New South Wales Bar Association v Cummins

[2001] NSWCA 284

Reported Decision: 52 NSWLR 279

New South Wales

Court of Appeal

CITATION:	NEW SOUTH WALES BAR ASSOCIATION v CUMMINS [2001] NSWCA 284
FILE NUMBER(S):	CA 40496/01
HEARING DATE(S):	23/07/01 27/07/01
JUDGMENT DATE:	31 August 2001
PARTIES :	The New South Wales Bar Association (Claimant) John Daniel Cummins (Opponent)
JUDGMENT OF:	Spigelman CJ at 1; Mason P at 72; Handley JA at 73

COUNSEL:	P Garling SC / M McCulloch (Claimant) D F Jackson QC / P R Whitford (Opponent) J Basten QC / J A Needham (Legal Services Commissioner)
SOLICITORS:	Hicksons Wisewoulds (Claimant) Glasheen & Quilty (Opponent)
CATCHWORDS:	LEGAL PRACTITIONERS - Professional discipline - where barrister consented to removal of his name from the Roll of Legal Practitioners - where barrister did not file taxation returns for professional practice or personal income - whether declaration as to whether fit and proper person for legal practice should be made - whether declaration of professional misconduct should be made
LEGISLATION CITED:	Legal Profession Act Legal Professional Amendment (Disciplinary Provisions) Act 2001 Medical Act (21 and 22 Vict. c. 90) (U.K.) Solicitors Act 1888 (U.K.)
CASES CITED:	Ainsworth v Criminal Justice Commission (1991-1992) 175 CLR 564 Chamberlain v Commissioner of Taxation (1981) 28 FCR 21 Chamberlain v Deputy Commisioner of Taxation (1988) 164 CLR 502 Chamberlain v The Law Society of the Australian Capital Territory (1992) 43 FCR 148 Dodson v Grew (1767) 97 ER 106 Ex parte Attorney-General (Cth); Re A Barrister and Solicitor (1972) 20 FLR 234 Ex parte Meehan; Re Medical Practitioners Act [1965] NSWR 30 Fell v Fell (1922) 31 CLR 268 Hoile v The Medical Board of South Australia (1960) 104 CLR 157 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 In re A Solicitor. Ex parte The Prothonotary (1964) 80 WN (NSW) 968 In re Thom; Ex parte The Prothonotary (1964) 80 WN (NSW) 968 In the Matter of the Legal Practitioners Act 1970 re Grosse (ACTSC, 22 February 1996, unreported) Kennedy v Council of the Incorporated Law Institute of New South Wales (1940) 13 ALJ 563 Marten v Royal College of Veterinary Surgeons' Disciplinary Committee [1966] 1 QB 1 Myers v Elman [1940] 282 New South Wales Bar Association v Hamman [1999] NSWCA 404 New South Wales Bar Association v Maddocks (NSWCA, 23 August 1988, unreported) Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 Queensland Law Society Incorporated v Smith [2001] 1 Qd R 649 Re an Application by a Solicitor [1966] 1 NSWR 42 Re Hodgekiss [1962] SR (NSW) 340 Re Law Society of the Australian Capital Territory and Chamberlain (1993) 116 ACTR 1 Re Mayes and the Legal Practitioners Act [1974] 1 NSWLR 19 Re Wheeler [1991] 2 Qd R 690 Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc (2000) 48 NSWLR 548 Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 The Prothonotary of the Supreme Court of New South Wales v Ritchard (NSWCA, 31 July 1987, unreported) Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279
DECISION:	1 Declare guilt of professional misconduct; 2 Declare not a fit and proper person to be on the Roll; 3 Opponent to pay costs of Bar Association

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40496/01

SPIGELMAN CJ

MASON P

HANDLEY JA

Friday 31 August 2001

THE NEW SOUTH WALES BAR ASSOCIATION v John Daniel CUMMINS

Facts

The Bar Association brought proceedings in the inherent jurisdiction of the Supreme Court seeking the removal of the name of John Daniel Cummins from the Roll of Legal Practitioners. The Legal Services Commissioner appeared in the proceedings. Mr Cummins was a barrister who for thirty-eight years did not lodge any taxation returns relating to his professional practice, or for any other personal income. Mr Cummins consented to an order removing his name from the Roll. On the first day of hearing, the Court made that order.

Held

per Spigelman CJ, Mason P and Handley JA agreeing

A. Declaration as to whether fit and proper person for legal practice

The barrister’s actions were such as to bring the entire legal profession into disrepute. It is appropriate that the Court formally declare the basis on which the order was made for removal of the barrister’s name from the Roll. Such a declaration serves the public interest.

B. Declaration of professional misconduct.

Conduct not occurring directly in the course of professional practice may amount to professional misconduct if the facts involved are sufficiently closely connected with actual practice, or where the conduct may manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice. Hoile v The Medical Board of South Australia (1961) 104 CLR 157, In re Thom; Ex Parte the Prothonotary (1964) 80 WN (NSW) 968, Marten v Royal College of Veterinary Surgeons’ Disciplinary Committee [1966] 1 QB 1, Chamberlain v The Law Society of the Australian Capital Territory (1992) 43 FCR 148, In the Matter of the Legal Practitioners Act 1970 re Grosse (ACTSC, 22 February 1996, unreported) and New South Wales Bar Association v Hamman [1999] NSWCA 404 discussed. Re Wheeler [1991] 2 Qd R 690 and Queensland Law Society Incorporated vSmith [2001] 1 Qd R 649 not followed.

Orders

1 Declare that John Daniel Cummins has been guilty of professional misconduct.

2 Declare that John Daniel Cummins is not a fit and proper person to be on the Roll of Legal Practitioners.

3 The Opponent pay the costs of the New South Wales Bar Association.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40496/01

SPIGELMAN CJ

MASON P

HANDLEY JA

Friday 31 August 2001

THE NEW SOUTH WALES BAR ASSOCIATION v John Daniel CUMMINS
JUDGMENT

1    SPIGELMAN CJ: Two summonses were issued in this Court. One summons in John Daniel Cummins v The Prothonotary Supreme Court of New South Wales, in which the Claimant sought an order that his own name be removed from the Roll of Legal Practitioners, was not pressed. On 23 July 2001 the Court gave the claimant leave to discontinue. The Court now has before it one summons in which the New South Wales Bar Association sought the removal of the name of the Opponent from the Roll of Legal Practitioners and certain other orders.

2 The summons arises in the exercise of the inherent jurisdiction of the Court in relation to officers of the Court. Part 10 of the Legal Profession Act 1987 (“the Act”) creates a statutory regime for complaints and discipline of legal practitioners. However, s171M(1) provides:

“The inherent power or jurisdiction of the Supreme Court with respect to the discipline of legal practitioners is not affected by anything in this Part or Part 2.”

3 Part 10 of the Act, in which s171M appears, is concerned with “Complaints and discipline”. Part 2 is concerned with the “Admission of legal practitioners”.

4    The inherent jurisdiction of the Court extends to the making of orders that a person’s name be removed from the Roll of Legal Practitioners.

5 By s4(1) of the Act:

“The Supreme Court may admit and enrol natural persons as legal practitioners …”

6    Furthermore, by s5(1) of that Act:

“A legal practitioner is, on and from admission, an officer of the Supreme Court.”

7 The reference in s4 to ‘admitting’ legal practitioners, is reflected in a number of sections which refer to “admission”. The reference in s4(1) to the Court ‘enrolling’ legal practitioners is not otherwise referred to. The Act confirms, by this reference, the longstanding practice of the Court to maintain a roll of legal practitioners in its inherent jurisdiction, the continuation of which the Act preserves (see generally Re an Application by a Solicitor [1966] 1 NSWR 42).

8 Pursuant to Pt 65C r 2(2) of the Supreme Court Rules:

“Every person applying for admission as a legal practitioner shall personally attend in Court and shall on such admission:
…
(b) sign the Roll of Legal Practitioners in the Court
…”

9 The Legal Services Commissioner has appeared in these proceedings. The Legal Services Commissioner occupies a statutory office created under Pt 10 of the Act. By the Legal Profession Amendment (Disciplinary Provisions) Act 2001, Div 2 of Pt 10 of the Legal Profession Act creating the office of Legal Services Commissioner was omitted. The Office was re-established by a new Pt 5A of the Act, which re-enacted many of the provisions of the previous Div 2 of Pt 10 and elaborated upon them. Section 59D(1) sets out certain functions of the Commissioner which repeat and expand the functions previously set out in s131(1) of the Act.

10    The Bill of 2001 received the Royal Assent. It was proclaimed by publication in the Government Gazette on the day this matter was argued in Court.

11    After the new amendments s59D provides:

“59D(2) The Commissioner may appear by barrister or solicitor before, and be heard by, the Supreme Court in the exercise of the functions of the Supreme Court under this Act or otherwise in relation to barristers or solicitors.”

12    The previous s131(1A) was in identical terms. The Commissioner appeared pursuant to these provisions. There is no need to formally join the Commissioner a party.

13    As indicated by the summons issued in his own name, Mr Cummins did not resist the making of the order to have his name removed from the roll. The Court made that order on 23 July 2001. In its summons, the Bar Association also sought an order for costs and two declarations:

(i) That Mr Cummins has been guilty of professional misconduct.

(ii) That Mr Cummins is not a fit and proper person to remain on the Roll of Legal Practitioners.

14    The Bar Association did not press for these declarations, but accepted that this was an issue for the Court. Mr Cummins resisted the making of any declarations, with particular emphasis on the first. The Legal Services Commissioner contended that both declarations should be made. Counsel for Mr Cummins accepted that the Court could reserve its judgment on the issue of the declarations and, if it thought appropriate to do so, make declarations even though it had made the order removing Mr Cummins from the Roll.

15    The Bar Association and the barrister agreed to a Statement of Agreed Facts, to which the Commissioner did not demur:

“The Opponent was first admitted as a solicitor in about 1957 and worked as an employee until he was admitted to the Bar. The Opponent was admitted to the Bar on 28 April 1961. During his period of time as an employed solicitor, taxation deductions were made from his salary and in most of those years he lodged tax returns.

For the period of approximately thirty eight years from his admission to the Bar until late 1999 or early 2000, the Opponent did not lodge any taxation returns relating to his professional practice or any personal income. In late 1999 or early 2000, after contact had been made with him by an officer of the Australian Taxation Office (“ATO”), and as a consequence of that contact, the Opponent retained a firm of accountants, Cartwright & Brown who prepared and submitted annual taxation returns for the financial years ended 30 June 1992 through to 30 June 1999. At a later time, Cartwright & Brown lodged a taxation return on behalf of the Opponent for the financial year ended 30 June 2000.

The ATO commenced proceedings in the Supreme Court of New South Wales against the Opponent claiming a judgment for outstanding tax and interest. Judgment in a sum of approximately $1 million was signed against the Opponent by the ATO.

On 13 December 2000, the Opponent presented his own Debtor’s Petition and as a consequence his estate was sequestrated on that day. The total of his creditors other than the ATO did not exceed $20,000. The ATO was owed nearly $1 million.

During the period of his admission to the Bar, the Opponent was able to undertake a wide range of activities in addition to maintaining a busy common law practice. The Opponent kept the ordinary books of account for his practice. The activities included, in about 1987, seeking advice on, setting up and being a director of a trustee company of the Cummins Family Trust including filing the necessary annual corporate returns. The purpose for the establishment of the trust was to provide a safe harbour for the Opponent’s assets including his family home and chambers against the prospect of being sued.

In the period from about 1980 until 28 August 2000, the Opponent was a director of a company originally called La Mauva Pty Ltd (later called Hospitality Hire Pty Ltd) which was the trustee of the M Cummins Family Trust which was the trading vehicle for a business in which the Opponent’s wife was engaged. Over part of that period of time, the Opponent had interests as a syndicate member in a number of thoroughbred race horses. Six of these syndicates were managed by the Opponent, who was responsible for the financial administration of them.

The Opponent advised the Chief Executive Office of the Claimant that he had retired from practice as a barrister on medical grounds and returned his Practising Certificate. The Opponent was a member of the Committee of the Australian Jockey Club for a ten year period between 1988 and 1998.”

16    These agreed facts make it clear that over about four decades of practice as a barrister, Mr Cummins was perfectly capable of conducting his personal and financial affairs - as a practitioner, director, investor, manager - save in one respect. He never performed his duties as a citizen and taxpayer.

17    In New South Wales Bar Association v Hamman [1999] NSWCA 404, the barrister embarked upon a course of tax evasion. Unlike the present case, he declared income in each year. He failed, however, to declare, from year to year, an increasing number of unpresented cheques which, by the time his conduct was discovered, had reached an amount of $1.2 million. This Court made it clear in Hamman that there is nothing acceptable, let alone smart or clever, about evading taxation.

18    As Mason P said in Hamman:

“[85] I emphatically dispute the proposition that defrauding ‘ the Revenue’ for personal gain is of lesser seriousness than defrauding a client, a member of the public or a corporation. The demonstrated unfitness to be trusted in serious matters is identical. Each category of ‘ victim ’ is a juristic person whose rights to receive property are protected by law, including the criminal law in the case of dishonest interception. ‘ The Revenue’ may not have a human face, but neither does a corporation. But behind each (in the final analysis) are human faces who are ultimately worse off in consequence of fraud. Dishonest non-disclosure of income also increases the burden on taxpayers generally because rates of tax inevitably reflect effective collection levels. That explains why there is no legal or moral distinction between defrauding an individual and defrauding ‘ the Revenue’ .”

19    Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity.

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

21    As Kitto J said in Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 298:

“… 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.”

22    Even in a period where other values have become of significance to the regulation of the legal profession - I refer particularly to the application of competition principles in professional regulation - the traditional professional paradigm still has a vitality of abiding significance. Neither the relationship of trust between a legal practitioner on the one hand, and his or her clients, colleagues and the judiciary on the other hand, nor public confidence in the profession, can be established or maintained, without professional regulation and enforcement.

23    The most recent amendments to the scheme of professional regulation contained in the Legal Profession Amendment (Disciplinary Provisions) Act 2001 affirm this long standing tradition, by the introduction of detailed provisions for review of conduct by legal practitioners involving acts of bankruptcy, indictable offences and tax offences. Although this new legislation is not directly applicable to the present case, it does manifest the continued vitality of the professional tradition.

24    In a case such as the present, where there is no substantive contest as to the ultimate operative order which the Court should make, it is of particular significance that the Court should record its findings. As Kirby P said in The Prothonotary of the Supreme Court of New South Wales v Ritchard (NSWCA, 31 July 1987, unreported):

“For the ordinary case, the Court has adopted the principle that, normally, it will state its findings on the totality of the matters put forward as constituting professional misconduct, so that these will be available to be dealt with, should they ever become relevant to any future application by the former solicitor for readmission to practise.”

His Honour referred to The Law Society of New South Wales v Seymour (NSWCA, 14 April 1982, unreported) and Bridges v Law Society of New South Wales [1983] 2 NSWLR 361 at 362.

25    Kirby P went on to say in Ritchard:

“Although the opinion must be reached that the offences warrant at the time of order permanent removal, the removal of a solicitor from the Roll is not necessarily intended to be permanent in fact. See Ex parte Evatt; Re New South Wales Bar Association (1971) 71 SR (NSW) 153, 157. People can redeem themselves and demonstrate it by later conduct as a number of cases in this State, both of solicitors and barristers, show. Because that opinion may give encouragement, in due course of time, to an application to be readmitted, it is all the more important that the unfortunate saga of the opponent’s misdeeds should be collected and found by the Court.”

26    I agree with the further observations of McHugh JA in Ritchard, when his Honour said:

“In Ex Parte Lenehan (1948) 77 CLR 403 Latham CJ, Dixon and Williams JJ pointed out (at 422) that when a person, who has been struck off the Roll, ‘applies for reinstatement he is in a more disadvantageous position than an original applicant because he must displace the decision as to probable, permanent unfitness which was the basis of his removal’. Nothing in the evidence in the present case provides any ground for supposing that the presumption of permanent unfitness for practice is not applicable to the Opponent. The jurisdiction of the Court to remove a practitioner from the Rolls is entirely protective: New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184. An order for the involuntary removal of the name of a practitioner from the Roll of solicitors is made only because the probability is that the solicitor is permanently unfit to practise. Unless the court is persuaded that the probability exists, the proper order to make will usually be one of suspension or fine instead of removal.”

27    Similarly in NSW Bar Association v Maddocks (NSWCA, 23 August 1988, unreported) Kirby P said:

“ … normally, removal is taken to imply a judgment that a person is forever, or at least indefinitely, disqualified from practising. If this is not the conclusion which the Court has reached, it should stop short of removal.”

28    In the present case, I am satisfied that the barrister’s complete disregard of his legal and civic obligations with respect to the payment of income tax was such that he must be regarded, at the present time, as permanently unfit to practice.

29    The key admission in the statement of agreed facts is that for thirty-eight years, Mr Cummins did not lodge any taxation returns relating to his professional practice, or for any other personal income. This failure was an inexcusable pattern of illegal conduct in complete defiance of his civic responsibilities. Mr Cummins put no evidence before the Court which could explain, let alone excuse, this conduct. For almost four decades, Mr Cummins took advantage of the full range of public services made available by taxation, not least in the provision of the court system in which he earned his income. He left the burden of all of this to his fellow citizens. Throughout the four decades he engaged in the rank hypocrisy of advocating that other people should perform their legal obligations, while systematically refusing to perform his own.

30    In the present case, unlike other cases, the barrister did not admit that his actions have jeopardised the reputation and standing of the legal profession. There is no doubt, however, that he has done so. The conduct of a barrister, particularly a barrister who has received the distinction of a Commission as one of Her Majesty’s Counsel, who has behaved in such complete disregard of his legal and civic obligations, was necessarily such as to bring the entire legal profession into disrepute.

31    Counsel for Mr Cummins submitted that the operative order was the order of removal from the Roll. He submitted that there would be no utility in making either of the declarations sought in the summons. He particularly pressed this to be so with respect to the declaration concerning professional misconduct. Counsel acknowledged that a finding that Mr Cummins was not a fit and proper person was implicit in the making of the order that his name be removed from the Roll.

32    The act of removal from the Roll is the act with operative effect. Nevertheless, it is appropriate for the Court to declare in a formal way, and not merely in reasons for decision, the basis on which that order was made. Such a declaration serves the public interest, not least by reaffirming the high regard the Court has for the reputation and standing of the legal profession, represented before the Court by the Bar Association. A formal declaration will go some way to assuring the public that conduct of this character cannot be and is not tolerated in the profession. The damage that Mr Cummins has done may be somewhat redressed (see Ainsworth v Criminal Justice Commission (1991-1992) 175 CLR 564 at 581-582). Where, as here, the public interest is involved, the Court should formally record the result (see Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 at 100, 106, 107).

33    This Court should declare that John Daniel Cummins is not a fit and proper person to remain on the Roll of Legal Practitioners.

34    The position with respect to the declaration of professional misconduct is not so clear. The conduct involved was not directly referable to his practice as a barrister. Counsel for Mr Cummins submitted that a formal finding of professional misconduct should not be made unless the conduct occurred in connection with legal practice.

35    In Ziems supra at 290, Fullagar J distinguished between “personal misconduct” and “professional misconduct”, each of which could support a finding of unfitness to practice. For some purposes, such a distinction will be useful.

36    The origins of contemporary doctrine on these matters is to be found in the judgment of Lopes LJ in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 where his Lordship at 763 propounded what he described as a non-exhaustive definition of “infamous conduct in a professional respect” as follows:

“ ‘If it is shewn that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency,’ then it is open to the General Medical Council to say that he has been guilty of ‘infamous conduct in a professional respect’.”

37    In Allinson, the Court of Appeal was exercising a statutory jurisdiction. The phrase “infamous conduct in a professional respect” was statutory, appearing in s29 of the Medical Act (21 and 22 Vict. c. 90) (U.K.).

38    This definition was applied to the case of the solicitor in the case of In re A Solicitor. Ex parte The Law Society [1912] 1 KB 302, where the issue was the definition of “professional misconduct” within the Solicitors Act 1888 (U.K.).

39    In Myers v Elman [1940] AC 282 Viscount Maugham adopted this definition for purposes of the exercise of the inherent jurisdiction of the Courts when he said at 288-289:

“Apart from the statutory grounds, it is of course true that a solicitor may be struck off the rolls or suspended on the ground of professional misconduct, words which have been properly defined as conduct which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency: In re a Solicitor. Ex parte The Law Society .”

40    Lord Atkin may have taken a different view in Myers v Elman, when he said at 303 that the words “professional misconduct” … “only mean misconduct in the exercise of the profession”.

41    Viscount Maugham’s approach – which omits from the Allinson formulation, the introductory words “in the pursuit of his profession” – appears to have prevailed, at least in New South Wales (see Re Hodgekiss (1962) SR (NSW) 340 at 351; Re Mayes and the Legal Practitioners Act [1974] 1 NSWLR 19 at 24-25; Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 at 203D-E, 207B-C).

42    In Marten v Royal College of Veterinary Surgeons’ Disciplinary Committee [1966] 1 QB 1, Lord Parker CJ said at 9:

“… Mr Crispin says that as a matter of law a professional man’s conduct cannot be said to be disgraceful to him in a professional respect unless it was done ‘in pursuit of his profession,’ and he would add that ‘in pursuit of his profession’ meant ‘in the course of the practice of the profession.’ For my part I see no valid ground for limiting the words in the manner suggested. If, of course, the conduct complained of is equally reprehensible in anyone, whether a professional man or not, as for example, conduct constituting some traffic offence, that conduct would not come within the expression. But if the conduct, though reprehensible in anyone is in the case of the professional man so much more reprehensible as to be defined as disgraceful, it may, depending on the circumstances, amount to conduct disgraceful of him in a professional respect in the sense that it tends to bring disgrace on the profession which he practises. It seems to me, although I do not put this forward in any sense as a definition, that the conception of conduct which is disgraceful to a man in his professional capacity is conduct disgraceful to him as reflecting on his profession, or, in the present case, conduct disgraceful to him as a practising veterinary surgeon.”

43    In that case, the conduct involved the mistreatment of animals which, although not arising in the course of practice, did have a direct bearing on the practice of his profession by a veterinarian.

44    In Hamman, this Court did make a declaration that professional misconduct had occurred. However, that had been conceded by the barrister and the issue which is now before the Court was not raised.

45    In New South Wales Bar Association v Maddocks the Court exercised its inherent jurisdiction to strike off a barrister. Significantly, the summons sought declarations that the barrister was guilty of professional misconduct, that he engaged in unprofessional conduct, that he acted in a manner contrary to the standards of practice becoming a barrister and that he was not a fit and proper person to be a member of the Bar. An order was sought that his name be struck off the roll. The Court declared that the opponent was not a fit and proper person to be a member of the Bar and ordered that the opponent’s name be struck off the roll. None of the other declarations sought by the Bar Association were made.

46    A number of relevant observations were made by the members of the Court. The extent to which the other declarations were pressed does not appear. Some of the conduct of the barrister occurred in the course of litigation in which the barrister was a party. He had threatened to disclose to the police some conduct of the other party to the litigation which would constitute an insurance fraud, unless the proceedings in which they were engaged were discontinued.

47    McHugh JA said:

“For a barrister to seek to profit from another person’s breach of the criminal law by not reporting it is contrary to the standard of conduct expected of members of a profession so closely involved with the due administration of justice according to law. It constitutes professional misconduct.”

48    Samuels JA characterised the conduct as making the barrister unfit for practice, rather than as professional misconduct. Kirby P also confirmed the conduct was disentitling but did not classify it as professional misconduct. Neither Kirby P nor Samuels JA suggested that the conduct was not professional misconduct. However, as I have said, no declaration to that effect was made.

49    The term “professional misconduct” has sometimes been limited to misconduct in the course of professional work (see e.g. Re Wheeler [1991] 2 Qd R 690 at 697; Queensland Law Society Incorporated v Smith [2001] 1 Qd R 649 at [10]). (The case relied on by the Queensland Court of Appeal in Smith for this proposition, Ex parte Attorney General (Cth); Re A Barrister and Solicitor (1972) 20 FLR 234 at 240, does not appear to me to support it. The judgment of the Supreme Court of the Australian Capital Territory uses the words “speaking generally” and refers to Lord Atkin in Myers v Elman at 302, where his Lordship used the formulation “At times”.)

50    It has not generally been useful or necessary to distinguish the terminology of “professional misconduct” from other phrases such as a “fit and proper person”, “good fame and character”, “unprofessional conduct”, “unsatisfactory professional conduct” etc. Statutory formulations differ from one jurisdiction to another. Some of the terminology, originally based on statute, has been adopted in cases decided under the inherent jurisdiction. In the exercise of this jurisdiction, it is not appropriate that the Court should indulge in the splitting of fine hairs on terminology.

51    The words “professional misconduct” are broad and general words. Their meaning may vary from one context to another. Their interpretation involves what is often referred to as an “ambiguity”, although I prefer to describe this kind of difficulty for an interpreter as one of “inexplicitness” rather than “ambiguity” (see Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch Inc (2000) 48 NSWLR 548 at [116]).

52    It is possible to confine the words “professional misconduct” to apply only to conduct in the course of actual professional practice narrowly defined. In a context where a court must construe a document, such as a statute, such an interpretation may be entirely appropriate in order to maintain fidelity to the text as compiled by the authors of that text. In the present context the Court is not confined by issues of fidelity of this character. The present case does not raise an issue of interpretation. It raises an issue of usage.

53    Wilmott CJ said in Dodson v Grew (1767) 97 ER 106 at 108 (quoted with approval by Isaacs J in Fell v Fell (1922) 31 CLR 268 at 276 and by Mason P in House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 at [26]:

“Words are only pictures of ideas upon paper.”

54    Furthermore as Mahoney JA said in Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 560D:

“The meaning of the words used in a statute or document is not merely the sum of the individual meanings of the words used, ascertained from dictionaries. To adapt a much cited comment of Holmes J, a word is the skin of a living thought, and it is the thought which the court must ascertain and apply.”

55    Although this was said in the context of construing a text, it is equally applicable to the determination of the meaning of words employed in the course of a line of judicial decision making. The issue in such a context is one of usage, which may vary from one area of discourse to another and also from time to time.

56    There is authority in favour of extending the terminology “professional misconduct” to acts not occurring directly in the course of professional practice. That is not to say that any form of personal conduct may be regarded as professional misconduct. The authorities appear to me to suggest two kinds of relationships that justify applying the terminology in this broader way. First, acts may be sufficiently closely connected with actual practice, albeit not occurring in the course of such practice. Secondly, conduct outside the course of practice may manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice. In this second case, the terminology of “professional misconduct” overlaps with and, usually it is not necessary to distinguish it from, the terminology of “good fame and character” or “fit and proper person”.

57    In Hoile v The Medical Board of South Australia (1960) 104 CLR 157, the High Court had before it a statute in the same form as that considered in Allinson. A doctor had had a sexual relationship with a nurse at the hospital in which they both worked including, on at least two occasions, acts of intercourse occurring on the hospital premises whilst the nurse was on duty. At 162-163 the High Court unanimously rejected the proposition that the conduct “did not touch his profession”, finding that where the “professional relationships are the occasion or source of the misconduct” the statutory test could be satisfied and concluding:

“It arose out of a relationship professionally established and it was destructive of the position he should have held in the hospital and of his influence.”

58    Hoile is a case in which the relationship between the conduct and professional matters was sufficiently close. See the formulation “sufficiently related to the pursuit of the profession” in Ex parte Meehan; Re Medical Practitioners Act [1965] NSWR 30 at 35.

59    In In re Thom; Ex parte The Prothonotary (1964) 80 WN (NSW) 968 the Full Court of the Supreme Court expressly found that wilful non-disclosure by a solicitor with respect to his own divorce proceedings constituted professional misconduct. The solicitor had knowingly failed to admit to his own adultery in circumstances where a litigant was obliged to do so and, accordingly, deceived the court in the exercise of its matrimonial causes jurisdiction. Fulfilment of a duty of candour to the court is a quality required of legal practitioners and its breach, even in personal litigation, manifested the absence of that quality. See the formulation “grave impropriety affecting his professional character” in Kennedy v Council of the Incorporated Law Institute of New South Wales (1940) 13 ALJ 563.

60    The decision and reasoning in Marten, set out above, is to the same effect.

61    In Chamberlain v The Law Society of the Australian Capital Territory (1992) 43 FCR 148, the Deputy Commissioner of Taxation had issued a writ claiming the amount of $25,557.92 from a legal practitioner. There was an error in the decimal point as the amount owing was $255,579.20. The practitioner drew terms of settlement and agreed to judgment in the amount claimed in the summons. The Deputy Commissioner was unsuccessful in his attempt to recover the balance (Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502) or to have the judgment set aside (Chamberlain v Commissioner of Taxation (1981) 28 FCR 21.

62    The Law Society instituted proceedings against Mr Chamberlain asserting professional misconduct. The Supreme Court of the Australian Capital Territory in Re Law Society of the Australian Capital Territory and Chamberlain (1993) 116 ACTR 1 per Miles CJ and Gallop J, Higgins J dissenting, found that the conduct was professional misconduct. An appeal to the Federal Court was dismissed on this point (Chamberlain v Law Society of the Australian Capital Territory (1992) 43 FCR 148 per Black CJ, Lockhart, Whitlam and Beazley JJ, Jenkinson J dissenting.

63    The case involved a solicitor engaged in litigation in a personal capacity. The misconduct alleged was the act of procuring the Deputy Commissioner’s execution of terms of settlement, which led to judgment in the mistaken amount. This was held to be “professional misconduct”. The reasons were variously expressed.

· “amounted to grave impropriety affecting his professional character … indicative of a failure on his part to understand or practise the precepts of fair dealing in relation to his opponent and to the court” (116 ACTR at 17 per Miles CJ).

· “using his knowledge and skills as a legal practitioner” (43 FCR at 156 per Black CJ).

· “The appellant chose deliberately to take advantage of the error … for his own personal tactical advantage …” and “further”, “[t]he use … of the processes of the Supreme Court for the entry of judgments in all the circumstances … was improper” (43 FCR at 166 per Lockhart J).

64    In In the Matter of the Legal Practitioners Act 1970 re Grosse (ACTSC, 22 February 1996, unreported) a practitioner had deposited partnership income in his own personal account. This was reported to the Australian Taxation Office. The misappropriation from his firm and the understatement of his own, and of the partnership’s, taxable income were both categorised as “professional misconduct”.

65    The decision of this Court in Hamman, to make a finding of professional misconduct in a case of avoidance of taxation, is supported by these authorities.

66    The preparation and filing of tax returns is closely related to the earning of income, including professional income. The link is “sufficiently close” to justify a finding of professional misconduct on the basis of Mr Cummins’ failure to lodge returns for thirty-eight years.

67    Similarly, and alternatively, the extent of Mr Cummins’ failure to observe his legal obligations and civic responsibilities by such a systematic course of improper conduct over such a long period of time is of such gravity as to constitute professional misconduct, for the reasons I have mentioned above in relation to fitness.

68    Whether a declaration should be made will vary from case to case. In Maddocks the Court only made a declaration of unfitness although both that declaration and a declaration of professional misconduct were originally sought. Why that occurred does not appear from the judgments. In Costello, by majority, the Court made a declaration of professional misconduct and made no other order.

69    As in the case of the declaration of unfitness, in my opinion, the maintenance of the confidence of the public in the legal profession makes it appropriate to formally declare that Mr Cummins’ conduct was professional misconduct.

70    This declaration refers to past conduct. The declaration as to lack of fitness speaks at the present time.

71    The additional orders I propose are:

1 Declare that John Daniel Cummins has been guilty of professional misconduct.

2 Declare that John Daniel Cummins is not a fit and proper person to be on the Roll of Legal Practitioners.

3 The Opponent pay the costs of the New South Wales Bar Association of and incidental to proceedings No. 40495 of 2001 and 40496 of 2001.

72    MASON P: I agree with the Chief Justice.

I agree with the Chief Justice.

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