Rogerson v Law Society NT

[2000] HCATrans 534

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D11 of 1999

B e t w e e n -

ANDREW GORDON ROGERSON

Applicant

and

LAW SOCIETY OF THE NORTHERN TERRITORY

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON FRIDAY, 24 NOVEMBER 2000, AT 2.40 PM

Copyright in the High Court of Australia

MR J. McCORMACK:   If your Honours please, I appear for the applicant.  (instructed by John McCormack)

MR S.R. SOUTHWOOD:   If your Honours please, I appear for the respondent.  (instructed by Cridlands)

KIRBY J:   Thank you very much, Mr Southwood.  Yes, Mr McCormack.  You can hear us up there?

MR McCORMACK:   I can hear you very clearly, your Honour.

KIRBY J:   Yes, very well, you proceed then.

MR McCORMACK:   Thank you, your Honour.  There are several matters that I think I should deal with by way of preliminary.  Given the findings and decision of Justice Angel that have been relied upon by the Law Society, the Court might be minded to dismiss the application as devoid of merit.  However, we would say that this would be to ignore the aspect of psychological disorder and subsequent resolution raised by the applicant’s counsel at the hearing on 16 August 1999, and noted in paragraph 34 of the applicant’s summary of argument.  At the end of that paragraph, about four lines from the end, or even going up higher than that, from about the middle of that first paragraph on the top of page 34, or even starting higher again:

Applicant’s counsel, in seeking an adjournment, stated that he sought an adjournment initially for one month but later “in practical terms” for 2 months to enable the Applicant and his advisers to put in affidavit material responsive to the affidavit relied upon by their Respondent.

We go down to where a number of affidavits were going to be tendered, including one that:

a consulting psychiatrist in England would swear an affidavit to the effect that he had perused the Applicant’s psychiatric records from Darwin for 1992 and early 1993 where he was diagnosed as manic depressive but that subsequent treatment had prevented any further occurrence of the manic depressive condition.

In the transcript:

he asserted of the Applicant:

‘He was in a manic phase when these events occurred –

that is, the events that led to the finding of Justice Angel –

and his illness we expect to be said is now under control.’

KIRBY J:   But is that not a matter which is relevant to any application for readmission as distinct from demonstrating an error in the order which has been made, which will not be set aside by this Court unless you can demonstrate an error at the time it was made?

MR McCORMACK:   Indeed, your Honour, except for this effect, that if the applicant was to initiate a new application in the Northern Territory Full Court, he would be faced with a bar dating from 16 August 1999 that at that time he was not a fit and proper person to practise law.  Now, the thrust of the submission ‑ ‑ ‑

KIRBY J:   That may be so, but if he can demonstrate, as I take it to be your argument, that his unfitness was by reason of a transient psychiatric or psychological condition, then that may well be a matter which the Court of Appeal of the Northern Territory might consider should be taken into account in some phased return of your client to practise.  In saying that, I am not suggesting that it necessarily would but that seems to be the correct way to approach issues like this rather than suggesting that their order was wrong when it was made.

MR McCORMACK:   Well, there is demonstrable, I would suggest to your Honour, bias on the part of the Chief Justice when he refused an application that he disqualify himself from hearing the trial involving the applicant on 16 August 1999, and that is dealt with in paragraphs 30 and 31 of the summary of argument.  Now, at the top of page 33, second line:

At the commencement of the hearing, application was made to the Chief Justice that he disqualify himself for bias from sitting…..This application was dealt with by the Chief Justice, sitting alone, after the business of the Full Court had concluded, and was refused.  The bias alleged was that the Chief Justice had stated in the course of his judgment on the appeal against the contempt conviction [Rogerson v Tchia & Ors –

which is a copy annexed to my summary of argument, that at page 143:

“I have reconsidered the material before His Honour [Angel J] and made up my own mind, not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from over-ruling it if on full consideration I should come to conclusion the judgment was wrong.  I am far from that conclusion on any finding of fact.  There was evidence to support every such finding and it was not argued that this was not the case.”

Now, that was what his Honour had observed in the appeal launched by the applicant from the decision of Justice Angel in the Northern Territory Supreme Court.  There was no question that when this matter came back before the Full Court in August of last year, the Chief Justice had looked at all the facts very carefully and he had reached a prejudgment in relation to all of the facts relied upon by the ‑ ‑ ‑

KIRBY J:   I do not know if it is so in the Northern Territory, but at least it has been traditional that where there is a case concerning removal from the roll of legal practitioner that the court should be constituted of the most senior available judges and, usually, or often, including the Chief Justice of a State.  Now, I take it that you say that may be a good general rule but ought not to happen where the judge concerned has had some past involvement in the case.

MR McCORMACK:   Well, your Honour, the sole evidence in this case ‑ ‑ ‑

KIRBY J:   The Northern Territory Court of Appeal is a court of relatively small numbers.  We have to have regard to the realities of the situation.

MR McCORMACK:   That may be so, but the Northern Territory Supreme Court does constitute itself as a Court of Appeal by bringing in judges, a complete assemblage of judges from outside the Northern Territory, from time to time, your Honour, as it did in the last two weeks in the case of the challenge to the appointment of the Chief Magistrate.  In fact, on this particular court, convened by the Chief Justice, Justice Gallop from Canberra, was sitting as one of the judges.

That being said, your Honour, and I accept that under ordinary circumstances the most senior judge would be the most appropriate judge to chair such a court, the only matter in evidence in the court convened in August last year, the Full Court, was the judgment of Justice Angel.  There was not one other shred of evidence and the Chief Justice had made firm findings of fact in relation to the judgment.  He had read the evidence upon which the judgment was based and had reached agreement with every aspect of that evidence and, moreover, in importing that evidence into the Full Court, his Honour relied on the one part of section 45, I think it is, of the Legal Practitioners Act, a copy which is in the papers with the Court, and that is that, in section 52(5)(b), that:

In disciplinary proceedings –

(a)  the Supreme Court may…..accept and act upon a finding of the Complaints Committee ‑ ‑ ‑

KIRBY J:   Which section is it?

MR McCORMACK:   Section 52(5)(b).  Now, the Supreme Court under (b):

the Supreme Court may –

(i)  receive in evidence a transcript of evidence taken in any proceedings before a court of the Commonwealth, a State or a Territory of the Commonwealth, and draw such conclusions of fact from the evidence as it thinks fit; and

(ii)  adopt, as it thinks fit, a finding, decision, judgment or reason for judgment of such a court that may be relevant to the proceedings.

Now, his Honour, in his reasons for decision, made it plain that he was operating only under subsection (b)(ii), that is, that there was never receipt into evidence of any transcripts, as is said in subparagraph (i), and he then went and adopted the “finding, decision, judgment or reason for judgment” of Justice Angel without the consideration.  Now, he had given the consideration, and we say that excluded him from dealing with this case because of the consideration, advice and the applicable law, but the other thing ‑ ‑ ‑

KIRBY J:   What do you say about his explanation, which is on page 33 of the application book?  The facts are known; they are known to all members of the court; they are not disputed in the proceedings brought by the Law Society; and that it is nothing personal to the Chief Justice, every other judge would have been in the same position, and that, in these circumstances, there was no reason why he should disqualify himself, most especially, because the facts were not in contest.

MR McCORMACK:   Well, as to that, your Honour ‑ ‑ ‑

KIRBY J:   I mean, we have to be real about these issues.  Everybody is challenging judges nowadays, but you have to be realistic about whether or not it had any consequence in the case.

MR McCORMACK:   Well, when the matter went on appeal, your Honour, it was a majority decision.  There were two judges who said the appeal should fail.  One judge considered the way the evidence was taken at the trial and said, on that footing, that evidence should not be admitted against the applicant and she would have upheld the appeal.  Now, it was a minority decision, but using that same principle of logic, it would have been open to any judge constituting a Court of Appeal, looking at the facts of this case and the way the evidence was taken, to reach a similar conclusion and reject the evidence.

So, your Honour, we say, in this case, the Chief Justice had made a prejudgment.  The other two judges had no sighting of the evidence at all, upon which the conclusions were reached, and we would argue that this constitutes a serious breach of natural justice when conclusions are being adopted from another tribunal without any consideration of evidence.

KIRBY J:   Yes, very well.  Well, what else do you have to say?  We understand that point.

MR McCORMACK:   Yes, thank you, your Honour.  Now, there was certain additional material that was to be put in front of the court and his Honour refused the adjournment application.  Now, as to that, the matter was in front of the Full Court, there was no appeal save than through leave to this Court from that court, and we say that there was an improper exercise of discretion in rejecting the adjournment.  It was not as if there were large numbers of witnesses.  There was simply an affidavit that the Law Society was seeking leave to tender and we say, in that circumstance, that it could have easily have been stood down.  His Honour was preoccupied with the fact that a Full Court could not reconvene overnight.

Now, as to that, he could have referred the matter, under section 52(4), to a judge or the Complaints Committee “for investigation and report” and the Complaints Committee had the same powers in relation to adopting other evidence, as was given to the Full Court, pursuant to section 51(7) of the Legal Practitioners Act.  Now, in other words, there was no reason for the matter to be hastily dealt with on that occasion, that the court could have adjourned the matter over with a draconian “or else” order, in the event that the applicant failed to have affidavit evidence in front of the court on that subsequent occasion.  But in the circumstance ‑ ‑ ‑

KIRBY J:   That section is facultative, is it not, subsection (5)?  It is not obligatory.  It is a permissive provision.

MR McCORMACK:   It is permissive, of course, your Honour, but his Honour was concerned ‑ ‑ ‑

KIRBY J:   It is not exclusive.  It is simply a facultative provision, as I read it.

MR McCORMACK:   Yes.  When his Honour, though, was dealing with this question of the adjournment application, that he seemed in what he said to be gravely preoccupied with the serious inconvenience of convening a Full Court at relatively short notice, and this seemed to weigh heavily in the scales that he was balancing when he reached the conclusions he did, in circumstances where the only mechanism that was available to the applicant after the Chief Justice had dealt with the matter, was the leave application to this Court.  So that, we argue, from that foundation, that the matter was not urgent.

The Law Society had taken its time in getting this matter to the Court and the proceedings were issued some considerable time before and, in fact, there was an attempt to bring it on in the previous December of 1998, unsuccessfully, because there had been no step taken in the action for more than a year, and the consequence of that was that the applicant had the matter, on that occasion, adjourned over to a new date to be fixed with a costs order against the Law Society ‑ ‑ ‑

HAYNE J:   The adjournment of the proceedings on 16 August 1999 had to be judged, did it not, against the fact that the applicant’s then counsel told the court that there was no explanation for the failure to provide affidavit material by that time?

MR McCORMACK:   Yes, that is what was said.  If the Court could consider new evidence, of course, there is evidence to say that that was not correct at the time, but, in fact, there is an affidavit from the counsel, himself, to say that that was not correct.  He believed a state of affairs to exist that never existed at the time when he made that statement.  Now, that is the affidavit.  Of course, it is evidence extraneous to the matters that were in front of the court.  There is an affidavit of Mr Carter.  It was sworn after I had gone through Mr Carter’s file when I took over the matter, and I have ascertained that there was no indication that the applicant had been advised of this hearing in August, notwithstanding the date was fixed in April 1999.

HAYNE J:   But on what the Full Court was told at the relevant time, it would be open to them, would it not, to conclude that the adjournment should be refused, earlier orders having given the applicant an opportunity which he had chosen not to take up?

MR McCORMACK:   Well, it was open to the court, maybe, your Honour, except there is the difficulty that would flow from that.  The applicant is confronted by Boughey and…...  He cannot go back to the Supreme Court of the Northern Territory, the Full Court, to put further evidence in front of a Full Court.

He is confronted, on the other hand, with the block constituted by Eastman in the High Court, and these are factors, of course, that a judge sitting, as a first court and last port of call before the High Court, should, with respect, we suggest, take into account.  That is, that it is not simply a matter where there is a ready made appeal mechanism, as of right, in the jurisdiction.  There is no fall‑back position in the local jurisdiction and the only place that he could go to is the High Court of Australia seeking leave, as we do now.

I would take it one additional – a serious matter, your Honour, and that is the competence of counsel on the day.  The counsel made no objection to the affidavit going in.  Once the affidavit went in, the matter was a foregone conclusion, at least, in part, because of the basis upon which his Honour rejected the application that he disqualify himself, his Honour the Chief Justice.  So that we had a situation where, if counsel had said nothing, or had made objection, then the document would have had to have been argued to go in.

Now, we say, because there was some argument and a judge of the Northern Territory Supreme Court Court of Appeal had determined the evidence was not able to be used for reaching the adjudication of contempt of court, that that material does not lead, necessarily, to one conclusion, that it is open to a judge, as I said earlier on in these submissions, to make a finding to reject that evidence, because it was not taken in fair circumstances.  Now, in that circumstance, relying on the decision in Birks and the decision in Shaw and R v Ensor – those reports are in the file of papers I have supplied the Court ‑ ‑ ‑

KIRBY J:   Yes, we are familiar with those authorities.

MR McCORMACK:   Yes, and there is an obligation on the part of the prosecution in a criminal matter, not to lead evidence that maybe inadmissible.  The only basis for admissibility is the Legal Practitioners Act.  It cannot be got in any other way and the court went about it in, we suggest, a way that should be examined by looking at one section only.  There is no dispersive effect in the relationship, the linkage between subparagraphs (1) and (b) of section 52 of the Legal Practitioners Act, and by that circumstance, counsel revealed himself to be flagrantly incompetent and the litigant should not be locked into a position as a consequence of that incompetence.  If there had been objection to the affidavit material and if that objection had been sustained, of course, the case could not have gone any further.

KIRBY J:   Yes, I think your time has expired.  Is there anything important that you want to add, Mr McCormack?  We have read the written documents that were submitted to us.

MR McCORMACK:   Yes.  Just briefly, your Honour.  Yes, just very briefly, throughout this matter the respondent has never particularised the material it relies upon to support its determination of professional misconduct beyond noting, in its letter of 12 October 1992 cancelling the

certificate, its reliance upon the findings of fact of Justice Angel delivered 9 October 1992.  There has never been any particularisation as to what the precise nature of the allegations are that the Law Society has made against the applicant.

KIRBY J:   Yes, well, I think we understand the way you put the case and, as I say, we have read all the documents in the application book.

MR McCORMACK:   Thank you, your Honour.

KIRBY J:   Mr Southwood, in your written submissions you do not really grapple with the argument about disqualification.  What is your best answer to the suggestion that, having regard to his past acquaintance with the matter, the Chief Justice ought not to have participated?

MR SOUTHWOOD:   Shortly, your Honour, the applicant’s position has, essentially, always been one of confess and avoid.  Namely, we did what Justice Angel found us to do, however, we wish to explain the circumstances in which we did it and we wish to indicate that since then we have re-established our good character.  That being the respondent’s position, it also being the case that the issue involved was one of fitness, fit and proper to practise, no reasonably informed person would expect, the Chief Justice to, or apprehend, that he might be partial in those circumstances.

HAYNE J:   There being no issue as to the conduct found by Justice Angel.  Is that the burden of what you are saying?

MR SOUTHWOOD:   Yes, your Honour.

KIRBY J:   Yes, very well.  The Court does not need further assistance.

We are not convinced by the argument that the Chief Justice of the Northern Territory was disqualified for apparent bias, or for breach of the rules of natural justice, from participating in the disposition of the proceedings affecting the applicant, having regard to the nature of those proceedings and the matters which were not in contest before the Court of Appeal. 

The complaints about the refusal of the adjournment are not ones which would normally, or here, attract the grant of special leave.                 On the material before the Court of Appeal the order refusing the adjournment was open to the Court of Appeal. 

None of the other grounds is such as would attract the grant of special leave.  Normally matters of the discipline of legal practitioners are matters for the Courts of Appeal or Full Courts of the States and Territories of Australia.  No ground is shown to lift this case out of that normal rule.

The orders and reasons of the Court of Appeal are not attended by doubt and accordingly, the application for special leave must be refused.

Do you ask for costs, Mr Southwood?

MR SOUTHWOOD:   Yes, we do, if your Honour please.

KIRBY J:   Would those costs extend to the costs of your appearance in Canberra today?  Why would this matter not be dealt with from the Northern Territory?

MR SOUTHWOOD:   No, they would not extend to the costs of today, your Honour.  The reason I come to appear before your Honours is to attend the meeting of the Law Council of Australia.

KIRBY J:   I see, you were here for another purpose.  I was just anxious that there should not be an additional burden of costs on the applicant by reason of the fact that you turned up here and his counsel turned up in Darwin.

MR SOUTHWOOD:   No, there would not be, if your Honour please.

KIRBY J:   Very well.  The ordinary order for costs be made.  The application is dismissed with costs.

AT 3.06 PM THE MATTER WAS CONCLUDED