Prothonotary of the Supreme Court of New South Wales v McCaffery

[2004] NSWCA 470

CITATION:	Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470
HEARING DATE(S):	15 December 2004
JUDGMENT DATE:	17 December 2004
JUDGMENT OF:	Sheller JA at 1; Beazley JA at 2; McColl JA at 3
DECISION:	1. Declare that the opponent is guilty of professional misconduct, pursuant to s 25(4) of the Legal Profession Act 1987 (NSW), in that he did on 29 occasions between 8 August 2002 and 11 December 2003, particulars of which are set out in the Schedule to this judgment, practise as a barrister in contravention of s 25(1) of the Legal Profession Act whilst not holding a current practising certificate as a barrister.; 2. Declare that the opponent is guilty of professional misconduct, pursuant to s 25(4) of the Legal Profession Act 1987 (NSW), in that:; (i) on or about 3 December 2003 he held himself out to be a barrister, in contravention of s 25(2) of the Legal Profession Act, by rendering a tax invoice dated 3 December 2003 stating his title as barrister-in-law and otherwise implying that he was a barrister, whilst not holding a current practising certificate as a barrister.; (ii) on or about 12 December 2003 he held himself out to be a barrister, in contravention of s 25(2) of the Legal Profession Act, by rendering a tax invoice dated 12 December 2003 stating his title as a barrister-at-law and otherwise implying that he was a barrister, whilst not holding a current practising certificate as a barrister.; (iii) between 1 January 2003 and 31 December 2003 he held himself out to be a barrister, in contravention of s 25(2) of the Legal Profession Act, by causing or permitting his name and contact details to be published in the list o barristers in chambers in the Mahlab Law Diary for the year 2003 and in the list of barristers in the Law Society Diary for the year 2003, whilst not holding a current practising certificate as a barrister.; 3. Declare that by reason of the matters set out in paragraphs (1) and (2) the opponent is not a fit and proper person to remain on the Roll of Legal Practitioners of the Supreme Court of New South Wales.; 4. Order that the name of the opponent be removed from the Roll of Legal Practitioners of the Supreme Court of New South Wales.
CATCHWORDS:	LEGAL PRACTITIONERS - Professional misconduct - application to have legal practitioner struck off the Roll - practising without holding a practising certificate - whether done "wilfully and and without reasonable excuse" - whether fit and proper person to remain on the Roll - Legal Profession Act 1987 (NSW) ss 25(1), (2) and (4).
LEGISLATION CITED:	Evidence Act 1995 (NSW) s 191 Legal Profession Act 1987 (NSW) s 3, s 25, s 25(1), s 25(2), s 25(4), s 27(1), s 27(3), s 32, s 33, s 34, s 36, s 38G, s 38R, s 51(1)(b), s 57A, s 127, s 171M, s 213A(1) Legal Profession Regulation 1994 (NSW) cl 4 Legal Profession Regulation 2002 (NSW) cl 5 New South Wales Barristers' Rules rr 21 - 31
CASES CITED:	Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 78 ALJR 310 Barristers' Board v Young [2001] QCA 556 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 Council of the Law Society of New South Wales v A Solicitor [2002] NSWCA 62 Environment Protection Authority v N (1992) 26 NSWLR 352 Fitzgerald v Montoya (1989) 16 NSWLR 164 Iannella v French [1968] HCA 14; (1968) 119 CLR 84 Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 In re a Practitioner (1984) 36 SASR 590 In re a Solicitor; Ex parte Law Society [1912] 1 KB 302 In re Davis [1947] HCA 53; (1947) 75 CLR 409 In re Fanker (1913) 30 WN (NSW) 39 In re Heydon (1901) 1 SR (NSW) 81 In re Moseley (1925) 25 SR (NSW) 174 In re Welsh (1892) 9 WN (NSW) 6a Law Society of NSW v Foreman (No 2) (1994) 34 NSWLR 408 Neat Holdings Pty Limited v Karajan Holdings Pty Limited [1992] HCA 66; (1992) 67 ALJR 170 New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 New South Wales Bar Association v Hamman [1999] NSWCA 404 New South Wales Bar Association v Somosi [2001] NSWCA 285; (2001) 48 ATR 562 New South Wales Bar Association v Thomas (No 2) (1989) 18 NSWLR 193 Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 Prothonotary of the Supreme Court of New South Wales v Farran [2003] NSWCA 372 Prothonotary of the Supreme Court of New South Wales v Ritchard (NSW Court of Appeal, unreported, 31 July 1987) Re a Barrister and Solicitor; Ex parte Attorney-General (Commonwealth) (1972) 20 FLR 234 Re a Gent; Ex parte Incorporated Law Institute (1899) 15 WN (NSW) 289 Southern Law Society v Westbrook [1910] HCA 31; (1910) 10 CLR 609 Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454 Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279
PARTIES :	C: Prothonotary of the Supreme Court of New South Wales O: Nicholas Luke McCaffery
FILE NUMBER(S):	CA 40698/04
COUNSEL:	L K Crowley (Claimant) C A Webster (Bar Council) No appearance (Opponent)
SOLICITORS:	C: I V Knight (Crown Solicitor) O: No appearance

CA 40698/04

SHELLER JA
BEAZLEY JA
McCOLL JA

Friday, 17 December 2004

PROTHONOTARY OF THE SUPREME COURT OF NEW SOUTH WALES v Nicholas Luke McCAFFERY

FACTS

The opponent was admitted as a Barrister of the Supreme Court of New South Wales on 13 August 1993. He practised as a barrister during the period 1 July 2002 to 11 December 2003 without holding a practising certificate, contrary to s 25(1) of the Legal Profession Act 1987 (NSW). During the same period the opponent also held himself out as being a barrister, contrary to s 25(2) of the Legal Profession Act 1987 (NSW), by causing or permitting his name and contact details to be published in the Mahlab Law Diary and the New South Wales Law Society Diary for the year 2003 under the listings of barristers in chambers practising in New South Wales. The opponent also rendered tax invoices upon which his name appeared together with the title “Barrister-at-Law”.

The claimant sought declarations that the opponent was guilty of professional misconduct pursuant to s 25(4) of the Legal Profession Act 1987 (NSW) and that he was not a fit and proper person to remain on the Roll of Legal Practitioners of the Supreme Court of New South Wales, and an order removing the opponent’s name from the Roll of Legal Practitioners of the Supreme Court of New South Wales. The claimant also sought to have the opponent’s name removed from the Roll. The opponent did not oppose the relief sought by the claimant.

HELD per McColl JA (Sheller JA and Beazley JA agreeing), making the declarations and orders sought by the claimant:

1. A court asked to make declarations of professional misconduct and consequential orders should satisfy itself that the declarations and orders are appropriate and record its findings.

New South Wales Bar Association v Somosi [2001] NSWCA 285; (2001) 48 ATR 562; Prothonotary of the Supreme Court of New South Wales v Ritchard (NSW Court of Appeal, unreported, 31 July 1987); Prothonotary of the Supreme Court of New South Wales v Farran [2003] NSWCA 372 applied.

2. The opponent contravened s 25(4) of the Legal Profession Act 1987 (NSW) and was, therefore, guilty of professional misconduct.

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750; In re a Solicitor; Ex parte Law Society [1912] 1 KB 302; Iannella v French [1968] HCA 14; (1968) 119 CLR 84; Fitzgerald v Montoya (1989) 16 NSWLR 164; Environment Protection Authority v N (1992) 26 NSWLR 352; Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454; New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279; A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 78 ALJR 310 referred to.

3. The opponent’s conduct in pursuing a deliberate course of deceit over eighteen months was in flagrant disregard to his obligations to the administration of justice, to the Court, the profession and the public.

Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655; Southern Law Society v Westbrook [1910] HCA 31; (1910) 10 CLR 609; In re Davis [1947] HCA 53; Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186; In re a Practitioner (1984) 36 SASR 590; Law Society of NSW v Foreman (No 2) (1994) 34 NSWLR 408; Barristers’ Board v Young [2001] QCA 556; Council of the Law Society of New South Wales v A Solicitor [2002] NSWCA 62; Prothonotary of the Supreme Court of New South Wales v Farran [2003] NSWCA 372 referred to.

4. The opponent is not a fit and proper person to remain on the Roll of Legal Practitioners of the Supreme Court of New South Wales.

Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655; Southern Law Society v Westbrook [1910] HCA 31; (1910) 10 CLR 609; In re Davis [1947] HCA 53; (1947) 75 CLR 409; Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279; Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186; Law Society of NSW v Foreman (No 2) (1994) 34 NSWLR 408; New South Wales Bar Association v Hamman [1999] NSWCA 404; Barristers’ Board v Young [2001] QCA 556; Council of the Law Society of New South Wales v A Solicitor [2002] NSWCA 62; Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 78 ALJR 310 referred to.

ORDERS

1. Declare that the opponent is guilty of professional misconduct, pursuant to s 25(4) of the Legal Profession Act 1987 (NSW), in that he did on 29 occasions between 8 August 2002 and 11 December 2003, particulars of which are set out in the Schedule to this judgment, practise as a barrister in contravention of s 25(1) of the Legal Profession Act whilst not holding a current practising certificate as a barrister.

2. Declare that the opponent is guilty of professional misconduct, pursuant to s 25(4) of the Legal Profession Act 1987 (NSW), in that:

(i) or about 3 December 2003 he held himself out to be a barrister, in contravention of s 25(2) of the Legal Profession Act , by rendering a tax invoice dated 3 December 2003 stating his title as barrister-in-law and otherwise implying that he was a barrister, whilst not holding a current practising certificate as a barrister.

(ii) on or about 12 December 2003 he held himself out to be a barrister, in contravention of s 25(2) of the Legal Profession Act , by rendering a tax invoice dated 12 December 2003 stating his title as a barrister-at-law and otherwise implying that he was a barrister, whilst not holding a current practising certificate as a barrister.

(iii) between 1 January 2003 and 31 December 2003 he held himself out to be a barrister, in contravention of s 25(2) of the Legal Profession Act , by causing or permitting his name and contact details to be published in the list o barristers in chambers in the Mahlab Law Diary for the year 2003 and in the list of barristers in the Law Society Diary for the year 2003, whilst not holding a current practising certificate as a barrister.

3. Declare that by reason of the matters set out in paragraphs (1) and (2) the opponent is not a fit and proper person to remain on the Roll of Legal Practitioners of the Supreme Court of New South Wales.

4. Order that the name of the opponent be removed from the Roll of Legal Practitioners of the Supreme Court of New South Wales.

CA 40698/04

SHELLER JA
BEAZLEY JA
McCOLL JA

Friday, 17 December 2004

PROTHONOTARY OF THE SUPREME COURT OF NEW SOUTH WALES v Nicholas Luke McCAFFERY

Judgment

1 SHELLER JA: I agree with McColl JA.

2 BEAZLEY JA: I agree with McColl JA.

3 McCOLL JA: The opponent was admitted as a Solicitor of the Supreme Court of New South Wales on 4 July 1986. On 13 August 1993 his name was removed from the Roll of Solicitors at his own request and he was admitted as a Barrister of the Supreme Court of New South Wales. The opponent’s name is on the Roll of Legal Practitioners and has never been removed therefrom.

4 On 25 August 2004 the Prothonotary filed a Summons claiming:

(1) Declarations that the opponent is guilty of professional misconduct, pursuant to s 25(4) of the Legal Profession Act 1987 (NSW), in that he did on 29 occasions between 8 August 2002 and 11 December 2003, particulars of which are set out in the Summons, practise as a barrister in contravention of s 25(1) of the Legal Profession Act whilst not holding a current practising certificate as a barrister.

(2) Declarations that the opponent is guilty of professional misconduct, pursuant to s 25(4) of the Legal Profession Act 1987 (NSW), in that he:

(i) held himself out to be a barrister on or about 3 December 2003, in contravention of s 25(2) of the Legal Profession Act , by rendering a tax invoice dated 3 December 2003 stating [his] title as barrister-at-law and otherwise implying that he was a barrister, whilst not holding a current practising certificate as a barrister.
(ii) held himself out to be a barrister on or about 12 December 2003, in contravention of s 25(2) of the Legal Profession Act , by rendering a tax invoice dated 12 December 2003 stating [his] title as a barrister-at-law and otherwise implying that he was a barrister, whilst not holding a current practising certificate as a barrister.
(iii) held himself out to be a barrister between 1 January 2003 and 31 December 2003, in contravention of s 25(2) of the Legal Profession Act , by causing or permitting his name and contact details to be published in the list of barristers in chambers in the Mahlab Law Diary for the year 2003 and in the list of barristers in the Law Society Diary for the year 2003, whilst not holding a current practising certificate as a barrister.


(3) A declaration that by reason of the matters set out in paragraphs (1) and (2) the opponent is not a fit and proper person to remain on the Roll of Legal Practitioners of the Supreme Court of New South Wales.

(4) An order that the name of the opponent be removed from the Roll of Legal Practitioners of the Supreme Court of New South Wales.
(5) An order that the opponent pay the costs of these proceedings.

5 Mr Crowley appeared on behalf of the claimant. There was no appearance by the opponent. Service upon him was proved by the affidavit of Ms Kelly sworn 22 September 2004. Ms Webster appeared on behalf of the Bar Council exercising its function pursuant to s 51(1)(b) of the Legal Profession Act. Ms Webster informed the Court that the Bar Council supported the relief the claimant sought.

Factual background

6 The parties have agreed the facts to be relied upon by the Prothonotary pursuant to s 191 of the Evidence Act 1995 (NSW). I set out those facts save to the extent that I have already recited the matters relating to the opponent’s history of admission to the Roll of Legal Practitioners.

7 As of 1 July 2002 the opponent did not hold a practising certificate entitling him to practise in the State of New South Wales. Despite that fact, he continued to practise as a barrister during the period 1 July 2002 to 11 December 2003. In particular he practised as a barrister by appearing before various courts as an advocate during that period. I attach to this judgment a schedule of the opponent’s court appearances during that period which was an annexure to the Agreed Statement of Facts.

8 In appearing in court as a barrister on the occasions listed in that schedule the opponent represented, either expressly or impliedly, to the public, the courts, the opponent’s clients and the opponent’s professional colleagues that he was entitled to practise as a barrister within the State of New South Wales.

9 Further, during the same period the opponent also held himself out as being a barrister by causing or permitting his name and contact details to be published in the Mahlab Law Diary and the New South Wales Law Society Diary for the year 2003 under the listings of barristers in chambers practising in New South Wales. By so doing the opponent intended, or knew, that he would represent to the public and his professional colleagues that he was entitled to practise as a barrister within the State of New South Wales.

10 Further, on or about 3 and 12 December 2003, the opponent held himself out as being a barrister by rendering tax invoices upon which his name appeared together with the title “Barrister-at-Law”. By doing so, the opponent claimed to be a barrister and represented to the intended recipients of the said tax invoices, his clients, that he was a barrister.

11 The Agreed Statement of Facts was signed by the opponent and the solicitor for the claimant.

12 The opponent does not contest the orders and declarations sought by the claimant in a Summons filed herein. It is not appropriate, however, that the declarations and orders sought be made unless the Court is itself satisfied that they should be made and records the findings upon which they are made: Prothonotary of the Supreme Court of New South Wales v Farran [2003] NSWCA 372 at [4] per Giles JA (with whom Mason P and Meagher JA agreed) applying Prothonotary of the Supreme Court of New South Wales v Ritchard (NSW Court of Appeal, unreported, 31 July 1987); New South Wales Bar Association v Somosi [2001] NSWCA 285; (2001) 48 ATR 562 at [3] per Spigelman CJ (with whom Sheller and Giles JJA agreed).

13 To that end I set out the background to the filing of the Summons.

14 On 19 December 2003 Mr Philip Selth, the Executive Director of the New South Wales Bar Association, wrote to the opponent that it had come to his attention that he had appeared as junior counsel in the Supreme Court of New South Wales before Gzell J on 8 December 2003 but that the Bar Association’s records revealed that he had not held a practising certificate since 30 June 2002. Mr Selth called upon the opponent to explain why he had appeared before Gzell J when he did not hold a current practising certificate. Mr Selth’s letter also asked the opponent to advise him whether he had appeared in court or acted or been practising as a barrister or held himself out to be a barrister on any occasion since 1 July 2002 other than on 8 December 2003.

15 On 5 January 2004 the opponent responded to Mr Selth’s letter. His letter stated:

“For the removal of all doubt, I make the following formal admissions:
1. I have appeared in court and practised as a barrister despite my not holding a current practising certificate since 30 June 2002.
2. I have held myself out as a barrister despite my not holding a current practising certificate since 30 June 2002 ( sic, this should presumably be 30 June 2003) .
3. I have so acted as noted in 1 and 2 above on 8 December 2003 and on other occasions.
4. I have not held any current practising certificate since 30 June 2002 issued either by the Association or the Law Society.
I offer by way of explanation of my conduct the following:
5. At all times since my admission in 1993 both my remuneration and lifestyle has been modest. In particular, such modest remuneration and means has continued despite the birth of my child and my marriage in 1997.
6. During the period leading up to 30 June 2002, my practice failed by reason of an inability to create and maintain sufficient cash flow and properly administer the business aspects of the practice. This had serious effects not only on my business financially, but also within my family life.
7. In the above circumstances I have been and continue to be under treatment by Drs Vaughan and Armstrong for and diagnosed as suffering from a clinical anxiety/depression syndrome.
8. At all times I acted in a wrongful and misguided attempt to support my family.

I would anticipate that a psychiatric report in relation to the matters referred to in 7 above would be forthcoming in the near future.
I apologise to the Association, its members, the profession and its clientele for my default and for it and their being required to deal with this ignominious situation.
Despite all the above matters and whilst I do sincerely love the practice and challenge of the profession and all it faces, most importantly I am anxious to address and redress my default honourably in the eyes of the profession, the public and to support my family.”

16 On 9 January 2004 Mr Selth wrote to the opponent again, noting the contents of his 5 January 2004 letter and seeking details of each occasion on which he had acted as a barrister since 30 June 2002 and a full explanation for his reasons for breaching the Legal Profession Act 1987 on each occasion that he so acted.

17 On 12 January 2004 the opponent forwarded a letter to Mr Selth undertaking:

“That I will not again:
1. appear in court; or
2. practise as a barrister (including undertaking chamber work); or
3. hold myself out as a barrister; or
4. engage in any conduct which in any way breaches the provisions of the Legal Profession Act 1987.”

18 On 19 January 2004 the opponent forwarded to the Bar Association a schedule and various tax invoices relating, as I understand their contents, to his appearances since 1 July 2002.

19 On 23 January 2004 the Director of the New South Wales Bar Association’s Professional Conduct Department forwarded the papers to the claimant for his consideration as to any action he may wish to take against the opponent.

20 On 24 May 2004 Mr Selth issued a certificate pursuant to s 213A(1) of the Legal Profession Act 1987 certifying that the opponent did not hold a practising certificate as a barrister for the period 1 July 2002 to 30 June 2003 and that he had not been issued with a barristers’ practising certificate for the period 1 July 2003 to 30 June 2004.

21 The papers in this matter were served upon the opponent under cover of a registered letter dated 1 September 2004. Subsequently, the matter was mentioned at a directions hearing before Registrar Schell in the Court of Appeal. It appears the opponent advised Ms Kelly, the solicitor with the conduct of the matter on behalf of the claimant, that he intended to consent to the orders sought in the Summons and that she advised him that in the circumstances costs would not be sought. Mr Crowley informed the Court that that continued to be the attitude of the claimant.

22 The only other factual material to which it is necessary to refer is a letter from a Dr Michael S Armstrong, a Consultant Psychiatrist, which was forwarded to Mr Selth on 15 March 2004. In that letter Dr Armstrong reported that the opponent presented to his rooms on 1 October 2002 following referral by a psychiatric colleague who recounted that the opponent had first come under his care in October 2001 for treatment of severe major depression. The opponent presented to Dr Armstrong because of continuing issues around procrastination and “… consequently his business, his marriage and self esteem is in a mess”.

23 The opponent informed Dr Armstrong that he was “of a somewhat retiring disposition” and “was not good at networking” and had “experienced great difficulty in securing an adequate supply of work”. He apparently suffered from doubt about his capacity and ability to cope with the stresses of being a barrister and to earn enough to support his wife and daughter. In 1998 the opponent was sued for negligence with the matter settling in 2001 before proceeding to court. In that year, 2001, the opponent’s father died of cancer after a two-year illness. Apparently, finances were a constant strain and the opponent experienced extreme difficulties in keeping up with floor fees and his tax payments. In April 2002 he had fallen so far behind in his floor fees that he had to relinquish the shares in his chambers. When his practising certificate fell due at the end of June 2002 he did not have enough money to pay for it. By October 2002 when he still did not have the funds for his practising certificate he apparently realised that he would have to supply a statutory declaration that he had not acted in the interim and, being unwilling to perjure himself, he continued to procrastinate. Dr Armstrong expressed the opinion:

“In the presence of Major Depression [the opponent’s] chronic difficulties in obtaining sufficient work would have been aggravated because of the associated lack of motivation, lack of energy and tendency to isolate himself. Depression would have played an important role in determining the financial crises of 2002. In addition, his inherent tendencies towards procrastination and perfectionism would have been greatly aggravated by his depression.”

24 It appears that following receipt of the Bar Association’s letter in December 2003 the Opponent “again plunged into severe depression”, tensions in his marriage became inflamed and he and his wife separated from February 2004. Thereafter he came under the care of Dr Regoz who prescribed an anti depressant. Dr Armstrong reviewed the opponent in March 2004 by which occasion his mood had improved, he had found lodgings in a guesthouse and he was undertaking some contract work as a legal clerk.

Consideration

25 Section 25 of the Legal Profession Act relevantly provides:

“ 25 Requirement for practising certificate
(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.
(2) A legal practitioner whose sole or principal place of legal practice is this State must not hold himself or herself out to be a barrister without being the holder of a current practising certificate as a barrister.
…
(4) A legal practitioner or interstate legal practitioner who contravenes this section wilfully and without reasonable excuse is guilty of professional misconduct.”

26 “Barrister” is relevantly defined in s 3 of the Legal Profession Act to mean “a legal practitioner who holds a current practising certificate as a barrister”. There is no suggestion that the opponent was an “interstate legal practitioner” which would have brought him within the second limb of the definition of “barrister”.

27 Practising certificates operate for the period of 12 months following the first of July in the relevant year: s 36 Legal Profession Act. Section 27(1) of the Legal Profession Act provides that the Bar Council may, on application, grant a practising certificate to a legal practitioner authorising the practitioner to practise as a barrister. A legal practitioner who holds a current practising certificate as a barrister (which I infer was a description which applied to the opponent prior to 30 June 2002) was required to apply to the Bar Council for a new practising certificate (for the 2002 practising certificate year) during the period commencing on 1 April and ending on 15 May (Legal Profession Regulation 1994, cl 4) and (for the 2003 practising certificate year) the period commencing on 1 April and ending on 7 June before the current practising certificate expires: s 27(3) Legal Profession Act; cl 5 Legal Profession Regulation 2002.

28 It is plain from the facts which I have set out above that the opponent has both practised as a barrister and held himself out to be a barrister during the 18 months commencing on 30 June 2002 without being the holder of a current practising certificate as a barrister. He has, therefore, prima facie contravened ss 25(1) and (2) of the Legal Profession Act. Those subsections will only have been contravened, however, if, in practising in that manner, the opponent acted “wilfully and without reasonable excuse”.

29 The use of the word “wilful” in a statute creating an offence connotes intention and knowledge: Iannella v French [1968] HCA 14; (1968) 119 CLR 84 at 95 per Barwick CJ; see also Windeyer J at 106 – 109; Fitzgerald v Montoya (1989) 16 NSWLR 164 at 168 – 171 per Rogers JA (with whom Kirby P and Clarke JA agreed). In Iannella v French, McTiernan J (at 98) said that the word “wilfully” should be given its ordinary meaning of “wilful intent”, while Taylor J (with whom Owen J agreed) clearly regarded an act to have been “wilful” where it was intentional.

30 In Environment Protection Authority v N (1992) 26 NSWLR 352 at 355, Hunt CJ at CL (with whom Enderby and Allan JJ agreed) noted that Barwick CJ and Windeyer J were in the minority as to the result in Iannella v French and, therefore, the weight “to be given their interpretation of the word ‘wilfully’ is thus perhaps equivocal”. His Honour concluded that the true significance of Iannella v French may lie in Barwick CJ and Windeyer J’s statements (at 93, 95 and 108 respectively) that the meaning of “wilfully” should be sought from the context in which it appeared.

31 It is sufficient for present purposes to conclude that “wilful” in s 25 encompasses an intentional act.

32 There can be no doubt that the opponent deliberately practised without a practising certificate, knowing of his obligation to obtain that certificate. He turned his mind to the question of obtaining a practising certificate at the renewal time in June 2002 and made a deliberate decision, having regard to his financial circumstances, not to do so. Having committed himself to a course of practising without a practising certificate he decided, by October that year, that it was too late to turn back. He persisted with the course of practising without a practising certificate because, apparently, the alternative course of admitting his omission was too unpalatable. I am satisfied that his conduct was “wilful” in the relevant sense throughout the period commencing on 8 August 2002 and concluding on 11 December 2003, as well as on the dates and during the periods set out in paragraph 2 of the Summons.

33 The next question is whether it has been established that the opponent acted “without reasonable excuse”.

34 In Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454 at 464 ff, Brennan CJ, Toohey, McHugh and Gummow JJ pointed out that what was a “reasonable excuse” depended both upon the circumstances of the individual case and also on “the purpose of the provision to which the defence of ‘reasonable excuse’ is an exception”.

35 Without commenting upon whether the presence of the phrase “without reasonable excuse” in s 25(4) operates by way of defence, it is plain that in that context the expression requires an explanation to be propounded which would justify the opponent’s otherwise contravening conduct.

36 In this context it is relevant to note that the requirement that legal practitioners hold practising certificates performs important functions in the regulation of the legal profession. Significantly, s 32 of the Legal Profession Act enables the relevant Council to issue a practising certificate subject to conditions such as requiring the holder to undertake and complete one or more courses of continuing legal education, undertake additional academic training courses, limiting the practising rights of the holder as determined by the relevant Council or other conditions agreed to by the holder (s 33) and the conditions set out in s 34.

37 Holding a practising certificate means that the “barrister” is subject to the Barristers’ Rules made under the Legal Profession Act by the Bar Council: s 38G. Furthermore, prior to issuing a practising certificate the Bar Council is required to be satisfied that there is, or will be, in force with respect to the barrister an approved indemnity insurance policy: s 38R. While there is no evidence before the Court that the opponent did not have an approved indemnity insurance policy, provisions such as s 38R underline the importance of the issue of the practising certificate for members of the public who use the barrister’s services.

38 There are undoubtedly many other aspects of the Legal Profession Act to which reference could be made to demonstrate the significance of a barrister holding a practising certificate, but those to which I have referred are sufficient for present purposes to demonstrate the role of that document in regulating the profession. The regulation of the profession through practising certificates seeks, as the claimant submits, to uphold and maintain professional standards and to provide a safeguard for the public. By failing to renew his practising certificates for the years 2002/2003 and 2003/2004 the opponent circumvented the scheme of regulation and protection for which the Legal Profession Act provides.

39 I have already referred to the contents of Dr Armstrong’s report. The claimant submits that the matters set out in that document do not provide the basis for a “reasonable excuse” for contravening s 25 of the Legal Profession Act. The claimant contends that while the major depression to which Dr Armstrong refers may explain the opponent’s behaviour to some extent it does not provide a “reasonable excuse”.

40 Having regard to the opponent’s consent to the declarations and orders the claimant seeks, I do not understand him to be advancing Dr Armstrong’s report in justification for his behaviour. Dr Armstrong does not suggest that the opponent was at any time incapable of understanding the requirement to obtain a practising certificate or the consequences of failing to obtain it, namely that he was then practising in contravention of the Legal Profession Act. Nor can the opponent’s financial embarrassment at the time for renewal of his practising certificate afford any justification for his conduct. Rather, it is plain that he preferred his personal position at the expense of complying with his statutory obligations as a barrister.

41 It is plain, in such circumstances, that the opponent wilfully and without reasonable excuse contravened both subsections 25(1) and (2) of the Legal Profession Act.

42 The claimant submits that the opponent’s conduct amounts to a grave breach of the standards of professional behaviour expected of members of the legal profession and barristers in particular. He points to the fact that the legislature has demonstrated the seriousness with which such conduct is to be regarded by providing that a breach of those subsections, without more, constitutes “professional misconduct”.

43 The claimant also submits that in practising without a practising certificate the opponent has not been required to provide proof of having professional indemnity insurance (s 38R) so that it is “highly probable that he did not have such insurance during the relevant time period”. There is no evidence to support that proposition. It was open to the claimant to inquire of the opponent whether he had complied with s 38R. It must be recalled that the standard of proof which applies in disciplinary proceedings is that referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 where, at 362, Dixon J in a well known passage referred to (inter alia) “the gravity of the consequences following from a particular finding” as being relevant to the question whether an issue has been proved. His Honour said that “‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences”: see also Neat Holdings Pty Limited v Karajan Holdings Pty Limited [1992] HCA 66; (1992) 67 ALJR 170. A conclusion that the opponent practised without professional indemnity insurance would be, in itself, capable of amounting to professional misconduct. In the absence of positive proof as to the opponent’s insurance position, I do not regard it as appropriate to make a finding adverse to him in this respect.

44 The claimant submits that by continuing to practise and holding himself out as a barrister in contravention of s 25, the opponent set out to deceive the courts, his clients, the general public and his professional colleagues as to his qualifications as a barrister and his entitlement so to practise. The claimant submits that such deliberate deceit is the antithesis of the requirements of candour and honesty expected of members of the legal profession. The claimant contends that the opponent’s conduct demonstrates he lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner: see In re a Practitioner (1984) 36 SASR 590 at 591; Council of the Law Society of New South Wales v A Solicitor [2002] NSWCA 62 at [89], [113], [125]; Prothonotary of the Supreme Court of New South Wales v Farran, above, at [14].

45 The claimant’s Summons invokes the inherent jurisdiction of the Supreme Court with respect to the discipline of legal practitioners, a jurisdiction which is preserved by s 171M of the Legal Profession Act; see A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 78 ALJR 310 at 312, [3]. The jurisdiction which the Court exercises in such circumstances was described by the High Court in its joint judgment in the following terms (at [12]):

“As Griffith CJ pointed out in Southern Law Society v Westbrook (1910) 10 CLR 609 at 612, the question that arises when the power of the Supreme Court is invoked in a case such as the present is not one of punishment, but ‘whether the Court is justified in holding out the [appellant] as a fit and proper person to be entrusted with the duties and responsibilities of a solicitor’.”

46 As s 25(4) of the Legal Profession Act provides that once a contravention of the section is established the legal practitioner is “guilty of professional misconduct”, it is, strictly speaking, unnecessary to consider the common law meaning of that expression - the statutory definition in s 127 of the Legal Profession Act is relevant only to Part 10 of the Act. Nevertheless, it gives content to s 25 to note it was enacted in the context that “professional misconduct” at common law was said to connote “conduct which would reasonably be regarded as disgraceful or dishonourable” by one’s peers: see Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 and other authorities collected by Spigelman CJ (with whom Mason P and Handley JA agreed) in New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [36] ff. Allinson was adopted in relation to the legal profession in Inre a Solicitor; Ex parte Law Society [1912] 1 KB 302 at 311-312: see A Solicitor v Council of the Law Society of New South Wales, above, at [13].

47 Accordingly, the effect of s 25(4) of the Legal Profession Act is that by contravening ss 25(1) and (2) the opponent has engaged in conduct which would be regarded as “disgraceful or dishonourable” by his peers. The declarations which the claimant seeks in paragraphs (1) and (2) of the Summons should be made. They have utility in that they serve to maintain the confidence of the public in the legal profession: see New South Wales Bar Association v Cummins, above, at [69]. The sense in which the expression “professional misconduct” is used is plain from the facts constituting the contraventions: see A Solicitor v Council of the Law Society of New South Wales, above, at [14].

48 In exercising the Court’s inherent jurisdiction, it is accepted that a declaration or finding that a practitioner has been guilty of professional misconduct will not automatically lead to a finding that the practitioner is not a fit and proper person to remain on the Roll of Legal Practitioners. Resolution of that question turns upon an examination of the circumstances of the contravention: Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 at 288 per Fullagar J; see also Taylor J at 303; Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 per Priestley JA at 207. The issue of fitness is determined at the time of the hearing: A Solicitor v Council of the Law Society of New South Wales, above, at [21].

49 In Ziems v Prothonotary of the Supreme Court of New South Wales, above, at 297, 298, Kitto J said:

“The issue is whether the appellant is shown not to be a fit and proper person to be a member of the Bar of New South Wales. It is not capable of more precise statement. The answer must depend upon one's conception of the minimum standards demanded by a due recognition of the peculiar position and functions of a barrister in a system which treats the Bar as in fact, whether or not it is also in law, a separate and distinct branch of the legal profession. It has been said before, and in this case the Chief Justice of the Supreme Court has said again, that the Bar is no ordinary profession or occupation. These are not empty words, nor is it their purpose to express or encourage professional pretensions. They should be understood as a reminder that a barrister is more than his client's confidant, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. He is, by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations. If a barrister is found to be, for any reason, an unsuitable person to share in the enjoyment of those privileges and in the effective discharge of those responsibilities, he is not a fit and proper person to remain at the Bar. Yet it cannot be that every proof which he may give of human frailty so disqualifies him. The ends which he has to serve are lofty indeed, but it is with men and not with paragons that he is required to pursue them. It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self-respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily co-operation which the satisfactory working of the courts demands. …”

50 Legal practitioners are under an obligation of candour to the Court: In re Davis [1947] HCA 53; (1947) 75 CLR 409 at 417 and 426. Lack of candour by a practitioner may lead to the conclusion that a practitioner is not a fit and proper person to remain on the roll. That obligation is essential to ensure that counsel may “command the personal confidence … of other members of the Bar and of judges”: In re Davis, above, at 420 and so that the Court may hold out legal practitioners to members of the public as fit and proper persons to act for them: Ziems v Prothonotary of the Supreme Court of New South Wales, above, at 290; see also Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 at 681; Southern Law Society v Westbrook [1910] HCA 31; (1910) 10 CLR 609 at 625. The confidence a legal practitioner commands in judges and other members of the profession must be such that they can rely implicitly on the practitioner’s word and behaviour: Barristers’ Board v Young [2001] QCA 556 at [42] per Mackenzie J.

51 The Court must be careful not to accredit as legal practitioners those in whom the public cannot have confidence that they will discharge the obligation of candour the Court requires of them, whether because of “deliberate misleading or reckless laxity of attention to necessary principles of honesty on the part of those the Courts trust to prepare the essential materials for doing justice”: Incorporated Law Institute of New South Wales v Meagher, above, at 681 per Isaacs J; see also Southern Law Society v Westbrook, above, at 625 cited in Law Society of NSW v Foreman(No 2) (1994) 34 NSWLR 408 by Kirby P at 412B-E and by Mahoney JA at 442E-G.

52 In Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 199, 200, Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ emphasised in their joint judgment the fundamental rule governing the conduct of members of a body of professionals, such as the Bar of New South Wales, saying that:

“… they rest essentially on nothing more and nothing less than a generally accepted standard of common decency and common fairness. To the Bar in general it is more a matter of "does not" than of "must not". A barrister does not lie to a judge who relies on him for information. He does not deliberately misrepresent the law to an inferior court or to a lay tribunal …”

53 It is impossible to understate the confidence which courts must be able to place in the candour of those legal practitioners who appear before them. As Mahoney JA said in Law Society of New South Wales v Foreman (No 2), above at 445G-446C:

“The administration of justice would proceed more slowly and with greater costs if the courts before whom a solicitor practised felt it necessary to check the accuracy of what the solicitor had said to it …. if what the solicitor has done is such that the court will hesitate before acting upon what the solicitor has said, that is … an important matter to be taken into account.”

54 In Council of the Law Society of New South Wales v A Solicitor [2002] NSWCA 62, Sheller JA (with whom Mason P and Giles JA agreed) said (at [101]) that:

“The solicitor’s duty is to be faithful to the oath of office, to the courts, to fellow practitioners and most importantly to the clients … who should be able confidently to expect that the solicitor will honour the obligation and responsibility imposed by the relationship of solicitor and client. The sworn duty is a public duty. The administration of justice depends in large measure on the trust the courts and the public place in those who practise the law.”

55 His Honour’s remarks were not affected by the High Court’s decision, on appeal, in A Solicitor v Council of the Law Society of New South Wales, above.

56 The question which falls for determination by this Court is whether the Court is “justified in holding out the [opponent] as a fit and proper person to be entrusted with the duties and responsibilities of a [barrister]”: A Solicitor v Council of the Law Society of New South Wales, above at [12].

57 The fundamental rules to which the High Court referred in Clyne v New South Wales Bar Association have been given expression in The New South Wales Barristers’ Rules made under s 57A of the Legal Profession Act. Those rules emphasis (see rr 21 –31) the barrister’s obligation to be frank in court. It goes without saying that the obligation of frankness is one which the barrister is also expected to discharge in his or her dealings with the public and other members of the profession.

58 The opponent’s conduct struck at the heart of these obligations. In appearing in the matters listed in the Schedule and in rendering tax invoices in respect of those appearances he represented that he was entitled to practise as a barrister. In so doing he misled the courts before which he appeared, he misled the members of the legal profession against whom he appeared and he mislead the clients for whom he appeared. Further, by permitting his name to be published in the two law diaries which are the point of reference for identifying members of the profession he represented to the world at large that he was entitled to practise as a barrister.

59 His conduct was dishonourable and disgraceful in the sense encompassed by the expression “professional misconduct”. The opponent pursued a deliberate course of deceit continuously over 18 months. He acted in flagrant disregard to his obligations to the administration of justice, to his obligations to the Court, the profession and the public. His deceit was only revealed when his conduct came to the attention of the Bar Association.

60 I accept that the contraventions occurred by reason of the financial and psychological constraints under which the opponent was suffering and in circumstances where he sought to support his family. Moreover it is apparent from Dr Armstrong’s report that some three or so months after his first decision not to renew his practising certificate, he sought treatment for depression. That condition may also have had an operative effect in his conduct. These matters evoke sympathy but they cannot, in my opinion, be permitted to obscure the serious nature of the contraventions.

Orders

61 In exercising its powers the range of orders available to the Court is wide. It may:

(a) remove the name of the lawyer from the role of practitioners: In re Davis , above;

(b) suspend the practitioner’s right to practise: Ziems , above; Prothonotary of the Supreme Court of New South Wales v Ritchard (NSW Court of Appeal, unreported, 31 July 1987 per McHugh J at 8); In re a Practitioner (1984) 36 SASR 590 at 591; Council of the Law Society of New South Wales v A Solicitor , above at [88] - 89];

(c) reprimand the practitioner: Southern Law Society v Westbrook , above at 620;

(d) fine or censure and admonish the lawyer: In re Heydon (1901) 1 SR (NSW) 81; In re Fanker (1913) 30 WN (NSW) 39; In re Moseley (1925) 25 SR (NSW) 174;

(e) order the lawyer to pay the costs of the disciplinary hearing: In re Moseley , above; Re a Barrister and Solicitor; Ex parte Attorney-General (Commonwealth) (1972) 20 FLR 234. This order may be made even if no order is made in relation to misconduct: In re Welsh (1892) 9 WN (NSW) 6a; Re a Gent ; Ex parte Incorporated Law Institute (1899) 15 WN (NSW) 289; New South Wales Bar Association v Thomas (No 2) (1989) 18 NSWLR 193;

(f) accept an undertaking from a lawyer with respect to his or her future practice: Re a Barrister and Solicitor ; Ex parte Attorney-General (Commonwealth) , above.

62 The opponent has not practised law since he gave his undertaking in January this year. He has, therefore, been effectively suspended from practice during this year. Although I accept that he has sought, since his activities were disclosed, to act honourably to “redress [his] default”, the seriousness and persistence of his conduct striking as it did at the heart of his role as a legal practitioner of this Court is such that, in my opinion, he is presently not a fit and proper person to be a legal practitioner.

63 The claimant seeks an order that the opponent’s name be removed from the Roll of Legal Practitioners – an order the opponent does not oppose. In my opinion that order is appropriate. The courts and the public could not repose any confidence in a person who is prepared to betray the trust expected from those who practise the law. Both the public and the profession should be protected by ensuring that the opponent can no longer hold himself out as a legal practitioner of this Court: see New South Wales Bar Association v Hamman [1999] NSWCA 404.

64 In my opinion, the Court should declare that the opponent is not a fit and proper person to remain on the Roll of Legal Practitioners of this Court and order that his name be removed from the Roll of Legal Practitioners of the Supreme Court of New South Wales.

65 I propose the following declarations and orders:

(1) Declare that the opponent is guilty of professional misconduct, pursuant to s 25(4) of the Legal Profession Act 1987 (NSW), in that he did on 29 occasions between 8 August 2002 and 11 December 2003, particulars of which are set out in the Schedule to this judgment, practise as a barrister in contravention of s 25(1) of the Legal Profession Act whilst not holding a current practising certificate as a barrister.

(2) Declare that the opponent is guilty of professional misconduct, pursuant to s 25(4) of the Legal Profession Act 1987 (NSW) in that:
(i) on or about 3 December 2003 he held himself out to be a barrister, in contravention of s 25(2) of the Legal Profession Act , by rendering a tax invoice dated 3 December 2003 stating his title as barrister-at-law and otherwise implying that he was a barrister, whilst not holding a current practising certificate as a barrister.
(ii) on or about 12 December 2003 he held himself out to be a barrister, in contravention of s 25(2) of the Legal Profession Act , by rendering a tax invoice dated 12 December 2003 stating his title as a barrister-at-law and otherwise implying that he was a barrister, whilst not holding a current practising certificate as a barrister.
(iii) between 1 January 2003 and 31 December 2003 he held himself out to be a barrister, in contravention of s 25(2) of the Legal Profession Act , by causing or permitting his name and contact details to be published in the list of barristers in chambers in the Mahlab Law Diary for the year 2003 and in the list of barristers in the Law Society Diary for the year 2003, whilst not holding a current practising certificate as a barrister.


(3) Declare that by reason of the matters set out in paragraphs (1) and (2) the opponent is not a fit and proper person to remain on the Roll of Legal Practitioners of the Supreme Court of New South Wales.

(4) Order that the name of the opponent be removed from the Roll of Legal Practitioners of the Supreme Court of New South Wales.

66 In light of Ms Kelly’s advice to the opponent, to which I have referred in [21], I would make no order as to costs.

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Last Modified: 12/17/2004