New South Wales Bar Association v Murphy - [2002] NSWCA 138

No judgment structure available for this case.

Reported Decision:
(2002) 55 NSWLR 23

New South Wales

Court of Appeal

CITATION: New South Wales Bar Association v Murphy [2002] NSWCA 138 revised - 11/07/2002

FILE NUMBER(S): CA 40034/02

HEARING DATE(S): 13 May 2002

JUDGMENT DATE:
28 June 2002

PARTIES :

New South Wales Bar Association - Appellant
Barry James Murphy - Respondent

JUDGMENT OF: Spigelman CJ at 1; Giles JA at 37; Ipp AJA at 174

LOWER COURT JURISDICTION : Supreme Court

LOWER COURT
FILE NUMBER(S) : SC 13589/01

LOWER COURT
JUDICIAL OFFICER : McLellan J

COUNSEL: P R Garling SC & C E Adamson - Appellant
P LeG Brereton SC & P J Livingstone - Respondent

SOLICITORS: Hicksons - Appellant
Stewart Cuddy and Mockler - Respondent

CATCHWORDS: LEGAL PRACTITIONERS - barristers - cancellation of practising certificate - consideration of Div 1A and 1AA Legal Profession Act 1987 - whether shown that barrister not a fit and proper person to hold a practising certificate. D.

CASES CITED:
Clyne v New South Wales Bar Association (1960) 104 CLR 186;
ex parte Clyne (1969) SR 436;
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408;
Myers v Elman (1940) AC 282;
New South Wales Bar Association v Cummins (2001) 52 NSWLR 279;
New South Wales Bar Association v Evatt (1968) 117 CLR 177;
New South Wales Bar Association v Maddocks (CA, 23 August 1988, unreported);
New South Wales Bar Association v Somosi (2001) NSWCA 285;
The Prothonotary of the Supreme Court of New South Wales v Costello (1984) 3 NSWLR 201;
The Prothonotary of the Supreme Court of New South Wales v Ritchard (CA, 31 July 1987, unreported);
re an application by a Solicitor (1966) 1 NSWR 42;
re B (1981) 2 NSWLR 372;
re Davis (1947) 75 CLR 409;
re Hodgekiss (1959) 62 SR 340;
re Mayes and the Legal Practitioners Act (1974) 1 NSWLR 19;
Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 699;
Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279.

DECISION: Appeal dismissed with costs.

CA 40034/02
CL 13589/01

SPIGELMAN CJ
GILES JA
IPP AJA
Friday 28 June 2002

NEW SOUTH WALES BAR ASSOCIATION v MURPHY

Judgment

1 SPIGELMAN CJ: I have had the advantage of reading the judgment of Giles JA in draft. Subject to the following additional observations, I agree with his Honour’s reasons.

The Legislative Scheme

2 Giles JA sets out the relevant statutory provisions. The present case is concerned with the cancellation of practising certificates for which Pt 3 of the Legal Profession Act 1987 (“the Act”) provides. There are two other mechanisms for determining the consequences of conduct of the character presently under consideration. The second mechanism is the application of the procedures for which Pt 10 of the Act provides, culminating in a possible order made by the Administrative Decisions Tribunal for removal of a legal practitioner’s name from the roll of legal practitioners or an order cancelling a practising certificate, pursuant to s171C of the Act. The third mechanism is a determination by the Court, in the exercise of its inherent jurisdiction, to remove a practitioner from the roll of legal practitioners, a jurisdiction confirmed by s171M of the Act. This latter jurisdiction has been exercised in cases of the character for which Pt 3 Div 1AA of the Act now provides. (See New South Wales Bar Association v Hamman [1999] NSWCA 404; New South Wales Bar Association v Cummins [2001] 52 NSWLR 279; New South Wales Bar Association v Somosi [2001] NSWCA 285.)

3 It is of significance that s38FC in the new Div 1AA was inserted by the Legal Profession Amendment (Disciplinary Provisions) Act 2001 (“the 2001 Amendment Act”), which also incorporated parallel provisions into Pt 10 of the Act. The 2001 Amendment Act amended Pt 10 by extending the concept of professional misconduct in two ways. First, s127(1)(d) was added and second, s127(4) (set out by Giles JA) was added.

4 The trigger for s127(4) is expressed in the same terms as, relevantly, is found in s38FC(1)(a). The new s127(1)(d) added to the definition of professional misconduct a reference to the contravention of a provision of the Act or regulations that is declared by the regulations to be professional misconduct. Clause 69H of the Legal Profession Regulation 1994 declared it to be professional misconduct if there was a failure to notify the details of an offence or an act of bankruptcy as required by cl 6(1)(d) and cl 6(1)(e), within the time specified in cl 69D and cl 69E of the Regulations. The effect of s127(1)(d) and cl 69H is to incorporate in Pt 10 of the Act the effect of s38FD of the Act. In this respect also parallel provisions are made in both Pt 3 and Pt 10.

5 Parliament has made detailed provision for proceedings and hearings on issues of fitness and propriety in Pt 10. Part 3 as it relates to practising certificates should not be regarded as some kind of simpler alternative designed to serve the same purposes. The legislative history of the requirement for practising certificates suggests that proceedings under Pt 3 perform a narrower range of functions.

6 The requirement of holding an annual practising certificate was for many years only imposed on persons practising as solicitors. Those requirements were formerly found in Pt IX of the Legal Practitioners Act 1898. In 1982, the New South Wales Law Reform Commission recommended the creation of a practising certificate system for barristers, primarily by reason of the fact that it was thought appropriate to place additional conditions and obligations upon a lawyer who wishes to practise, as opposed to one who does not. Reference was made to matters such as training, compulsory indemnity insurance, compilation of information and discipline. (See New South Wales Law Reform Commission, First Report on the Legal Profession: General Regulation and Structure (1982) Report No 31, pars 4.36-4.37 and Second Report on the Legal Profession: Complaints, Discipline and Professional Standards (1982) Report No 32 pars 8.33-8.35.)

7 The recommendations of the New South Wales Law Reform Commission were partially implemented in the Legal Profession Act 1987, which required practising barristers to hold a practising certificate (s25). As originally enacted, the Act made provision, relevantly, for only one circumstance in which the Bar Council could refuse to issue or cancel or suspend the practising certificate of a barrister. That circumstance was if the barrister was “in prison” (s35(1)). In the case of solicitors, however, a number of circumstances were identified, (reflecting the scheme of the 1898 Act) in which the Law Society Council could refuse to issue or cancel or suspend the practising certificate of a solicitor.

8 One of the circumstances relevant only to solicitors under the Act as originally enacted is of significance for the understanding of the sections now under consideration. By s35(2)(c) the Law Society Council could act in the case of a solicitor who:

“being required by the Law Society Council to explain specified conduct by him or her as a solicitor fails, and continues to fail, to give an explanation satisfactory to the Council”.

9 Prior to the 1987 Act, the Council of the Law Society had power to refer questions of professional misconduct for inquiry by the Solicitors Statutory Committee, pursuant to s76 of the Legal Practitioners Act 1898. As the New South Wales Solicitors Manual records:

“Generally it was the practice of the Law Society Council to refer to the Statutory Committee only those matters which raised questions as to a solicitor’s fitness to remain in practice, or which otherwise were of a serious nature requiring quasi-judicial investigation.”

New South Wales Solicitors Manual

10 It was not the practice of the Law Society to use the powers vested in it under the practising certificate regime to determine such matters. It was in this context that the Parliament of New South Wales adopted the 1987 scheme.

11 Part 10 of the 1987 Act established an elaborate system for quasi-judicial decision of disciplinary matters for barristers and solicitors. That legislation introduced a new concept of “unsatisfactory professional conduct” and gave the Councils of the Law Society and the Bar Association specific obligations with respect to complaints and referral to a Disciplinary Tribunal. A number of new statutory bodies were established with specific powers. It is unnecessary to set out the scheme. Part 10 was intended to be employed for issues of fitness to practice. Section 35(2)(c), applicable only to solicitors, was not an alternative route for such allegations.

12 By the Legal Profession (Practising Certificates) Amendment Act 1992 the practising certificate regime for barristers was extended, relevantly, by empowering the Bar Council to refuse to issue or cancel or suspend a practising certificate on the basis identified in s35(1)(c) as follows:

“being required by the Council to explain specified conduct by the barrister as a barrister fails, and continues to fail, to give an explanation satisfactory to the Council”.

13 In this respect, the scheme for barristers was now aligned with that which had long existed for solicitors.

14 The New South Wales Law Reform Commission reported again in relation to the legal profession. In May 1992 it produced a Discussion Paper and in February 1993 a Report. (New South Wales Law Reform Commission, Scrutiny of the Legal Profession: Complaints Against Lawyers (1992) Discussion Paper No 26; Scrutiny of the Legal Profession: Complaints Against Lawyers (1993) Report No 70.) These documents led to the Legal Profession Reform Act 1993 which adopted the general structure that is still in place. The provision formerly made in s35(1)(c) and s35(2)(c) with respect to, respectively, barristers and solicitors, which I have quoted above, were now reflected in s37(1)(a), empowering a Council to refuse to issue or cancel or suspend a practising certificate if the applicant or holder:

“37(1)(a) is required by the Council to explain specified conduct by the barrister or solicitor as a barrister or solicitor and fails, and continues to fail, to give an explanation satisfactory to the Council.”

15 It is pertinent to note at this point, in order to highlight the difference made by the 2001 Amendment Act, that the above formulation was repealed by the 2001 Act and replaced by the following:

whether or not related to practice as a barrister or solicitor) that the Council considers may indicate the applicant or holder is not a fit and proper person to hold a practising certificate

within the period specified by the Council

16 It is not until 2001 that issues of ‘fitness and propriety’ expressly arise.

17 The 1993 Reform Act also made extensive amendments to Pt 10. It established the office of Legal Services Commissioner and conferred powers on that office; it replaced the former two tier system of disciplinary tribunals with a Legal Services Tribunal (subsequently replaced, in turn, by the Legal Services Division of the Administrative Decisions Tribunal). A range of new functions was conferred on the Councils of the Law Society of New South Wales and the New South Wales Bar Association. Subject to a number of specific but not pertinent changes (other than the 2001 Amendment Act) the general scheme of practising certificates and of the formal procedure under Pt 10 inserted into the Act by the Reform Act 1993 remains in place.

18 The particular matters to which the new Div 1AA of the Act applies – acts of bankruptcy, indictable offences and tax offences – are matters capable of falling within the terms of s37(1)(a) at least in the way that that section was amended by the 2001 Amendment Act itself, i.e. extending beyond matters concerned with practice as a barrister or solicitor and extending to “specified conduct” that the Council considers “may indicate the applicant or holder is not a fit and proper person to hold a practising certificate”. There does not appear to me to be any material difference, as a practical matter, between that formulation and the provision in s38FC(1)(b) that a Council must refuse to issue or cancel or suspend a practising certificate if “the Council considers that the act of bankruptcy, indictable offence or tax offence was committed in circumstances that show that the applicant or holder is not a fit and proper person to hold a practising certificate”.

19 After the 2001 amendment to s37, Div 1AA, in large measure, is a specification of matters which would, in any event, fall within the general terminology of s37(1)(a) as amended in 2001. The particular significance of Div 1AA is the regime of notification, as reinforced by the imposition of time limits on decision making processes.

20 Investigations under Div 1AA are intended to be conducted expeditiously as the identification of a “relevant period” of three months, subject to extension, in s38FA shows, particularly in the light of s38FH providing for automatic suspension if a decision is not made within the “relevant period”. It can readily be accepted that there are circumstances in which there is a need for expedition. However, the deliberation required to ensure that justice is done in a particular situation is not always consistent with such expedition. Section 38FJ in Div 1AA provides:

“Nothing in this Division prevents a complaint from being made under Part 10 involving a matter that requires a determination to be made under this Division or in respect of which a determination has been made under this Division.”

21 The powers in s38FC can be exercised to ensure that, in an appropriate case, a practitioner does not continue in practice, pending a more thorough inquiry under Pt 10 of the Act. However, it is not, in my opinion, appropriate to use the power in s38FC with effect intended to be permanent. Section 38FC is not an alternative to a thorough investigation leading to a finding of permanent unfitness. Any such investigation is more properly conducted under Pt 10 leading to an order under s171C(1) or in the inherent jurisdiction of the Court.

22 It is of significance to note that, pursuant to s36 of the Act, practising certificates are issued for a period of twelve months. The cancellation of a certificate has force for such remaining part of that period as has not expired at the time of the cancellation. Part 3 of the Act does not, subject to one section to which I will presently refer, make express provision for the effect of the fact that a certificate has been cancelled upon subsequent applications for a practising certificate.

23 It is unnecessary to decide whether a Council may refuse to issue a certificate requiring an applicant to again explain the “specified conduct”, pursuant to s37(1)(a), being conduct which the barrister or solicitor has not been able to explain to the satisfaction of the relevant Council on a previous occasion. Nor is it necessary to decide whether a Council may be “aware”, pursuant to s38FC(1)(a), of an event upon which it had earlier formed the opinion for which s38FC(1)(b) provides and which, accordingly, enlivens its obligation to refuse to issue a practising certificate which it has earlier cancelled or suspended.

24 Nothing in Div 1 of Pt 3 makes express provision for the future effect of a refusal, suspension or cancellation under s37. This is to be contrasted with the express power given to the Administrative Decisions Tribunal by s171C(1)(c) of the Act empowering that Tribunal, after conducting its proceedings, to order that a practising certificate not be issued until the end of a period specified in the order. It is also to be contrasted with the particular provision made for purposes only of Div 1AA in s38F which provides:

“38FF(1) A Council that determines under section 38FC, 38FD or 38FE to refuse to issue a practising certificate to a person or to cancel a person’s practising certificate may also determine that the person is not entitled to apply for a practising certificate for a specified period (being a period not exceeding five years).

(2) A person in respect of whom a determination has been made under this section is not entitled to apply for a practising certificate during the period specified in the determination.”

25 These provisions indicate that a determination to cancel a practising certificate is not in the same position as an order removing a person from the roll, whether such an order is made in the inherent jurisdiction or pursuant to s171C(1)(a). An order of the latter kind is based on probable permanent unfitness. (See Prothonotary of the Supreme Court of New South Wales v Ritchard (NSWCA, 31 July 1987, unreported) per McHugh JA; New South Wales Bar Association v Maddocks (NSWCA, 23 August 1988, unreported) per Kirby P; New South Wales Bar Association v Cummins at [26]-[28].)

26 Section 38FF suggests that any long term effect of the cancellation of a practising certificate under Division 1AA on a person’s right to apply for a new practising certificate, requires a distinct decision making process on the part of the relevant Council. Furthermore, in contrast to any presumption of permanence, the maximum period for which such an order may be made is expressed by statute to be five years.

27 This differentiation between the two schemes does suggest that where the conduct is sufficiently egregious to give rise to a contention that a person is permanently, or at least indefinitely, unfit for practice, it is not appropriate for Pt 3 to be invoked, save on an interim basis pending other proceedings. Such matters ought be determined by the more elaborate provisions for investigation and hearing set out in Pt 10 or by invoking the inherent jurisdiction of the Court.

Issues in this Appeal

28 McClellan J applied a test of dishonesty. I agree with Giles JA that this was an inappropriate gloss on the text. A Council may form an opinion that a legal practitioner is not a fit and proper person to hold a practising certificate in circumstances where the conduct on which the opinion is based cannot be characterised as dishonest conduct. Indeed, in the case of dishonesty there would generally be permanent unfitness and, save where urgent action is appropriate, proceedings under Pt 10 appear to be suggested, for the reasons discussed above.

29 There is one issue of construction that Giles JA has left open. His Honour refers to the words “act of bankruptcy” and notes their scope when used for the purposes of bankruptcy law. In that field, an act of bankruptcy is a term of art and if the Parliament of New South Wales had intended to adopt the meaning that the words have in bankruptcy law it would have said so. Instead the New South Wales Parliament has adopted in s3(3) a definition of the words “act of bankruptcy” for purposes of the Act. In my opinion, that definition is exhaustive.

30 Giles JA concludes that the Council did not in fact exercise the power in s38FE(1)(b). He identifies the procedure under that section as a “summary procedure” which is distinct from the “informed procedure” envisaged under s38FC. I agree with his Honour that the Council did not exercise the power under s38FE, notwithstanding a reference to that section in its determination. I would, however, go further than his Honour and hold that it was not open to the Council to act pursuant to s38FE.

31 In my opinion, s38FD and s38FE are ancillary to the primary provision found in s38FC. Section 38FD empowers a Council to act where there has been a failure to notify, as required by cl69D and cl69E of the Legal Profession Regulation. Similarly, s38FE empowers the Council to act where there is a failure to comply with other machinery provisions, specifically the requirements to provide a written statement pursuant to s38FB and to comply with an investigation pursuant to s38FI. Both s38FD and s38FE are designed to enforce the machinery provisions which enable a Council to exercise its primary jurisdiction under s38FC. The specific terms of s38FE(1)(b) should be construed in that context. The submissions to this Court on behalf of the New South Wales Bar Association seek to give s38FE(1)(b) the same substantive force as s38FC has.

32 Paragraph (a) of s38FE(1) refers to a failure to provide a written statement at all. This is plainly a machinery provision. Paragraph (c) of that subsection refers to a failure to comply with s38FI requirements relating to the investigation process. This is also a machinery provision. The intervening paragraph, with which the Court is now concerned, should also be understood as a machinery provision.

33 The distinguishing feature of par (b) is that it includes a subjective element, in contrast to pars (a) and (c), which contain objective statements of failure to comply. The subjective element is the reference to the formation of an opinion on the part of the Council to the effect that the written statement provided “has failed to show” that the person “is a fit and proper person”. The word “show” is not, in my opinion, used in the same sense in s38FE(1)(b) as it is s38FC(1)(b). In the former case it is the contents of a “written statement” which have “failed to show” that a person is fit and proper. In the latter case it is the “circumstances” in which an act of bankruptcy or a relevant offence was committed “that show that the applicant or holder is not a fit and proper person”.

34 The power in s38FE(1)(b) is only available, in my opinion, as a “summary procedure”, to use the words of Giles JA, where no arguable or prima facie case is presented on the face of the written statement. In such circumstances the statement is treated as having an effect equivalent to the failure to provide a statement at all.

35 It was not suggested in the present case that the Council formed any opinion of this character. It conducted further investigations required to be conducted for the Council to form a considered view under s38FC(1)(b), on the basis of all of the evidence of the relevant “circumstances”. This was not a case in which the written statement actually provided by the barrister was on its face such that it was open to the Council to conclude that no arguable or prima facie case had been put forward. Nor was this suggested in argument. In my opinion there was no proper foundation for the exercise of the summary power in s38FE(1)(b).

36 I agree with Giles JA’s analysis of the facts of this case and with the orders his Honour proposes.

37 GILES JA: The respondent, Mr Barry Murphy, was in practice as a barrister in New South Wales. He held a practising certificate granted by the Council of the appellant pursuant to the Legal Profession Act 1987 (“the Act’). He was not permitted to practise as a barrister without being the holder of a current practising certificate.

38 On 15 November 2001 the Council of the appellant passed a resolution the effect of which, under the Act, was that the respondent’s practising certificate was cancelled. The occasion for the cancellation was that the respondent had committed an act of bankruptcy within the meaning given to that phrase in the Act.

39 The Act gave the respondent a right of appeal to the Supreme Court. He appealed, and on 21 December 2001 McLellan J upheld his appeal and ordered that a practising certificate be issued to the respondent for the period up to and including 30 June 2002.

40 This is an appeal from the order made by McLellan J. The appeal was heard on 13 May 2002. Although 30 June 2002 is now at hand, the decision in the appeal is likely to determine the position for a future period.

Entitlement to practise before the Act

41 Prior to the Act a person was entitled to practise as a barrister or a solicitor in New South Wales if admitted as a barrister or a solicitor by the Supreme Court. A legal practitioner was regarded as an officer of the Court, and the Court exercised inherent jurisdiction in admitting persons to practise. The local history of the jurisdiction is discussed in re B (1981) 2 NSWR 372. Under the Legal Practitioners Act 1898 it was necessary that the person be of good fame and character and a fit and proper person to be made a barrister or solicitor, but the Court retained an ultimate jurisdiction to admit a fit and proper person to appear and act as a barrister or a solicitor.

42 Upon admission, the legal practitioner was enrolled in a roll of legal practitioners maintained by the Court. In the exercise of the same inherent jurisdiction, the Court could order that the name of a legal practitioner be removed from the roll, whereupon that person was no longer entitled to practise as a barrister or a solicitor: the Court exercised “its overriding jurisdiction in connection with the discipline and control of its officers” (re an application by a Solicitor (1966) 1 NSWLR 42 at 42; see also in re Davis (1947) 75 CLR 409 at 423). On an application for an order that the name of the legal practitioner be removed from the roll it had to be shown that the legal practitioner was not a fit and proper person to be a barrister or a solicitor.

43 A variety of other phrases was used to convey unfitness to be a legal practitioner, as appears from the discussion in Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 441-4, although in Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 297-8 it was said that that expression is not capable of more precise statement. A number of cases spoke of professional misconduct as sufficient for unfitness to be a legal practitioner, for example Myers v Elman (1940) AC 282 at 288-9; The Prothonotary of the Supreme Court of New South Wales v Ritchard (CA, 31 July 1987, unreported) ; New South Wales Bar Association v Maddocks (CA, 23 August 1988, unreported), and a declaration of professional misconduct and a declaration of unfitness to practise as a legal practitioner were often made in conjunction with an order that the name of the legal practitioner be removed from the roll, for example The Prothonotary of the Supreme Court of New South Wales v Ritchard; NewSouth Wales Bar Association v Cummins (2001) 52 NSWLR 279. But the ultimate ground for removal was unfitness to be a legal practitioner, and in The Prothonotary of the Supreme Court of New South Wales v Costello (1984) 3 NSWLR 201 a declaration was made that the barrister had been guilty of professional misconduct but it was held that unfitness to be a barrister had not been made out.

44 Apart from the inherent jurisdiction of the Court, the Legal Practitioners Act established a Solicitors’ Statutory Committee to hear “charges of professional misconduct on the part of solicitors” (s 75), and empowered it to make orders including an order “as to striking off the roll or suspending from practice either conditionally or otherwise” (s 77). Appeal lay to the Supreme Court (s 78). The jurisdiction, powers and authorities exercised by the Court over solicitors were preserved (s 79). This statutory jurisdiction, of the Committee and of the Court on appeal, turned on finding not unfitness to be a legal practitioner but professional misconduct, a notion often amplified as conduct which would reasonably be regarded as disgraceful or dishonourable by legal practitioners of good repute and competency (for example, Myers v Elman at 289; re Hodgekiss (1959) 62 SR 340 at 351; re Mayes and the Legal Practitioners Act (1974) 1 NSWLR 19 at 24-5). The potential for confusion in using two notions for the same purpose is obvious, and has been realised.

45 The inherent jurisdiction to admit legal practitioners was exercised having in mind that -

Wentworth v The New South Wales Bar Association

46 Both the inherent jurisdiction and the statutory power to remove from the roll were exercised not to punish the legal practitioner, but to protect the public (Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-2; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-4). In Law Society of New South Wales v Foreman I ventured to say (at 470-1) -

47 Apart from with admission as a legal practitioner, the Legal Practitioners Act included a requirement that no solicitor should practise as a solicitor unless he had in force a practising certificate and he complied with any conditions subject to which the practising certificate was issued (s 67). Practising certificates were annual, were issued by the Law Society Council, and could be issued in different forms and subject to conditions (s 70). This was the precursor to the scheme in the Act under which the respondent held a practising certificate. There was no similar scheme in relation to barristers.

48 With the requirement for a practising certificate, it was necessary to provide for when an application for a practising certificate might be refused and when a practising certificate might be cancelled.

49 A practising certificate could not be issued unless any requisite indemnity insurance was held (s 70A). Apart from that, by s 71 -

“71 The council may refuse to issue a certificate and may cancel a certificate when issued under the foregoing provisions of this Part if the applicant for or holder of such certificate, as the case may be, shall -

(a) be in prison;

(b) have failed to comply with any statute, regulation or order relating to his trust funds or the trust funds of any partnership of which he was a member at the time, and such failure still continues;

(b1) have become bankrupt or made any arrangement or composition with his creditors, and have committed in the conduct of his affairs prior to the bankruptcy, arrangement or composition any act which, in the opinion of the council, amounts to conduct unbefitting a solicitor and contributed to the bankruptcy or the need to make an arrangement or composition;

(c) have when called upon by the council so to do failed to give a satisfactory explanation touching any matter relating to his conduct as a solicitor, and such failure still continues;

(d) be in any way in default under any of the provisions contained in this Act or in the regulations made under this Act;

If the council shall refuse to issue or shall cancel such certificate it shall, if so required by the applicant or holder, as the case may be, within fourteen days from the date of such refusal or cancellation, state in writing the grounds for such refusal or cancellation.”

50 As well, by s 71A a practising certificate could be refused or cancelled on medical grounds -

“71A(1) Notwithstanding any other provision of this Act, where the council is satisfied on such evidence as to it seems proper that -

(a) an applicant for or a holder of a certificate, being a person who is in practice as a solicitor, is, by reason of infirmity, injury or illness (whether mental or physical), unfit to carry on and conduct his practice; and

the council may refuse to issue, or may cancel, the certificate, as the case may be.

(2) For the purposes of subsection (1), the council -

(a) may require an applicant for or a holder of a certificate to undergo such medical examination by such medical practitioner as may be specified by the council; and

(b) may hold such inquiry as the council thinks fit.

(3) A failure or refusal by any person required by the council to undergo a medical examination in accordance with a requirement of the council made under paragraph (a) of subsection (2) may be regarded by the council as evidence that that person is, by reason of infirmity, injury or illness (whether mental or physical), unfit to carry on and conduct his practice.)

(a) refuse to issue a certificate; or

(b) cancel a certificate.”

51 The refusal or cancellation on medical grounds was because of unfitness to practise, although rather curiously with the additional requirement that it was in the interests of the clients or the public that the practising certificate should not be issued or should be cancelled. One would have thought that unfitness to practise would have meant that the interests of the clients and the public called for refusal or cancellation: perhaps a temporary unfitness to practise was regarded as bearable. The refusal or cancellation in s 71 was not directly because of unfitness to practise, or unfitness to be a legal practitioner, although s 71(b1) came close. For the scheme of annual practising certificates particular criteria were stated which in some cases would, and in some cases might but would not necessarily, connote unfitness to be a legal practitioner.

Entitlement to practise under the Act – until the 2001 amendments

52 The Act retained the Supreme Court’s jurisdiction to admit and enrol legal practitioners (s 4(1)), and referred to admission of a person “approved … as a suitable candidate for admission” (s4(2)). It specifically provided that a legal practitioner is an officer of the Court on and from admission (s 5(1)). It provided that the inherent power of the Court with respect to the discipline of legal practitioners was not affected by the statutory regime it created for complaints and discipline of legal practitioners (s 171M(1)), and the inherent jurisdiction whereby the Court could order that the name of a legal practitioner be removed from the roll remained. The inherent jurisdiction has been exercised after the Act in, for example, New South Wales Bar Association v Cummins and New South Wales Bar Association v Somosi (2001) NSWCA 285.

53 The Act retained and extended the requirement that a practising certificate be held, and it extended the previous provisions for removal from the roll or suspension became an expanded statutory regime for complaints and discipline of legal practitioners. The provisions in the Act as enacted in 1987 have been amended and added to many times. For present purposes, I take the Act as it stood immediately before the 2001 amendments.

54 The key requirement (I pass over refinements to do with interstate legal practitioners) was s 25(1) of the Act -

“25(1) A legal practitioner whose sole or principal place of legal practice is this State must not practise as a barrister or solicitor and barrister without being the holder of a current practising certificate.”

55 The Council of the appellant could grant practising certificates authorising practise as a barrister (s 27), and the Law Society Council could grant practising certificates authorising practise as a solicitor and barrister (s 28). Practising certificates could be issued unconditionally or subject to conditions (ss 32-35), and practise contrary to a condition was prohibited (s 32). Subject to the regulations, a practising certificate was in force for twelve months (s 36). The relevant Council was to keep a register of the legal practitioners to whom it had issued current practising certificates (s 38C). On the application of a Council, the Supreme Court could grant an injunction restraining a legal practitioner from contravening s 25 or s 32 (s 38E).

56 It was again necessary to provide for when an application for a practising certificate might be refused and when a practising certificate might be cancelled; suspension was now an alternative.

57 Refusal was mandatory if the application for the practising certificate was not accompanied by the appropriate fee or lacked such information as was prescribed by regulation (s 30(1)). The Law Society Council could refuse to issue a practising certificate if the applicant had not paid or did not pay contributions and levies of various kinds (s 31), and a Council could refuse to issue a practising certificate if the legal practitioner did not have approved indemnity insurance or, in some circumstances, approved fidelity insurance (s 38R; s 122A). These circumstances did not, or did not necessarily, say anything about fitness to practise.

58 Other circumstances of refusal found in s 30 were -

“(2) A Council may refuse to issue a practising certificate applied for by the holder of a suspended practising certificate.

(a) a fine imposed because of the finding has not been paid, or

(b) costs awarded against the applicant because of the finding have been assessed but have not been paid or, if an arrangement for their payment has been made, the applicant is in default under the arrangement, or

(c) any costs of an inspection or investigation payable under section 55 by the applicant have not been paid, or

59 It will be noted that under s 30(3) a finding of unsatisfactory professional conduct or professional misconduct in respect of the applicant for a practising certificate was not of itself a circumstance for refusal of a practising certificate. Only if the fine, costs or expenses had not been paid could there be refusal. Presumably the conduct found to have been unsatisfactory professional conduct or professional misconduct could be the subject of a requirement for explanation pursuant to s 37(1)(a), see later in these reasons. These circumstances of refusal were likely to reflect unfitness to practise, but did not necessarily do so: they did not make unfitness to practise the criterion.

60 The Law Society Council could refuse, cancel or suspend a practising certificate for failure to comply with the Act and the regulations in relation to trust accounts or other law relating to money received on behalf of another, by the solicitor or by a partnership of which, at the time of the failure, the solicitor was a member (s 38). Any unfitness to practise of the particular legal practitioner was not necessarily by personal failure.

61 A practising certificate could be refused, cancelled or suspended if the legal practitioner “has contravened a provision of this Act” (s 37(1)(f)). This might or might not have connoted unfitness to practise, depending on the contravention and the circumstances in which it occurred.

62 Other circumstances of refusal, cancellation or suspension in s 37 were -

(a) is required by the Council to explain specified conduct (whether or not related to practice as a barrister or solicitor) that the Council considers may indicate that the applicant or holder is not a fit and proper person to hold a practising certificate and fails, within the period specified by the Council, to give an explanation satisfactory to the Council, or

(b) has, in the opinion of the Council, failed to comply with a condition attached to the certificate, or

(c) has contravened an order made in respect of the applicant or holder by the Tribunal, or

(d) is a disqualified person within the meaning of section 48K, or

(f) …

(g) is in prison.”

63 Following through s 37(1)(d), an applicant for a practising certificate was a disqualified person within the meaning of s 48K of the Act if the applicant was a person -

“(a) whose name has, otherwise than at his or her own request, been removed from the roll of legal practitioners in the Supreme Court, or

(b) whose name has been removed from a roll kept outside the State that corresponds to the roll of legal practitioners in the Supreme Court, or

(c) who is suspended from practising as a barrister or solicitor in New South Wales or another State or Territory, or

(d) who is the subject of an order in force under section 48I or 48J, or

Conveyancers Licensing Act 1995

64 These circumstances of refusal, cancellation or suspension again were likely to reflect unfitness to practise, and came closer to making unfitness to practise the criterion: but they did not do so in terms.

65 A practising certificate could be refused, cancelled or suspended on medical grounds (s 38A). In this instance fitness to practise was made the criterion, see the emphasised parts -

“38A(1) A Council may refuse to issue, may cancel or may suspend a practising certificate if the Council is satisfied, on such evidence as to it seems proper:

(a) that the applicant or holder is, because of infirmity, injury or mental or physical illness, unfit to practise as a barrister or solicitor and barrister , and

an applicant or holder is unfit to practise as a barrister or solicitor and barrister only if the applicant or holder, because of his or her infirmity, injury or mental or physical illness, would be unable to carry out the inherent requirements of practice as a barrister or solicitor and barrister

(1B) The following are to be taken into account in determining whether an applicant or holder would be unable to carry out the inherent requirements of practice as a barrister or solicitor and barrister:

(a) the applicant’s or holder’s past training, qualifications and experience relevant to such practice,

(b) if the applicant or holder is already practising as a barrister or solicitor and barrister, the applicant’s or holder’s performance in such practice,

(2) Before acting under subsection (1), a Council:

(a) may require the applicant or holder to be medically examined by a medical practitioner nominated by the Council, and

(b) may hold an inquiry.

(3) A refusal or failure by a person to comply with a requirement for medical examination may be accepted by a Council as evidence of the unfitness of the person to practise as a barrister or solicitor and barrister.” (emphasis added)

66 The statutory regime for complaints and discipline of legal practitioners was complex. As specifically affecting entitlement to practise, it could lead to an order by the Administrative Decisions Tribunal that the name of a legal practitioner be removed from the roll if the Tribunal was satisfied that the legal practitioner was guilty of professional misconduct (s 171C(1)(a)), or an order by the Tribunal that a practising certificate not be issued to a legal practitioner until the end of the period specified in the order, if the Tribunal was satisfied that the legal practitioner was guilty of professional misconduct or unsatisfactory professional conduct (s 171C(1)(b), (c)). At this point, removal from the roll and denial of a practising certificate intersected.

67 “Professional misconduct” and “unsatisfactory professional conduct” were given inclusory definitions (s 127) -

professional misconduct

(a) unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence, or

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

(b1) conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law which, if established, would justify a finding that an interstate legal practitioner is not of good fame or character or is not a fit and proper person to remain on the roll in the practitioner’s home State that corresponds to the roll of legal practitioners, or

unsatisfactory professional conduct

68 These definitions used concepts other than being a fit and proper person to be a legal practitioner or fitness to practise.

69 The Act was supplemented by regulations which, so far as material to the issue of practising certificates, prescribed the information to accompany an application for a practising certificate. The information included, “if the practitioner has been found guilty of any indictable offence – the nature of the offence” (cl 6(1)(d)), and as well the relevant Council could require that there be furnished “such further information as it considers relevant to its determination of the application within such time as it specifies” (cl 6(2)). A legal practitioner was required to notify the relevant Council of any change in the particulars as disclosed in the legal practitioner’s last application for a practising certificate within 21 days after the change occurred (cl 12(1)), specifically including a change in the information as to any indictable offence (cl 12(4)).

70 The regulations also prescribed a general duty of disclosure, by which a legal practitioner with reasonable grounds for suspecting that a solicitor other than the legal practitioner had not dealt properly with trust money (I use a general and inaccurate phrase) notify the president of the Law Society of the name of the solicitor and the grounds (cl 69).

Entitlement to practise under the Act – amendment to the regulations

71 The 2001 amendments to the Act were preceded by the Legal Profession Amendment (Notification) Regulation 2001 (“the notification regulation”), gazetted on 9 March 2001. The notification regulation added significantly to the disclosure required of a legal practitioner.

72 First, cl 6(1)(d) was changed to refer not to an indictable offence, but to any offence other than an excluded offence. “Excluded offence” was defined in cl 3(1), essentially being traffic offences.

73 Secondly, cl 6(1)(e) was added to require information concerning bankruptcy in an application for a practising certificate -

“(e) if the practitioner:

Bankruptcy Act

(ii) has at any time presented (as a debtor) a declaration to the Official Receiver under section 54A of the Bankruptcy Act 1966 of the Commonwealth of his or her intention to present a debtor’s petition or presented (as a debtor) such a (petition under section 55 of that Act,

(iii) has at any time applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounded with creditors or made an assignment of his or her remuneration for their benefit,

details of each such incident and a statement as to why the practitioner considers that, despite the incident, the practitioner is a fit and proper person to hold a practising certificate.”

74 Thirdly, the general duty of disclosure under cl 69 was extended by cll 69D and 69E -

“69D (1) If a barrister or solicitor is found guilty of an offence (other than an excluded offence), the barrister or solicitor must:

(a) notify the appropriate Council in writing of the finding and the nature of the offence, and

(2) Subclause (1):

(a) applies to an offence whether or not committed in the course of practice as a legal practitioner, and

(b) applies to a finding of guilt of an offence and whether or not the court proceeded to a conviction for the offence, and

(d) applies to a finding of guilt even if other persons are prohibited from disclosing the identity of the offender, and

(e) extends to an indictable offence committed before the commencement of this clause (and so extends whether the finding of guilt was made before or after that commencement), and

(3) A notification under subclause (2) must be made:

(a) in relation to a finding of guilt that was made before the commencement of this clause – within 28 days after that commencement, or

notifiable incidents

(a) the barrister or solicitor becomes a bankrupt or is the subject of a creditor’s petition presented to the Court under section 43 of the Bankruptcy Act 1966 of the Commonwealth.

(b) the barrister or solicitor presents (as a debtor) a declaration to the Official Receiver under section 54A of the Bankruptcy Act 1966 of the Commonwealth of his or her intention to present a debtor’s petition or presents (as a debtor) such a petition under section 55 of that Act,

(2) A barrister or solicitor must:

(a) notify the appropriate Council in writing of any notifiable incident giving details of the incident and a statement as to why the practitioner considers that, despite the incident, the practitioner is a fit and proper person to hold a practising certificate, and

(3) A notification under subclause (2) must be made:

(a) in relation to notifiable incidents that occurred before the commencement of this clause – within 28 days after that commencement, or

Entitlement to practise under the Act – the 2001 amendments

75 The 2001 amendments were made by the Legal Profession Amendment (Disciplinary Provisions) Act 2001. They commenced on 27 July 2001.

76 A new Division 1AA was included in Part 3 of the Act. The principal provisions were sections 38FB-38FH.

77 Section 38FB imposed, in different detail, enhanced disclosure requirements of the kind in the notification regulation, and added what might be called justification requirements in the event that disclosure was not made. It provided -

“38FB (1) An applicant for a practising certificate who, since being admitted as a legal practitioner:

(a) has committed an act of bankruptcy, or

(b) has been found guilty of an indictable offence or a tax offence,

must provide a written statement, in accordance with the regulations, showing why, despite the act of bankruptcy or finding of guilt and any circumstances surrounding the act or finding, the applicant considers that he or she is a fit and proper person to hold a practising certificate.

(2) An applicant for a practising certificate who has failed to notify a matter as required by the regulations (being a failure declared by the regulations to be professional misconduct) must provide a written statement, in accordance with the regulations, showing why, despite the failure to notify, the applicant considers that he or she is a fit and proper person to hold a practising certificate.

(3) A barrister or solicitor who, since being admitted as a legal practitioner:

(a) has committed an act of bankruptcy, or

must provide a written statement, in accordance with the regulations, showing why, despite the act of bankruptcy or finding of guilt and any circumstances surrounding the act or finding, the barrister or solicitor considers that he or she is a fit and proper person to hold a practising certificate.

(4) A barrister or solicitor who fails to notify a matter as required by the regulations (being a failure declared by the regulations to be professional misconduct) must provide a written statement, in accordance with the regulations, showing why, despite the failure to notify, the barrister or solicitor considers that he or she is a fit and proper person to hold a practising certificate.

(5) A person is not required to comply with subsection (1), (2), (3) or (4) if the person has previously provided a written statement in accordance with this section to the appropriate Council showing why, despite the act of bankruptcy, finding of guilt or failure to notify concerned, the person considers that he or she is a fit and proper person to hold a practising certificate.

(6) Subsections (1) and (3) extend to acts of bankruptcy occurring before the commencement of this section.

(7) This section -

(a) applies to an indictable offence or a tax offence whether or not committed in the course of practice as a barrister or solicitor, and

(c) applies to an indictable offence committed in New South Wales or to an offence committed outside New South Wales (so long as it would have been an indictable offence if committed in New South Wales), and

(d) applies to a tax offence committed in or outside New South Wales, and

(f) extends to an indictable offence or a tax offence committed before the commencement of this section (and so extends whether the finding of guilt was made before or after that commencement).”

78 Definitions of “tax offence” (s 3(1)) and “act of bankruptcy” were added to the Act (s 3(3)). “Tax offence” meant any offence under the Taxation Administration Act 1953 of the Commonwealth. As to act of bankruptcy -

act of bankruptcy

(a) is bankrupt or the subject of a creditor’s petition presented to the Court under section 43 of the Bankruptcy Act 1966 of the Commonwealth, or

(b) has presented (as a debtor) a declaration to the Official Receiver under section 54A of the Bankruptcy Act 1966 of the Commonwealth of his or her intention to present a debtor’s petition or presented (as a debtor) such a petition under section 55 of that Act, or

79 The words “is taken to have committed an act of bankruptcy” in the definition could present difficulties. The paragraphs which follow do not reflect the concept of an act of bankruptcy under the Bankruptcy Act 1966 (C’th) – for example, being the subject of a creditor’s petition is not an act of bankruptcy under the Bankruptcy Act. The definition extends that concept, but does it exclude what would be an act of bankruptcy under the Bankruptcy Act but is not within the definition? In the present case it does not matter, and it is not necessary to go further.

80 Sections 38FC-FF dealt with refusal, cancellation or suspension of practising certificates in the events of an indictable offence, a tax offence or an act of bankruptcy -

“

(a) the Council is aware that the applicant for or holder of the practising certificate has, since being admitted as a legal practitioner, committed an act of bankruptcy or been found guilty of an indictable offence or a tax offence, and

(2) A Council must, within 14 days after becoming aware that the applicant for or holder of a practising certificate has, since being admitted as a legal practitioner, committed an act of bankruptcy or been found guilty of an indictable offence or a tax offence, give notice in writing to the applicant or holder:

(a) if the Council has not received a statement under section 38FB in relation to the act of bankruptcy or the finding of guilt concerned, requiring the applicant or holder to make a statement in accordance with that section, and

(b) informing the applicant or holder that a determination in relation to the matter is required to be made under this section, and

(d) informing the applicant or holder of the effect of the automatic suspension provisions in section 38FH in the event of the matter not being determined by the Council or the Commissioner within the relevant period.

(3) Despite subsection (1), a Council may issue a practising certificate to an applicant referred to in that subsection who is a barrister or solicitor if the next relevant date (within the meaning of section 36) in relation to the barrister’s or solicitor’s current practising certificate is imminent and the Council has not made a determination under that section in relation to the applicant.

(4) The issue of a practising certificate in the circumstances referred to in subsection (3) does not prevent a determination from subsequently being made under this Division to refuse to issue a practising certificate to the barrister or solicitor or to cancel or suspend the barrister’s or solicitor’s practising certificate.

(5) Despite any other provision of this Act, a Council required to take action under subsection (1) in relation to a barrister or solicitor may, for the purpose of enabling the proper arrangement of the affairs of the barrister or solicitor:

(a) issue a practising certificate to the barrister or solicitor that remains in force for such period, specified in the practising certificate, as the Council considers necessary to achieve that purpose, or

(6) If a Council acts under this section and, within 14 days after being notified of the action, the applicant or holder concerned requires the Council to state its reasons for the action, the Council must comply with the requirement without delay.

“38FE (1) A Council may refuse to issue, or may cancel or suspend, a practising certificate if the applicant or holder:

(a) is required by section 38FB to provide a written statement in relation to a matter and has failed to provide a written statement in accordance with that section, or

(c) has failed to comply with a requirement under section 38FI or has wilfully contravened section 38FI (4).

(2) If a Council acts under this section and, within 14 days after being notified of the action, the applicant or holder concerned requires the Council to state its reasons for the action, the Council must comply with the requirement without delay.”

81 The statutory scheme for complaints and discipline of legal practitioners already in the Act included provisions whereby the Legal Services Commissioner could receive complaints about professional misconduct and unsatisfactory professional conduct of legal practitioners, and could become involved in, to the point of taking over, investigations of complaints by the Councils. Section 38FG provided in essence that the Commissioner could take over a Council’s determination under s 38FC.

82 In the operation of these provisions, by s 38FH an automatic consequence adverse to the legal practitioner flowed if the relevant Council did not make a determination under s 38FC within “the relevant period”. Section 38FA provided for the relevant period, essentially three months subject to extension. Section 38FH provided -

(a) the matter is determined by the Council or the Commissioner, or

(3) A barrister or solicitor whose practising certificate is suspended by the operation of subsection (2) may make an application to the Supreme Court to remove the suspension.

(a) an order removing the suspension on the grounds that the applicant is a fit and proper person to hold a practising certificate,

(b) an order continuing the suspension for a specified period, an order cancelling the practising certificate concerned on the ground that the applicant is not a fit and proper person to hold a practising certificate,

(d) an order remitting the matter to the Council originally dealing with it or the Commissioner,

(5) A Council or the Commissioner may investigate a matter under this Division and exercise powers under this Division in relation to the matter despite a suspension under subsection (2) of the practising certificate concerned unless the Supreme Court otherwise orders under subsection (4).”

83 Section 38FI(1) gave power to a Council to require the legal practitioner to provide written information, to produce documents or copy documents, and to “otherwise assist in, or co-operate with, the investigation in a specified manner”. By s 38FI(4), a legal practitioner “must not mislead or obstruct a Council or the Commissioner in the exercise of any function under this Division”.

84 These amendments were carried through to the statutory regime for complaints and discipline of legal practitioners. Section 127 of the Act was amended in some other respects, but for present purposes by adding to the definition of professional misconduct so that it included conduct declared to be professional misconduct by any provision of the Act and a contravention of a provision of the Act or the regulations being a contravention declared by the regulations to be professional misconduct, and by adding overall a new s 127(4) -

“(4) For the avoidance of doubt, conduct:

(a) involving an act or acts of bankruptcy, or
(b) that gave rise to a finding of guilt of the commission of an indictable offence or a tax offence, whether occurring before, on or after the commencement of this subsection, is professional misconduct if the conduct would justify a finding that the legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners.”

85 The 2001 amendments to the Act were accompanied and supplemented by further amendment of the regulations by the Legal Profession Amendment (Disciplinary Provisions) Regulation 2001.

86 First, various amendments took up the definition of tax offence in the Act.

87 Secondly, cl 6(1)(e) was amended to require details of any act of bankruptcy within the meaning of s 3(3) of the Act.

88 Thirdly, cl 69D(3) was amended to require notification of a past finding of guilt within 7 days after 27 July 2001 and of a future finding of guilt within 7 days after the finding was made.

89 Fourthly, cl 69E was deleted and new clauses 69E-69H were inserted. The new cll 69E-69H were -

(2) A notification under subclause (1) must be made:

(a) in relation to an act of bankruptcy that was committed before 27 July 2001 by a person who was a barrister or solicitor at 27 July 2001 – within 7 days after 27 July 2001, or

(b) in relation to an act of bankruptcy that was committed on or after 27 July 2001 by a person who was a barrister or a solicitor when the act of bankruptcy was committed – within 7 days after the act of bankruptcy was committed.

(3) Subclause (1) does not require the disclosure of any information previously disclosed in an application for a practising certificate or under this clause.”

(2) For the purposes of section 38FB(3) of the Act, the written statement required to be provided by a barrister or solicitor must be provided to the appropriate Council within 14 days after the appropriate date.

appropriate date

(a) for a statement that relates to an act of bankruptcy committed before 27 July 2001 by a person who was a barrister or solicitor at 27 July 2001 – 27 July 2001, or

(b) for a statement that relates to an act of bankruptcy committed on or after 27 July 2001 by a person who was a barrister or solicitor when the act of bankruptcy was committed – the first date on which the act of bankruptcy was committed, or

(c) for a statement that relates to a finding of guilt made before 27 July 2001 in respect of a person who was a barrister or solicitor at 27 July 201 – 27 July 2001, or

“69G (1) For the purposes of section 38FB(2) and (4) of the Act, the written statement required to be provided by an applicant for a practising certificate, or a barrister or solicitor, who has failed to notify a matter as required by this Regulation must be provided to the appropriate Council within 7 days after the appropriate date.

(2) In this clause:

appropriate date

(a) if the applicant, barrister or solicitor notifies the matter after the period in which the notification was required to be made by this Regulation and the last day of that period occurred before 27 July 2001 – 27 July 2001, or

(b) if the applicant, barrister or solicitor notifies the matter after the period in which the notification was required to be made by this Regulation and the last day of that period occurs on or after 27 July 2001 – the date on which the notification was made, or

“69H Each of the following failures to notify is declared to be professional misconduct:

(a) a failure to notify, without reasonable cause, information in relation to a finding of guilt of the commission of an indictable offence or a tax offence as required by clause 6(1)(d).

(b) a failure to notify, without reasonable cause, information in relation to an act of bankruptcy as required by clause 6(1)(e).

(c) a failure to notify, without reasonable cause, a finding of guilt of the commission of an indictable offence or a tax offence as required by clause 69D in the time and manner specified in that clause.

90 Through the declaration of what was professional misconduct, notification of an indictable offence, a tax offence or an act of bankruptcy was of significance to enrolment as well as entitlement to a practising certificate.

The cancellation of respondent’s practising certificate

91 The respondent presented a debtor’s petition on 16 October 2000 and became bankrupt on that day. On 3 April 2001, in conformity with the notification regulation, he notified the appellant of that fact. His letter gave reasons for his bankruptcy and expressed his belief that he was a fit and proper person to hold a practising certificate.

92 The appellant sought and was given further information. A draft report to the Council of the appellant was prepared and sent to the respondent for his response, and he responded in a detailed letter dated 15 October 2001. The Council considered a report dated 18 October 2001, and passed a resolution adverse to the respondent: for present purposes it need not be described, since it was superseded. There was further correspondence. Ultimately the Council received a further report dated 15 November 2001, and on that day resolved -

"For the reasons expressed in the report dated 18 October 2001 and the further report to Bar Council dated 15 November 2001 and having considered the Executive Director's letter to the barrister dated 26 October 2001, Stewart Cuddy & Mockler's letter to the Executive Director dated 1 November 2001, the Executive Director's letter to the barrister dated 2 November 2001, Stewart Cuddy & Mockler's letter to the Executive Director of 7 November 2001 and annexure, the Professional Affairs Director's letter to the barrister of 9 November 2001 and Stewart Cuddy & Mockler's reply to the Professional Affairs Director of 13 November 2001 Bar Council resolved that, for the purposes of s 38FE(1)(b) of the Legal Profession Act 1987 the Bar Council is not satisfied that Barry James Murphy has by his written statement shown that he is a fit and proper person to hold a practising certificate. Further resolved to cancel the practising certificate of Barry James Murphy, effective midnight Friday, 23 November 2001 to enable the proper arrangement of the barrister's affairs."

93 The respondent asked that the Council state the reasons for its action. The Council replied that the reasons were expressed in the reports dated 18 October 2001 and 15 November 2001.

94 McLellan J said of the Council’s reply -

“This response is difficult to understand for the report of 18 October related to a prospective decision pursuant to s 38FC and the later report to s 38FE. The most that could be gleaned from the reports as to why the Bar Council made its decision is that since 1990 the plaintiff, although he met some of his tax obligations, did not pay all his tax, it being inferred that he chose to spend his money on other expenditure ‘presumably of a private nature’.”

What power was the Council exercising?

95 The Council purported to act pursuant to s 38FE(1)(b) of the Act. It was not suggested that the respondent had failed to provide a written statement which he was required by s 38FB to provide, or that he had failed to comply with s 38FI or had contravened s 38FI(4), wilfully or otherwise, and s 38FE(1)(a) and (c) may be put aside. McLellan J considered that s 39FE(1)(b) was not the proper foundation of the Council’s action, and that its foundation lay in s 38FC. The appellant submitted that his Honour was in error, and that s 38FE(1)(b) had been available to the Council. It then submitted that in s 38FE(1)(b) the burden of showing that he was a fit and proper person to hold a practising certificate was expressly borne by the respondent, in aid of an ultimate submission that the respondent had failed to discharge that burden.

96 Under s 38FC, a Council is obliged to refuse, cancel or suspend a practising certificate if first, it has the awareness in s 38FC(1)(a) and secondly, it forms the opinion in s 38FC(1)(b).

97 If it has the awareness in s 38FC(1)(a) , the Council must give the notice in s 38FC(2). Although it is not stated, the purpose must be to enable the legal practitioner to put such materials before and submissions to the Council as the legal practitioner may wish in relation to the formation of the opinion in s 38FC(1)(b), subject to the guillotine of the relevant period. Procedural fairness is not excluded by the provisions of Part 1AA.

98 Section 38FE will operate in different situations. One is where the legal practitioner is in default of the legal practitioner’s obligation to provide a statement required by s 38FB, initially or after notification in accordance with s 38FC(2). Another is where the legal practitioner has provided the statement but in the opinion of the Council has failed to show in that statement that he or she is a fit and proper person to hold a practising certificate: the words “in that statement” are important. The third is where the legal practitioner is in default of the legal practitioner’s obligations in the Council’s investigation. In these situations the Council may, not must, refuse, cancel or suspend the practising certificate. The distinction from s 38FC is that there is a discretion to refuse, cancel or suspend the practising certificate where the legal practitioner is in default in providing information or has provided no more than the bare statement required by s 38FB. It is akin to a summary procedure, distinct from the informed procedure envisaged under s 38FC.

99 The respondent’s notification to the appellant came before the 2001 amendments to the Act, pursuant to the notification regulation. Transitional provisions provided that it was taken to be a statement provided in accordance with s 38FB (Schedule 8 para 83). The Council of the appellant had the awareness in s 38FC(1)(a). In the correspondence after 27 July 2001 the Council of the appellant in substance complied with s 38FC(2), and by providing for response the draft of the report of 18 October 2001 conveyed to the respondent that it was acting under s 38FC.

100 The Council of the appellant can not have exercised the power conferred by s 38FE(1)(b). As the resolution itself showed, it had before it and had regard to more than a statement provided by the respondent in accordance with s 38FB. Although the words “by his written statement” were part of the resolution, unless it be concluded that the Council denied procedural fairness by ignoring the respondent’s other materials before it and submissions to it, those words can not be given credence. It should not lightly be held that procedural fairness was denied, and plainly enough it was not.

101 In my opinion the Council of the appellant acted pursuant to s 38FC. Its resolution was not in terms appropriate to s 38FC(1)(b), for which one would expect a resolution that the Council considered that the respondent’s act of bankruptcy had been committed in circumstances that showed that he was not a fit and proper person to hold a practising certificate. It was not submitted that this of itself vitiated the cancellation of the respondent’s practising certificate. In substance, the opinion required by s 38FC(1)(b) was within the resolution in the circumstances in which it was passed.

138 McLellan J said -

“125 The plaintiff's tax liability at 30 April 1993 was $37,864. After receiving a Notice of Assessment for 1992 in July 1993, including provisional tax his liability was $94,774. His position was obviously very difficult and probably hopeless. He was asked:

‘Q. Why didn't you, at that point of time sit down with your accountant and say how am I going to complete this obligation and get rid of the problem?

A. He did - in fact, he drafted, I think, that letter that is in there to the tax department setting out my assets and liabilities, he drafted it.

...

Q. After the $37 000 plus the assessment where you were [sic] saying to yourself as to how were you going to meet your responsibilities?

A. I was saying all I could do is hope that I - build, this kindergarten up to a point, now that we've got relief in which I can sell it and pay all of this out, that is my own talk to myself, that was the only thing I could possibly think of doing because I had no intention of doing anything else at that stage.’

126 He was also asked what steps he had taken to pay the outstanding taxation debt at October 1993. He said that he had deliberately employed himself in the company, so that he could make regular instalment payments. He said:

‘I haven't paid any amounts towards the amount that was outstanding, that's correct. That's partially - in, retrospect, I wish I had. It's partially through bad management on my part. It's partially because the amount was overwhelming, and partially because I was hoping that I could sell the kindergarten and rescue myself from my situation’."

139 McLellan J said -

“128 The plaintiff said in response to a question as to whether he would have been able to pay off his taxation debt in June 1993:

‘In retrospect I wish I had put in a debtors' petition at that time. I don't believe that it would have paid out my debts.’

129 He said:

‘I don't believe that those assets were readily realisable in that way, or anything like it. I wished to retain my legal practice. It was my only form of income. I believed, as I think...that the kindergarten would, in all possibility, increase in value because the fee relief scenario had come about. I had spoken, even at that stage, to a number of people involved in the industry. I believed, once I put up a profitability record, that it would increase dramatically in value. I believed, probably for a while it did, but then the fee relief was taken away, or diminished.’

Q. Rather than attempting to rectify the position in which you found yourself, where you were unable to meet your tax obligations, you chose to trade on in the hope that such trading would create an improvement in your asset position to enable you to meet your debts?

A. Yes.

...

I tried to battle on to pay my debts as best I could. I didn't believe I was going to be able to give the Taxation Department more money by declaring myself bankrupt back in 1993 than if I tried to continue running the practice, earning an income myself, running the kindergarten and building it up.’

130 It was put to him that in 1993 he had no hope of trading out of the deficit position he had found himself in. He responded:

‘A. In retrospect, yes, but I did believe I had a chance to do it then. I would have been foolish not to have tried and just gone bankrupt and have some relief from that.

Q. The point I am putting is that you did not confront the issue in 1993 by, in fact, examining what your options were?

A. It is a very difficult question when one says "confront". One is looking at perceptions. I believe I confronted it. I believe I chose the option of trying to trade my way out of it, rather than just going bankrupt’.”

140 In the following years the respondent’s taxation position was -

Financial Year	Kindergarten Income	Practice income	Taxable Income	Tax on Taxable income
1994	28800	16743	45543	8826
1995	30052	33438	60290	18938
1996	24909	13242	38151	9006
1997	42986	42986	11085
1998	54721	16320
1999	9436	807
2000	4827	NIL

141 The only payments to the Australian Taxation Office were the PAYE tax in relation to the respondent’s employment by Lemares Pty Ltd.

142 The assessments for the 1994, 1995 and 1996 taxation years showed amounts less than $94,000, although still substantial amounts, as due. The assessment for the 1996 taxation year showed an amount a little over $95,000 as due. The assessment for the 1997 taxation year, issued on 7 September 1998, showed an amount of $166,142 as due. There seems to be some discrepancy in these figures, as in the absence of payments the amount in excess of $94,000 owing in late 1993 would not have been reduced. It is likely that the assessment for the 1997 taxation year caught up, and by the time of an amended assessment for the 1998 taxation year the amount due was stated as $227,580.

143 McLellan J said -

“127 He was asked about the steps he took in the course of the year ended 30 June 1995, to pay or to make provision for the payment of income tax. He said "I didn't." He expanded on this by saying:

‘A. I had reached the stage - it was and I should have, but I had reached the stage where the problem was so enormous that if I paid $10 000 it was going to go back to something owing in 1992, and part of the penalties, and that was the wrong attitude and wrong approach on my part, but that was happening in my head with the amount that this had all accumulated into.

...

Q. What did you think was going to happen?

A. I was hoping I could sell the property and business for an amount that I might be able to pay the whole thing out’.”

144 McLellan J said -

“134 The plaintiff said that once he received the bill for $94,897 in 1993, his ‘hands went up in the air a bit’, ‘because he didn't know how he was going to meet it’. In re-examination he was asked what capacity he had between 1993 and 1999 to make a payment, he responded

‘I had some capacity to make a payment. If I had managed my money better, I no doubt could have, in retrospect could have. I was not managing the money well. I had the wrong attitude to a degree because I was wanting to deal with the whole matter and get it out of the way. By throwing a few dollars at it, it was just a drop in the ocean. I acknowledge that attitude was wrong.’

135 The plaintiff said that the reason for the transfer of the kindergarten business was so that he could stop getting provisional tax bills for the business and make PAYE payments, he said:

‘I didn't even look which was the more tax efficient way of doing it, whether the company paid dividends or paid wages. I wanted to make it. There was no liability coming from that source of taxation.’

136 The plaintiff was asked whether by delaying his possible bankruptcy in 1993 until 2000 he had the intention to wipe out all of the tax liability that accrued in the interim. He said:

‘No, I had no intention of doing that. To me looking at becoming bankrupt back at that time wasn't going to benefit me or benefit the Taxation Commissioner. It wasn't going to benefit everyone more if I could get myself out of it. I didn't like living for a number of years with the Damocles' sword hanging over my head. It wasn't very pleasant. I had to get out of it’."

145 In July 1998 the respondent sold his legal practice. The contract price was $72,900, payable on terms.

146 In September 1998 the respondent sold the land and kindergarten business for $180,000. The proceeds went entirely to meet expenses of sale, the liabilities of the business, and the amount due to the bank.

147 In December 1998 the Australian Taxation Office brought further proceedings against the respondent claiming $195,518. In March 1999 it obtained default judgment for $186,821. In June 2000 the Australian Taxation Office issued a bankruptcy notice, which was served on the respondent in about July 2000. It claimed $209,896 as due. The Australian Taxation Office filed a creditor’s petition on 5 September 2000. The respondent had no prospect of paying.

148 In September 2000 the respondent signed an authority under s 188 of the Bankruptcy Act with a view to a Part X arrangement. According to his statement of affairs he had assets of $53,000 with an estimated realisable value of $49,600 and liabilities of $325,000. The major creditor was the Australian Taxation Office for $315,000. The Australian Taxation Office did not accept the arrangement.

149 The respondent then presented his debtor’s petition on 16 October 2000.

150 The respondent had two children, a son and a daughter, who were still dependent in 1991.

151 Between 1991 and 1994 the respondent paid fees of about $9,000 to $10,000 per annum to send his son to a private boarding school. McLellan J said -

“He said in his evidence:

‘My wife had indicated some time earlier she couldn’t handle him and when he went into high school, after speaking to Barbara Holborow, who is a Children’s Court Magistrate, I came to the conclusion that I was willing to fund him in a boarding school to try to overcome the problem. That was well before I had the taxation problem’.”

152 As well the respondent paid maintenance of about $5,000 per annum in respect of his daughter until the end of 1996.

153 The respondent did not own a house, the properties in which he had an interest being transferred to his wife upon his divorce. He lived in rented accommodation since that time. He began to live with another partner in 1992, and remained with her. McLellan J described their circumstances as modest. He said that the respondent continued to drive the same 1988 motor vehicle.

154 McLellan J said -

“131 The plaintiff agreed that from September 1993 up until the date of his bankruptcy in 2000 he made no tax payment, other than for PAYE tax. He accepted that during this period he had earned taxable income, in addition to his salary from the company. He said that during that time he had spent all the money that he had received. He was asked how he had spent the money:

‘Q. In a way that you chose?

A. In accordance with normal living

Q. In a way that you chose?

A. Yes.’

132 He was asked:

‘Q. I suggest to you that there was no inadequate intention by you in your obligations to the Tax Office, but rather a deliberate decision by you that you not attend to discharging your liabilities to them?

A. I didn't have the money to pay the bills, the penalties.

Q. You had the money to pay other bills?

A. Yes.

Q. You had the money to spend on activities that you chose?

A. Yes.’

155 There had been some conflict of evidence between the respondent and his accountant. McLellan J expressly preferred the evidence of the respondent, and was satisfied that he was poorly advised. He said -

“93 The plaintiff was asked, in evidence, what he regarded to be the cause of his bankruptcy, he said:

‘Well it was certainly due to an inability to properly manage my own affairs. I have to acknowledge that. There were other factors, but I must take the primary responsibility.

Q. What were the other factors?

A. I still believe I received some poor advice; accountancy advice. I had absolutely no idea that I was going to get a grant from the Federal Government in 1992 that was going to give me a very inflated income for the 1992 tax year and then cause a huge bill that I received an assessment for that I received later in 1993. They were the other factors. Apart from that, I suppose it was my mismanagement.

... the other thing was the fact that the scenario changed in the preschool thing from a business that looked like it might build into something that I could sell and pay it all out. It fell down again. That was government policy. It was a change in government in 1996 that caused it.’

94 I accept the plaintiff's evidence. The advice he received was misguided and he was in error to accept it. That error was compounded by the fact that when confronted by the burdens of impossible obligations, he made wrong decisions. However, he acknowledges those errors and now demonstrates an insight into his problems which he did not have when they arose.”

156 Although not so expressly, McLellan J otherwise accepted the respondent’s evidence. He said -

“173 After 1993, the plaintiff did rearrange his affairs so that all of the taxation obligations with respect to the kindergarten, including the tax due on his own salary, were paid. He also paid a total sum of $13,000 toward the tax liability on his income as a solicitor. Ultimately, he did not pay even part of the tax due on that income but, by that stage, it was plain that his position was hopeless, unless the sale of his assets could retrieve the situation. He says, and I accept that his decision making processes were compromised by the difficulties in which he found himself. The only way he could meet his taxation obligations would be from the sale of his remaining assets, the kindergarten and his law practice.

174 It is correct, as the Bar submits, that the plaintiff could have paid more tax than he did and, indeed, should have paid more in the years after 1993. However, he would not have been able to pay the whole debt for, by that time, his indebtedness was accumulating at a greater rate than he could afford. He deserves to be severely criticised for the fact that he did not pay more. But, if I find, as I do, that he honestly intended to try to trade out of his difficulties and by the sale of his remaining assets, meet all his liabilities, his conduct could not be described as dishonest.

…

Did the circumstances show that the respondent is not a fit and proper person to hold a practising certificate?

157 McLellan J concluded that the respondent’s conduct, although deserving of criticism, did not justify a finding that he is not a fit and proper person to hold a practising certificate. He said that the respondent was wrong to take the advice to delay filing his taxation returns and should have addressed his situation earlier and filed for bankruptcy when his position was obviously hopeless; he should also have made more taxation payments, rather than merely hope that from the sale of his remaining assets he would be able to meet all his obligations. His Honour accepted as genuine the respondent’s acknowledgment that he was wrong to delay lodgement of his taxation returns and that he should have addressed his financial problems at an earlier time.

158 McLellan J observed that it was significant that although the 1989, 1990 and 1991 taxation returns were late there was no attempt to conceal or understate the respondent’s income or avoid his taxation obligations either in those returns or the later returns, and that all subsequent returns had been lodged and all taxes from the kindergarten business had been paid. He noted that “some further modest contributions” had been made, and said, “These are not the actions of a person intent upon defrauding the revenue to his own advantage”.

159 His Honour’s ultimate conclusion rested upon what he said about dishonesty in the test to be applied. I do not share that understanding of the statutory test, and it is necessary to approach the matter afresh.

160 It was common ground in the appeal that the circumstances in which the respondent committed the act of bankruptcy encompassed the period from 1989, and included regard to the origin and history of his financial difficulties culminating in his bankruptcy. The initial act of bankruptcy, within the definitions in the notification regulation and s 3(3) of the Act, was the presentation of the creditor’s petition in September 2000, rather than the presentation of the debtor’s petition and becoming a bankrupt, but the precise act of bankruptcy does not matter. What, in the circumstances as found, showed that the respondent was not a fit and proper person to hold a practising certificate?

161 The appellant submitted that over a period of many years the respondent had “failed to address in any significant way” his taxation obligations. It submitted that the taxation obligations were of a special kind, in that as a self-employed person the respondent received income out of which he had to pay tax and so was particularly required to ensure timely payment of tax. Taxation obligations are effectively imposed, not voluntarily undertaken. Many other financial obligations, though not all, are in reality imposed, as a necessity of modern life. Although the payment of tax in obedience to the taxation laws involves both legal and civic duties, see New South Wales Bar Association v Cummins, so also a good citizen meets other financial obligations, those voluntarily undertaken as well as those in reality imposed. I do not see why taxation obligations should be given special significance, and to do so would be likely to lead to an uncertain hierarchy (are rates on a par with tax, is a gambling debt less significant than the rent?). A legal practitioner who spends all his or her money on self-indulgent high living, in disregard of ordinary commercial obligations, may be just as much (or as little) deserving of criticism as a legal practitioner who prefers ordinary commercial obligations over taxation obligations. But criticism is really not the point. The point is what the conduct shows of the legal practitioner’s fitness to hold a practising certificate.

162 The respondent did not meet his taxation obligations. But it is necessary to ask why he did not meet them, and what was done and could have been done about addressing them.

163 The appellant’s submissions came down to failure to address taxation obligations in three respects. First, the respondent had failed properly to manage his finances to provide for payment of tax, and provisional tax, ahead of the assessments in the early 1990’s. Secondly, the respondent had failed to pay more after the assessments were made. Thirdly, and perhaps inconsistently, the respondent had failed to go bankrupt in 1993 when his position became hopeless. All this, in the appellant’s submission, was while the respondent had paid other creditors and discharged other debts (for example the debt to the bank).

164 The respondent consciously delayed lodgement of his 1990 tax return. There may be some sophistry in the respondent’s explanation that keeping himself out of a potential problem was not a positive benefit, but it was found that he did so because he was badly advised. There was in a sense disregard of taxation obligations, in that it was known that the tax return should be filed and, albeit in reliance on the bad advice, it was thought that the financial consequences would be less of a problem than if the return was filed when it should be filed.

165 There was further delay in filing the 1989, 1990 and 1991 tax returns because of the accountant’s default. Although not expressly, it was found that the respondent had endeavoured to have his accountant act more promptly.

166 There were no specific findings on failure to put aside money from the higher income of the 1990 taxation year to meet anticipated tax and provisional tax by reason of that higher income. However, the findings were not consistent with use of the money beyond ordinary living expenses, including the payments in respect of the respondent’s children. Implicit in the findings was that the respondent simply failed in foresight.

167 By the second half of 1993 the chickens had come home to roost, and the respondent was faced with a tax liability which he could not meet. Some $13,000 was paid. The respondent had received the $60,000. Although again no specific findings were made, he could have paid more. McLellan J accepted that he was overwhelmed by the situation in which he found himself, and that he hoped sale of the kindergarten would rescue him from it; he found that “his decision making processes were compromised by the difficulties in which he found himself”. In truth, only by liquidation of all assets could the respondent have met his taxation liabilities.

168 The appellant submitted that the respondent should have gone bankrupt then and there. The respondent hoped that he could trade on and be in a better position on sale of the kindergarten business. A further change in the Commonwealth Government’s funding scheme frustrated the hope of significant increase in the value of the kindergarten business. McLellan J found that the respondent honestly intended to try to trade out of his difficulties and by the sale of his remaining assets meet all his liabilities.

169 From this time the respondent’s situation could only get worse, because of penalties and interest; trading on until sale of the kindergarten business was all he could hope for. It was not a case of enjoying disposable income which could have gone to meet the taxation liability. There were cogent reasons for the expenditure supporting the respondent’s children, and his lifestyle was free from excess.

170 McLellan J’s finding that there was no dishonesty does not of itself answer the statutory test, but it is relevant to the answer. The respondent was not indifferent to his taxation obligations. There was not the regard to compliance with the taxation laws which there should have been in 1990, but apart from that the respondent’s failings were not in the probity required of a legal practitioner, but in the ability properly to order his affairs and cope with the taxation consequences of fluctuations in income. He could have been more questioning of his accountant’s performance, and more resolute in attempting to come to an arrangement with the Australian Taxation Office rather than let the situation overwhelm him (although I do not think deciding to trade on with a view to profitable sale of the kindergarten business was an unreasonable course).

171 The determination is of fitness to hold a practising certificate at the time of the determination – s 38FC(1)(b) refers to circumstances that show that the applicant or holder is not a fit and proper person to hold a practising certificate. McLellan J accepted as genuine the respondent’s acknowledgment that he was wrong to delay lodgement of his taxation returns and that he should have addressed his problems at an earlier time. If the respondent were to be judged unfit to hold a practising certificate, it would be because his failings so reflected upon his ability to act in the affairs of his clients that protection of the public warranted cancellation of his practising certificate.

172 I do not think that they do. In my judgment the circumstances as found do not reveal such deficiency in character or competence as a legal practitioner that the respondent is not fit to practise as a barrister. On the facts of this case, plainly very different from those of cases such as New South Wales Bar Association v Cummins and New South Wales Bar Association v Somosi, the statutory test has not been fulfilled.

173 I propose that the appeal be dismissed with costs.

174 IPP AJA: I agree with Giles JA.

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Citations

New South Wales Bar Association v Murphy [2002] NSWCA 138

Most Recent Citation

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CITATION:	New South Wales Bar Association v Murphy [2002] NSWCA 138 revised - 11/07/2002
FILE NUMBER(S):	CA 40034/02
HEARING DATE(S):	13 May 2002
JUDGMENT DATE:	28 June 2002
PARTIES :	New South Wales Bar Association - Appellant Barry James Murphy - Respondent
JUDGMENT OF:	Spigelman CJ at 1; Giles JA at 37; Ipp AJA at 174

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	SC 13589/01
LOWER COURT JUDICIAL OFFICER :	McLellan J

COUNSEL:	P R Garling SC & C E Adamson - Appellant P LeG Brereton SC & P J Livingstone - Respondent
SOLICITORS:	Hicksons - Appellant Stewart Cuddy and Mockler - Respondent
CATCHWORDS:	LEGAL PRACTITIONERS - barristers - cancellation of practising certificate - consideration of Div 1A and 1AA Legal Profession Act 1987 - whether shown that barrister not a fit and proper person to hold a practising certificate. D.
CASES CITED:	Clyne v New South Wales Bar Association (1960) 104 CLR 186; ex parte Clyne (1969) SR 436; Law Society of New South Wales v Foreman (1994) 34 NSWLR 408; Myers v Elman (1940) AC 282; New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; New South Wales Bar Association v Evatt (1968) 117 CLR 177; New South Wales Bar Association v Maddocks (CA, 23 August 1988, unreported); New South Wales Bar Association v Somosi (2001) NSWCA 285; The Prothonotary of the Supreme Court of New South Wales v Costello (1984) 3 NSWLR 201; The Prothonotary of the Supreme Court of New South Wales v Ritchard (CA, 31 July 1987, unreported); re an application by a Solicitor (1966) 1 NSWR 42; re B (1981) 2 NSWLR 372; re Davis (1947) 75 CLR 409; re Hodgekiss (1959) 62 SR 340; re Mayes and the Legal Practitioners Act (1974) 1 NSWLR 19; Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 699; Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279.
DECISION:	Appeal dismissed with costs.