The Prothonotary of the Supreme Court of New South Wales (Claimant) Frank Del Castillo (Opponent)
JUDGMENT OF:
Mason P at 1; Priestley JA at 2; Heydon JA at 7
COUNSEL:
P E Blacket SC/H A Kiel (Claimant) T A Game SC/K T Nomchong (Opponent)
SOLICITORS:
Crown Solicitor's Office (Claimant) Gary Robb & Associates (Opponent)
CATCHWORDS:
Legal Practitioners - Professional Misconduct - Whether conduct justifies finding that practitioner is not of good fame and character - Whether conduct justifies finding that practitioner is not a fit and proper person to remain on roll of legal practitioners - Where conduct not in connection with legal practice - Where conduct occurred prior to admission - Where conduct arose out of events surrounding death of friend and subsequent prosecution and trial for murder - Where opponent was acquitted at trial for murder - Legal Profession Act 1987 (NSW), s 127(1)(b) D
Amended Summons dismissed; Claimant to pay Opponent's costs
THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40829/99
MASON P
PRIESTLEY JA
HEYDON JA
6 April 2001
THE PROTHONOTARY OF THE SUPREME COURT
OF NEW SOUTH WALES v DEL CASTILLO
Legal Practitioners - Professional Misconduct - Whether conduct justifies finding that practitioner is not of good fame and character - Whether conduct justifies finding that practitioner is not a fit and proper person to remain on roll of legal practitioners - Where conduct not in connection with legal practice - Where conduct occurred prior to admission - Where conduct arose out of events surrounding death of friend and subsequent prosecution and trial for murder - Where opponent was acquitted at trial for murder - Legal Profession Act 1987 (NSW), s 127(1)(b)
On 5 September 1991 the opponent visited a friend, Mr Wilder, at a motel in Narrabundah. The two men argued, a knife was produced, and both were injured. The opponent left the motel and drove to a police station. Mr Wilder was taken by ambulance to hospital, and he died the following morning.
The opponent was charged with the murder of Mr Wilder. On 3 February 1992 his trial for murder commenced, and on 17 February 1992 he was acquitted.
When questioned by police on 5 September 1991, Mr Wilder lied to them, stating that he had thrown the knife into Lake Burley Griffin. The knife was later found behind a water heater at the motel. The opponent told his solicitor that he had taken the knife to the motel, when the opponent knew that he had not done so. He did not inform his solicitor or his counsel…
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
AGLC
Prothonotary v Del Castillo [2001] NSWCA 75
Case
[2001] NSWCA 75
Decision Date
CaseChat Overview and Summary
The Prothonotary of the Supreme Court of New South Wales brought proceedings against Mr Del Castillo, a legal practitioner, seeking to have his name removed from the roll of legal practitioners. The dispute concerned Mr Del Castillo's conduct in connection with the death of a friend, which led to his prosecution and trial for murder. Although Mr Del Castillo was acquitted of the murder charge, the Prothonotary alleged that his conduct was such that he was not of good fame and character and was not a fit and proper person to remain on the roll. The proceedings were heard by Mason P, Priestley and Heydon JJA in the Court of Appeal of New South Wales.
The central legal issue before the Court of Appeal was whether Mr Del Castillo's conduct, which occurred prior to his admission to legal practice and was unrelated to his professional duties, constituted professional misconduct justifying his removal from the roll of legal practitioners under section 127(1)(b) of the *Legal Profession Act 1987* (NSW). This required the court to determine if his actions demonstrated that he was not of good fame and character or a fit and proper person to practice law.
The Court of Appeal found that the conduct in question, while serious and occurring in a context of significant personal tragedy, did not demonstrate that Mr Del Castillo lacked the character or probity required of a legal practitioner. The court considered that the acquittal at the murder trial was a significant factor, and that the events, viewed in their entirety and in light of Mr Del Castillo's subsequent admission and practice, did not warrant the severe sanction of removal from the roll. The court applied principles relating to the assessment of fitness and propriety for admission and continued practice, distinguishing between conduct that is professionally relevant and conduct that, even if serious, does not impugn a practitioner's suitability to practice.
The Court of Appeal dismissed the Prothonotary's amended summons and ordered that the Prothonotary pay Mr Del Castillo's costs.
Orders
Orders of the court
Amended Summons dismissed; Claimant to pay Opponent's costs