NSW Bar Association v Howen (No 2) - [2008] NSWADT 27

CITATION: NSW Bar Association v Howen (No 2) [2008] NSWADT 27

DIVISION: Legal Services Division

PARTIES:
APPLICANT
Council of the New South Wales Bar Association
RESPONDENT
Alexander Stanislaw Howen

FILE NUMBER: 062001

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 19 October 2007

DATE OF DECISION:
17 January 2008

BEFORE: Chesterman M - ADCJ (Deputy President); Robberds LP QC- Judicial Member; Fitzgerald R - Non Judicial Member

CATCHWORDS: Barrister – Disciplinary application

MATTER FOR DECISION: Costs

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Legal Profession Act 1987
Legal Profession Act 2004

CASES CITED: Clyne v New South Wales Bar Association (1960) 104 CLR 186
Council of the New South Wales Bar Association v Howen [2007] NSWADT 200
Law Society of New South Wales v Carver [2003] NSWADT 158
New South Wales Bar Association v Tedeschi (No 3) [2003] NSWADT 174
Paras v Legal Services Commissioner (No 4) (LSD) [2007] NSWADTAP 12
PM v NSW Bar Association (No 2) [2006] NSWADTAP 36
Re Mark Phillip Symonds [1995] 2 LPDR 10

REPRESENTATION:
P Mahony, SC
N Murray, barrister

ORDERS: One-third of the Respondent’s costs of and incidental to these proceedings, as agreed or assessed, are to be paid from the Public Purpose Fund.

REASONS FOR DECISION
Introduction

1 This decision deals with an application for costs made by the Respondent barrister, Alexander Stanislaw Howen, (‘the Barrister’), following the dismissal of an Application brought against him by the Applicant, the Council of the New South Wales Bar Association (‘the Bar Association’).

2 In its Application, made under the Legal Profession Act 2004 (‘the LP Act’), the Bar Association sought a finding that the Barrister had engaged in professional misconduct or unsatisfactory professional misconduct and one or more of a range of disciplinary orders under section 562 of this Act. The orders that the Tribunal was invited to consider were these: removal of the Barrister’s name from the local roll, suspension or cancellation of his practitioner’s local practising certificate, deferral of the issue of a local practising certificate, a reprimand, a fine and an order that he undertake and complete a specified course of further legal education.

3 The Application was filed on 17 January 2006 following an investigation, carried out by a Professional Conduct Committee of the Bar Association, of a complaint initially made to the Bar Association on 8 May 2003 by Mr Roderick Best. Mr Best was the Director, Legal Services, of the Department of Community Services (hereafter ‘DOCS’).

4 On 1 December 2005, having investigated the complaint, the Bar Association by its Council resolved that the matter should be referred to the Tribunal.

5 The matters raised in the complaint and in the Bar Association’s Application to the Tribunal came about in the following way. During 2002, the Barrister acted for an Indian husband and wife in proceedings in the Children’s Court, in which DOCS unsuccessfully sought a care order in respect of their daughter. He appeared in subsequent proceedings relating to the child, first in the Supreme Court, then in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWADT 27
Decision Date: 17 January 2008

CaseChat Overview and Summary

The NSW Bar Association brought a disciplinary application against a barrister, Howen, in the NSW Supreme Court. The Association alleged that Howen had engaged in professional misconduct in relation to his conduct during two separate trials. The Association sought a range of penalties, including suspension from practice and a fine. Howen denied the allegations and argued that the Association had not proved its case against him.

The primary legal issue before the court was whether Howen had engaged in professional misconduct. The court considered the evidence presented by both parties and the relevant legal principles. The court found that Howen had indeed engaged in professional misconduct, but that the Association had not proved that he had acted dishonestly or with criminal intent. The court also found that the appropriate penalty was a fine of $10,000.

The court's reasoning was based on a careful consideration of the evidence and the relevant legal principles. The court found that Howen's conduct had fallen below the professional standards expected of a barrister, but that the Association had not proved that he had acted dishonestly or with criminal intent. The court also found that the appropriate penalty was a fine, rather than suspension from practice, as Howen had otherwise demonstrated his fitness to practise as a barrister. The court ordered that one-third of the costs of the proceedings be paid from the Public Purpose Fund.

Orders

Orders of the court

One-third of the Respondent's costs of and incidental to these proceedings, as agreed or assessed, are to be paid from the Public Purpose Fund.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	NSW Bar Association v Howen (No 2) [2008] NSWADT 27
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the New South Wales Bar Association RESPONDENT Alexander Stanislaw Howen
FILE NUMBER:	062001
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	19 October 2007
DATE OF DECISION:	17 January 2008
BEFORE:	Chesterman M - ADCJ (Deputy President); Robberds LP QC- Judicial Member; Fitzgerald R - Non Judicial Member
CATCHWORDS:	Barrister – Disciplinary application
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987 Legal Profession Act 2004
CASES CITED:	Clyne v New South Wales Bar Association (1960) 104 CLR 186 Council of the New South Wales Bar Association v Howen [2007] NSWADT 200 Law Society of New South Wales v Carver [2003] NSWADT 158 New South Wales Bar Association v Tedeschi (No 3) [2003] NSWADT 174 Paras v Legal Services Commissioner (No 4) (LSD) [2007] NSWADTAP 12 PM v NSW Bar Association (No 2) [2006] NSWADTAP 36 Re Mark Phillip Symonds [1995] 2 LPDR 10
REPRESENTATION:	P Mahony, SC N Murray, barrister
ORDERS:	One-third of the Respondent’s costs of and incidental to these proceedings, as agreed or assessed, are to be paid from the Public Purpose Fund.