister referred to the ‘whole action as a farce’ and to a letter tendered by the Plaintiff as ‘an objectionable piece of trash’.
8.2 On a number of occasions when the Barrister’s objections were not allowed by the Arbitrator, the Barrister responded in a threatening way by saying ‘I’ll save that for the Magistrate’ and ‘I think you’ll be reversed on appeal’. On one occasion during the hearing the Barrister said to the Arbitrator ‘I hate to say it but you will be appealed’ and that during the hearing the Barrister stated words to the effect that he would take the case to a Magistrate.
8.3.The Barrister accused the Arbitrator of being ‘already prejudiced against us’. The Barrister said to the Arbitrator ‘I’d also like you to remember and realise you address me and my clients and very few times look at the Plaintiff and her representative’.
8.4 The Barrister insulted the Plaintiff by calling her ‘obnoxious’.
8.5 The Barrister referred to the Plaintiff as an ‘abject pathological liar’. When asked to withdraw the comment by the Arbitrator, the Barrister withdrew ‘abject’ and ‘pathological’ but stated that as the answers were ‘false and fraudulent’ he would not withdraw ‘liar’.
8.6 On the third day of hearing the Arbitrator did not allow certain cross-examination. The Barrister stated ‘this doesn’t matter – this is going up to the Magistrate. I think you’ll rule against us anyway. Why don’t you rule against us and we will go home?’
8.7 In putting a question to the Plaintiff, the Barrister referred to the Defendant’s mother as ‘his mother’. The Plaintiff responded by saying ‘our mother’. The Barrister responded ‘Oh Christ’. After being caution by the Arbitrator, the Barrister withdrew the statement. Shortly thereafter the Barrister said, ‘Oh God Almighty’.
8.8 During cross-examination, the Barrister said to the Arbitrator ‘Have you ever heard of the rule in Browne and Dunn?’.
8.9 When being addressed by the Arbitrator, the Barrister was requested to look at him. The Arbitrator said ‘I will wait for you to look’, the Barrister replied ‘I can’t stand the sight of you’.
8.10 When the Arbitrator asked the Barrister to ask his next question or conclude his cross examination, the Barrister replied that he was ‘not near conclusion’ and that ‘I have a Notice of Appeal already drafted’. The Arbitrator described the Barrister’s conduct as ‘abominable’ to which the Barrister responded ‘so is yours’.
8.11 When a question was not allowed by the Arbitrator, the Barrister stated ‘We will see in the other court – the rules of evidence will apply there’.
8.12 When objections were made to questions asked by the Barrister in cross examination, the Barrister said to the Arbitrator ‘You scare me’ and later ‘I’ll bring another pair of underpants along’.
8.13 The Barrister said to Mr Doyle, the Complainant ‘You do not know what relevance means’.
8.14 Before the luncheon adjournment, the Barrister referred to the possibility of the matter going elsewhere to be ‘Heard by someone with a brain’ and turned to Mr Doyle and said ‘You take that down too Doyle’.
4 It was not in dispute that the hearing arose out of proceedings commenced in or about 1998 by Mrs Lita Donelian (“the Plaintiff”) against her brother and sister in law, Minas Donelian and Maggie Donelian (“the Defendants”) in the Local Court at Ryde. In the proceedings the Plaintiff sought repayment of a loan allegedly made to the Defendants and the defence was that the money was a gift not a loan.
5 Eventually the matter was referred to the Local Court at Parramatta for arbitration and the arbitration hearing took place before Mr E Dearn on 9 December 1999, 28 February 2000 and 3 April 2000 in a room at the Parramatta Local Court complex. Mr James Doyle, Solicitor, appeared for the Plaintiff and Mr Caffrey appeared for the Defendants.
6 At the hearings on 28 February 2000 and 3 April 2000 words were said by Mr Caffrey, which, on any version of events, should not have been said. At no stage of the arbitration was a sound recording or transcript taken of the proceedings.
7 By a letter dated 15 May 2000, Mr Doyle made a complaint to the NSW Bar Association about the behaviour of Mr Caffrey towards the Arbitrator, the Plaintiff and himself during the latter two days of the arbitration hearings.
8 The complaint was investigated by the Bar Association. On 10 October 2002, the Council of the New South Wales Bar Association made the following resolution:
9 An information was filed by the Applicant on 20 November 2003. The procedural history of this matter is set out in more detail in New South Wales Bar Association v LI (No 2) [2006] NSWADT 263 and LI v Council Of The NSW Bar Association [2007] NSWCA 223. The procedural difficulties that were raised in those proceedings have been resolved.
RESOLVED that in respect of the complaint by James Doyle, there is a reasonable likelihood that [Mr Caffrey] will be found guilty by the Legal Services Division of the Administrative Decisions Tribunal of unsatisfactory professional conduct pursuant to section 155(2) of the Legal Profession Act 1987 .
10 Despite the length of time that has elapsed since the conduct the subject of the information took place, it was accepted by both sides that there was nothing that should prevent us from hearing and determining this matter now.
The Evidence
11 The area of factual dispute to which evidence in this matter mainly relates was the exact nature and extent of the conduct of Mr Caffrey on 28 February 2000 and 3 April 2000. As has been noted above, no sound recording or transcript of what occurred before the Arbitrator was available.
12 The principal evidence for the Applicant was given by Mr Doyle through his affidavit of 10 November 2003 his hand written notes and his oral evidence. Additional material in relation to the alleged conduct was also before the Tribunal in the form of two letters from Mr Dearn dated 14 June 2000 and 3 August 2000.
13 The evidence for the Respondent included Mr Caffrey’s affidavit of 22 November 2007 and his oral evidence before the Tribunal as well as a statutory declaration of Minas Donelian, one of the Defendants, declared on 28 June 2000.
14 At the outset, we should make some general comments on the evidence and witnesses. Mr Doyle appeared to us to be a careful witness, who gave thoughtful and measured answers to questions asked of him in cross-examination. He was not loathe to make concessions, even where these might have been thought not to support his position. As might be expected of a legal practitioner of Mr Doyle’s experience, he had taken handwritten notes of the proceedings on 28 February 2000 and 3 April 2000 when it appears a significant portion of the time was taken up with cross examination by Mr Caffrey and exchanges between those appearing and the Arbitrator. As well as copies of the notes being annexed to Mr Doyle’s affidavit, the original handwritten notes were also before the Tribunal.
15 Mr Doyle conceded that his note taking was not perfect and that his notes were a summary so far as there were no connecting words such as, for example, ‘is’, but he maintained that in relation to the portion of his notes that were relevant to the matter before the Tribunal he recorded the essence of what was said, even if it was not a verbatim transcript. At one point he said that he recorded the key words. A review of the relevant portions of the handwritten notes supports these descriptions.
16 Mr Doyle said that in preparing his affidavit and his letter of 15 May 2000, he relied upon his handwritten notes. Apart from one matter discussed below, Mr Doyle’s oral evidence, written evidence and other documents were all consistent. The one matter that requires further comment is the statement that Mr Caffrey referred to the matter being heard by ‘somebody without a brain’ (see the second last paragraph on the second page of Mr Doyle’s letter of 15 May 2000 and paragraph 24 of his affidavit of 20 November 2003). These statements are inconsistent with what is recorded in the fourth last line of page 21 of his notes of 3 April 2000 where the words ‘somebody with a brain’ appear. Mr Doyle corrected the reference in paragraph 24 of his affidavit when asked in chief whether the material in his affidavit was accurate. Mr Doyle also elaborated on what he understood to have been conveyed by Mr Caffrey’s words recorded in his notes. It was not suggested to Mr Doyle in cross-examination that the substitution of ‘without’ for ‘with’ was anything other than a simple mistake. We do not believe that this inconsistency affects Mr Doyle’s credit in any way.
17 Mr Doyle has been a Solicitor in practice since 1979 and has been a consultant to his present firm since 1998. In all the circumstances, we find Mr Doyle to be a reliable witness, whose evidence was based upon and supported by contemporaneous notes. In our view, his evidence would only be rejected if it were clearly and demonstrably wrong.
18 In addition, the Applicant put before us two letters dated 14 June 2000 and 3 August 2000 from Mr Dearn, the Arbitrator, dealing in general terms with the conduct of Mr Caffrey and Mr Doyle’s complaint. Mr Dearn, however, was not called to give oral evidence nor was he cross-examined and accordingly the weight we give to his material is significantly reduced. Nonetheless, Mr Dearn says that what Mr Doyle wrote in his letter of 15 May 2000 was ‘substantially correct’. Mr Dearn’s letter of 3 August 2000 responding to Mr Caffrey’s letter to the Deputy Professional Affairs Director of the NSW Bar Association of 25 June 2000 is consistent with Mr Dearn’s earlier letter. Thus, to the extent that they should be given any substantial weight, Mr Dearn’s letters support Mr Doyle’s evidence of what occurred at the arbitration hearing.
19 The evidence relied upon by the Respondent included his own affidavit of 22 November 2007 which, in large measure, reflected what he had written in his handwritten letter dated 25 June 2000 to the Deputy Professional Affairs Director at the NSW Bar Association. In that letter he gave a detailed response to Mr Doyle’s complaint. He largely denied saying the words alleged by Mr Doyle but admitted in many cases saying different words but on the same topics.
20 Mr Caffrey said in his oral evidence that his recollection of events when he wrote his letter of 25 June 2000 was very clear and clearer than when he swore his affidavit or gave oral evidence. This we accept.
21 In oral evidence in chief Mr Caffrey was asked what he had relied upon in preparing his letter of 25 June 2000 and he indicated that he had relied on what he described as ‘trial notes’ and his clear memory of what occurred. Later, in cross examination, Mr Caffrey said that he had thrown the trial notes out in accordance with his usual practice and did not keep them for the re-hearing. It was not clear whether the notes were thrown out before or after Mr Caffrey wrote the letter of 25 June 2000. Later, in cross examination, Mr Caffrey said that he did not recall whether or not he had his trial notes when he wrote what was in paragraph 13 of his 25 June 2000 letter. He gave no satisfactory explanation of why he had thrown out trial notes that related to a current complaint against him.
22 In his evidence concerning his trial notes, Mr Caffrey was not an impressive witness. We do note, however, that there were times when Mr Caffrey appeared to have difficulty hearing questions but notwithstanding his apparent hearing difficulties our overall impression was that he was unwilling on occasion to make appropriate concessions unless forced to. Some of his responses appeared to be inconsistent with previous answers and somewhat ill considered. His manner was at times argumentative.
23 It may also be also significant that Mr Caffrey had the perception in June 2000 that Mr Doyle ‘did not and could not have had time during the rapid fire exchanges between the Arbitrator and myself to make notes’ (paragraph 6 on page 4 of Mr Caffrey’s letter of 25 June 2000). It would be most unlikely that Mr Caffrey would have expressed this view if he himself had taken notes of the relevant exchanges.
24 Accordingly, we have come to the view that in giving his version of what was said on 28 February and 3 April 2000 (in both his 25 June 2000 letter and his affidavit), Mr Caffrey was not relying to any significant, if any, extent on any contemporaneous notes taken by him.
25 We are prepared to accept that Mr Caffrey’s versions of events in his 25 June 2000 letter and in his affidavit represent genuine attempts by him to recollect what passed between himself, the Arbitrator, various witnesses and Mr Doyle. Nonetheless, we do not find that there is any reason generally to prefer his evidence to that of Mr Doyle.
26 The Respondent also sought to rely on the statutory declaration of Minas Donelian declared on 28 June 2000. Mr Donelian was not called and from Mr Caffrey’s affidavit of 11 February 2008 it appears that there was a fee dispute between Mr Caffrey and Mr Donelian. From the bar table the Tribunal was informed that the Respondent did not propose to call Mr Donelian because it was anticipated that Mr Donelian might be hostile to Mr Caffrey as a result of the fee dispute. If that were correct, it suggests that no great faith could be placed on sworn evidence of Mr Donelian. We do not, however, draw such a conclusion, as Mr Donelian had no opportunity whatsoever to respond to any such suggestions.
27 In response to the admission of Mr Donelian’s statutory declaration, the Applicant read an affidavit of Ms MacDougal, sworn 12 February 2008, which annexed a bundle of documents relating to a complaint made by Mr Donelian about the Respondent. The major issue that Mr Donelian was complaining about was described by him as ‘coercing me to sign a statement for use in another complaint, which was false’. The particulars to the complaint included the following:
28 Mr Caffrey’s solicitors wrote a letter dated 22 April 2002 responding to this complaint. In that letter, it was stated:
Some time between June and August 2000 I [Mr Donelian] was at a conference with [Mr Caffrey] in his chambers. At this time the civil claims proceedings between myself and my sister were still current and [Mr Caffrey] was representing me in those proceedings. The following conversation took place:
At the time he said this [Mr Caffrey] handed to me a document, which I can best, describe as being a letter to the NSW Bar Association, which required my signature. I read the letter and said to [Mr Caffrey] words to the effect of:
[C]: I need your help, the Arbitrator is after my arse. I want you to sign this.
I signed the document although I had reservations regarding its accuracy. I did this because [Mr Caffrey] was my barrister and my court case was still running. I was afraid that if I did not sign it, that it would affect [Mr Caffrey]’s dealing with my court case. To the best of my recollection, this happened some time between June and August 2000.
Its not right.
[C]: I’ m not changing it. I’m looking after your interests.
29 In the same letter, the solicitor said that Mr Caffrey denied not only the conversation alleged by Mr Donelian but also that Mr Donelian ever expressed any concern about the truth or accuracy of any matter in the document.
… After receipt of [Mr Doyle’s complaint] [Mr Caffrey] arranged for a conference with Mr Donelian which occurred in his chambers then at [location of chambers omitted]. In this conference the client was taken through and asked to comment on the various matters referred to in the complaint and, those notes were then transcribed by [Mr Caffrey] into the form of a statutory declaration.
Mr Donelian was later asked to read the document and have it sworn before a Justice of the Peace on an upper floor of that building.
This was done in the absence of [Mr Caffrey] and the statutory declaration was returned duly signed and witnessed, to [Mr Caffrey].
30 In the report for the Bar Council concerning this complaint by Mr Donelian, it was recommended that the Bar Council resolve that the complaint be dismissed on the basis that there was no reasonable likelihood that Mr Caffrey would be found guilty by the Legal Services Division of the Tribunal of unsatisfactory professional conduct or professional misconduct in this regard.
31 As we have already said, Mr Donelian was not called to give evidence, nor was he available to be cross-examined. We are not in a position to resolve the dispute between Mr Donelian and Mr Caffrey as to the reliability of his statutory declaration. We also note, however, that the terms in which the statutory declaration is expressed in some instances bear a striking similarity to the words used in Mr Caffrey’s letter of 25 June 2000. Without hearing oral evidence from Mr Donelian, we would be unwilling to reach the conclusion that his statutory declaration should be relied upon. In all the circumstances, we do not believe that Mr Donelian’s statutory declaration can be given any weight in this matter.
32 It follows as a general matter that were the evidence of Mr Doyle and Mr Caffrey conflict, we prefer the evidence of Mr Doyle. This is not to say, however, that we have reached the conclusion that Mr Caffrey’s evidence was not a genuine attempt on his part to recall what occurred.
33 We now turn to deal with each of the items of conduct particularised in the information.
Particular 8.1
34 Mr Doyle’s evidence was that on the second day of the hearing, Mr Caffrey referred to the whole action as a farce. The first page of his notes on 28 February 2000 supports this. Mr Caffrey’s evidence was that he did not say the words ‘whole action as a farce’ but instead said ‘the action against her oldest brother was a farce without foundation or substance and her allegation of a ‘loan’ was a shameful disgrace’.
35 In cross-examination Mr Doyle was asked about the context of the use of the word ‘farce’. He did not accept that the context was other than he had recorded, on the basis that if something else of importance had been said he would have recorded it. We accept Mr Doyle’s evidence supported as it is by his notes. Nonetheless, it should be noted that on Mr Caffrey’s own version of events, his conduct might be viewed as more egregious than on Mr Doyle’s version.
36 Mr Doyle also gave evidence that when he attempted to tender the letter from the ANZ Bank dated 23 February 2000, Mr Caffrey said it was ‘an objectionable piece of trash’ and page 6 of his notes of 28 February bears this out. Mr Caffrey denied saying those words but gave evidence that he said instead in respect of a letter which Mr Doyle attempted to tender, that it was ‘objectionable, self serving rubbish in an attempt by the Plaintiff to self corroborate herself’. Once again, we accept Mr Doyle’s evidence in this regard.
Particular 8.2
37 In relation to this item 8.2, we find that Mr Caffrey did say to the Arbitrator, when his objections were not allowed, words to the effect ‘I’ll save that for the Magistrate’ and ‘I think you will be reversed on appeal’ as recorded on page 10 of Mr Doyle’s notes of 28 February. We do not accept Mr Caffrey’s evidence that he said on two or three occasions when the Arbitrator disallowed his objections, only words to the effect of ‘I feel your ruling is an error which might well be reversed should we seek a re-hearing before a Magistrate’. This does not appear to be consistent with the tense atmosphere described by Mr Caffrey nor with Mr Doyle’s notes. It might reflect what Mr Caffrey intended saying rather than what actually occurred. We should note that whatever version of events is accepted in both cases it amounts to cavilling with the Arbitrator’s ruling.
Particular 8.3
38 We find that Mr Caffrey did use words addressed to the Arbitrator to the effect that he was already prejudiced against Mr Caffrey’s clients and that Mr Caffrey also said words to the effect of ‘I’d also like you to remember and realise you address me and my clients and very few times look at the Plaintiff and her representative’. This is as recorded on page 10 of Mr Doyle’s notes of 28 February and in his affidavit.
39 Mr Caffrey’s version of this event is that he said words to the effect of ‘I note that each time you address on the costs and encourage the parties to settle that you look almost exclusively at my client and me as though to indicate that you feel the rising costs are the fault of only my client. I feel that your attitude and comments in this regard seem to indicate that you are prejudiced against my client’. Although there may be little difference in substance between the two versions, we nonetheless prefer Mr Doyle’s evidence generally for the reasons given in more detail above.
Particular 8.4
40 On both Mr Doyle’s and Mr Caffrey’s evidence, the word ‘obnoxious’ was used by Mr Caffrey in relation to the Plaintiff whilst she was giving evidence. Mr Caffrey said in his letter of 25 June 2000 that he asked the Plaintiff to ‘stop being obnoxious’. In his affidavit he says that he asked her to stop being so obnoxious in her replies. During cross-examination he denied that he was calling the Plaintiff obnoxious and said that that adjective was directed to her answers. In the context, this distinction appears to lack merit. We find that Mr Caffrey did use the word ‘obnoxious’ of the Plaintiff during her evidence and did not adopt the course of requesting the Arbitrator to direct the witness in relation to how she should answer questions.
Particular 8.5
41 During the hearing on 3 April 2000, Mr Caffrey referred to the Plaintiff as an ‘abject pathological liar’. When asked to withdraw the comment by the Arbitrator, Mr Caffrey withdraw ‘abject’ and ‘pathological’ but stated that, as the answers were ‘false and fraudulent ‘he would not withdraw’ liar. This accords with Mr Doyle’s notes of 3 April 2000 on page 18 and was admitted by Mr Caffrey.
Particular 8.6
42 Mr Doyle’s notes of 3 April 2000 on pages 1 and 2 record that after the Arbitrator ruled that his cross examination was out of order under section 41 of the Evidence Act, Mr Caffrey said ‘this doesn’t matter – this [is] going up to [the] Magistrate. [I] think [you’ll] rule against us anyway. Why don’t you rule against us and we will go home’. Mr Doyle confirmed this in his affidavit.
43 Mr Caffrey denied saying what is recorded but admits that he said, when Arbitrator had disallowed certain of his questions in cross examination without objection from Doyle ‘I think from your attitude you have already decided to rule against my client’. For the reasons previously given, we accept the version of events recorded in Mr Doyle’s notes and given in his evidence.
Particular 8.7
44 Mr Doyle gave evidence, and his notes for 3 April 2000 at page 30 support, that in putting a question to the Plaintiff, Mr Caffrey referred to the Defendant’s mother as ‘his mother’. The Plaintiff responded ‘our mother’. Mr Caffrey then said ‘Oh Christ’. Mr Caffrey I was cautioned by the Arbitrator and withdrew the word. Shortly after, Mr Caffrey also said ‘Oh God Almighty’. Mr Caffrey’s version is that instead of saying ‘Oh Christ’ he said ‘Good Gold help me’, when he realised the point that the Plaintiff was making by referring to ‘our mother’. He acknowledges that he said ‘God Almighty’ in response to a subsequent answer of the Plaintiff which, on his version of events, was non responsive.
45 In all the circumstances and especially having regard to Mr Doyle’s notes, we find that Mr Caffrey did respond with the words ‘Oh Christ’ when the Plaintiff answered ‘our mother’ and that he withdrew the word as a result of the Arbitrator requesting him not to swear. We also find that not long after, when the Plaintiff had given some further evidence, that Mr Caffrey said ‘Oh God Almighty’.
Particular 8.8
46 Mr Doyle also gave evidence that during his cross-examination of the Plaintiff, Mr Caffrey said to the Arbitrator ‘have you ever heard of the rule in Browne v Dunn?’. This is confirmed by Mr Doyle’s notes of 3 April 2000 on page 3. In cross examination of Mr Doyle, Mr Caffrey’s version of events, namely that he said to the Arbitrator ‘I remind you of the rule in Browne v Dunn I feel these questions are crucial to my clients’ defence because of the effect of that rule’, was put to Mr Doyle. He specifically denied that Mr Caffrey had said those words. He did so on the basis that his notes did not reflect those words and the Arbitrator’s response, which he had recorded, was ‘don’t be sarcastic’. The Arbitrator’s recorded response requesting Mr Caffrey not to be sarcastic is more consistent with Mr Doyle’s version of events than Mr Caffrey’s. In all the circumstances, we accept Mr Doyle’s evidence in relation to this item in the particulars.
Particular 8.9
47 Mr Doyle gave evidence that on an occasion during the hearing on 3 April 2000, when being addressed by the Arbitrator, Mr Caffrey was requested to look at him and the Arbitrator said ‘I will wait for you to look’. At that point Mr Caffrey replied ‘I can’t stand the sight of you’. On Mr Caffrey’s version of events his reply was ‘I don’t have to look at you to hear you. I hear with my ears not my eyes, just keep talking’. Pages 4 and 5 of Mr Doyle’s notes of 3 April 2000 contain the following exchange:
48 These notes contain elements of both versions of events and we accept that Mr Doyle’s notes accurately record the sequence and substance of what occurred.
[C] : I don’t have to look at you to hear you.
D : I will wait for you to look.
[C] : I can’t stand the sight of you.
D : Want apology.
[C] : I give it.
Particular 8.10
49 The evidence for the Applicant was that when the Arbitrator asked Mr Caffrey to ask his next question or conclude his cross examination, Mr Caffrey replied that he was ‘not near conclusion’ and that ‘I have a notice of appeal already drafted’. The Arbitrator described this conduct, as ‘abominable’ to which Mr Caffrey replied so is yours. Once again, this was supported by page 10 of Mr Doyle’s notes of 3 April 2000.
50 Mr Caffrey’s version of events was that he said in response to the Arbitrator’s question ‘I’m no where near conclusion and we might have to continue either past 4:00pm or on another date’. He specifically denies saying that he had a notice of appeal already drafted or that he told the Arbitrator that his conduct was ‘abominable’.
51 In cross-examination Mr Doyle said that he did not recall Mr Caffrey saying ‘we might have to continue either past 4:00pm or another date’. But he did concede that it may well have been said. Mr Doyle, however, disagreed when it was put to him that the Arbitrator had not said the word ‘abominable’. We accept Mr Doyle’s version of events in this regard.
Particular 8.11
52 Mr Doyle gave evidence that when one of Mr Caffrey’s questions was not allowed by the Arbitrator, Mr Caffrey stated ‘we will see in the other court – the rules of evidence will apply there’. Page 13 of Mr Doyle’s notes of 3 April 2000 are consistent with this. Mr Caffrey denies that he said this.
53 Given Mr Doyle’s notes and the absence of any circumstances to suggest that Mr Doyle recorded (even in summary form) events, which did not occur, or words, which were not said, we accept Mr Doyle’s evidence. We would attribute Mr Caffrey’s denial to an absence of recollection being subconsciously transformed into a recollection of absence. In addition, this conduct is also consistent with other conduct that we have found to have occurred.
Particular 8.12
54 In relation to this item in the information, the Applicant lead evidence from Mr Doyle that when objections were made to questions asked by Mr Caffrey in cross examination, he said to the Arbitrator ‘you scare me’ and later ‘I’ll bring another pair of underpants along’. These words are recorded on page 14 of Mr Doyle’s notes of 3 April 2000.
55 Mr Caffrey’s version of events was that after the Arbitrator indicated he would not allow further cross examination by Mr Caffrey and that if he persisted the Arbitrator would hold him in contempt, Mr Caffrey replied that the Arbitrator should not try to intimidate or scare him with such a threat and that perhaps Mr Caffrey should bring another pair of underpants with him the following day. In our view, there is little difference between the versions and we accept that Mr Doyle’s notes accurately record the substance of what occurred.
Particular 8.13
56 Mr Doyle gave evidence that Mr Caffrey said to him ‘you do not know what relevance means’. Page 14 of Mr Doyle’s notes of 3 April 2000 record a slightly difference version where the following words are recorded ‘Self objects. Of relevance – he doesn’t even understand relevance’. In cross-examination, Mr Doyle rejected both the proposition that the words were not said and the proposition that they were whispered at the bar table.
57 In Mr Caffrey’s cross-examination, he admitted that he probably said words to the effect ‘Mr Doyle, you don’t know what relevance is’. An allegation to the similar effect had previously been denied in Mr Caffrey’s affidavit, paragraph 34. Accordingly, we find that Mr Caffrey did say words to the effect that Mr Doyle did not even understand relevance.
Particular 8.14
58 In relation to this item in the particulars, the Applicant relied upon Mr Doyle’s evidence that before the luncheon adjournment on the third day, Mr Caffrey referred to the possibility to the matter going elsewhere to be heard ‘by someone with a brain’ and turned to Mr Doyle and said ‘you take it down too Doyle’. On page 21 of Mr Doyle’s notes of 3 April 2000, the following appears towards the bottom of the page ‘somebody with a brain’ and ‘you take it down to Doyle’. Mr Caffrey denied that this occurred.
59 In cross examination, it was put to Mr Doyle that there had been no reference to ‘brain’ as recorded by him. Mr Doyle denied this. It was also put that the words ‘you take it down too Doyle’ were not said in connection with the word ‘brain’. Mr Doyle noted that the exchange was quite heated and the comment about Mr Doyle taking it down tied in with the words ‘someone with a brain’. Once again, in the absence of any rational basis for believing that Mr Doyle would record or summarise words, which were not said, we accept Mr Doyle’s evidence in this regard as supported by his hand written notes.
Summary of Findings
60 In respect of each of the items of conduct particularised in the information, we find that the matters alleged have been proved on the balance of probabilities. In reaching this conclusion we have kept in mind the requirement in Briginshaw v Briginshaw (1938) 60 CLR 336 that the matters be proved to the reasonable satisfaction of the Tribunal having regard to the seriousness of the allegations made, the inherent unlikelihood of an occurrence of the given description and the gravity of the consequences flowing from particular findings. Weight has been given to the presumption of innocence and exactness of proof was required.
Applicable Statute
61 The Tribunal was assisted in this regard by submissions for the Applicant with which Mr Barko for the Respondent agreed. It was common ground that the Legal Profession Act 2004 commenced on 1 October 2005. By section 735 and Schedule 1 it repealed the whole of the Legal Profession Act 1987. However, “savings, transitional and other provisions” are set out in Schedule 9.
62 Clause 15 of Schedule 9 provides:
63 It was agreed that the effect of the provision is that the Tribunal does not revert back completely now to the common law, but that the Tribunal is to proceed as if the Legal Profession Act 1987 remained in force. If the new Act had not been enacted, the 1987 Act would have remained in force.
15. Pending Complaints before Tribunal
(1) This clause applies to a complaint that was made under the old Act and in respect of which proceedings instituted under the old Act in the Tribunal were pending immediately before the commencement day.
(2) The complaint is to be dealt with as if this Act had not been enacted.
64 As this application seeks a finding of unsatisfactory professional conduct section 168(2) of the 1987 Act applies:
65 Section 73 of the Administrative Decisions Tribunal Act 1997 relevantly provides:
168 – Rules of Evidence . . .
(2) In relation to the conduct of any other hearing of a matter [that is not one relating to professional misconduct] allocated to the Legal Services Division of the Tribunal by the Administrative Decisions Tribunal Act 1997, section 73 of that Act applies to the determination of that matter.
66 The Applicant seeks a finding that [Mr Caffrey] has been guilty of unsatisfactory professional conduct. The Bar Association points out in its submissions that the concept of unsatisfactory professional conduct was introduced for the first time into the law affecting legal practitioners by section 127 of the 1987 Act, which commenced on 1 January 1988. It points out that it is entirely the creation of the statute.
73 – Procedure of the Tribunal Generally:
(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.
(2) The Tribunal is not bound by the rules of evidence and may enquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
67 Section 127 of the Legal Profession Act 1987, relevant to this case provides:
68 There is no issue in these proceedings that at all relevant times the subject matter of complaints was “in connection with the practice of law”.
127 – Professional Misconduct and Unsatisfactory Professional Conduct
. . .
(2) For the purposes of this Part:
Unsatisfactory professional conduct includes conduct (whether consisting of an act or omission) occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.
69 It is obvious, at the risk of being trite, that what may constitute unsatisfactory professional conduct occurring in connection with the practice of law could embrace a very wide range of behaviour. It is clear and was rightly conceded by Mr Barko for the Respondent that if the conduct the subject of the complaints was made out it does constitute unsatisfactory professional conduct within the meaning of the section.
70 Given our findings that the conduct alleged in the information has been proved, it follows that Mr Caffrey has engaged in unsatisfactory professional conduct. Nonetheless, we should deal more explicitly with the position of counsel generally and the particular nature of the unsatisfactory professional conduct in this case.
The Position of Counsel
71 The position of barristers is a privileged one. It has been repeatedly recognized over a very long period of time without the necessity for any statutory codification. In a passage cited by the High Court in Lewis v Judge Ogden (1984) 153 CLR 682 at 689 the court endorsed Lord Erskine’s conduct in the celebrated case of The Dean of St Asaph (R v Shipley) (1792) 21 S.T. 847 as an example of a barrister’s conduct where “courage and courtesy should go hand in hand”.
72 It is clear that barristers have a duty, from which they should not waiver, to put their client’s case fearlessly and with vigour and determination. At the same time they have “an overriding duty to the court, to the standards of his profession and to the public” (Rondel v Worsley [1969] 1 AC 191 at 227 per Lord Reid.
73 The necessity for courage and firmness on the part of counsel was also acknowledged in Ex Parte Bellanto: re Prior (1962) 63 S.R.(N.S.W.) 190 at 204.
74 The role of counsel was discussed by Lord Justice Singleton in Beevis v Dawson [1957] 1 QB 195 where a trial before a jury miscarried in part because bickering between counsel deflected the course of the trial.
75 At page 201 it was said:
76 In Bellanto’s case the Full Court said, op cit at page 204:
“The training of one who is called to the Bar in this country is intended to help him to understand that a member of the Bar is a helper in the administration of justice. He is there to help the judge, and, when there is a jury, to help the jury, to arrive at a proper result in the dispute between the parties. If a case is conducted as this was, the judge is deprived of the assistance, which he is entitled to expect from counsel. Continuous bickering becomes a burden for everyone in court – for judge and for jury – and it is almost impossible for justice to be done if that goes on.”
77 See also the discussion of the High Court in Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 200-201 where the High Court discusses what are described as both de jure and de facto privileges.
“As a member of the Bar, Mr Bellanto would do well to remember that the right of audience granted to a barrister is not an absolute privilege, save in so far as the law of defamation applies to it. It carries with it a special responsibility to see that it is not abused, and tradition demands that a barrister, while he may take every legitimate point on behalf of his client, must show every courtesy to the Bench. As Lord Denning has said, it is particularly true of the Bar as of all professions that “manners makyth man”. Ethical problems involved “If no profession is nobler in its right exercise, so no profession can be baser in its abuse”. These are the words of Lord McMillan, Essays on Jurisprudence in Action (1953) p319. They are not idle words, for his Lordship went on to add: “And hence the advocate is bound by a host of unwritten obligations, which are designed to maintain the integrity of his professional conduct. The code of honour of the Bar is at once its most cherished possession and the most valued safeguard to the public. In the discharge of his office the advocate has a duty to his client, a duty to his opponent, a duty to the court, a duty to the state, and a duty to himself to maintain a perfect poise amidst these various and sometimes conflicting claims is no easy feat. Transgression of the honourable obligations, which these duties impose upon the advocate, is not like making a mere mistake in business. It involves infringement of his moral duty. It is a matter of conscience. And his offence cannot be hid, for all his work is done in the presence of his brethren and the public. His conduct is always exposed to the searching of salutary scrutiny of many critics.”
78 Clyne’s case was an extreme case and the conduct was grave. It was a case of professional misconduct, unlike the present matter.
“The last thing we would wish to do would be to say anything which might be thought to curtail this freedom of speech, which public policy demands. Cases will constantly arise in which it is not merely the right but the duty of counsel to speak out fearlessly, to denounce some person or the conduct of some person and to use such strong terms as seem to him in his discretion to be appropriate to the occasion. From the point of view of the common law it is right that the person attacked should have no remedy in the courts. But, from the point of view of a profession, which seeks to maintain standards of decency and fairness, it is essential that the privilege and the power of doing harm, which it confers, should not be abused. Otherwise grave and irreparable damage might be unjustly occasioned. The privilege may be abused if damaging irrelevant matter is introduced into a proceeding. It is grossly abused if counsel, in opening a case, makes statements which may have ruinous consequences to the person attacked, and which he cannot substantiate or justify by evidence. It is obviously unfair and improper in the highest degree for counsel, hoping that, where proof is impossible, prejudice may suffice, to make such statements unless he definitely knows that he has, and definitely intends to adduce evidence to support them. It cannot, of course, be enough that he thinks that he may be able to establish his statements out of the mouth of a witness for the other side.”
79 In Prothonotary of the Supreme Court v Costello (1984) 3 NSWLR 201 the Court of Appeal had to consider the conduct of a barrister in relation to eleven separate occasions where he had misconducted himself before various courts.
80 The relevance of Costello to the matter in hand is twofold, although it was, of course, a case of professional misconduct. The first was that the court re-emphasised, citing Clyne’s case, at 205, the importance of the unwritten but nevertheless fundamental rules that govern barristers’ behaviour which rest essentially on generally accepted standards of common decency and common fairness. The second is, importantly, that the Court of Appeal had to decide, if they were not satisfied that any one of the five forms of misconduct found against Costello instantly demonstrates unfitness, whether they were entitled to look at the totality of the behaviour. The court stated at 204:
Mr Caffrey’s Unsatisfactory Professional Conduct
“We would direct ourselves that the question whether a conclusion of unfitness is to be derived from findings of misconduct, which individually fail to demonstrate unfitness depends both upon their character and their frequency.”
Particular 8.1
81 Describing a matter or action, as a farce and responding to the tender of a business letter by saying that it was an objectionable piece of trash were not comments that were necessary in order for Mr Caffrey to defend his clients’ interests. Nor were they appropriate in the circumstances. They were not calculated to assist the Arbitrator in performing his functions and the words may well have caused the parties and others present concern that justice was not being properly administered in the circumstances. Counsel for Mr Caffrey conceded that the conduct amounted to unsatisfactory professional conduct.
Particular 8.2
82 Cavilling with the Arbitrator’s rulings on evidence by saying words such as ‘I’ll save that for the magistrate’ and ‘I think you’ll be reversed on appeal’ is similarly unacceptable. Again it was conceded by Counsel for the Respondent to be unsatisfactory professional conduct.
Particular 8.3
83 Addressing words to the Arbitrator during the hearing to the effect that the Arbitrator was already prejudiced against Mr Caffrey’s clients is, as was conceded by Counsel for the Respondent, also unsatisfactory professional conduct. If by words or actions the person hearing a matter has indicated actual or perceived bias then the appropriate course is to seek that person disqualify himself or herself. Mr Caffrey did not do this and his comments may be seen as having a tendency to reduce confidence in the administration of justice on the part of the parties and anyone else present.
Particular 8.4
84 When cross-examining a witness, even if the witness is being non responsive, evasive or argumentative in his or her answers, it is neither necessary nor appropriate to call the witness or his or her answers obnoxious. An appropriate course is to request the Arbitrator or other person hearing the matter to direct the witness to respond to the questions asked. Mr Caffrey did not do this. Counsel for Mr Caffrey also conceded that this conduct amounted to unsatisfactory professional conduct.
Particular 8.5
85 It was not in dispute that Mr Caffrey referred to the Plaintiff during evidence as an ‘abject pathological liar’, withdrew the words ‘abject’ and ‘pathological’ but said that he would not withdraw ‘liar’ as the answers were ‘false and fraudulent’. This is, and was conceded to be, unsatisfactory professional conduct.
Particular 8.6
86 To state when the Arbitrator did not allow certain cross-examination that ‘this doesn’t matter, this is going up to the magistrate. I think you’ll rule against us anyway. Why don’t you rule against us and we will go home?’ is a clear case of failing to show every courtesy to the bench. As Counsel for the Respondent conceded, this amounts to unsatisfactory professional conduct.
Particular 8.7
87 It was submitted by Mr Barko for the Respondent that on either party’s version of particular 8.7, the conduct did not amount to unsatisfactory professional conduct. We are unable to agree with this. Commenting on a witness’s evidence using words such as ‘oh Christ’ and ‘oh God Almighty’ fails to meet standards of common courtesy and fairness. We note that an apology was immediately proffered and while this may go to mitigation it also amounts to an acknowledgement by Mr Caffrey of the inappropriateness of the remarks. We find this conduct was unsatisfactory professional conduct.
Particular 8.8
88 Once again saying words to the Arbitrator to the effect of ‘have you ever heard of the rule in Browne v Dunn?’ (which we find was said in a sarcastic tone) is a failure to show courtesy to the bench. Being uttered in public before at least the parties and any witnesses who might have been present, it also has the tendency to undermine those persons’ confidence and the administration of justice. We find it amounts to unsatisfactory professional conduct.
Particular 8.9
89 For similar reasons, the exchange in which Mr Caffrey said to the Arbitrator when asked to look at him that he did not have to look at him to hear him and that Mr Caffrey could not stand the sight of the Arbitrator was conduct that was rude, insulting and impertinent. There was no dispute that such conduct amounted to unsatisfactory professional conduct.
Particular 8.10
90 When requested to ask his next question or conclude his cross-examination, Mr Caffrey replied that he was not near the conclusion and that he had a notice of appeal already drafted. In response to the Arbitrator’s comment that this conduct was abominable, Mr Caffrey replied ‘so is yours’. Once again, this was, and was conceded to be, unsatisfactory professional conduct.
Particular 8.11
91 To respond to the disallowing of a question with words to the effect that ‘we will see in the other court, the rules of evidence will apply there’, especially where the rules of evidence did apply in the hearing in question, is not only cavilling with the Arbitrator’s ruling but also discourteous. It was unsatisfactory professional conduct and Mr Barko did not suggest otherwise.
Particular 8.12
92 Further and for similar reasons, to respond to the Arbitrator during cross-examination ‘you scare me’ and later ‘I’ll bring another pair of underpants along’ was unsatisfactory professional conduct, as was conceded by Counsel for the Respondent.
Particular 8.13
93 Mr Caffrey said to his opponent, Mr Doyle, words, as an aside, to the effect ‘you do not know what relevance means’. We believe this is a minor matter and in our view, does not of itself constitute unsatisfactory professional conduct. In coming to our conclusion in this matter, we accept Mr Barko’s submission that this was more a quip across the bar table and we make no adverse finding against Mr Caffrey concerning this remark.
Particular 8.14
94 We have noted how this particular was amended in the light of Mr Doyle’s notes above. To refer to the probability of the matter going elsewhere to be heard by someone with a brain clearly implies that the person presently hearing the matter did not have a brain. Such a comment obviously fails to meet the requirements of courtesy and decency required of a barrister, especially when referring to the person hearing the matter. We therefore find that this also is unsatisfactory professional conduct, as Mr Barko conceded.
Orders
1. Having made these findings and as requested by the parties, we now invite submissions in relation to any orders, which the Tribunal should make, and in particular whether the Tribunal should make an order that its decision be published and whether any reprimand should be public or private
2. The Tribunal would also like submissions in relation to all other ancillary orders including the question of costs
3. In order to save time and expense, we direct that both parties file their submissions within fourteen (14) days of this decision being published and that as soon as possible thereafter the Registrar be approached to fix a date for the further hearing and disposal of the matter.
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