New South Wales Bar Association v Young

[2003] NSWCA 228

CITATION:	NSW Bar Association v Young [2003] NSWCA 228
HEARING DATE(S):	15/08/03
JUDGMENT DATE:	19 August 2003
JUDGMENT OF:	Meagher JA at 1; Ipp JA at 13; Foster AJA at 16
DECISION:	1. Declare that Andrew Hamilton Young is not a fit and proper person to remain on the Roll of Legal Practitioners; 2. The name of the Opponent to be removed from the Roll of Legal Practitioners; 3. Opponent to pay the costs of, and incidental to, these proceedings.
CATCHWORDS:	LEGAL PRACTITIONERS - Barristers - Removal from Roll - Failure to lodge Income Tax Returns - Whether declaration should be made as to fitness and propriety for legal practice.
CASES CITED:	New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 New South Wales Bar Association v Somosi [2001] NSWCA 285
PARTIES :	New South Wales Bar Association v Andrew Hamilton Young
FILE NUMBER(S):	CA 40622 of 2002
COUNSEL:	A: P R Garling SC & C E Adamson R: P Brereton SC
SOLICITORS:	A: Hicksons R: Andrews Solicitors

CA 40622 of 2002

MEAGHER JA
IPP JA
FOSTER AJA

Tuesday, 19 August 2003

NEW SOUTH WALES BAR ASSOCIATION v YOUNG

Judgment

1 MEAGHER JA: Mr Young, who was born in 1948, was admitted to the Bar of NSW in September 1978, after practising for some years as a solicitor. He has practised as a barrister until this day.

2 He has practised almost exclusively in the field of criminal law. He achieved some eminence in that field, and is highly regarded by his colleagues, as is proved by the glowing evidence contained in affidavits sworn by about 7 of them.

3 Financially, he seems to have done very well. For example, in 1985 his gross income from the Bar was at least $350,000.

4 His personal life has not been so successful. He has had two marriages, each of which ended in divorce and disadvantageous property settlements. A subsequent liaison has also broken down. What is worse is the tragic death by drowning of his son in 1985. Further he has been involved in at least two failed business ventures, which have cost him a great deal of money.

5 But what this case concerns is an application by the NSW Bar Association to have his name removed from the roll of legal practitioners because of his failure to lodge income tax returns.

6 There is no doubt that, at all stages, he knew that he had an obligation to file income tax returns each year. Yet from 1 July 1980 to 28 November 1996 he did not file a single return, and for a longer period (1 July 1980 to 30 June 2000) did not pay a penny’s worth of income tax. Mr Brereton SC, who appeared for Mr Young, conceded that this conduct lacks all possible excuse, but submitted it was not without explanation.

7 There was evidence before the Court, all of it unsatisfactory, about his dealings with an accountant in 1988 and his dealings with an officer of the ATO in 1996.

8 He sought to take the benefit of an amnesty in 1988 but that did not motivate him either to file returns or to pay tax. None of these matters is of great relevance.

9 They are irrelevant because they do not alter the essential facts of the case. These are, quite simply, that for years and years Mr Young failed to file income tax returns when he knew he should have. Deliberately to ignore one’s obligations in this manner bespeaks a lack of integrity, particularly if one is not ignorant of the consequence, and a lack of integrity justifies removal of Mr Young’s name from the roll. This has been held in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 and in New South Wales Bar Association v Somosi [2001] NSWCA 285.

10 Mr Brereton SC, who appeared for Mr Young, and who argued the case with great power, submitted that no professional misconduct was involved and no jeopardy to the community was involved. He also pointed to the following facts, all of which are non-controversial;

§ Mr Young did not indulge in a lavish lifestyle;

§ He did not enjoy high levels of discretionary expenditure;

§ He did not accumulate any assets in his own name or in the name of other people;

§ He was personally generous;

§ He is now destitute and bankrupt;

§ He has never deliberately understated his income;

§ He has always helped the poor and the ignorant;

§ He has often provided his services free of charge;

§ He was not motivated by greed;

§ He has no convictions;

§ Removal of his name from the Bar will remove a great force for good.

11 However, all these facts together do not derogate from the fact that non-filing of the tax returns is incompatible with that degree of integrity, which the public has the right to expect in a barrister.

12 For these reasons, in my opinion the NSW Bar Association is entitled to the orders it seeks;

1. Declare that Andrew Hamilton Young is not a fit and proper person to remain on the Roll of Legal Practitioners;

2. The name of the Opponent to be removed from the Roll of Legal Practitioners;

3. Opponent to pay the costs of, and incidental to, these proceedings.

13 IPP JA: I agree with Meagher JA.

14 I have considerable sympathy for Mr Young. Throughout his career as a barrister he practised in accordance with the ideals of the profession. He usually represented the less well-off and less advantaged members of the community, did so competently, to the best of his ability and to the admiration of his peers. He displayed generosity and altruism to others. He has, however, been undone by his neglect of his own affairs.

15 For a time I was swayed by the forceful submissions of Mr Brereton SC, who put the case for Mr Young with great eloquence and skill. But on re-reading New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 and New South Wales Bar Association v Somosi [2001] NSWCA 285, I concluded that, by failing to file his income tax returns for so many years, Mr Young was, to his knowledge, concealing his income and thereby displaying a lack of integrity. The result of the case as proposed by Meagher JA is therefore inevitable.

16 FOSTER AJA: I was not unmoved by the arguments, put eloquently by Mr Brereton SC on behalf of his client. I accept that Mr Young did not follow a deliberately premeditated plan of tax evasion in order to amass wealth at the expense of the community. However, he was guilty of most seriously neglecting his fiscal obligations. I also accept the facts which Meagher JA has listed as being non-controversial and which are certainly in his favour.

17 However, his non-filing of tax returns over such a lengthy period can, in light of this Court’s decision in Cummins and Somosi produce only one result.

18 I agree with the orders proposed by Meagher JA.

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Last Modified: 08/28/2003