Re Daley - [1907] HCA 32

IN RE DALEY.

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Appeals to High Court-Suspension of solicitor by Supreme Court for professional

misconduct-Discretion of Supreme Court as to punishment of its officers- Special leave.

A solicitor of the Supreme Court of New South Wales was suspended from practice by that Court for having by a false representation induced a barrister to accept a brief which otherwise he might not have accepted.

The High Court, being of opinion that the Supreme Court clearly had jurisdiction to deal with one of its officers who had been guilty of such mis- conduct as was alleged, and seeing no reason to differ from them in the con- clusion to which they had come on the facts, refused to grant special leave to appeal from their decision.

The nature of the punishment in cases of professional misconduct on the part of an attorney is entirely within the discretion of the Supreme Court.

In re Coleman, 2 C.L.R., 834, followed. Special leave to appeal from the decision of the Supreme Court In re Daley, (1907) 7 S.R. (N.S.W.), 561, refused.

5 CLR 194

OF APPLICATION for special leave to appeal from a decision of the

Supreme Court of New South Wales.

The applicant, a solicitor practising in Sydney, was called upon by the Supreme Court to show cause why he should not be struck off the rolls, or otherwise punished, for professional mis- conduct. The misconduct alleged was that, for the purpose of inducing a barrister to accept a brief in a case to be tried in a Circuit Court, he falsely represented that, although he had not the money in hand at the time to pay the counsel's fees, his client had certain produce for sale in the hands of a wool selling firm in Sydney, and had given him an order to collect the proceeds of the sale, and that the fees would be paid out of those proceeds. Counsel, relying upon these representa- tions, accepted the brief and did the work, but the fees were not paid. The evidence before the Supreme Court was conflicting, but they came to the conclusion that the charge had been made out, and suspended the solicitor from practice for a period of eighteen months: In re Daley 1.

The present application was for special leave to appeal from that decision.

Delohery, for the applicant. The Supreme Court came to a wrong conclusion as to the facts which were in dispute, and the inference which they drew from the admitted facts cannot be supported. There was no intent to defraud. This does not come within the class of cases in which the disciplinary power of the Court should be exercised.

[BARTON J.-Surely the Court was justified in punishing a solicitor for gross misrepresentation to the prejudice of a member of the other branch of the profession.

ISAACS J.-The Court disbelieved the applicant's version of the facts. You must satisfy us that they…

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.

Continue reading Re Daley

Details

AGLC: Re Daley [1907] HCA 32
Case: [1907] HCA 32
Decision Date: 13 August 1907

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court from a decision of the Supreme Court of New South Wales. The applicant, a solicitor, had been suspended from practice by the Supreme Court for eighteen months due to professional misconduct. The misconduct involved making a false representation to a barrister to induce them to accept a brief, which the barrister would not have otherwise accepted.

The legal issues before the High Court were whether the Supreme Court had jurisdiction to deal with the solicitor's conduct and whether the Court's conclusion on the facts and the resulting punishment were appropriate. The applicant argued that the Supreme Court had erred in its factual findings and that the conduct did not constitute professional misconduct warranting disciplinary action.

The High Court affirmed the jurisdiction of the Supreme Court to discipline its officers for misconduct. The Court found that the solicitor's representation, which the Supreme Court had found to be false, was "as nearly fraudulent in its essence as one can well conceive." Citing its previous decision in *In re Coleman*, the High Court held that the nature of the punishment for professional misconduct is entirely within the discretion of the Supreme Court. Consequently, the High Court saw no reason to differ from the Supreme Court's conclusion on the facts or its decision regarding the punishment.

Special leave to appeal was refused.

Orders