New South Wales Bar Association v Caffrey (No 4)
[2008] NSWADT 190
•7 July 2008
CITATION: New South Wales Bar Association v Caffrey (No 4) [2008] NSWADT 190 DIVISION: Legal Services Division PARTIES: APPLICANT
RESPONDENT
Council of the New South Wales Bar Association
Bradford Arthur CaffreyFILE NUMBER: 032027 HEARING DATES: 6 June 2008 SUBMISSIONS CLOSED: 6 June 2008
DATE OF DECISION:
7 July 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 Profession Act 1987 CASES CITED: New South Wales Bar Association v LI (No 2) [2006] NSWADT 263
New South Wales Bar Association v LI [2005] NSWADT 15
Council of the NSW Bar Association v LI (2005) 64 NSWLR 603, [2005] NSWCA 415
LI v Council of the NSW Bar Association [2007] NSWCA 223
R v McIntyre [2000] NSWCCA 6
New South Bar Association v Caffrey (No 3) [2008] NSWADT 85REPRESENTATION: APPLICANT
RESPONDENT
P Skinner, barrister
M Barko, barristerORDERS: The orders of the Tribunal are as follows:
(i). That Bradford Arthur Caffrey be and hereby is publicly reprimanded pursuant to subsection 171C(1)(e) of the Legal Profession Act 1987 in respect of his unsatisfactory professional conduct which occurred on 28 February 2000 and 3 April 2000 as found by the Tribunal in New South Wales Bar Association v Caffrey (No 3) [2008] NSWADT 85
(ii) That the Tribunal’s orders made and reasons given on 18 March 2008 in New South Wales Bar Association v Caffrey (No 3) [2008] NSWADT 85 be published including the name of the respondent
(iii) That these orders and reasons be published including the name of the respondent(iv) That the respondent pay the applicant’s costs agreed in the sum of $58,290.
REASONS FOR DECISION
1 On 18 March 2008 the Tribunal handed down its reasons for decision which included findings that the respondent’s conduct which was the subject of the Bar Association complaint and which had been proved constituted unsatisfactory professional conduct within the meaning of section 171C of the Legal Profession Act 1987 (“LPA”). The Tribunal then sought submissions as to the orders that should be made.
2 The Bar Association submitted that the Tribunal should now make the following orders:
3 On 6 June 2008 counsel for the parties spoke to their written submissions. As to costs and in view of the lengthy history of this matter, the parties were given the opportunity to see if they could agree appropriate costs orders.
(i) That the practitioner pay a fine not exceeding $5,000, pursuant to subsection 171C(1)(b);
(ii) That the Tribunal publicly reprimand the legal practitioner, pursuant to subsection 171C(1)(e);
(iii) That the Tribunal’s findings made on 18 March 2008 be published in the name of the respondent;
(iv) That the name of the legal practitioner be published and the Tribunal’s reasons for decision;
(v) Costs pursuant to section 171C(1)(i).
4 The Tribunal was pleased to receive a communication addressed to the Registrar on 13 June 2008 advising that the parties had reached agreement on the following proposed orders as to costs:
5 We are disposed to adopt the parties’ agreed proposal in relation to costs and this is reflected in the orders made.
(i) The respondent pay the applicant’s costs of the hearing of the information in the sum of $58,290;
(ii) No other order as to costs.
6 The remaining issues of whether there should be a fine imposed and whether any reprimand should be public or private (with also raises the question of the degree of publicity to be given to any orders and reasons) are, in the circumstances of this case, related. One of the submissions of the Bar Association was to the effect that a fine was appropriate in this case because the respondent had been privately reprimanded on a previous occasion in respect of similar conduct and yet had subsequently engaged in the conduct the subject of this proceeding. The same reasoning was relied upon to support the appropriateness of a public rather than a private reprimand. Accordingly, these two issues are dealt with together.
7 The respondent in his submissions dated 15 April 2008 conceded that his conduct as found by the Tribunal warranted the making of an order that he be reprimanded pursuant to section 171C(e) of the Legal Profession Act 1987. However the respondent submits that special circumstances exist whereby the Tribunal would be satisfied that such reprimand should only be made privately and that the Tribunal should then provide the applicant and the Legal Services Commissioner with a copy of the order and a statement of its reasons for making the order pursuant to section 171C(4) of the Act.
8 In order to satisfy the requirement that special circumstances exist, the respondent pointed to the inordinate length of time that has elapsed from the time of the complaint in May of 2000 to the hearing before the Tribunal in February 2008. In particular the Tribunal’s attention was drawn to its previous decision in New South Wales Bar Association v LI (No 2) [2006] NSWADT 263 where the Tribunal (differently constituted) stated “Regrettably, this matter has a long and tortuous history.” In addition, the respondent drew attention to other matters, including his age, the limited nature of his practice and the toll taken by these proceedings upon him.
9 The Tribunal accepts that this matter has had a regrettably long history. Much time was taken up firstly with the question of the proposed withdrawal of the proceedings, dealt with at first instance on 2 April 2005 and pursued unsuccessfully on appeal by the Bar Association: see New South Wales Bar Association v LI [2005] NSWADT 15 (“LI (No 1)”) and, on appeal, Council of the NSW Bar Association v LI (2005) 64 NSWLR 603, [2005] NSWCA 415.
10 Following the dismissal of that appeal on 28 November 2005, it was necessary for the Bar Association to seek an extension of time. This was opposed by the respondent but the extension of time was granted – see LI (No 2) [2006] NSWADT 263. The respondent then appealed to the Court of Appeal against that decision. He was unsuccessful – see LI v Council of the New South Wales Bar Association [2007] NSWCA 223.
11 As we understand it, the original attempt by the Bar Association to withdraw the proceedings was not only in the Bar Association’s interest. It could also be said to have been in the interests of, and for the benefit of, the respondent - see LI (No 1) at [11].
12 Whilst delay on the part of the Bar Association required it to seek an extension of time for bringing of the information, the respondent himself contributed to the length of time taken to bring the matter to finality by unsuccessfully appealing the decision to grant the extension of time.
13 In considering whether this matter should be dealt with by way of private reprimand, we have also had regard to the material put before the Tribunal only on the question of what orders should be made. From this material it appears that the complaint by Mr Doyle which gave rise to the present matter was not the only or first complaint made about the conduct of the respondent.
14 The NSW Bar Association adduced evidence including the following documents:
15 Eventually, on 12 November 1999 the Bar Association proposed that subject to the respondent’s agreeing to pay the legal costs incurred by the Council of the Association to date, he would be invited to consent to being reprimanded pursuant to section 155(3)(a) of the Legal Profession Act 1987 in respect of the Bowers complaint.
(i) Complaint dated 30 September 1998 made by a then acting Crown Prosecutor, Mr John Bowers concerning the conduct of the Respondent at the trial of R v Stewart James McIntyre heard at Parramatta District Court in June 1998 before his Honour, Judge Naughton QC.
(ii) Response by the respondent dated 15 November 1998 under the hand of the respondent.
(iii) Memorandum to the Bar Council dated 23 April 1999 in respect of the complaint made by Mr Bowers.
(iv) Letter dated 28 May 1999 to the respondent from the Professional Affairs Director of the Bar Council.
(v) Letter dated 20 September 1999 also from the Professional Affairs Director addressed to the respondent inviting him to put submissions in relation to his conduct.
(vi) Letter dated 28 September 1999 from the respondent addressed to Ms Helen Barrett, Professional Affairs Director in which in Annexure A to the document he stated: “I express my regret over my conduct at the subject trial. I offered then and still do apologise for any insult and hurt he felt due to my emotional outburst at the trial. I said then and I still say that I at no time intended either before or in the course of the trial to disparage Mr Bowers’ either personally or professionally. My outburst during the trial was just that, that is, spontaneous, not deliberate or pre-meditated.” He then appended a number of references from barristers that were generally positive as to his capacities as counsel.
16 On 17 November 1999 the respondent consented to being reprimanded and paying the Bar Association’s costs of $262.30. The respondent was to wait upon the then President of the Bar Council in order to be privately reprimanded.
17 On 24 February 2000 the Court of Criminal Appeal handed down its decision in R v McIntyre [2000] NSWCCA 6 allowing Mr McIntyre’s appeal, quashing his conviction and sentence and allowing a new trial. One of the grounds for that decision was that there had been a miscarriage of justice caused by the improper conduct of the respondent. This was the conduct which was the foundation of the Bowers’ complaint.
18 Hulme J said of the respondent’s conduct at the trial the following (at [15] of the judgement in McIntyre): “The conduct of which complaint is made was that of counsel then appearing for the appellant. It maybe described as having been gratuitous rudeness to witnesses, to counsel appearing for the Crown and the Judge, and the expression of personal views. In many of its aspects the conduct was repeated numerous times throughout the trial. It is by a factor of very many, worse than anything I have experienced or heard about in my career. Had I not read a transcript of it, I would not have believed it possible that it could have occurred. In a word, it was appalling.” The examples cited by Hulme J at [17] are not entirely dissimilar from the examples of conduct which are the subject of the present proceedings.
19 The Bar Association also points to the fact that there is a relatively close connection in point of time between the resolution of the Bowers complaint in late 1999 and the conduct before the arbitrator on 28 February and 3 April 2000. There were only a few months between the respondent consenting to being privately reprimanded by the then President of the Bar Association and the conduct the subject of the present proceedings.
20 The Bar Association submitted in this matter that both specific and general deterrence required that a public reprimand be administered. Prior to the events in question the practitioner had already received or agreed to receive a private reprimand in another matter in relation to similar conduct. Specific deterrence thus required an incremental sanction to that which the respondent received previously.
21 We accept the force of the submission that for the Tribunal to impose a further private reprimand when the previous reprimand did not deter the respondent from engaging in the conduct the subject of these proceedings could be seen as insufficient. This would be so notwithstanding the delay that has occurred and the fact that no further complaint has been made concerning the respondent’s conduct in court since 2000.
22 The respondent submitted that he has proven over the passage of time that he appreciates that some conduct is unacceptable and he has taken pains to ensure that it is not repeated. While this may be accepted, it does not necessarily negative the appropriateness of a public reprimand.
23 General deterrence will also be served if the reprimand is public as it will not only assist in the education of the profession as to what conduct in court is to be regarded as unsatisfactory professional conduct but it will also mark the seriousness with which the Tribunal views a repeated failure to meet the required standard. In addition, the public will be informed and reassured that conduct of this nature by members of the legal profession will not be ignored or condoned.
24 On the question of whether there are special circumstances justifying a private rather than a public reprimand, we have taken the great delay in finalising these proceedings into account. Nonetheless, in all the circumstances we do not believe that it should ultimately be decisive in the question of whether or not the legal practitioner should be publicly reprimanded. Neither do we believe that any of the other matters raised by the respondent including the respondent’s age, his “’quiet’ pro bono practice” and the stress and anxiety caused by the present complaint should cause us not to order a public reprimand.
25 Accordingly, we conclude that the respondent should be publicly reprimanded in respect of his conduct found by the Tribunal to have occurred on 28 February and 3 April 2000.
26 As the respondent is to be publicly reprimanded, we believe that it is also appropriate for his name to be published in relation both to these reasons for decision and to the orders made and reasons given on 18 March 2008 in New South Wales Bar Association v Caffrey (No 3) [2008] NSWADT 85.
27 Publication of the respondent’s name is appropriate not only for the purpose of deterring the respondent and other legal practitioners from engaging in similar behaviour but also in order to permit members of the public to be informed, for their protection and reassurance, of what occurred, who was involved and what sanctions were imposed.
28 As we indicated in our decision on whether the respondent had engaged in unsatisfactory professional conduct, it is in the public interest that barristers conduct themselves before all persons or bodies hearing matters (whether they be courts, tribunals or arbitrators) and with witnesses, other practitioners and members of the public in a courteous and professional manner. It is in the public interest, particularly when a legal practitioner is dealing directly with members of the public, that they should be informed of any relevant information concerning the practitioner and the way in which professional services have been performed in the past.
29 As has already been noted, closely related to the issue of whether the reprimand should be public or private is the submission by the Bar Association that the respondent should also be fined. The Bar Association’s submission is based on the proposition that the previous reprimand was insufficient to deter similar later conduct and thus a fine in addition to a public reprimand is now justified.
30 We accept the respondent’s submissions on the subject of the appropriateness of a fine. It was not originally, specifically sought by the Bar Association. Having regard to the nature of the barrister’s practice, his means and the fact that the conduct has not been repeated, in all the circumstances we believe the public reprimand and public identification of the respondent are sufficient. We are reinforced in that view by the size of the costs order that the respondent will have to bear.
31 We therefore decline to order that the respondent pay a fine under section 171C(1)(d) of the Legal Profession Act 1987.
32 We note that in the current proceedings no material was put before the Tribunal to support a medical basis for the conduct of the respondent the subject of the complaint.
Orders
The orders of the Tribunal are as follows:
(i) That Bradford Arthur Caffrey be and hereby is publicly reprimanded pursuant to subsection 171C(1)(e) of the Legal Profession Act 1987 in respect of his unsatisfactory professional conduct which occurred on 28 February 2000 and 3 April 2000 as found by the Tribunal in New South Wales Bar Association v Caffrey (No 3) [2008] NSWADT 85
(ii) That the Tribunal’s orders made and reasons given on 18 March 2008 in New South Wales Bar Association v Caffrey (No 3) [2008] NSWADT 85 be published including the name of the respondent
(iii) That these orders and reasons be published including the name of the respondent
(iv) That the respondent pay the applicant’s costs agreed in the sum of $58,290.
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