Smith v New South Wales Bar Association

[1992] HCATrans 128

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S157 of 1991

B e t w e e n -

RALPH EDWARD SMITH

Appellant

and

NEW SOUTH WALES BAR ASSOCIATION

Respondent

BRENNAN J
DEANE J
DAWSON J
TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

Smith.R(3) 1 30/4/92

AT CANBERRA ON THURSDAY, 30 APRIL 1992, AT 10.18 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friends, MR C.T. BARRY and

MR J.R.K. PRYDE, for the appellant. (instructed by

Yvonne Swift & Co)

MR N.R. COWDERY, OC:  May it please the Court, I appear with

my learned friends, MR P.R. GARLING and

MS I.A. PARSONS, for the respondent. (instructed

by Dibbs Crowther & Osborne)

BRENNAN J: Yes, Mr Jackson?

MR JACKSON:  Your Honours, may I hand to the Court copies of

two documents, one being our outline of

submissions, the second being a document which was
omitted from the record. That is a copy of the

particulars of the summons to the Court of Appeal. I am sorry for the moment's delay, but the latter

document only arrived a moment ago.

BRENNAN J: Thank you.

MR JACKSON:  As Your Honours have seen, the appeal turns on

three issues relating to the order of the Court of appellant's name be removed from the roll of

barristers in New South Wales. Your Honours, there

are two decisions of the Court of Appeal in

relation to the appellant. The first is the

decision of that court given on 9 May 1991 whereby

it ordered removal from the roll.	The formal order
appears at page 307.

The second is the decision of that court given

on t July 1991 not to set aside its earlier

decision. That appears at page 404. Your Honours,

I need to say a little about the facts in dealing

with the grounds of appeal, but may I proceed to do

so by moving to the first of the grounds of appeal

and dealing with the facts so far as they are

material to that, and then adding such additional

facts as I need to in relation to the other

grounds.

Your Honours, the appellant was brought before the Court of Appeal on allegations concerning his

conduct in acting for an Andrew Knight on the

hearing of a complaint for assault, the hearing

being in the Penrith local court, the commencement

date of the hearing to be 11 November 1986. At the

start of the proceedings, his retainer was

challenged. The essence of the case against him in

the Court of Appeal was that he was not instructed

by a solicitor and that on his retainer being

challenged, his assertions that he was so

instructed and other statements made by him on the

Smith.R(3) 2 30/4/92

day of the hearing, set out in the particulars

which Your Honours have, were untrue.

Your Honours, the members of the Court of

Appeal, on the first hearing, took the view that he

had not, in fact, been instructed by the solicitor

in question, a Mr McDonald, that he did not believe

that he was instructed by the solicitor and that
the statements made by him to the magistrate on

that occasion were to his knowledge untrue.

The court also expressed the view that he had

told lies in his evidence to the Court of

Appeal - Your Honours, I will come to the

particular references in a moment. There was a

division of view in the court on the proper

consequence to follow from the findings which the

court had made. Mr Justice Samuels, in the
minority, thought that the making of a finding that

there had been professional misconduct, together

with an order for costs, was sufficient. The other

members of the court, Mr Justice Mahoney and

Mr Justice Meagher, regarded striking off as the

appropriate order.

Now, Your Honours, in the course of arriving

at the conclusion that the appellant had not told
the truth, the members of the Court of Appeal
placed weight on the fact that the appellant had
not, as they put it, prior to the proceedings in
the Court of Appeal placed reliance on a
conversation which took place a few days before the

relevant day in court.

Your Honours, if I could go to page 55 in

volume I, the reference to the conversation in

question in the evidence before the Court of Appeal

appeared at page 55. The document that is being

looked at page 55 is a statement by the appellant

which was an annexure to an affidavit which

commences at page 50. It is annexed by

paragraph 4, and Your Honours will see, if one goes
back to page 55 to paragraph 24 that he there says

that he:

sincerely believed I was instructed in the

matter by Mr McDonald himself. Mr McDonald

had in fact discussed the approach of the

hearing when we encountered each other in the

car-park of the building where we both had

offices a few days before the 11th November. Your Honours, I should mention the discussion of

the location is a location at Penrith. Both

Mr McDonald, the solicitor, and the appellant had

their offices and chambers, respectively, in the

same building. There was a car park behind the

Smith.R(3) 3 30/4/92

building. Both parked their cars there, and from

time to time they passed and met in the car park.

He goes on to say:

Mr McDonald then wished me luck in the hearing

and said that he would not be able to attend

the Court as he would be seeing people all

day.

Now, Your Honours, it was clear that the members of

the Court of Appeal treated the question whether

the car park conversation had occurred as material

to their conclusion.

Your Honours, can I take Your Honours to the

references to it in the reasons for judgment of the
members of the Court of Appeal on the first
hearing. Could I go first to the principal

judgment in which the facts are found, that being

the judgment of Mr Justice Samuels, and it

commences relevantly at page 287.

BRENNAN J:  Mr Jackson, was there any further evidence

before the Court on the first occasion as to the

contents of the conversation in the car park?

MR JACKSON:  No, Your Honour. I am sorry, there was some

examination about it but the contents of it do not

go beyond what I have said.

BRENNAN J:  So one does not know whether the supposed

conversation consisted of the barrister saying to

the solicitor, "The Capsanis matter is on" and

being wished good luck or whether the solicitor

said to the barrister, "I would like you to appear

for--capsanis. The matter's on and I wish you good

luck".

MR JACKSON:  Your Honour, one does see it. It is from the

material that was before the Court of Appeal, but

which the Court of Appeal, with respect,

overlooked. What I mean by that is that the

appellant had in fact, on an earlier occasion in
the same matter, within the disciplinary tribunal

of the Bar Association, from which it came to the

Court of Appeal, had in fact mentioned it in more

detail on that occasion. The Court of Appeal - and

I will come to this part of it in just a moment,

Your Honour - had not adverted to the fact that he

had given that evidence before the disciplinary

tribunal. Your Honours, I say "given that

evidence"; "made that statement", I should say,

because the proceedings were not on oath before

that tribunal, although he had requested that they

be.

BRENNAN J: Yes.

Smith.R(3)	30/4/92
MR JACKSON:	Your Honours, could I go to page 287 and, at

line 14 to line 17, Your Honours will see that
Mr Justice Samuels said that:

The opponent did not mention the

conversation in his evidence to the Tribunal
or in the 'draft affidavit' which he then
tendered and which is, to my mind, a generally

candid account of these events.

Your Honours will see that he refers then to the part of the statement to which I referred and then

that is expanded upon at the bottom of the page and

the top of the next page.

Now, Your Honours will see at page 290,

commencing at line 14, His Honour said:

However, neither in the 'draft affidavit'

tendered to the Disciplinary Tribunal, and

said to be a contemporary account of the

events of 11 November 1986, nor in his

evidence to the Tribunal did the opponent

mention the car park conversation.

And, Your Honours, a little further down the same

page, lines 25 to 28:

The fact that he later sought to embellish that account by reference to a conversation

which I do not think took place, is relevant

to a different aspect of this application.

And at page 299, lines 22 to 27:

In the present case I feel bound to take into

account, although it is not an independent

head of complaint -

and, Your Honours, if I could just interpolate,

Your Honours will see, of course, that the summons	related to the events which had taken place in the
local court, and what His Honour is here speaking
about is the view that in the Court of Appeal the
truth had not been told -

the opponent's evidence about the conversation

in the car park which, I regret to say, I

regard as a deliberate fabrication. Hence in

this respect the opponent lied to the court.

And, finally, in Mr Justice Samuel's reasons for

judgment at page 301, lines 9 to 16, Your Honours

will see the view expressed that:

He dealt lightly with the truth, both before

the magistrate and before us. It is the

Smith.R(3) 30/4/92

latter occasion that I find the more

disturbing.

And His Honour explains why he takes that view,

including a particular reference to the car park

conversation, in the remainder of that paragraph.

TOOHEY J:  Mr Jackson, when you took us to page 287, there

is reference at line 8 of the opponent making a

direct assertion of the conversation with

Mr McDonald on 6 November. Paragraph 24 of the

statement on page 55 simply speaks of a

conversation a few days before 11 November.

MR JACKSON:  Yes, I am sorry, Your Honour.

TOOHEY J: Where is the direct assertion made as to

6 November?

MR JACKSON:  Your Honour, it is extracted at the bottom of

page 287. Your Honour I will just have the

particular page in the transcript picked out for

Your Honour if I may.

Now, Your Honours, if I could go then to

Mr Justice Mahoney, Your Honours will see at

page 304, in a passage commencing at line 18 and

going through to page 305, again about line 12, and

Your Honours will see the reference to the

conversation and also, about line 5 on page 305:

Mr Smith has persisted in his claims ..... to

the end of the present proceeding -

and so on. And, Your Honours, Mr Justice Meagher, at page 306, line 14, where he said that he "lied

to the magistrate, and has subsequently lied to

this Court, and on oath." And Your Honours will

see that in the preceding paragraph His Honour has

picked up what was said by Mr Justice Mahoney in

relation to penalty.

Your Honours, the reference that Your Honour

Justice Toohey asked me about appears at page 198,

commencing really at the bottom of page 197 - it is

a very long paragraph which goes through to

page 198, about line 28. Could I also mention that

it was - - -

TOOHEY J:  I am sorry, Mr Jackson, just before you leave

that, you say the date, 6 November, is expressly

identified on those pages?

MR JACKSON:  If Your Honour looks between lines 10 and 15

you will see a reference there to the - he says:

Smith.R(3) 6 30/4/92

So, I had it in my too contact Mr McDonald on

the approach of this matter on 11th November

just in accordance with my usual practice and

I was aware that I would be aware from

chambers on Friday, which I think was the 7th,

and also on Monday the 10th -

for the reason he there specifies-

So, when I accidentally not by arrangement

bumped into Malcolm in the car park on

Thursday -

And, Your Honour, I am sorry, my learned friend was

good enough to remind me at page 197, about

line 42, it is said specifically in the sense of

saying "I think it was 6th November".

Your Honours, could I also say that in the

course of the proceedings before the Court of

Appeal, in terms of the submissions that were made,

it was put as part of the respondent's case that

the conversation to which he had deposed in the

Court of Appeal was in fact a fabrication. That

appears at page 240 in volume I, lines 40 to 45.

So, Your Honours will see that the submission was

relied on and, if I could just mention in passing,

it appears clear enough that it was regarded by the

judges during argument, as well as of course in their reasons for judgment, as a matter of some

significance, namely whether he was in fact telling

the truth about that conversation. That appears in

two references; page 219, between lines 40 to 45,

where the appellant was himself giving evidence and

Your Honours will see that Mr Justice Mahoney said

to him:

On one view of this matter that is a crucial issue in the case, as you would appreciate?

Your Honours, also at page 249, between lines 5 to

10, where Mr Justice Meagher said something to

indicate his agreement in that broad proposition,

and also lines 30 to 35 on the same page. I should

mention of course that those are observations in

the course of argument, but they seem to have been

reflected in the course which the members of the

Court of Appeal took in their conclusions.

Your Honours, it was clear, however, that the

appellant had referred to the car park conversation
at a time before the hearing in the Court of

Appeal. He had done so when he was before the

disciplinary tribunal, and Your Honours will see

the references at pages 37 and 38 in volume I. At

page 37, commencing at about line 46 and going

through to page 38, about line 10 - Mr MacFarlan

Smith.R(3) 30/4/92

was one of the members of the disciplinary

tribunal. Your Honours will see that part of the

transcript of it had been obscured, but it has been

supplemented at the top of the next page.

The reasons for judgment of the Court of

Appeal were delivered and it became apparent of

course that in respect of that car park

conversation, there had been an error, and the

appellant applied to the court to reopen the

proceedings, formal judgment not having been

entered. In doing so, Your Honours, he relied,

amongst other things, upon an affidavit which his

solicitor obtained from the solicitor in question,

Mr McDonald. Your Honours will see Mr McDonald's

affidavit at page 337.

DEANE J:  Mr Jackson, before you go to that, where is the

evidence that Mr McDonald had already given, that

he had not had the conversation?

MR JACKSON:  May I give Your Honour a reference to it in

just a moment.	The evidence is certainly there,
and if I could	give Your Honours the reference in
just a moment.

TOOHEY J: Since you are being diverted, can I divert you

further? Was it put to the appellant in

cross-examination that his reference to a

conversation on 6 November was the first occasion

on which he had referred to such a conversation?

MR JACKSON:  Your Honour, I do not believe so in those

terms. May I again check that.

TOOHEY J:  You could tell us when it is convenient, but as

an ancillary question to that, if it was - perhaps

it is not ancillary. Whether or not it was put in cross-examination, I assume it was put in argument,

was it?

MR JACKSON: Well, Your Honour, that is the passage to which

I referred earlier, where it was put that it was a

fabrication.

TOOHEY J: That does not go quite as far as my question to

you.

MR JACKSON:  I am sorry, Your Honour. The argument that was

put in the submissions - if I can just go to that

first - - -

TOOHEY J:  It may be one thing to put to a witness in

cross-examination, "You're making this up; this is

not true". It may be another question to put to

the witness in cross-examination, "Is this the

Smith.R(3) 30/4/92

first time on which you've referred to such a

conversation?".

MR JACKSON:  Yes, Your Honour, I appreciate the difference.

Your Honour, the submissions about it are, as I

said, at page 240 where Your Honour will see,

commencing at line 35:

What do you say about this conversation that

is alleged to have taken place in the car

park.

COWDERY:  Our submission is that it is a

fabrication by the opponent.

SAMUELS JA:	Was Mr McDonald cross-examined
about it?

There is a reference then to page 22 of the

proceedings in the Court of Appeal which,

Your Honours, are at page 166 and 167. What
Your Honours will see, at the bottom of

page 106 - I am sorry, this is Mr McDonald, I

should say first of all, Your Honour. I think this

is answering Your Honour's first question. This is

Mr McDonald being - - -

TOOHEY J:  No, my question did not relate to Mr McDonald.

It related to the appellant.

MR JACKSON:	I am sorry, Your Honour.
TOOHEY J:	I think Justice Deane's question related to

Mr McDonald.

MR JACKSON: Perhaps I could give Your Honour the reference

in a moment - Your Honour, may I come back to that

in just a moment?

Your Honours, what was relied upon in the

second application was the affidavit which appears

at page 337 in volume II, and Your Honours will see

that Mr McDonald there said in paragraphs 2 and 3

two things: the first was that he did have a

conversation with Mr Smith in the car park at the

rear of his office - this is in paragraph 2, I

should say first of all. He then said the:

conversation was some days prior to the

"Capsanis" incident -

that is some days prior to 11 November, but in

paragraph 3 he said that his recollection was that

the conversation was about a different case, namely

Skipper.

Smith.R(3) 9 30/4/92

Now, Your Honours, that was what he said. It

was a conversation in the car park. The

conversation took place some days prior to

11 November but it was about another case.

Your Honours, could I go then to the steps

which were taken in the Court of Appeal on the
further hearing. If I could start with

Mr Justice Samuels, at page 379 about line 26, where His Honour said that:

Regrettably, my statement that the opponent did not mention the car park conversation in his evidence to the Tribunal was wrong.

And, Your Honours, from there, if one goes to
page 381, at the bottom of the page he said that:

Plainly the opponent did mention the conversation with Mr McDonald to the Tribunal,

and I was in error in saying that he had not

done so.

Your Honours, his conclusions then begin at

page 383, about line 16 in a passage that goes
through to page 384, about line 26. His Honour

says that:

the judgment evidently regards the opponent's

failure to mention the car park conversation

before the Tribunal as suggesting the
inference that ..... it was a "recent

invention" -

et cetera.

Your Honours will see that the conclusion at

which he arrives is at page 384 between lines 20

and 25, namely that:

I am not now prepared to find that he

fabricated, or invented the conversation with

Mr McDonald, either in his evidence to the

Tribunal, or before us.

And he was of the view then, as appears at page 385

line 15 through to page 386 at about line 9, that

he still was of the view that he did not believe on

reasonable grounds that he was instructed by

McDonald and that therefore he was guilty of

professional misconduct. But his change of view in

relation to what had occurred before the Court of

Appeal appears at page 388, commencing at about

line 16, where he recounts the fact that the

members of the court had been of the view:

Smith.R(3) 10 30/4/92

that the opponent told a deliberate lie to the

Court when he swore to the car park

conversation.

And then, at page 391, lines 9 to 17, says that he

is not satisfied that the opponent did deliberately

lie before the Court of Appeal and, of course,

because of the view he had taken on the first

occasion, regarded it as merely a further reason

for his view that disbarment was not required.

Your Honours, I wonder if I could just go back

to the references which Your Honour Justice Toohey

asked. At page 204, at about line 6 - - -

TOOHEY J: This is the evidence before the Court of Appeal?

MR JACKSON:  The Court of Appeal, yes. The

cross-examination on the issue appears to be just

what is on that page and, Your Honours, at

page 219, at about line 40, there is the passage to

which I have gone earlier and then there was also

the evidence concerning the birthday to which I

referred earlier.

TOOHEY J:	Is it right to say then that nowhere in the cross-examination of the appellant was it put to
him that this was the first occasion on which he
had mentioned the conversation in the car park on
or about 6 November?

MR JACKSON: Yes.

TOOHEY J: But the absence of any prior reference in the

disciplinary proceedings was relied upon in

argument before the Court of Appeal?	I put that as
a question.

MR JACKSON:  Your Honour, I think that perhaps does an

injustice to my learned friend in the sense that it

was clear from the material before the Court of

Appeal that there had been an earlier reference to

it in the disciplinary tribunal and one really

would not expect to find the Bar Association

putting to him that he had not made an earlier

reference to it.

TOOHEY J:	No, I understand that.
MR JACKSON:	But what was put was that his evidence concerning it was a fabrication, whenever it was
first mentioned.

TOOHEY J: Yes, I understand that too. Then is it right to

say that the view that there had been no prior

reference by the appellant to a conversation in the

car park was a view arrived at by the Court of

Smith.R(3) 11 30/4/92

Appeal, not on the basis of any submission to that

effect, to that precise effect, put to it?

MR JACKSON:  Yes. That, Your Honour, is as we see the

position and, of course, one sees then, in the

reasons for judgment on the second occasion in the

passages to which I have been going, the

recognition of the fact of error in that regard.

Your Honours, I have gone to

Mr Justice Samuels in the Court of Appeal. Could I

move then next to Mr Justice Meagher, and at

page 402, at about line 17, His Honour notes the

error. He said:

It is true that the Court did make that error.

And he then goes on to say, in the next page, that

he confirms his view, and Your Honours will see - I

shall not read it out, but may I refer Your Honours

to pages 402 and 403, and his conclusion is in

paragraph 4 on page 403.

Now, Your Honours, could I move then to the

third member of the court, Mr Justice Mahoney.

Now, His Honour's conclusions appear in two

passages. The first is at page - - -

DEANE J:  Mr Jackson, in Justice Meagher's judgment,

page 403 paragraph No 5, does that additional

evidence include Mr McDonald's new affidavit or is

it confined to the character material?

MR JACKSON:  Your Honour, it is not 100 per cent clear but

what seems to be the position is this: because of

the·-structure of His Honour's reasons it seems

probable that it refers - certainly to the

character evidence there seems to be no question

about that, but it is a little difficult to answer

exactly whether His Honour was or was not excluding

the evidence of Mr McDonald in that regard.

Your Honour, the reason why I say that is that if

what His Honour is doing is, in effect, to adopt

the approach of Mr Justice Mahoney on the topic,

Mr Justice Mahoney does seem to have taken into

account the terms of the affidavit.

Mr Justice Meagher does not refer specifically to

it except that in paragraph 5, if it is included in

that, he has not taken it into account.

DEANE J:	Does he refer to Justice Mahoney's judgment?
MR JACKSON:	No, Your Honour, I am sorry, he does not.
DEANE J:	If you look at the bottom of page 402 to the top

of 403, Justice Meagher seems to be adhering to his

view that there was no car park conversation at

Smith.R(3) 12 30/4/92

all, whereas in this affidavit Mr McDonald swears

that there was a car park conversation.

MR JACKSON:  What Your Honour says is right - probably the

better view of what His Honour said and,

Your Honour, there does not really seem to be an

aspect of Mr Justice Meagher's reasons for judgment

on this issue in relation to which we could make

complaint. The question really arises from the reasons for judgment of the third member of the

court, Mr Justice Mahoney, and in that regard,

Your Honours, it seems that His Honour did take

into account or did give consideration to the

affidavit of Mr McDonald, but then, in our

submission, erred in his understanding of what it

was seeking to convey.

DEANE J:  Was a ruling given on whether the court would

accept that affidavit or was it just left, as it

were, to see what would happen?

MR JACKSON: There was a ruling, Your Honour. Could I

preface what I am about to say by saying on this

occasion, the second occasion, the appellant

appeared on his own account. There had been

written submissions given to the court before the

hearing, some time before the hearing, by the

parties, so that the court was, if I may say so

with respect, moving things along a little.

Your Honours will see at page 309 how the matter commenced. There is some discussion of it

and then there is a ruling. The argument proceeds

to page 328, about half-way down the page, and at

some point the court in effect says, "Well, perhaps
you'd better proceed on the basis that we're not

taking it into account." Could I give Your Honours

the reference to that in a moment. I have just

lost the particular passage. There is a passage at

page 335, about line 4, which is just after the
passage to which I referred, and in fact the

passage for which I was looking is at page 334,

about line 33.

Your Honours, the court seems to have made a

ruling that it was not accepting the evidence because it was not fresh evidence, in effect,

but - - -

DEANE J: But that really says nothing. What it says is,

"This evidence does not of itself constitute a

ground for reopening the question", but it is a

completely different matter when the court has

decided to reopen the question in the light of

their mistake.

Smith.R(3) 13 30/4/92

MR JACKSON:  Indeed, Your Honour. That is a matter to which

I intend to address some submissions, particularly

in relation to the second ground of appeal, as it

were, the testimonials, but it is also,

Your Honours, we would submit, a matter plainly

material. If the court decides to reopen the

matter, the result is, as a practical matter, that

the decision which the court had proposed to give

is one which it is considering afresh. In

considering it afresh - - -

DEANE J:  Mr Jackson, I do not want to take you out of your

course, but the only relevance for what I was

asking you is this: am I correct that, as you see

it, we simply do not know whether apart from the

question whether there was fresh evidence, as a
ground of reopening, the court has admitted this

evidence for the purposes of its reconsideration.

It seems a bit like the old equity practice;

everything went in subject to objection and you

never found out whether or not it had really gone

in.

MR JACKSON:  I do not know why Your Honour says the "old"

equity practice. Your Honour, our understanding of

it - and I am sorry to be difficult in not being

able to answer this precisely - it is clear that,

in terms, Mr Justice Samuels and probably the other

members of the court, expressed the view that the
material should not be admitted because it did not
satisfy tests which they regarded as apposite,

namely those being the tests material to the

admission of fresh evidence.

Your Honour, I say that they say that in

terms, but what was done, at least by

Mr justice Mahoney, did not accord with that result

and because of the views taken by the members of

the Court of Appeal, where Mr Justice Samuels had a

particular conclusion, Mr Justice Meagher a

different one on the result, and Mr Justice Mahoney

was the third member of the court and arrived at

the same conclusion as Mr Justice Meagher, his

decision is of critical importance.

Now, Your Honours, I wonder if I might perhaps

go back to that. At page 400 in volume II

Your Honours will see, between lines 12 and 16 that

His Honour says:

I do not think that what now has been

said by Mr McDonald assists Mr Smith in any

respect. Mr Smith's attempted use of it

tends, if anything, to confirm that conclusion

which I formed at the original hearing, and'

retain, as to what then was said by him.

Smith.R(3) 14 30/4/92

And then, Your Honours, at page 401, lines 14

to 18, His Honour says:

On 11 November 1986 Mr Smith knew that

what he told the magistrate in the Local Court

was not correct. The fact that, as I shall

Mr Smith to believe that a conversation had taken place on

assume, there was a conversation about the think, lead

6 November 1986 about the Capsanis matter.

Now, Your Honours, the evidence to which he is

referring there, where he speaks of a conversation

about the Skipper matter some weeks before, can

only relate, be it accurately or inaccurately, to

the evidence in Mr McDonald's affidavit at

page 337. Your Honours will see in that passage at

page 401 that His Honour speaks of "a conversation

about the Skipper matter some weeks before" and he

uses that expression also at page 399, lines 19

to 24, and in particular in lines 19 and 20, where

he says:

it is clear that, if there was a conversation

about the Skipper matter, it took place some

weeks before.

Now, Your Honours, Mr McDonald's evidence in that affidavit was that the conversation in

relation to Skipper took place some days before and

not some weeks before, and the burden of what

Mr McDonald said was, "We had a conversation at the

relevant time, but it was about another matter".

The way in which His Honour has treated it is to

say- that McDonald was saying, "We had a

conversation about another matter but at another

time" which, of course, reduces such effect as the

evidence might have.

Your Honours, what I have just said is

supported by what appears in His Honour's reasons

for judgment at page 396, between lines 10 and 15,

and Your Honours will see that he:

has now said essentially two things: that he

did not have the conversation about the
Capsanis case which Mr Smith had sworn took

place on 6 November 1986 but that he had had a
conversation with Mr Smith about another
matter at another time.

Now, Your Honours, it seems, with respect, that in any event, if one was trying to work out,

by looking at the Skipper case, when the

conversation might have been - if one started at

the other end, that is, and said, "The Skipper

Smith.R(3) 15 30/4/92

case; when might that have been?" - it would not

have been some weeks before. And, Your Honours, it

is possible to identify where His Honour derived
the "some weeks before" notion, if I may say so

with respect, from. Could I take Your Honours to

three references in that regard.

The first is in an affidavit of a Dr Gabrael,

page 340. It was one of the affidavits on which

the appellant sought to rely, and Dr Gabrael was a

man who knew both the appellant and Mr McDonald,

and Your Honours will see, particularly,

paragraphs 7 and 8, and then a conversation to

which he refers with Mr McDonald, between lines 15

and 20 on page 340 where Your Honours will see,

particularly, the words "some weeks prior to".

Your Honours, the second thing is at page 320,

about line 20, in argument before the Court of

Appeal on the second occasion where

Mr Justice Mahoney, at line 18, asks the appellant
some questions and Your Honours will see, between
lines 20 and 25, an exchange about whether days or
weeks were involved and, similarly, although more

broadly expressed, at page 321, lines 18 to 21, and

in the response of Mr Smith to that commencing at

line 22.

If one goes to the objective evidence about

the dates that the Skipper matter was heard, the

relevant bench sheets appear at page 369, and these

are the bench sheets of the Windsor Petty Sessions

Court. Your Honours will see at pages 369, 370 and

371 that there are bench sheets and the dates of

the hearings are across the top of each of the

columns.

On the page numbered 369 you will see, in the

first column, that there was a hearing or mention

date on 18 September 1986, there was another one on

the next day, 19 September, but the next one after

that was not until 3 April 1987. Your Honours, I

suppose it is possible, if one looks back, to

translate "some weeks before" into meaning a period

of about two months. If one is looking forward,

the next date for the Skipper hearing was not until April of the next year, which was quite some months

away. Your Honours, I cannot rely much on that,

but I simply indicate that for one reason or

another the "some weeks" basis cannot be correct.

So that, Your Honours, the result which

obtained in consequence of the views taken by

His Honour was this, in our submission, that the

court was in a position where it was reconsidering

its decision upon the application. In arriving at

that decision, one of the members of the majority

Smith.R(3) 16 30/4/92

took a view which was, again, not supported by the evidence and contradictory to the evidence, and in

those circumstances, Your Honours, the judgment of

the Court of Appeal is one which, itself, should be

set aside with the matter being remitted back to

that court.

Your Honours, could I move then to the

question of the second ground of appeal, and that
concerns the court's declining, when the matter
came before it the second time, to admit in

evidence four documents. The four documents were

four testimonials to the character of the

appellant. Your Honours, they appear, first, at

page 358, volume II, which is a character reference

by a barrister, Mr Norrish; secondly, at page 360,

a character reference by Mr Luland, QC, who was

Deputy Senior Crown Prosecutor, and the appellant

had, himself, for part of his career been a

prosecutor in New South Wales; the third,

Your Honours, was a testimonial, at page 361, from

the Aboriginal Legal Assistance Service at

St Mary's, and the fourth one is at page 372, and

that was from a Marist Father, Father Connors, from

the Marist Fathers Aquinas Academy, the nature of

which Your Honours will see there set out.

Your Honours, could I say one thing in relation to the times at which those documents came

into existence? Your Honours, the first three

documents were in existence at the time of the first hearing before the Court of Appeal. The fourth, that at page 372, as is apparent from its

date, was not.

Your Honours, the last of those

documents - that is the one at page 372 - was

attached to copies of the appellant's further

written submissions to the Court of Appeal and,

Your Honours, perhaps I could give the Court copies

of those submissions in which he indicated he

intended to rely on that.

Your Honours, we would submit the materiality

of that evidence on the question of the course

which should be taken by the court was manifest but

the approach taken by the court was that all that

material was fresh evidence and should not be

admitted. Your Honours, that appears in the

reasons for judgment of each of the members of the

court. At page 375, at about line 28,

Mr Justice Samuels adverted to the nature of the

evidence in paragraph 3 on that page.

Your Honours, at page 391, lines 18 to 21, he

stated his reason for not taking into account all

material which was available to be tendered when

Smith.R(3) 17 30/4/92

the original application was before the court.

Mr Justice Mahoney, at page 400, line 17, refers to

the testimonials at line 20, on page 400.	He
refers to it as material:

which he had desired to be before the Court

but which was not placed before the Court by
those representing him at the original

hearing.

Your Honours, at the top of page 401, the first

three lines, he declines to admit them. And

Mr Justice Meagher, at page 403, paragraph 5 on

that page, said "the application must fail".

The power to review the first decision derived

from Part 40 rule 9 of the Rules of the Supreme

Court which are set out at page 376 in a short

form. This was simply a case where the formal

judgment had not been entered and there was no

particular reason why the court could not reopen

the matter. The court, of course, did reopen the

case but it refused to vary its order.

Your Honours, once the case had been reopened,

the issue before the court simply became whether,

in the exercise of its discretion, the court would

allow further evidence to be adduced. That

question is one which has been the subject of a

number of decision but, in reality, relatively few

decisions in Australia.

I have given the Court a bundle of decisions.

If I could give Your Honours the names of them and

take Your Honours to the one decision which appears

to summarize the current position. The decisions

are: Betts v Whittingslowe (No 1), (1944) SASR 1,

a decision in which Your Honour Justice Toohey was

counsel; Watson v Metropolitan (Perth) Passenger

Transport Trust, (1964) WAR 208.

TOOHEY J: Are these cases dealing, Mr Jackson, with the

question of fresh evidence or the broader question

of the evidence that may be omitted on review?

MR JACKSON:  The issue with which the cases deal is whether

a party should be allowed to adduce additional

evidence at a time when the actual hearing has

concluded but judgment has not been given.

Your Honours, that is in truth, we would submit,

the point at which the case had arrived in effect,

by virtue of the Court of Appeal's decision to

reopen the matter.

DEANE J:  I do not follow that. I would have thought

seeking to lead fresh evidence simply because the

order had not been taken out would be in a

Smith.R(3) 18 30/4/92

completely different position from the situation

which exists when the matter has been reopened.

MR JACKSON:  Your Honour, I am sorry, perhaps I was putting

badly what I was seeking to convey. What I was

seeking to convey was this, that the court had

decided to reopen the matter. The point in terms

of time at which it was reopening the matter was

that it was doing it after the hearing had taken

place in the ordinary way - Your Honour, I say that

with a qualification to which I will come in a

moment - after the hearing had taken place, but at

a time when the original decision had been reopened

because of the error.

Your Honours, prima facie, and again with the

qualification to which I will come, that would seem
to bring into operation the question whether at

that stage a party which had closed its case should be permitted to adduce further evidence. The cases

to which I have referred - and I will take

Your Honours in a moment to the case which appears

to be a summary of those - would, in our

submission, indicate that the question in the end

is one of the interests of justice, and should the

party be or not be permitted to do it.

But, Your Honours, there would really be a

qualification which would have to be added in a

case such as the present, and that is that what had

happened, of course, was that one was considering

the situation where what the court was doing was to

consider what was the appropriate course by way of

penalty - and I use the term in a slightly

inaccurate way, I know - where part of the reason

for- imposing the penalty was a view which the court

itself had taken about the credibility of the

appellant and in circumstances where that appeared,

of course, first in the reasons for decision of the

court itself.

Your Honours, the case to which I was going to

refer which effectively is a summary of the earlier

decisions, and a slight departure from them, is

Joyce v Government Insurance Office (NSWJ, which is

a decision of Mr Justice Sheppard, a member of the

New South Wales Supreme Court. It is reported in

Ritchie's Supreme Court Practice of that court at

page 8551 and at page 8552.

I shall not read the decision, but His Honour

refers in the first paragraph to a number of

matters: absence of prejudice, the relatively few

authorities. In the first new paragraph on the

second page of it, he appears to think that an

appropriate analogy would have been to treat it

similarly to amendment. Then his conclusions in

Smith.R(3) 19 30/4/92

the end, Your Honours, appear in the last

paragraph.

In the end, the question seems to be simply

one whether, in the particular circumstances,

further evidence should be permitted to be adduced,

and no doubt matters such as whether evidence was

or was not available, its materiality, the reasons

why it was not adduced earlier, and matters of that

kind are matters which it is appropriate to take

into account, but, Your Honours, on any view in the

present case, we would submit, part of the gravamen
of the case had only appeared with the view that
the appellant had not told the truth in the Court

of Appeal.

The material sought to be admitted was of the

greatest materiality to the course which should be

taken. Your Honours know there was no suggestion

of any prejudice by its admission, and we would

submit it is difficult, with respect, to find a

basis upon which the result arrived at by the

exercise of discretion was justified by the

purposes for which the discretion existed.

TOOHEY J:  Mr Jackson, what was the Court of Appeal asked to

do by way of reconsideration? There is a document

on page 308 which is in the form of a motion, but

would that be the document which initiated the move

for a reconsideration by the Court of Appeal?

MR JACKSON: Yes, it is, Your Honour. Paragraph 3, I think,

of it, but the matter with which the Court of

Appeal was dealing more precisely appears from the

written submissions of the parties to it.

TOOHEY J: Yes.

MR JACKSON:	I wonder if I could hand to Your Honours copies of the written submissions of the parties, and what
the present appellant sought appears from the first two pages of his submissions and, Your Honour,
there is a chronology, I think, included in there.
Your Honour, the documents that are handed up are
these: there is the submissions made on behalf of the appellant in the original proceedings; the
submissions made on behalf of the Bar Association
in the first proceedings, they consist of two
documents; then there is the submissions made on
behalf of the appellant in the second proceedings,
and also the chronology. The document to which I
was referring was the document bearing on the front of it the title, "Submissions by the Opponent in
Support of this Motion that the Court Review its
Decision of 9th May, 1991". Your Honours will see,
at page 1 of that, that he sets out the matters
that he was asking the court to consider.

Smith.R(3) 20 30/4/92

TOOHEY J:  It may be that the whole question of fresh

evidence is something of a red herring here. If a

court makes an obvious error in arriving at its

conclusion and the matter is adverted to quickly

enough before a judgment has been extracted, and

the court is prepared to look at the matter afresh

by reason of the error that it has made, it may be

that there are difficulties in the matter going

back to that court as constituted in any event,

where there is a finding based on credibility.

But, at any rate, that is ancient history I

suppose. But once the court decides to reopen the

matter, is it a question of fresh evidence or is it

simply a question of such evidence as is relevant

to the reconsideration by the court?

MR JACKSON:  Your Honour, I have really been putting it as something in between those two. One tends to

think, in terms of fresh evidence, of being the

test that would be applied on appeal to determine

whether the Court of Appeal would set aside the

judgment on the ground of fresh evidence. That is

the strictest test where one has to show a number

of things: materiality, lack of availability and

so on.

Your Honours, the other possibility

Your Honour put to me was is there any restriction,

and the only restriction, Your Honours, is perhaps that to which I was adverting earlier, and that is
that it may depend rather on the particular case,

and if the point the case is at is one where there

has been evidence and there have been submissions,

then that is the stage the case is at, and there

would seem to be, on the decisions to which I have

referred, a general understanding that some leave

is required at a point like that to adduce further

evidence. Now, the correctness of that view,

Your Honour, is perhaps not entirely clear, because

all that one is seeking to do is to say, "Well,

although the evidence, in effect, on the point has

closed there is something more I want to put or

something I want to add" and, Your Honours, it

would be nice to be able to say one can do it as of

right but it is a little difficult to go quite as

far as that.

TOOHEY J: What is the criterion or the principle that

governs the court in a situation like this?

MR JACKSON: Well, Your Honour, we would submit that it is

not a very difficult test to satisfy, the test
being whether overall, in the interests of justice,

the party should be permitted to reopen its case or

adduce further evidence.

Smith.R(3) 21 30/4/92

TOOHEY J: And is that a test to which the notion of fresh

evidence is directly relevant, or is it simply a

consideration in the mind of the court?

MR JACKSON: 

A consideration, Your Honour.

TOOHEY J: 

It seems to me when you are speaking of

references, Mr Jackson, that there is a further
aspect that - it perhaps does not matter a great
deal - but is the test for determining whether a
reference is fresh evidence or not the date on

which it comes into existence? It seems to me
there are difficulties with that. I mean, if you

knew that a witness could give character evidence

for you and you simply refrained from getting that

evidence until the hearing had concluded and then

asked for a reference, it is somewhat unreal to
describe that as fresh evidence.

MR JACKSON: 

Your Honour, I am quite conscious of that and

that is why I have stepped rather lightly, perhaps,

on the fourth reference, because the material did

not - it did not really appear whether it might or

might not have been available at an earlier point.

DAWSON J: But, Mr Jackson, it is not really a question of

fresh evidence, it is a question of fresh

relevance, because here you have got a court that

formed an adverse view of this man's character,

that he was prepared to lie to the court, and he is

entitled not only to point out the error on which

that judgment was formed, but to attempt to

eradicate it from the mind of the court.

MR JACKSON:  Your Honour, that is a matter to which I was

seeking to refer before, that if one were looking

at it just as a simple civil case, then the

approach I was referring to before may well be the

one to be applied, but this has the qualification -

or qualification understates it - it has a quite

different nature because the issue to which his

material is directed is the question of the course

which should be taken by the court in the light of

the view that it has taken and the issue in truth

only arises at that point.

GAUDRON J: Well, what you really say, if you put it that

way, is that so far as the court refused to

exercise its discretion with respect to the testimonial evidence, it did act on a wrong

principle by assimilating the testimonial evidence
to fresh evidence, and at the same time it failed

to have regard to a relevant consideration, that is

to say the situation in which the court had placed

itself by its own finding. So it is not a question

of the discretion even being one that looks as

though it might not have been exercised that way,

Smith.R(3) 22 30/4/92

it is one that really has not been properly

exercised at all.

MR JACKSON:  Yes, Your Honour, that is entirely correct and

that is tied up with the third ground to which I

will come, and that is that the view taken by the

Court of Appeal seemed to involve this, that once

the view was taken that the appellant had not told

the truth in the Court of Appeal, that the result

followed, in effect, as night follows day, that he

had to be struck off. Now, Your Honours, that is

the view taken that he had not told the truth to

the Court of Appeal, may have had the ultimate

result that he would be struck off but it raised a

circumstance, we would submit, it was not itself the subject of the charge and it may have been a

consideration that, in the end, the court could

take into account that, having said that, it placed

the appellant in a situation of a kind of double

jeopardy where, on the one hand, he is brought

before the court with particular particulars, but

lives in the knowledge that if, in effect,

something goes wrong, and his evidence is not

believed - and not believed not just in the sense

of not accepted but it is found that he has told a

lie - he gets struck off and, Your Honours, without

being able to say something in support of the

notion that he should not be.

TOOHEY J:  Why I took you to the notice of motion,

Mr Jackson, was because it seems to me that had it

been based, for instance, solely upon the question

of testimonial evidence that had become available,

then no doubt we are in the area of fresh evidence

in the sort of cases to which you have referred us,

but if it is based, primarily at any rate, upon an

error made by the court, then that error itself may

determine the scope of the material which the Court

of Appeal should entertain for the purpose of

reconsideration. In other words, if the error was

a mere error as to date, which had absolutely no

bearing upon anything, then testimonial evidence,

it seems to me, at any rate, could only be admitted

if it were, in truth, fresh evidence. But if the

mistake bears directly upon the credibility of, in

this case the appellant, then that may open the

door to a wider range of material, whether it

constitutes fresh evidence or not.

MR JACKSON:  Yes, Your Honour, that is correct, particularly

when one bears in mind the nature of the

proceedings, because if one were talking about a

matter where it was possible to divide a case

neatly into two parts then it may be that evidence

on (a) is not material to (b). But if what is to

follow from not being believed, being found to be

telling untruths in the Court of Appeal, is that

Smith.R(3) 23 30/4/92

striking off follows, then the question whether the

first finding should be made and the consequence

that should follow from it, the two seem to be

intertwined.

DEANE J:  Mr Jackson, was there ever a request that in view

of the flawed finding that your client had lied a

new court should be constituted to deal with the

whole case?

MR JACKSON:  No.

DEANE J: There was not?

MR JACKSON:  No. Your Honours, some of the submissions

which I have made already cover things I wish to

say in relation to the third ground of the appeal

but may I deal with it as briefly as possible in

the light of that.

The view taken by the majority in the Court of

Appeal was that the consequence of not having told

the truth to the Court of Appeal was that an order

for disbarment should follow. The passages which

demonstrate that appear in Mr Justice Mahoney at

page 304, line 17. It is a passage which commences

at line 17 and goes through to page 305, about line

13.      I have referred Your Honour to it or to parts

of it earlier.

It is clear from that passage that

Mr Justice Mahoney regarded the question of not

having told the truth to the Court of Appeal as

decisive. His reasons were adopted by

Mr Justice Meagher in that regard, as Your Honours

will see, at page 306, lines 12 to 13.

Your Honours, we would accept, of course, the

broad proposition that a lack of candour or the

telling of a lie by a barrister in court is a

matter material to the barrister's fitness to	practice. Could I just give a reference without
taking Your Honours to the detail of it: In re
Foster, (1950) 50 SR(NSW) 149.

We would submit, however, that it cannot be

decisive and in that regard could I refer

Your Honours by way of analogy to what was said by members of the majority of the Court in Ziems v The

Prothonotary of the Supreme Court of New South

Wales, (1957) 97 CLR 279.

Your Honours, that was the case of a barrister

who had been convicted of motor manslaughter and

the question was whether he should be struck off in

consequence of that and the Full Court of the

Supreme Court of New South Wales had held that he

Smith.R(3) 24 30/4/92

should but there were circumstances involving great

mitigation. He had endeavoured to stop a drunken sailor in an hotel from engaging in inappropriate

conduct and the sailor had punched him on a number

of occasion and injured him, relatively severely;

later he was driving his car.

Your Honours, if one goes to page 287, in Justice Fullagher's reasons for judgment - and the

passages to which I will refer Your Honours are

ones indicating that the Court must take into

account all material considerations.

Justice Fullagher, the last five lines on page 287

and going over to page 288, about three-quarters of

the way down the page, and may I refer Your Honours

specifically to page 288, about point 3, His Honour

poses the question:

at what facts is it proper to look in order to

see whether that conclusion is established?

Then, Your Honours, also on the same page at about

point 6:

we are bound to ascertain, so far as we can on

the material available, the real facts of the

case.

To the same effect, Your Honours, at page 297,

Justice Kitto, the last two lines on the page - it

is a passage then that goes through the whole of the next page, but I would refer particularly to
the paragraph commencing on page 298 at about

points.

BRENNAN J:	Mr Jackson, no doubt, it depends what the subject-matter of the falsity is and the
circumstances in which it is expressed. In this
case, if the facts were to stand that in relation to the particular subject-matter with which the court was being asked to deal, namely whether there
was in existence a retainer and the barrister tells a lie which he knows to be a lie to the court,
could there be any other answers?

MR JACKSON:  Your Honour, there would be. There would be

the possibility of other consequences. One would

be the possibility of suspension, suspension on

particular terms.	One would be the possibility of
the imposition of a fine.	The other would be the

possibility of the fine being of professional

misconduct and an order that costs be paid.

BRENNAN J:  No doubt, all of those are available courses

which a court might take, exercising its

jurisdiction. Would any of them be right but that

of striking off if the subject-matter on which a

Smith.R(3) 25 30/4/92

deliberate lie is told is the particular

subject-matter for the court's determination?

MR JACKSON:  Your Honour, in our submission, yes. By that I

mean that it must depend on the circumstances.	If
one took into account, as circumstances, matters

such as the history of the appellant, the fact that

he had been a barrister for quite a large number of

years, the fact that he had held office as a Crown Prosecutor, the fact that his record was otherwise

unblemished, the matters referred to by

Mr Justice Samuels and the other members of the

court that the observations made initially to the magistrate may well have been observations in the heat of the moment, and also the fact, Your Honour,

that as the matter comes to the Court of Appeal the

person is placed in a position of great jeopardy,

one where he, in effect, might well take the view

that he has to defend himself. Your Honour, the

point I am seeking to make about it is that if one

says that the only proper course is to strike off,

then that really takes one back to a view that was

a view which commended itself, in a sense, to the

minority in Ziem's case rather than to the

majority.

BRENNAN J:  The question was whether or not, in Ziems' case,

the conduct of the person as a barrister was

inconsistent with the fact that he had been

convicted for a motor car offence. The

Chief Justice took one view; other Judges took
another. That is a very different thing from the
question of whether barristers tell lies on the

subject-matter of the litigation.

MR JACKSON:  Your Honour, I am sorry, I was not meaning to

make a factual comparison. What I was seeking to

do was to say that what Ziems' case, we would

submit, seems to establish is that one must look at

the whole of the circumstances, and the mere

identification of a particular conduct as being

misconduct does not necessarily carry with it the

consequence of disbarment, if it be of a particular

kind.

Your Honour asked me what the right

consequence would be if the conduct that was relied

on was established, and I was seeking to say that

the right consequence would not necessarily be

disbarment. The suspension might have been a quite

appropriate thing to do involving a requirement for

counselling, attending lectures and so on.

Your Honour, one had to bear in mind in the
particular case that the appellant was a man who

for quite some years had been practising at what in

effect was away from the mainstream of the bar.	I
do not mean that in any even slightly offensive

Smith.R(3) 26 30/4/92

way, but he had been practising at Penrith in a

small suburb/town.

BRENNAN J:  Mr Jackson, I must say it seems to me to be

curious. Most members of the bar, I imagine, would

probably think that a detective sergeant who had

committed perjury and was found to have committed

perjury should not remain a member of the police

force. It would be curious if there was any more

tender view taken about professional conduct at the

bar table.

MR JACKSON:  Your Honour, no doubt that is a view which is

open, but at the same time one should not, we would

submit, adopt the approach that there are matters

which of their very nature in every case will have

a particular consequence, the consequence being

striking off. It may be that they almost always

will, but it does not follow, we would submit with

respect, that they always will. Your Honours, that

is one of the difficulties which arises from the

course adopted in the present case, that one does

have circumstances which arise where - and I will

give Your Honours an analogy in just a moment - a

barrister who is charged with very minor things, as it were, is placed in much greater jeopardy because
of the adoption of the rule that if you do not tell
the truth in the Court of Appeal in every respect,
then whatever might have been the appropriate

penalty otherwise, you will be struck off.

DEANE J:  It used to be referred to as the catch-22

situation. I do not know if it still is.

MR JACKSON:  Your Honour, I had not heard that expression

used in relation to it, but what Your Honour says

is quite right.

GAUDRON J: There is, Mr Jackson, is there not, a difference

between a situation in which somebody has been

found guilty of perjury or found to have perjured

himself, and the situation in which somebody is

simply not believed?

MR JACKSON:  Yes, Your Honour.

GAUDRON J: And there may be quite different considerations

depending on the finding being the latter rather

than the former.

TOOHEY J: Well, that raises a question as to what would be

the consequences of allowing the appeal. The

notice of appeal asks that the matter be remitted
to the Court of Appeal. What is the matter? Is it

the question of professional misconduct or the

consequences that flow from the finding of

professional misconduct?

Smith.R(3) 27 30/4/92

MR JACKSON:  Your Honour, it depends a little on the view

the Court takes of the several grounds but if the

case goes back to the Court of Appeal, then what

would seem to go back to that court would be for

the court to do what it should have done on the

second hearing, as it were.

DEANE J: Is that right? Would you not ask for a new court

to deal with it?

MR JACKSON:	Your Honour, that is what we would be asking, but could I just - - -
DEANE J:	It would not be what the court should have done on

a second hearing.

MR JACKSON:	I am sorry, I was - - -
DEANE J:	The matters start again.

MR JACKSON:  Your Honour, I was seeking to indicate alternatives, as it were. One view is that it goes

back to do just the narrower thing; the other view

is that the matter goes back to the Court of Appeal

for the court to reconsider the whole matter.	We
would ask that the case go back to the Court of
Appeal in circumstances where the court had to

consider, whichever court heard it had to consider,

the whole case. On that, we might well seek to

adduce additional evidence or take further steps in

relation to it. So, of course, might the Bar

Association.

TOOHEY J: But I am not clear what that means, Mr Jackson.

Is the finding of professional misconduct under attack in this appeal?

MR JACKSON:	Your Honour, it is.
TOOHEY J:

The grounds of appeal do not say so with any

great clarity, do they?

MR JACKSON:  Your Honour, may I just correct one thing that

has been brought about by a mistake that I made, in

fact, at an earlier hearing of this matter, and it

is this. Your Honours will see that there has

been - I will answer Your Honour in just a moment
but, at page 411-412 Your Honours will see that

what is set out, amongst other things, is a copy of

and a decision of the Chief Justice on an

application for a stay, and Your Honours will see,
at lines 15 to 20, that His Honour says:

In his application, the applicant did not contest the finding of unprofessional conduct but sought, in effect, a rescission of the order for disbarment.

Smith.R(3) 30/4/92

Your Honours, His Honour said that because, in

effect, I had said that to him. I had said that to

him, Your Honours, because I had adopted what had

been said by Mr Justice Samuels on the second

occasion and Your Honours will see that at the

bottom of page 374 and the top of page 375. At the

time, Your Honours, I had not seen the written

submissions that the appellant himself - at that

stage he was appearing for himself - had given to

the Court of Appeal, and it is apparent from those

documents which I gave the Court earlier that he

was in fact seeking to have the basic finding set

aside. So that, Your Honours, the position is he
was, before the Court of Appeal, seeking to have

the basic finding set aside.

Now, if Your Honours go to the notice of

appeal at page 408, the relevance of the

conversation with Mr McDonald in the car park was

that it went to two aspects of the case, the first

being whether he was in fact instructed; the second being whether he might honestly believe that he was

instructed. If the conversation took place it

would militate in favour of his evidence, or his

case, on both those aspects.

TOOHEY J: Well then, what really is under attack on that

approach is the judgment of the Court of Appeal not

merely ordering that the appellant's name be

removed from the roll of barristers, but the
judgment of the Court of Appeal declaring the

appellant to have been guilty of professional

misconduct and ordering his name to be removed from

the roll of barristers.

MR JACKSON: Except, Your Honour, that the form of order of

the Court of Appeal is, I think, just expressed in
the way there referred to and - it is page 307, I
think - Your Honours will see the form of order at

page 307 is that his name be removed and then the

second order at page 404 is that the application to

set aside that order itself be dismissed.

GAUDRON J: Well, in any event, as matters have now

developed, it seems to be difficult to isolate one

issue from another, given the findings of

credibility that have been made.

MR JACKSON:  Your Honour, that is so. That is why one sees

one of the fundamental difficulties is that the

procedure which has been adopted in combining the

hearing, in effect, on liability and penalty means

that one has persons in the position of the

appellant being brought before the court on
specific allegations of misbehaviour; they defend
themselves against those; if the allegations are

established they are liable to the court's exercise

Smith.R(3) 29 30/4/92

of disciplinary jurisdiction, but they are faced at
the same time with a kind of circumstance of

aggravation lying in the background, and,

Your Honours, in another context, in criminal

proceedings, this aspect had been adverted to as

undesirable. There is a decision in Victoria,

R v Richmond, (1920) VLR 9, and in that case a

question had arisen of the appropriateness of
imposing an additional penalty because the person
who was the accused person in effect had not been

believed when giving evidence at the trial.

Mr Justice Cussen, at page 12, and Your Honours

will see in the copy that Your Honours have that

the passage is bracketed, and he said:

It would certainly act as a deterrent even to

an innocent man giving evidence, especially

where there is a strong case against him, if he knew that if the jury does not accept his

evidence he may receive a sentence heavier

than otherwise would be imposed.

And it is elaborated upon throughout that page.	To
the same effect, at the top of page 12 in the
judgment of Mr Justice Hood, and, Your Honours a
similar approach was taken in New South Wales in
R v Smith, (1946) 46 WN(NSW) 231, and in the
judgment of the Court of Criminal Appeal, per
Chief Justice Jordan, His Honour at page 231, a
passage commencing about a third of the way down
the page, quoted the trial judge as having said,
when sentencing:

you have the temerity to go into the witness

box and commit perjury -

and so on, and then says:

It is also quite clear, I think, that the fact that the learned Judge was of opinion that the appellant had committed perjury in the course

of the evidence which he gave in the witness

box, was one which he was not entitled to take

into account in passing sentence.

Now, Your Honours, the analogy is not exact, of course, because the fact of not having told the truth in the Court of Appeal is a matter which, in

the end is material to remaining in practice, but

having said that, it is a question whether before

the order is made an opportunity should be given to

deal with that allegation as well.

BRENNAN J:  No doubt that is so, but perhaps I have not

understood correctly what the particular finding of

professional misconduct consisted of?

Smith.R(3) 30 30/4/92

MR JACKSON:  Your Honour, the finding consisted of a number

of things.

BRENNAN J: 

I had understood that what was said was that he

had deliberately lied to the magistrate about the
existence of a retainer?

MR JACKSON: 

Yes, Your Honour.

BRENNAN J: 

Now, is that right, in other words if he had been on oath he would have been guilty of perjury?

MR JACKSON:  Yes, Your Honour, yes. He was not on oath,

Your Honour.

BRENNAN J:  No, I appreciate that. Was it found that he had

to - was that the particular misconduct which was

alleged and proved at least on the first occasion?

MR JACKSON:  Yes. The particulars were found to be

established.

DAWSON J: But it is not as simple as that is it, because on

the reconsideration Mr Justice Samuels finds that

he did not deliberately lie, did he not?

MR JACKSON:  In the Court of Appeal.

DAWSON J: But he did deliberately - I am not sure that that

is so, that he said that he said it on the run and

that what he said may be - you may be right.

MR JACKSON:  Yes, Your Honour.

GAUDRON J: It was not premeditated I think is what

His·Honour said?

MR JACKSON:  Yes, Your Honour. The view that he took, and

it would seem to have been really the view of at

least Mr Justice Meagher as well was - on the first

hearing, the view of Mr Justice Samuels and

Mr Justice Meagher seems to have been that if there

had just been a case of not being instructed and

appearing uninstructed, and then when the retainer

was challenged saying the things that he did say,

and on the assumption that they were untrue and

that he knew they were untrue, it would yet not be

. a case where a striking off order should be made,

but what led to the making of the striking off

order was the fact that he had tried to justify his

position in the Court of Appeal, and one of the

ways in which he did that was by telling lies to

the Court of Appeal.

DAWSON J: Then, on the reconsideration, Mr Justice Samuels

said, "Well, I do not accept he lied to us on the

previous occasion about the McDonald conversation;

Smith.R(3) 31 30/4/92

I do not accept that the conversation took place, t but he probably reconstructed events and thought

that it did".

MR JACKSON:	Thought that it did.
DAWSON J:	"Anyway, I am not prepared to find that he did

not reconstruct it. But I, nevertheless, find that

he intentionally misled the magistrate."

MR JACKSON:	Yes.
TOOHEY J:	Mr Jackson, the summons that appears on page 1,

the summons that initiated the proceedings, speaks

of "matters set forth in the schedule hereto", is

that schedule - - -

MR JACKSON:  Your Honour, that is a document I handed to the

Court with my outline of submissions. It was

omitted by mistake from the record and at the time

I gave the Court the outline of submissions there

was a one page document with it. Your Honours, if

I could just interpolate there: the passage which

seems to reflect what Mr Justice Samuels thought is

at the bottom of page 388 and the top of page 389.

It commences about line 15 on 388 and goes through

to page 389, about line 11.

DAWSON J:	He found that the conversation never took place.
MR JACKSON:	Yes.
DAWSON J:	He was not prepared to find that the opponent

deliberately lied.

MR JACKSON:	Yes.
DAWSON J:	The other two judges in reconsideration seemed to

find that nothing had changed.

MR JACKSON:  Mr Justice Meagher certainly thought that,

Your Honour, yes.

DAWSON J: But then Mr Justice Mahoney made an error the

second time?

MR JACKSON:  Yes.

DAWSON J: So, really, what you are saying in that situation

everything is thrown open?

MR JACKSON:  Yes.

BRENNAN J: That must be so, must it not, that it is thrown

open?

MR JACKSON:  I am sorry, Your Honour, I did not catch it?

Smith.R(3) 32 30/4/92

BRENNAN J:  It must be so that it is thrown open entirely

because no decision could possibly be reached

without understanding something of the moral

oblique that attaches to whatever the opponent did

and that involves a question of the state of his

mind. As I read the evidence, it seems to me that

a great deal has flowed from this extraordinary

arrangement that was reached between the solicitor

and the barrister which the Court of Appeal said in

one respect had no evil in it. But, however, that

is another matter, I suppose.

MR JACKSON:  Your Honour, that is one of the reasons why, in

answer to an earlier question of Your Honour's, I

made a submission that an appropriate order might

well have been one that involved, perhaps, some

kind of counselling or professional retraining

because, Your Honours, one knows that absence from

professional colleagues for long periods can tend

to give rise to practices which are heterodox

rather than orthodox.

TOOHEY J: Could I just ask you this for clarification,

Mr Jackson: if the matter were to go back for

reconsideration, does the term "matter" include

findings of professional misconduct in relation to

the appellant's conduct before the court of petty

sessions?

MR JACKSON:	In our submission, yes, Your Honour, because of the relationship between, in a sense, the car park
conversation and what he said because, Your Honour,
if I could just give the one example: one of the
things he said was that, "Mr McDonald is busy on
other matters, engaged on other matters", and if,
in fact, the conversation in the car park took
place, that would provide some basis for him to say
something along those lines.  Your Honours, those
are our submissions.

BRENNAN J: Thank you, Mr Jackson. Mr Cowdery?

MR COWDERY: If Your Honours please. Might we hand up to

Your Honours our written outline of submissions.

BRENNAN J: Thank you.

MR COWDERY:  Your Honours, as an introduction to the

submissions on the first ground of appeal, might we

refer briefly to some matters of fact that may have

some bearing on the consideration of this ground.

The circumstances were in outline that the appellant sought to appear on 11 November 1986.

His retainer was challenged by his opponent and in

response to that challenge he made a number of

statements about the nature of his retainer and the

Smith.R(3) 33 30/4/92

whereabouts and activities of his alleged

instructing solicitor.

There were a number of occasions during the

course of that morning when the matter was referred
to in the court and eventually at about 12.15 pm

Mr McDonald himself came to court, having provided

the appellant with a back sheet which recorded, in

effect, that instructions had been received from

the client at 12 noon on that day. The statements

made by the appellant had been made prior to

12 noon.	In due course, on that day the matter was
adjourned.

Complaint was then made to the Bar

Association. In the course of investigating the

complaint a disciplinary tribunal was convened and

a hearing conducted. Before that, however, within

a day or two of 11 November 1986 the appellant

recorded in writing his account of the events of

that day and of the events leading up to it. That

document became known in the proceedings as the

"draft affidavit". It was never sworn in the form

of an affidavit but the appellant's evidence was
that it was his committing to writing of the events

of that day, and of the events leading up to it,

for his own purposes, so that he would have a

record made at a time when the events were fresh in
his mind and he was able to make a comprehensive

record.

There was nothing said to the magistrate on

11 November about a car park conversation. More

significantly perhaps, there was nothing said to

Mr McDonald at or about 12 noon or 11.45 am about a

car park conversation. There was nothing recorded

in the so-called draft affidavit by the appellant,

a document made in his own time and of his own

choice, nothing recorded in that document about a

car park conversation.

The car park conversation was first disclosed

in the course of the appellant's unsworn evidence

to the disciplinary tribunal and it came, we

submit, as Mr Justice Samuels referred to it, very

much on the heel of the hunt and almost, when one

looks at the transcript of that part of the

proceedings, as an afterthought. But however it

might have arisen, that is the first occasion on

which the appellant referred to a car park

conversation relevant to these events at all.

He then prepared a statement which was annexed

to an affidavit which was filed in the Court of

Appeal when the Court of Appeal proceedings were

under way. In that statement he referred to the

car park conversation in short terms. Your Honours

Smith.R(3) 34 30/4/92

have been referred to it this morning. When he

gave evidence before the Court of Appeal, he

expanded upon that and gave a version of the

conversation including somewhat greater detail.

That chronology of a development of the

evidence about the car park conversation is, in our
submission, relevant to the question of whether or
not its alleged fabrication, indeed its alleged

comparatively recent fabrication, was an issue that

was fairly raised in the course of the Court of

Appeal proceedings.

The cross-examination of the appellant dealt

with all of the events and all of the documents to
which I have referred. In the course of

cross-examination, he was taken through the events

of 11 November, including his conversations with

Mr McDonald in his office and the fact that there

was no reference to a car park conversation then.

He was taken through his statements to the

magistrate; he was taken through the draft

affidavit which, on its face, makes no reference to

the car park conversation, and he was taken through
the reference that he made to it in the course of

his unsworn evidence to the tribunal.

At the end of the cross-examination and into

his re-examination at page 219 in volume I,

Mr Justice Mahoney, at line 38, raised the alleged

conversation directly. He said:

Q. I am somewhat troubled by this

conversation that I think was supposed to have

taken place in the car park with Mr McDonald.

Do correct me if I am wrong but I think

Mr McDonald denies that there was such a

conversation, doesn't he? A.	Yes, he does
deny it.
Q.	On one view of this matter that is a
crucial issue in the case, as you would

appreciate? A. Yes.

Q. Is there anything more that you can tell

us to support the conclusion which obviously I

have not come to any conclusion of my own at

the moment, that that conversation did take

place? Let me put it very frankly to you.

Mr McDonald, as I recollect - I think this is

right - said that it did not take place? A.

Yes.

Q. And if that is true then it reflects on what you told the Magistrate? A. Yes.

Smith.R(3) 35 30/4/92

So I am concerned as to whether that

conversation did take place. Is there

anything more that you can say to support the

view that it did take place? Do you follow

the point I am putting? A. Yes, I

understand.

Q. What can you tell us?

And the appellant then referred back to the

circumstances in which he alleged the conversation
occurred and went in to some greater detail than he

had already in the course of his evidence.

Having given that lengthy explanation about

relevant matters, His Honour then, at line 34,

said:

Q. Let me press you a step further. If that was so, then was it not strange that following

the events on the morning the case ca.me on he

then gave you a facts sheet -

that should be a "back sheet", I think -

which suggested that you had never been

instructed before in the matter and that he

was instructing you on a special basis and

there was no fee.	Do you follow the point?
A.	Yes, that is what it certainly appears to

be, yes, your Honour.

Q. Is there anything that you can say that

would assist in that regard? Why would he do

that if there had been the conversation a

couple of days before? A. Well, this has

troubled me ever since the whole thing began.

I do not know why he would do that. I have

tried to work out why he wouldn't tell the
truth about the matter. I don't know why. As

far as I know he had no cause to wish me to be

harmed in any way but the fact is he didn't

tell the truth and I don't know why.

The effect of that, in our submission, is to

raise clearly as an issue the alleged conversation in the car park, to bring clearly to the notice of

the appellant the fact that it was (a) a

significant matter; and (b) a matter in which there

was a disagreement directly between Mr McDonald and

Mr Smith, a conflict that the court would have to resolve.

It was in the course of the submissions that a

further question was asked of me, what the

claimant's attitude was to the conversation in the

car park. I just do not have the reference to that

Smith.R(3) 36 30/4/92

page at the moment.	I am indebted to my learned
friend, it is - - -

BRENNAN J: It is at page 240, is it not?

MR COWDERY:  Page 240, thank you, Your Honour. In the

course of submissions, Mr Justice Samuels asked

what the claimant said about this conversation that is alleged to have taken place in the car park. In

response:

Our submission is that it is a fabrication by

the opponent.

Was Mr McDonald cross-examined about it?

Yes, he was.

And the reference is there given. So in short, in

our submission, it was an issue, it was fairly

raised, the appellant was given an opportunity to

address himself to it as a witness, and an

opportunity for his counsel to address it as an

issue, and it was then resolved adversely to him in

the judgments on the first instance.

TOOHEY J: But in a sense, that almost compounds the problem

because I understand from what you are saying,

Mr Cowdery, that Mr Justice Samuel's finding that there had been no previous reference to a

conversation in the car park was not merely

something that the Court of Appeal arrived at in

the absence of any material bearing on the point

but that the appellant was actually taken to what

he had said before the disciplinary tribunal
regarding that conversation.

MR COWDERY:  Yes. The error which was made and accepted by

Mr Justice Samuels, and agreed in by the other two

judges, arose clearly enough from His Honour

having overlooked the evidence of that matter

being included in the appellant's evidence before

the disciplinary tribunal.

TOOHEY J: But I thought you said it went further than that.

I thought you said that the appellant was cross-

examined before the Court of Appeal as to what he

had said before the disciplinary tribunal regarding

the conversation.

MR COWDERY: 

Yes.

TOOHEY J: 

So that it is not merely a matter of overlooking

something that had been said before the
disciplinary tribunal but of overlooking that part

of the cross-examination which would have made it

Smith.R(3) 37 30/4/92

apparent that the appellant had said something

before the disciplinary tribunal.

MR COWDERY:	Yes, and that error was the primary basis for the application for the decision to be reopened.
BRENNAN J:	Mr Cowdery, can I just mention a thing that is

bothering me, I must confess, about this case, and

that is, the way in which I read the material,

whether one likes it or not, the arrangement was

that Mr McDonald was a solicitor of convenience; he

was a post box to which the appellant's client was

sent. There is, supposedly, a conversation in a

car park, something which would never impress

itself on the mind of a solicitor of convenience.

The barrister has got another one of these cases

on, let him have it. And to put emphasis then upon

the existence of a conflict between a barrister and
the solicitor seems to me to overlook the

background in which it took place. I appreciate it

is a finding of fact but it is a finding of fact

which I find quite disturbing in the context.

MR COWDERY: Your Honour, it was a finding of fact by all

three judges who considered the matter. While
there had been an arrangement of convenience at an

earlier point in time, it is clear, however, in our

submission, from the evidence, that that
arrangement was being departed from increasingly by

Mr McDonald. There is reference in the evidence to

Mr McDonald's having become dissatisfied with the

way that the appellant was dealing with certain

matters. In fact, if my memory serves me

correctly, Mr McDonald had reached the point where

he, himself, did not brief the appellant.

Miss Watson had never been comfortable briefing the appellant, and she had acted only on the

instructions of Mr McDonald and was very careful in

all of the cases in which she was involved that

there was proper documentation.

But Your Honour says that a conversation in a

car park would hardly be likely to impress itself

upon Mr McDonald's mind in those circumstances.

When one considers the limited number of matters in

which Mr McDonald did brief the appellant, the

Skipper matter being one of them, and when one

considers the nature of the Capsanis saga, which is
the word that was used in the course of evidence
involving the various members of that family, and

the knowledge of that saga that Mr McDonald had, in

our submission there is a proper basis for

accepting Mr McDonald's assurance that there was no

conversation about Capsanis upon a date shortly

before 11 November.

Smith.R(3) 38 30/4/92

That, perhaps, brings me directly to the first

ground, and it is our submission, shortly put, that

His Honour was not in error in finding on the second occasion that the matter was before the

Court, that the car park conversation, in the first

place, was about Skipper and not about Capsanis,

and in the second place was some weeks and not some

days before 11 November. It was a finding, in our

submission, that was well open to His Honour, a

finding for which there was strong support in the

evidence.

It is a matter to which the appellant himself

was referred in an exchange between His Honour he said at line 12:

Mr Justice Mahoney and the appellant at page 320.

had the court known that there had been a

conversation, Mr McDonald says some weeks

before in relation to another matter but in

the car park but we would have come to a

different conclusion as to who was telling the

truth as to what happened on 5 November - I should, perhaps, have read the whole sentence.

The appellant said:

Yes I did say that your Honour.

MAHONEY JA: Let me take it step by step so

that you can deal with it.	I appreciate the
matter of what Mr McDonald said.	You are

asking us to say that because Mr McDonald said

look, I did not have the conversation on

5 November about this matter but I had a

conversation some weeks before -

and then Mr Smith interrupted and said:

I am sorry your Honour, he says days, not

weeks before.

That was a reference to Mr McDonald's affidavit

where the word "days" is used:

MAHONEY JA: In one of the records there seems

to be another matter weeks before -

and then there was an exchange involving

Mr Justice Samuels. At line 29:

MAHONEY JA:  The only relevant date seems to

have been some weeks before -

and the reason why His Honour used the word

"relevant" will become apparent:

Smith.R(3) 39 30/4/92

SMITH:  Yes, the Skipper hearing previously

was in September and then again in April that

year.

MAHONEY JA:  You are asking us to say that

because there was a conversation about some

other matter, that therefore Mr McDonald was

not telling the truth about what he said about

the conversation on 5 November.

SMITH:	I was asking -
MAHONEY JA:	You are asking us to say that

Mr McDonald, having reiterated his denial that

you talk about this matter.

SMITH:  Yes.

MAHONEY JA: Adds force to what you say that

he is not telling the truth.	Now how can that
be.

Then, there is a further exchange and at line 18 on page 321, His Honour said:

Mr McDonald says there was no such

conversation, you say there was a conversation

about something else at a different time. How

does that support the conclusion that

Mr McDonald was telling us that it wasn't.

SMITH:  I am not suggesting that Mr McDonald

was deliberately giving -

I think it should be "incorrect" -

testimony and I am not meaning to be

disrespectful but his affidavit says some

days, not weeks before Capsanis hearing. That

ties in with the evidence that I gave.

Then there was a reference to Dr Gabriel's

affidavit referring to "weeks" and I will take

Your Honours to that in a moment; his own

affidavit saying "some days", and then at line 30

the appellant gave his suggested explanation of the

events.

So, again the matter was raised and dealt with

in the course of argument. It was a matter which

was then referred to in the judgment in due course,

but the other evidence that supports it is to be

found in the evidence of the appellant, commencing

at page 197 in volume I and Your Honours were

referred to this passage by my learned friend -

line 45, and just before that, the date of the:

Smith.R(3) 40 30/4/92

6th November, I discussed the matter with him

in the car park at the rear of our building.

Q. You were present at court during

Mr McDonald's evidence? A. Yes.

Q. You heard questions put to him about that

conversation? A. Yes.

Q. And you heard his answers? A. Yes.

Q. And you agree with his evidence?

A. Mr McDonald either lied or has a very bad memory because we did discuss the matter in

the car park.

Now, Mr McDonald had given evidence clearly and

directly denying that any such conversation had

taken place. So, again, this was a matter that was
raised in the course of cross-examination of the

appellant.

BRENNAN J:  Do you have the reference to Mr McDonald's

evidence?

MR COWDERY:  Yes, Mr McDonald's evidence - there is a

reference to it at page 167, at line 3. It was put

to Mr McDonald, in cross-examination, and this was
the first time the matter was raised in his

evidence directly, at line 3:

It is a fact, is it not, that on a few days

beforehand -

that is before 11 November -

you passed Mr Smith in	the car park to the
rear of your offices?	A. Well, I may have
passed him but I don't	recollect anything that
sticks out in my mind.

mention of the matter of Capsanis on or about	Q. Well, is it not correct that Mr Smith made	6 November to you in the car park? A. No.
Q. Are you sure about that? A. I don't remember talking to him about Capsanis.
Q. Well, do you remember talking to him? A. No, not specifically.

That was the first mention of the matter and at

line 23:

I knew nothing of the Capsanis matter.	I had
never met Mrs Capsanis.	The name never meant

Smith.R(3) 41 30/4/92

anything to me at all until the day of the

Local Court issue.

BRENNAN J:  Had he ever been involved in the Capsanis matter

before?

MR COWDERY:  No, he had not, Your Honour. Miss Watson had had the carriage of Capsanis Family Court matters.

BRENNAN J: That is what I meant.

MR COWDERY:  Yes.

BRENNAN J: But it still meant nothing to him.

MR COWDERY:  No, because the conduct of the matter was left

entirely to the employed solicitor, Miss Watson.

DEANE J: That does not accord with his next answer.

MR COWDERY:  Yes, the signing of the brief before it was

sent out. That then was the full extent of his

knowledge of any Capsanis matter, that the brief

had come across his desk to be signed before it

went from his practice to the barrister. When the

matter came before the Court of Appeal for the

second time, Mr McDonald had sworn an affidavit.

At page 315 in volume II, Your Honours will see at

line 17 or so that on that application to the Court

of Appeal, the affidavit of Mr McDonald became

exhibit A.

The other affidavits of Dr Gabrael, the appellant himself and Miss Swift were also admitted

and marked as exhibits on the application. So they

were material that was before the court and

considered by the court on the application itself.

The character evidence, however, although

physically received by the court, was never marked

as an exhibit.

At page 337, Mr McDonald's affidavit,

paragraph 2, he said this:

I did have conversation with Ralph Edward

Smith in the Carpark at the rear of my office

but it is my clear recollection that this

conversation was some days -

and that is where the reference to "some days

prior" came from -

prior to the "Capsanis" incident.

My clear recollection is that the conversation

was about a client of mine known as Skipper,

not about the Capsanis person.

Smith.R(3) 42 30/4/92

It is my personal belief that Ralph Edward

Smith, believes in his own mind that he spoke

to me about Capsanis on the morning of the

Capsanis incident however and to this extent -

and so on.

The other evidence relevant to this issue is

to be found in the affidavit of Dr Gabrael, at

page 340. The affidavit begins on page 339. At

page 340 in paragraph 8 of the affidavit, referring

to a conversation that he had with Mr McDonald

after the first hearing and after the first

judgment by the Court of Appeal:

Mr McDonald expressed to me his disappointment

at the Court's decision, when I told

Mr McDonald that Mr Smith was to be struck

off. However, Mr McDonald recalled a similar

incident to that recounted by Mr Smith, that

of "Skipper" a client of both Mr McDonald and

Mr Smith. Mr McDonald said that he believed

that it is possible that Mr Smith had been

speaking of the morning some weeks prior to

the Capsanis incident when Mr Smith and

Mr McDonald had a similar discussion in the

car park about the Skipper matter and not

Capsanis.

That was material that was also before the court in

Dr Gabrael's affidavit.

The final support for His Honour

Mr Justice Mahoney's finding that any such

conversation occurred weeks before the event is to

be -found in both the brief in the Skipper matter

that went from Mr McDonald's office to the

appellant and the bench sheets relating to the

Skipper matter. The brief is to be found at

page 366. It is a one page brief. In the second

paragraph: 

Counsel is briefed to appear in this matter at

the Windsor Court of Petty Sessions on

Wednesday the 12 June 1985 and subsequent

dates thereafter.

And the brief, itself, is dated 7 June 1985. And

Mr McDonald's name appears as the author.

DAWSON J: What was the year of the Capsanis matter?

MR COWDERY:  Your Honour, 1986.

If Your Honours go to pages 367, 368 and 369 Your Honours will see the bench sheets from the

court of petty sessions in the matter of Skipper.

Smith.R(3) 43 30/4/92

There was, on page 367, a mention in November 1984

another in February 1985 and then one for which

Mr Smith was briefed on 12 June 1985 and his name

appears as the representative. Then there was

another mention on 5 July, other mentions on

page 368 where Mr Smith's name appears in the first

three, and then on page 369 again Mr Smith's name

appears as the representative on 18 September 1986,

19 September 1986 and then again on the date to

which it was adjourned, 3 April 1987. And the

inference available from that, in our submission,

is that the last occasion in 1986, when the matter

was before the court, was 19 September 1986.

The last occasion on which a conversation

between Mr McDonald, who was briefing in the

matter, and Mr Smith would have occurred before

that last mentioned in 1986 would have been in the

first half of September. That is a date which is

capable of being described, quite reasonably and

fairly, in our submission, as a time some weeks

prior to the Capsanis matter on 11 November 1986.

TOOHEY J:  Mr Cowdery, in the affidavit of Mr McDonald to

which you took us, the affidavit on page 337, at

paragraph 5 on page 338, Mr McDonald says:

I am positive that I did not have any

conversation with Ralph Edward Smith on the

morning of the Capsanis incident. The first

time I heard of the alleged conversation

between myself and with Ralph Edward Smith on

the morning of the Capsanis incident was at
the Bar Association hearing by Mr Smith
himself.

Did not Mr Smith put the car park conversation as at about the 6th on the Thursday prior to the

weekend immediately after which the Capsanis case

was to come on for hearing?

MR COWDERY: That is so, Your Honour.

TOOHEY J: Is there any explanation for that reference?

MR COWDERY:  No, there was no cross-examination of

Mr McDonald or, indeed, of any of the other

deponents on the second occasion before the Court

of Appeal. There was never in issue a conversation

on the morning of the Capsanis incident. The

court's attention had always been directed to that

date, be it the 5th or, more probably,

the 6th of November.

DEANE J: What is it in the evidence that leads one to

conclude that the Skipper conversation took place

Smith.R(3) 44 30/4/92

before the court hearing? Did Mr McDonald say

that?

MR COWDERY:  Mr McDonald did not say so in terms but from

the evidence that he gave it may be inferred that

he is referring to a similar kind of conversation,

that is, a conversation about a matter that was

about to be heard, or about a matter that was about

to be mentioned in court.

DEANE J:  I have not seen that evidence. Could you direct

me to it?

MR COWDERY:  It would only appear from what Mr McDonald told

Dr Gabrael at page 340 at line 20:

some weeks prior to the Capsanis incident when

Mr Smith and Mr McDonald had a similar

discussion in the car park.

DEANE J:  I follow that, but why, when Mr McDonald swears

that he had a conversation some days prior, should

one assume that that conversation was prior to - I

can see a speculative path through Dr Gabrael and

so on, but it is a rather strange way of dealing

with evidence.

MR COWDERY:  Your Honour, there was no occasion for Mr Smith

and Mr McDonald to speak about an imminent mention

of the Skipper matter in court, other than in

September and then not again until April.

DEANE J: But, Mr Cowdery, if this was about the only

matter, as you said, in which he was being briefed,

I would have thought the most obvious thing for

them to do in a casual conversation in a car park

was ·to say, "How's the case going?" or "What's

happening?", or to talk about it or, as the

presiding judge suggests, to discuss the question

of finance.

MR COWDERY:  That may well be so, Your Honour. We can only

point to the evidence as contained in that

affidavit, in Mr McDonald's affidavit itself. It

is clear from Mr McDonald's affidavit, we would

submit, that he gave some anxious consideration to

why it was that his account of events was in

conflict with Mr Smith's. That is clear from the

terms that he uses about Mr Smith himself. We

submit the inference is there that Mr McDonald is

referring to a conversation in similar terms, that

is a conversation about a matter in which they

share an interest about to come before the court.

DEANE J:  I can see that but all I am really suggesting to

you is that in a situation where there is direct

evidence of a person some days and some evidence

Smith.R(3) 45 30/4/92

from somebody else of hearsay about what that

person said to him, it is a very strange procedure

in the absence of cross-examination to say, "I

reject the evidence given on oath by the person

with direct knowledge and I accept the evidence of

somebody else that at some other time he said

something else and I prefer the evidence of what he

said to someone else on some other occasion".

MR COWDERY: 

Except that we would throw into the balance,

too, Your Honour, the other objective
circumstances of the delivery of the brief and of
the dates of the hearing.

DEANE J: But they only support you by a rather tortuous

path through Dr Gabrael's hearsay evidence.

MR COWDERY: That may well be so, Your Honour, and I can

only make this answer, and it is probably not

entirely satisfactory, that Your Honour has

referred to what appears to be another error made

in Mr McDonald's affidavit, that is about a

conversation on the morning of the Capsanis

matter.

DEANE J:  He denies the conversation on the morning.

MR COWDERY:  Yes. Why he should have been addressing his

mind to that time, at all, is a matter of

speculation.

DEANE J: Well, while I am subjecting you to these

questions: were you given any opportunity of

cross-examining Mr McDonald or did that somehow

disappear the way the matter progressed?

MR COWDERY:  If Your Honour would just pardon me a moment.

My recollection of the precise events is a little

hazy. There may be a reference - the course that

was taken, at page 309, at line 35, His Honour

Mr Justice Samuels said:

If we come to deal with the third

category -

that is the receipt of new evidence -

we will invite you to tender the affidavits -

he was addressing himself to the appellant, at this

stage -

not actually to read them but at least to

tender them so their nature, the subject

matter is on the record.

And I said:

Smith.R(3) 46 30/4/92

We would object to some of the evidence in the

affidavit -

that should be "affidavits", plural.

SAMUELS AP:  We will take them as exhibits

subject to any objection, subject to any right

to cross-examine.

And then the appellant was asked to develop his

marked as exhibits.

submissions. At page 315, to which I have taken

DEANE J:  And subject to any cross-examination.

MR COWDERY:  Yes, subject to any objection and subject to

any cross-examination. Now, I think, really, the

matter passed by default thereafter.	I do not
recall it - - -

GAUDRON J:  Was there not some document from Mr Smith saying

that the doctor and Mr McDonald would be available

for cross-examination?	I thought I had read it
this morning.

MR COWDERY:  Yes. Well, Mr McDonald was certainly

available.	He was present at the court, I recall
that.	Dr Gabrael was either present or could be

obtained at short notice.

GAUDRON J: There was some notice given to you, was there

not, that they would be available?

MR COWDERY:	In the course of the hearing, yes.
DEANE J:	But it is rather difficult to know whether or not

you should cross-examine on an affidavit which is

received subject to objection until the objection

is ruled on.

MR COWDERY:  Yes, and that was really never returned to.

BRENNAN J: This is a convenient time, Mr Cowdery.

MR COWDERY: If Your Honours please.

BRENNAN J:  We will resume at 2 o'clock this afternoon.

AT 12.47 PM LUNCHEON ADJOURNMENT

Smith.R(3)	47	30/4/92
UPON RESUMING AT 2.03 PM
BRENNAN J: Yes, Mr Cowdery?

MR COWDERY:  If Your Honours please, at the beginning of my

submissions, I referred to a number of occasions on

which the appellant set down his account of

relevant events. There was one document that I

omitted from the list to which I took Your Honours,

and it was the first affidavit filed by the

appellant in the Court of Appeal once the

proceedings were under way in that court.

It is to be found at pages 48 and 49 in

volume I, and the relevant part of the affidavit is

to be found at page 49 in paragraphs 9 and 10,

particularly in paragraph 10 in the last sentence

where the appellant deposed to the fact that:

It was on the basis of these facts -

that is, the arrangement with Mr McDonald -

that I informed Mr Hiatt, Magistrate, that I

had been instructed by the said

Malcolm McDonald & Co, the same firm which had

instructed me in the Family Law matter.

He relied there on the arrangement and his

assertion that the assault proceedings "arose out

of" the Family Court matters. Again, no mention in

that affidavit of the car park conversation having

occurred at all, much less of it having formed the

basis of his belief that he was instructed in the

matter.

Your Honour Justice Brennan referred before

lunch to the nature of the arrangement that existed

between Mr McDonald and the appellant. Just to put	that arrangement in its proper perspective, might I
refer Your Honours to the judgment of
Mr Justice Samuels in the first hearing at page 268
in volume II. His Honour had spent some time in
the course of the judgment referring to the nature
of the arrangement that existed, and at page 268,
line 6, said:

There was therefore an arrangement

between them that the opponent would refer

persons involved, or likely to be involved, in

litigation to Malcolm McDonald & Co ..... The

operation of the arrangement is nicely

illustrated by a note written by the

opponent -

Smith.R(3) 48 30/4/92

His Honour referred to that illustration of the

arrangement, and then later in the judgment found

expressly that in the way in which the arrangement

worked in the particular circumstances that existed

between Mr McDonald and the appellant, the

arrangement was not improper.

At page 275, at line 6, having dealt with other matters, His Honour said:

It is necessary now to examine more

closely the 'arrangement' made between the

opponent and Malcolm McDonald, to which I have

already referred.

His Honour then examined it in some greater detail and on page 276, at line 12, said:

If the practices I have summarised are

observed, I would not consider arrangements of this kind improper. I see nothing improper in

the arrangement made in the instant case.

While the so-called postbox arrangement might well be improper, the details of the way in which the

arrangement between Mr McDonald and the appellant

was carried out led His Honour to the conclusion

that that particular arrangement was not improper.

BRENNAN J: Perhaps it may not arise for consideration in

this case but the view which His Honour expressed

may be open to differences of opinion.

MR COWDERY:  Indeed. I thought I should take Your Honours

to those passages of the judgment for the sake of

completeness.

BRENNAN J:  Thank you. The letter which appears reproduced

in His Honour's judgment which went from the

barrister to the solicitor, at page 268, mentions

not only Capsanis but Skipper - - -

MR COWDERY: It does.
BRENNAN J:	- - - as one of the clients and yet Mr McDonald was able to say Skipper was his client but the name
of Capsanis meant nothing to him.
MR COWDERY:	I may have inadvertently misstated that,

Your Honour. It is not that the name meant nothing

to him but the particular matter involving any

members of the Capsanis family meant nothing to

him. There were, I think, seven or eight different

sets of proceedings in different courts involving

different members of the Capsanis family and

another family, and that is what is referred to as

"the Capsanis saga".

Smith.R(3) 49 30/4/92

The divorce in the Family Court of Parramatta

in July, 1985 referred to in that letter was but

one aspect, one set of legal proceedings involving

members of that family.

BRENNAN J: Perhaps, while I am asking you about that, could

I take you to page 167 in Mr McDonald's evidence.

At line 42, there is a question:

Did Barbara Watson ever mention to you the

Capsanis matter?

A. No, not until the evening before.

Which Capsanis matter was there being referred to?

MR COWDERY:  The Capsanis assault matter, the matter that

was for hearing on 11 November, and the way in

which that arose was that Barbara Watson came to

Mr McDonald and inquired of him whether or not the

firm had briefed Mr Smith in the matter, and he

said, no. Barbara Watson had had the matter

planted in her mind by an approach that had been

made by Mrs Davies who was the instructing

solicitor on the other side.

Mrs Davies had made an inquiry to see whether

or not counsel was briefed in the matter because I

think they were looking for an adjournment the next

day.	Barbara Watson had told her that they were
not.	She had then come to Mr McDonald on that

evening and asked him if he knew anything about it

and he said, no. So, that is the occasion being

referred to there.

BRENNAN J: Yes. Thank you.

Your Honours, I have completed submissions on

the detail of the matters going to the first ground

of appeal. Those matters have been addressed

because they are raised by that ground and

accordingly need to be dealt with, but in a very

real sense, in our submission, Mr Justice Mahoney's

statement that the conversation took place some weeks before 11 November is not material to the matters that were being reviewed by the Court of

Appeal.

This arose in the second hearing and is part

of his judgment on the second aspect of the matter.

At the most it may have some bearing on

His Honour's view of whether or not the appellant

deliberately lied to the court during the first

hearing. But, strictly speaking, on the matters

that were to be reviewed by the court, in our

submission, the findings made by His Honour that

there was a conversation some weeks before about

Smith.R(3) 50 30/4/92

the Skipper matter, not Capsanis, is not material,

and the reason we make that submission is this, and

it really brings us to the second ground of appeal

directly. Your Honour Mr Justice Deane before

lunch asked me some questions about the status of
the affidavits that were looked at by the court
during the review proceedings, accepted by the
court for the purpose of discovering their content,

but otherwise to be the subject of, perhaps,

further objection, of cross-examination, perhaps,

of the deponents and of later submissions if they

became relevant. But our submission is that in the

events that occurred they did not become relevant

and did not need to be dealt with further, and I

said before lunch that they really were passed

over, but on closer analysis I withdraw that

submission and put these matters to the Court.

At page 309, at the beginning of the

proceedings on the second occasion,

Mr Justice Samuels began the proceedings by saying

that the court had discussed how it thought it

could best approach the issues that Mr Smith wanted

to raise -

having read your written submissions and the

material -

that had been provided with them. Now,

Your Honours have those submissions, and in order

to complete the material that was then available to
the Court of Appeal, might I hand up to

Your Honours copies of the Bar Association's

further submissions that were also amongst the

material considered at the outset by the court.

Mr Justice Samuels said:

we have discussed how we thought we can best

approach the issues you want to raise, having

read your written submissions and the material

and it seems to me that Mr Cowdrey who has

written submissions correctly identifies the

three areas I think you seek to have for a

review of the judgment.

The first is the error of fact in the

judgment. The second questions of -

that should be instructions rather than

construction, Your Honours, at page 309 line 25,

the issue there being whether or not certain
matters were put on Mr Smith's instructions or not
put by counsel -

questions of instructions ..... being conveyed, putting it compendiously and the third - what

Smith.R(3) 51 30/4/92

is really new evidence we will call it. Wha

we would like to do is to hear you as on each

of the categories as to why the circumstances

are such as to require the court to exercise

the power which it undoubtedly has as to which

it has exerted only to exercise in exceptional

circumstances. Why is the nature of that

error of fact finding such as to require

review and the second circumstance, the

question of -

lines, I think it should be -

of communication. Is there something there

which requires it - why should the court

receive this new evidence.

If we come to deal with the third

category we will invite you to ~ender the

affidavits, not actually to reads them but at

least to tender them so their nature, the

subject matter is on the record.

That was agreed to. It was indicated that the

claimant would object to some of the evidence, and

Mr Justice Samuels said:

We will take them as exhibits subject to any objection, subject to any right to

cross-examine. Mr Smith, perhaps you would

care to open on the question of fact finding

error and its nature and why that is a ground

for our review.

The appellant then, in the subsequent pages, developed his submissions on the error of fact.

At page 315, the affidavits were received, but for the limited purpose that had been foreshadowed

at the beginning of proceedings, and that was

repeated at page 315, line 16:

We will take these subject to any objection

and subject to any cross-examination.

That is, really to see what is the nature of the

material before making any ruling upon it and

whether or not it should be received.

DEANE J:  Is that a normal practice in the Court of Appeal,

to treat affidavits as exhibits?

MR COWDERY:  Not a normal practice, Your Honour, but the

special conditions that applied to the acceptance

of them here - - -

Smith.R(3) 52 30/4/92

DEANE J:	I was wondering if treating an affidavit as an exhibit and marking it exhibit A meant that you
were not receiving it as evidence in the ordinary course.

MR COWDERY: Well, they were not read in the proceedings.

The documents themselves seem to have been accepted

as exhibits to enable the court to see the content
of them rather than to act upon the material in

them.

DEANE J:  The next thing will be to mark a witness as an

exhibit.

MR COWDERY: Well, if there is some feature apparent on the

witness, perhaps, Your Honour, that might be

necessary.

BRENNAN J: Only for identification, in that case.

MR COWDERY: At page 333, at line 19, after submissions had

been made on whether or not all three matters would

ground the application for review, His Honour said:

Mr Smith, is there anything you want to say in

reply?

and the appellant said:

Just your Honour that Mr Cowdrey indicated

that in his submission that if the Court felt

that the Court should look again at the
decision the Court previously gave, because of
the significance of the absence of the - in

the knowledge of the Court, when delivering

judgment -

I will not read it all, but he referred to the car

park conversation, the point being whether in fact

there was a car park conversation; he took the

court back to the judgment of 9 May; and he went on

to say: 

it is my submission that Mr McDonald's

evidence in his affidavit of 30 May -

which was the one, exhibit A in those proceedings -

should be considered, because it indicates

quite conclusively that there was a carpark
conversation. So, to that extent it does help

your Honour. It does go to the very basis of
whether or not there was a lie to this Court,

and to the other Court.

Some other documents were tendered. They were

documents relating to the Skipper brief, exhibit F,

Smith.R(3) 53 30/4/92

and the bench sheets, and there was a short

adjournment. Their Honours considered the matter,

and at page 334 returned to the bench and said:

We have arrived at these conclusions: we do

not regard the evidence of failure by counsel

to observe instructions, or the failure of
instructions to reach counsel, so far as that

emerges from the affidavit of Miss Swift, to be matters which would authorise a review of the judgment.

So the question of whether or not the character references had not been put before the court because of a breakdown in instructions was not

regarded as a matter that would authorize a review

of the judgment. His Honour continued:

We do not regard the new evidence contained in

the affidavits which have been tendered in
order to indicate their general subject

matter, either as authorizing review of the

judgment.

TOOHEY J:  Is that not putting the cart before the horse in

a way, Mr Cowdery? It is the sort of area of

debate that we had with Mr Jackson this morning.

If the court's mistake in its judgment as to the

non-mention of the car park conversation at an

earlier stage sufficiently went to the finding of impropriety on the part of the court, on one view the court was embarking upon virtually a rehearing

of the matter, and the admissibility or otherwise

of this material was perhaps determined only by its

relevance. But it seems to have been approached by

the .Court of Appeal on the basis that unless that

material itself justified a review, then it ceased

to have any materiality in the proceedings.

MR COWDERY:  Yes. It would only go to support a review if

it bore upon the correction of the error of fact.

TOOHEY J: That is one view, but I am suggesting to you

there may be another view, namely that once it

became apparent that there had been an error which

was of sufficient importance to justify a review,

it may be then that the admissibility of this

material was to be determined substantially by

reason of its relevance or non-relevance to the

whole question of the appellant's conduct and the

appropriateness of striking him off the roll.

MR COWDERY:  Your Honour, I will move to the legitimate

bases for a review of this kind but they would

seem not to encompass the sorts of material and

the sorts of issues that the appellant sought to

Smith.R(3) 30/4/92

reagitate by means of these affidavits, in our

submission. His Honour continued:

As to whether we should review the judgment

removing the error of fact, and reconsidering
the conclusions in the light of the material

which was before us, when the existing orders

were made, is a matter upon which we will

reserve our decision.

Now Mr Smith, we want to be quite clear that you have not been prevented from putting any

evidence before us upon which you wish to

rely, because it is possible there might be

some other evidence which would justify our
review. Is there any other evidence that you

would wish to lead before we reserve our

decision on the matter I have referred to?

The appellant referred to the character evidence

and the presence in court of Mr McNamara who signed

one of the documents and who wished to give some

oral evidence in addition.	And Mr Justice Samuels
said:

This is material which could have been led

previously.

SMITH: Well it is what I have said in my

affidavit your Honour. The only other

material that I wanted to lead was the

evidence from the doctor. I have not yet

sought evidence from counsel, but if your Honour is not excluding me from presenting other evidence, it may be that I

will endeavour to get that evidence before

your Honour delivers judgment, which is now

being	reserved .....
SAMUELS AP:	What we want - I think I can

speak for all of us: we do not regard, apart

from anything else, the evidence which you

offered so far as being fresh evidence.

SMITH:  I understand.

SAMUELS AP: For reasons which I am sure you

appreciate.

SMITH:  Yes.

SAMUELS AP: Whether you agree with it or not, we take the view that reasonable diligence at the trial could have produced that evidence.

We would take the same view of evidence which you sought to elicit from the doctor as to

whether or not you might have made some error

Smith.R(3) 55 30/4/92

of recollection, whether or not Mr McDonald

might have done the same. That also is not

fresh evidence.

SMITH:  I am not aware of any other evidence

that I can put before the Court -

So, Their Honours were reserving judgment on the

question of whether or not correction of the

factual error in the first judgments should be made

the subject of review. In the judgment itself, at

page 376, at line 9:

The submission therefore was that the

mistake of fact entitled the opponent to a
review of the Court's decision; and, in the

course of that review, not only the evidence

already given in the original application but
the new material also should be considered.

His Honour then referred to Part 40 rule 9, and at page 377 said:

It is, however, clear from the

authorities ..... that this power is one to be

exercised sparingly and with considerable care. Without doing any injustice to the opponent's diligence, I can content myself by

referring only to two cases.

The first is the State Rail Authority v Codelfa

case and the passage quoted at line 11 is relied

upon. It is from the report of the judgment at

page 38. Your Honour Justice Brennan's judgment at

page 45 is quoted, and then Wentworth v Rogers &

Ors.(No 9) was referred to and, on page 378 of the appeal book there are passages quoted from the

judgment of the Court in that case:

It may be assumed for the purposes of this

judgment that such a discretion ..... exists, as

we incline to think it does and plainly ought

to exist. But it is a discretion to be

utilised with extreme care. Although not
confined to such cases, it should normally be

limited to dealing with technical or

incidental changes to the form or content of

orders but should not be used as a substitute

for an appeal.

Now, in a very real sense, in our submission,

the appellant's attempt to place before the court,

additional material or, what was referred to as

"new evidence" which would have been available and

which, for reasons that were not explained, was not

put before the court, amounted, in effect, as a

substitute for an appeal.

Smith.R(3) 56 30/4/92

The decision in The State Rail Authority v

Codelfa Construction was referred to in Wentworth v

Woollahra Municipal Council, 149 CLR 672. It is

referred to at page 684, the first full paragraph:

The applicant, who now appears in person, seeks to argue a number of grounds in support

of her application. However, as we had

occasion to point out recently in State Rail

Authority -

et cetera -

the circumstances in which this Court will

reopen a judgment which it has pronounced are

extremely rare. The public interest in

maintaining the finality litigation

necessarily means that the power to reopen to

enable a rehearing must be exercised with

great caution. Generally speaking, it will

not be exercised unless the applicant can show

that by accident without fault on his part he

has not been heard.

In our submission, similar principles should guide

the Court of Appeal when considering matters of

that kind.

The submission that we make is that the review

that was undertaken was limited, and deliberately

so; that Their Honours acted mindful of the

injunction that the power to reopen the proceedings

to review should be exercised only in very limited

circumstances and only with great care and

not - - -

GAUDRON J: But why was it limited? What limited it? Who

limited it? The court just said they would review

the decision, did it not?

MR COWDERY:	That they would review the decision?
GAUDRON J: Yes.
MR COWDERY:	Yes, but only the aspect of the factual error

that had been made in the judgment because to go beyond that would be to regard it as, in effect,

some kind of appeal.

GAUDRON J: But that is artificial in the extreme, is it,

given the nature of the mistake, to say only,

"We'll review it with respect to the mistake"?

MR COWDERY:  There were the three matters that the appellant

sought to raise. Only one of them, the court held,

came within the requirements.

Smith.R(3) 57 30/4/92

GAUDRON J: Yes, only one of them, they said, justified

review, but once it was decided to review the

matter, which it was, how could it be limited other

than in a way that would result in the most

artificial consideration?

MR COWDERY:  In our submission, the consideration was not

artificial. The court's attention had been drawn

specifically by the appellant to what appeared to

be an error of fact in the judgment. The court

determined to correct that error of fact, and then

to look at the matter in the light of that

correction and, we submit, there is nothing

artificial in taking that approach, where there had

been a hearing by parties who were represented and

judgment delivered and then, in addition to that legitimate, limited and proper matter raised for review, an application was made for a whole host of

other matters to be looked at.

GAUDRON J: But it-was not a review.

MR COWDERY: Well, those other matters were not - - -

GAUDRON J: But it was not a review, no matter what

Their Honours said, they were not reviewing the decision. They were correcting an aspect of it.

They were not reviewing it.

MR COWDERY:  And then, in our submission, having corrected

one aspect of it, reviewing their final decision in

the light of that correction.

GAUDRON J: That is not a complete review.

MR COWDERY: It is not a rehearing, Your Honour.

GAUDRON J:  It was not even a complete review on the way you

put it, was it?

MR COWDERY:  We would submit it was. It was an appropriate

and proper exercise of the court's power under the

rules.

BRENNAN J: What you are saying is that they proceeded on

the same material as was before the court at the
time when it gave its decision containing the

error. They looked at that material again, saw the

error, corrected the error and reconsidered the

decision on the basis of the same material?

MR COWDERY:  Indeed, Your Honour, and we submit that is a

perfectly proper course consistently with

authority. ·

GAUDRON J:  I for one would be interested in the authority,

because in a case of this kind where credibility is

Smith.R(3) 58 30/4/92

critical, has been said to be critical, and in

which findings with respect to it proceed at least

in part from the mistake, it can be said that the

review is limited simply to the material amended

appropriately and nothing else. And particularly,

if I could say this, Mr Cowdery, in a context in

which it seems, this matter did not appear to

assume critical importance, or in respect of a

matter that did not appear to assume critical

importance until late in the hearing in the Court

of Appeal, and even then did not appear to have the

same sort of importance that was put upon it in the

judgments.

MR COWDERY:  Might I ask which matter, Your Honour?

GAUDRON J:  The conversation. It was with respect to the

conversation that the finding was made that the

appellant had lied. The conversation had not

appeared to assume critical importance as to

whether or not there was a belief of instructions,

certainly had not been put forward by the appellant

as anything that was critical to his belief, but it

assumed importance because - - -

MR COWDERY: With respect, Your Honour, it had been put

forward by the appellant as being important. He,

in the course of argument in the first hearing, had

relied upon the reinforcement he said Mr McDonald

provided in the course of that conversation as

strengthening his belief.

GAUDRON J: But it has never been the sole basis of his

reliance.

MR COWDERY:  Not the sole basis, no.

GAUDRON J: Indeed, there is that letter that has gone from

the appellant to the solicitors referring to

Mr Capsanis or a Capsanis matter in which he would

require assistance; there is the history of the

proceedings in the other courts, and so on.

Whatever importance it assumed, it was not the

importance that seemed to emerge in the judgment.

MR COWDERY:  Your Honour, I have taken the Court to the

exchange between Mr Justice Mahoney and the

appellant, where His Honour made clear that it

could become a matter of crucial importance.	The
appellant was cross-examined on it.
Mr Justice Samuels raised it in the course of
submissions.

GAUDRON J: Yes, but it was ultimately the finding that he

lied with respect to the conversation that led to

the other findings.

Smith.R(3) 59 30/4/92

MR COWDERY: 

In our submission, with respect, no. The other

findings, leaving aside being uninstructed, were
the deliberate misleading of the magistrate, which
did not depend on - - -

GAUDRON J: 

It must depend, must it not, on lying about the

conversation? It must depend on there being no
conversation.

MR COWDERY: 

The appellant made no reference to any such

conversation at that time, either to the court or

to Mr McDonald.

GAUDRON J: But the court accepted that there had been

dealings with respect to the saga, that he had been

briefed in proceedings and properly instructed in

proceedings in the saga.

MR COWDERY: In different proceedings involving other

people, yes.

GAUDRON J: Yes, that he had written to the solicitor saying

he might need their assistance in relation to - - -

MR COWDERY:  Fifteen months before in respect of a matter

which was dealt with before.

GAUDRON J: Yes, but they did not find that any of these

things had not happened.

MR COWDERY:	No, that is quite so.
GAUDRON J:	The only thing they found that did not happen

was the conversation.

MR COWDERY:	Yes.
BRENN.AN J:	Is there anything further you wish to add to it?
MR COWDERY:	Not on that aspect of the matter, Your Honour,

no.	We rely on the matters that are contained in
the written outline in respect of the second
ground.	I think it is probably possible just to

leave those as stated without any further

embellishment. We would hope that it is

self-explanatory. If there is any aspect of it

that I might address, then perhaps Your Honours

might indicate.

The short submission is, on that ground, that

a proper review consistently with principle was

undertaken, that to go further, in the way

suggested, would have been to, in effect, reopen

the whole proceedings in the nature of an appeal.

BRENN.AN J: There is perhaps one point, and that is the

basis of the jurisdiction to reopen. Is it said

Smith.R(3) 60 30/4/92

that this is inherent or dependent upon the Rules

of the Supreme Court?

MR COWDERY: Part 40 rule 9 of the Supreme Court.

BRENNAN J:  So the question of the terms on which it is

reopened is a matter for the court?

MR COWDERY:  Yes, the rule is set out at page 376 in the

judgment of Mr Justice Samuels.

BRENNAN J: As I understand your submission, it is that the

court fixed the terms on which it would set it

aside, namely that it would proceed only the basis

of the previous material.

MR COWDERY:  Yes.

BRENNAN J: And the next step in your argument has to be, if

I understand you correctly, that that is a

discretionary decision which the court has made

which is not open to challenge here.

MR COWDERY:  It may be open to challenge if it could be demonstrated that the court was in error.

BRENNAN J: Then that must in turn depend, must it not, upon

the nature of the proceedings and the nature of the

evidence that was adduced, or sought to be adduced?

MR COWDERY:  But the threshold question was the basis for

the review.

BRENNAN J: Yes.

MR COWDERY: -The court decided that the only proper basis in the circumstances was in order to correct the error of fact; that the other two aspects put forward

would not provide a proper basis for review

consistently with authority.

DEANE J: But there is an error in putting it that way - I

do not mean by you but by the court - is there not,

in that you cannot correct the error of fact in

this case without recognizing that Justice Samuels'

finding that the appellant had lied to the Court of

Appeal was a flawed finding and it was that finding that Justice Meagher adopted, and the ultimate

decision and penalty clearly rested, at least in

part, on that finding. So once the error of fact

is recognized and corrected, the whole edifice

comes crumbling down and the question then becomes,

If we are going to take the step of correcting the

error of fact rather than letting it go in the way

you suggest that it should have gone on appeal, the

whole edifice has collapsed, where do we go from

here? Now, it is in that context that one must

Smith.R(3) 61 30/4/92

surely look at this evidence and really say whether

any court in a proper exercise of its discretion,

having placed the appellant in the situation where

he commenced with a flawed finding that he had lied

to the court should exclude this evidence. I am

putting it that way because - and I am putting it

strongly against you in the way I am putting it

because - it seems to me that that is something you

have to address.

MR COWDERY:  Our submission is that the whole edifice does

not crumble.	The error was in finding that he
had - - -

DEANE J:  I will not keep interrupting but how can you say

that when the judge who made the finding that the
appellant had lied to the court, in which

Justice Meagher agreed, expressly acknowledges tnat that finding of his collapses with the correction

of the error?

MR COWDERY: For this reason: the error was whether or not

the appellant mentioned such a conversation in the

disciplinary tribunal; that is, at some point in

time earlier than its appearance in the

affidavit - the second affidavit filed in the

Court of Appeal. That point in time was still

very much later than the day of the hearing and

the conversations with Mr McDonald and the

preparation of the draft affidavit, so called;

still very much later, a matter of years.

When Mr Justice Samuels held that the appellant had not told the disciplinary tribunal

about that conversation, the absence of reliance on
such a conversation at that earlier point in time

enabled him more easily to draw the inference that

it was a late invention.

It was really a matter of degree. Once the

error was detected, and His Honour then took into

the balance the fact that he had told the

disciplinary tribunal at an earlier point in time,

but still not at the first available opportunity,

which would have been the draft affidavit, then he
was less willing to draw the adverse inference of a

deliberate lie. But he adhered to the finding that

the conversation had not taken place.

The other two judges were still prepared to

draw that adverse inference notwithstanding the

correct view that the matter had been raised at an

earlier point in time. It was, as I submit, a

matter of degree in the drawing of the inferences.

Mr Justice Samuels, on the one hand, armed with the

additional fact, was not prepared to draw it. The

additional fact, properly appreciated, did not make

Smith.R(3) 62 30/4/92

a difference to the reasoning process of the other

two judges and they adhered to their original

findings, in other words, the fact that there had

been mentioned a year and a half, or two years, or

whatever the time period was after the events, not
at the first abailable opportunity, made no

difference in their view.

Now, we would submit, that is a matter

legitimately within their discretion. If it is

approached that way, in our submission, one can see

that the whole edifice has not crumbled.

Mr Justice Samuels has become less certain and less

able to draw the adverse inference but the other
two judges, even taking that matter into the
balance, are still prepared to draw that adverse

inference of deliberate falsehood.

DEANE J:	Thank you.
MR COWDERY:	On this question of acceptance of the witnesses

and the credit of witnesses, we would submit that

the demeanour of the witness referred to in the

judgments is a matter of some significance also.

We have referred to some of the authorities on that

matter in the written outline.

GAUDRON J: Might I just be clear about this. In the end,

did Their Honours have regard, or did they not have
regard, to the new McDonald affidavit? Is that

clear?

MR COWDERY:  The only person who seems to have had regard to

it, in our submission, is Mr Justice Mahoney

because of that reference to "some weeks".

GAUDRON J: And this notwithstanding, it seems that the

indication had been made that that affidavit was

not sufficient grounds for review and by inference

that the evidence was simply not going to be taken

into account.

MR COWDERY: Yes, but we submit that that reinforces the

view that it was really a side issue.

DEANE J: Strictly, you would have to say that

Justice Mahoney was in error in paying regard to

it, I suppose.

MR COWDERY: Strictly speaking, yes, but it was not a

finding on his part that was relevant to the matter

that was under review, that is the submission that

we make and he really should not have had regard to

it.

So far as the third ground of appeal is

concerned, our submission is that the court did not

Smith.R(3) 63 30/4/92

hold that, in effect, lying to the Court of Appeal

was decisive of the order. In our submission a

fair reading of the judgments discloses that it was

a circumstance that the court was to take into

account and, we submit, quite properly so, not that

it was decisive but that it was one other

circumstance to be considered and, in our

submission, there were already sufficient grounds

in existence to justify the making of the order

that was made, those grounds being appearing

uninstructed before the magistrate, not sufficient
by itself, but the deliberate misleading of the

magistrate when he was found out.

There are comments in the judgments about the

appellant having had to deal with this matter that

arose suddenly. He was, no doubt, embarrassed,

perhaps flustered, dealing with it, one of the

judgments says, "on the run". Nevertheless, when

one looks at the terms of the statements that he

made to the magistrate, the detail of the
statements, the absence of any basis for his

believing that those statements were true, one is

driven, in our submission, to the conclusion that

they were deliberately false, and stated to the

magistrate to get him out of a difficult situation.

That, without more, in the particular

circumstances of this case, even for a practitioner

of good character, would be sufficient to justify

the making of the order that was made, in our

submission. There are authorities that refer to

the duty of honesty and, more than simply honesty
but of candour, of an obligation to disclose to the
courts truthfully matters relevant to the exercise

of one's retainer and the administration of

justice. References to that duty are to be found

in the reported decisions going back many many many

years. I will not take Your Honours to the

authorities in detail, but in The Incorporated Law

Institute of New South Wales v Meagher, (1910)

9 CLR, there are statements at page 681, the

judgment of Mr Justice Isaacs, at about point 6 on

the page:

The errors to which human tribunals are

inevitably exposed, even when aided by all the

ability, all the candour, and all the loyalty

of those who assist them, whether as
advocates, solicitors, or witnesses, are
proverbially great. But, if added to the
imperfections' inherent in our nature, there be

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, these tribunals are likely to become

Smith.R(3) 64 30/4/92

mere instruments of oppression, and the

creator of greater evils than those they are

appointed to cure. There is therefore a

serious responsibility on the Court - a duty

to itself, to the rest of the profession, to

its suitors, and to the whole of the community

to be careful not to accredit any person as

worthy of public confidence who cannot

satisfactorily establish his right to that

credential. It is not a question of what he
has suffered in the past, it is a question of

his worthiness and reliability for the future.

There are similar statements in Clyne v the

New South Wales Bar Association, 104 CLR 186 in the

passage at pages 199 to 200. Reference was made to

this part of the judgment by Mr Justice Samuels in

his judgment, the division of the rules into two

classes, very roughly speaking: one class which is

conventional in character - this is towards the

bottom of page 199 - then on page 200, fundamental

rules that are not merely conventional in

character:

They are, for the most part, not to be found

in writing. It is not necessary that they

should be reduced to writing, because they

rest essentially on nothing more and nothing

less than a generally accepted standard of

common decency and common fairness.

Amongst other things:

A barrister does not lie to a judge who relies

on him for information.

The··1ast reference that we make on this aspect is in the decision of New South Wales Bar Association

v Kalaf, which is an unreported decision of the

Court of Appeal of New South Wales. At page 2 in

the judgment of the President, in the last three

lines: 

In connection with both heads of charge, the claimant finally relied upon the opponent's alleged lack of candour to the Court of Appeal

as demonstrating a moral obtuseness which, it

was claimed, indicated that he was unfit to

remain on the roll of barristers -

and there is reference to Meagher's case.

Early in the proceedings I warned the opponent of the need for complete candour to the Court.

Any familiarity with this class of case will

demonstrate the imperative obligation of total

Smith.R(3) 65 30/4/92

honesty on the part of the practitioner in

responding to the charge before the Court.

I interpolate there that if it be the case that the

appellant here lied to the Court of Appeal, then it

must also be the case that he lied to the

disciplinary tribunal which heard the complaint at

first instance. The judgments do not refer to that

specifically and the evidence that he gave there

was not on oath; nevertheless, that finding must

follow from the later finding and disclose a

further lack of candour on his part.

But in the judgment of Mr Justice Mahoney at

page 6, point 5, His Honour said:

In disciplinary proceedings such as this, considerations of this kind are, I believe, of

particular relevance. It is, in my opinion,

the duty of a practitioner in question in such

proceedings to make a full and frank

disclosure of the facts. He or she is not

entitled merely to stand mute or "to put to

proof" the body proceeding in the matter. A

fortiori, the practitioner may not put forward

a case known to be untrue.

DEANE J: It does not probably arise here, Mr Cowdery, but

is there not something to be said for the approach

that if a court is going to strike somebody off,

and base its decision partly on a finding that he

has deliberately lied in the proceedings before it,

it would be better, for appearances anyway, if it

proceeding to penalty. There has always been something uncomfortable about this practice of the	allowed some address on its findings before throw in at the end, as it were, the finding of
perjury which removes the case beyond argument. As
I say, I am not suggesting it comes here, but it is
something that I would have thought there was
something to be said for.

MR COWDERY:  Indeed, Your Honour. In this particular case,

however, we point to those passages where the

particular matter was raised, where the appellant

was given an opportunity as a witness to say

something about it, and where his counsel was given

an opportunity to address it.

DEANE J:  And he was also given, at least in this aspect of

the case, an opportunity of being heard as to any

reasons why the decision should not stand.

MR COWDERY:  Yes, on the second hearing, yes, indeed.

Smith.R(3) 66 30/4/92

BRENNAN J: There is always a difficulty if one adopts the

method which I gather the Full Court and the Court

of Appeal have adopted, of raising an issue of
perjury which cannot conveniently be determined in

the course of hearing another charge, because on a

case of perjury there would always be a question of

the grounds of any possible belief, and that would

involve the court in going down burrows of a most

extraordinary kind.

MR COWDERY: There are, certainly, problems that have been

identified, Your Honour, yes.

BRENNAN J: Yes.

MR COWDERY: For the purposes of this appeal, we submit, it

is not necessary to go into those matters but there

are, perhaps, aspects of procedure that might be

addressed at some time. I say that, of course,

Your Honour, as counsel for the New South Wales Bar

Association, not as counsel for the Court of

Appeal.

The passages in the judgments, both at the

first hearing and at the second hearing, are set

out in our written outline, at the bottom of page 6

and at the top of page 7, and I do not think it is

necessary to take Your Honours to it chapter and
verse but, in our submission, it supports the
proposition that we contend for, that the court did

not in fact regard it as decisive, it regarded it

simply as one more matter legitimately to be taken

into account and acted accordingly.

There is one other matter that we wish to

refer the Court to, and it is the issue of the

character evidence itself. As the written outline

states, there was unchallenged evidence of general

good character. He was given the benefit of that

status throughout the hearing. There is a real

question as to what weight, what additional weight,

if any, might be attached to the testimonials that
were brought forward at the time of the review.	In
that regard, might we refer the Court to a passage
in the judgment of Chief Justice Griffith in
Incorporated Law Institute of New South Wales v
Meagher, 9 CLR 677, towards the end of the
Chief Justice's judgment. His Honour said this:

With regard to the numerous certificates

of character, some on oath, by which the application is supported, apart from any question of the weight of such testimonials in

general, I cannot suppose that the gentlemen

who gave them were aware of the facts now

disclosed. If they were, and thought that

such conduct is right and proper, their

Smith.R(3) 67 30/4/92

opinion is of no value. It could not in any

view be substituted for that of the Court.	If
they were not, the foundation for their
opinion is gone.

Your Honour Mr Justice Deane referred to a catch-22

situation earlier today. There seems to be more

than one. Your Honours, those are our submissions,

unless there are any particulars with which we

might assist the Court.

BRENNAN J: Thank you, Mr Cowdery.	Mr Jackson.
MR JACKSON:	Your Honours, may I deal first with a number of very brief matters concerning some matters of fact.
The first concerns the number of matters in which
the appellant had been briefed by Mr McDonald.
Your Honours will see two references in the appeal
book: the first is at page 219, at about line 10.
That is dealing with an early period, commencing at
the end of 1984, the beginning of 1985.

In that period after I ceased being a Crown

Prosecutor ..... there are least seventeen

different cases, hearing matters, in which

McDonald and Company instructed me. And then, Your Honours, at page 357 there is a list

of matters in which the appellant was briefed by

that firm in 1985 and 1986 and there are 17 cases

listed, including, I should note, the matter that

gave rise to the present proceedings.

Your Honours, the second matter concerns an

observation at page 167 and at page 167, in

rel~tion to what was said, I think about the middle

of the page, about line 24 or 25, one of

Your Honours made an observation concerning the

likelihood - my learned friend said, I think, that Mr McDonald, of course, had nothing to do with the

Capsanis matter and, in those circumstances, why

would one find the appellant saying anything to him

about it in the car park?

Your Honours, it might not be surprising, we

would submit, for Mr Smith to think that in a small

firm the principal of the firm would have some

knowledge of the matters that were being dealt with

by the firm; and the size of the firm appears at

page 169. At the bottom of the page, Your Honours,

Miss Watson was the only professional staff and

there were two senior clerks and then there were,

at the top of the next page, about 12 other non-

professional staff.

Your Honours, in relation to the time when the

discliplinary tribunal was held, my learned

Smith.R(3) 68 30/4/92

friend's submission was to the effect that it would

be some years after the events in question that any

mention was made of the car park conversation. The

disciplinary tribunal hearing was 23 October 1987

which, of course, was less than a year after the

events in question.

Your Honours, the next matter I would seek to refer to is this: my learned friend referred to

the observations of members of the Court in

Codelfa, 150 CLR 29, at page 38, in support of the

proposition that quite exceptional circumstances

must be shown to enable a rehearing of a case, and

it is true to say that what two members of the

Court there said, at about point 9 on page 38, was

that:

The circumstances that will justify a

rehearing must be quite exceptional.

But, Your Honours, if one looks at the whole of the

paragraph it will be seen that Their Honours are

referring to cases where the judgment has been

perfected and, in fact, a quite different situation
is adverted to where the judgment has not been
perfected, as Your Honours will see at about
point 8, where it is said:

Nevertheless, it is a power to be exercised with great caution. There may be little

difficulty -

and in the context it is by way of contrast -

in a case where the orders have not been
perfected and some mistake or misprision is

disclosed.

So that, Your Honours, the limitation contemplated

by our learned friends submissions is not one

supported by the case.

Your Honours, it was submitted by our learned

friends in relation to the third ground that the
question of not telling the truth to the Court of

Appeal was not decisive.

May I take Your Honours back for just a moment

to the relevant part of the reasons for judgment of
the Court of Appeal at page 304 where

Mr Justice Mahoney, in a passage that commences at

page 304, line 18 and goes to page 305, line 12,

dealt with the issue. Now, Your Honours, I

referred to this earlier but did not take

Your Honours through it in detail. What

Your Honours will see, however, is that he

commences by saying:

Smith.R(3) 69 30/4/92

But in addition he attempted to support

his case before this Court by saying that he

had a conversation, with Mr McDonald,

which ..... he did not have.

His Honour then says in the next paragraph:

I appreciate the pressures that may have

been upon Mr Smith. What he said to the

Magistrate was not, I suspect, premeditated.

It was, I suspect, a wrong committed on the

run. And he may have felt himself under

pressure to support what he did when he came

before this Court. But, giving full weight to

the circumstances, a person who acts as he has

acted is not, in my respectful opinion, a
person who is fit or able to discharge the

obligations of a barrister.

I have considered whether a suspension

would be appropriate. But Mr Smith has

persisted in his claims, in respect of what he

said to the Magistrate and in respect of the

alleged conversation with Mr McDonald, to the

end of the present proceeding. I do not think

that in these circumstances a suspension is

appropriate.

Now, Your Honours, it is apparent, with respect,

that the lying to the Court of Appeal was treated

as decisive.

Your Honours, may I say three further things.

The first is that the warning which the President of the Court of Appeal in Kalaf's case gave to the

opponent in that case, or the need to give it,

illustrates the unsatisfactory nature of

proceedings where, as a person in effect commences

the proceedings he is told that whatever be the

seriousness of the actual conduct which is the

subject of the proceedings, that person must yet

walk the tightrope in the court because if the

person is found, objectively rightly of wrongly,

not to have told the truth to the Court of Appeal,

or to have been wanting in candour, a matter

obviously capable of a number of different views, then, not only is there the possibility of being

disciplined by reason of the original conduct, but
there will be added to it the possibility of

falling from the tightrope for another reason.

Now, Your Honours, the difficulty with all

that is first that it creates an air of - I do not

use the word oppression in a strong sense, Your

Honours - but it is an oppressive air in which to

have to conduct proceedings. The second is that

if, as in a case such as this, the proceedings are

Smith.R(3) 70 30/4/92

being conducted by the person who is the subject of
the proceedings, through counsel, then the whole
nature of the engagement of counsel is to leave to

the counsel conducting the proceedings an area of

discretion. Now, it may be that the way in which

the proceedings are conducted has the effect on the

mind of the court that the person has not told the

truth, but it may be that that is not the fact.

So that, Your Honours, we would submit there

is an air of inappropriateness in the issues being

put together and dealt with together. And, of

course, Your Honours, it was the fact that, at this

case, what the appellant was seeking to do on the

second occasion was to mitigate, amongst other

things, the effect of the decision of the Court of

Appeal on the precise point. Your Honours, the

second last thing I wish to say is this, that

I - - -

BRENNAN J:  Mr Jackson, that depends very much, does it not,

on the nature of the allegation. If the allegation

is that you consciously lied without any possible

belief in the truth of what you have said to the

magistrate's court, and then, before us, you
continued to say that you did not lie to the

magistrate's court, whereas it has been proved in

the proceedings that you did lie to the

magistrate's court and that you knew that you were

lying then, ergo you must be knowing that you are lying now. That is a different thing from saying

that you were going to get, as it were, an

additional penalty for failing before the Full

Court, is it not?

MR JACKSON:	Your Honour, the answer to it, with respect, is that what should happen is for the Court to say,
"We have formed the view that you were lying before
the original tribunal". It should then say, "We
have formed the view that in denying that you were
Your Honours, that as a practical matter there is lying you have lied before us". Now, it may be, nothing that the person who is the subject of the
proceedings can do to take that impression away,
but the person should have the opportunity to do so.

BRENNAN J: Yes.

MR JACKSON:  Your Honours, the penultimate matter is

something that I perhaps should have mentioned

earlier, and it is in relation to the course which

the Court might take.	Mr Justice Samuels is
retired.	It is possible for him to be appointed an

acting judge of the Court of Appeal and of the New

South Wales Supreme Court, assuming that the New South Wales Government (a) was prepared to do so;

Smith.R(3) 71 30/4/92

and (b) he was prepared to accept it. But,

Your Honours, the fact of his retirement would

militate in favour, if the Court were otherwise in our favour, of the matter being reheard completely.

The last matter I would seek to mention,

Your Honours, is that, as Your Honours would have

seen from the material, there is no further stay of

the present order in being and, Your Honours, I

know it is a matter for the Court to decide when it

will give its decision on the matter but it is a
matter of considerable import so far as the

appellant is concerned.

GAUDRON J: Are you requesting that the stay be continued?

MR JACKSON:	Your Honour, what I am seeking at present - the present situation is that there is a stay, but the
stay was subject to a condition, an undertaking
given by the appellant that he would only complete
matters in hand.  The matters in hand are
completed.  An application was made to the
Chief Justice to lift, in effect, the condition,
and His Honour declined, for the reasons set out in his reasons for judgment which appear at the
conclusion of the appeal book.  Now, Your Honours,
all I am seeking at this point is to say that if
the Court were minded to allow the appeal, then the appellant is in a position where he has, for
practical purposes, no work; for practical
purposes, no income and, Your Honours, it is not a
particularly encouraging climate in which to find
other engagement.

BRENNAN J: Thank you, Mr Jackson. Mr Cowdery, you have

som~thing to say with regard to the question of

stay, perhaps?

MR COWDERY:  Yes, Your Honour. Might I simply indicate that

the respondent has no objection to the stay of the

order of the Court continuing on the same terms.

BRENNAN J:  That is on the basis of continuing only with the

work in hand.

MR COWDERY: In effect, yes, Your Honour.

BRENNAN J: But that work, we understand from Mr Jackson,

has now been done, so the question arises whether

anything should be done by way of a stay which is

not so limited by condition.

MR COWDERY:	If that is correct, which we accept, of course, then the condition would be unnecessary - no, I
withdraw that.  The stay would be meaningless.

Smith.R(3) 72 30/4/92

TOOHEY J: There may be some other condition which is

appropriate, Mr Cowdrey, may there not?\

MR COWDERY: There may be, Your Honour.

TOOHEY J:	I mean, some condition that goes to supervision or something of that sort, or some sort of control
on the work that the appellant does that does not preclude him from undertaking work.
MR COWDERY:	Yes, if the Court is minded to consider such

matters, yes.

BRENNAN J: Perhaps we should hear whether Mr Jackson

applies for a stay.

MR COWDERY:	Yes, Your Honour.
MR JACKSON:	The present situation appears at the bottom of

page 412. There is a stay pending the hearing of

the appeal by the Full Court.

DEANE J:  We really need to see the undertaking to start

with, Mr Jackson; where is that?

MR JACKSON:  The undertaking, Your Honour, was in the

preceding paragraph:

not "accept fresh briefs or other professional

engagements pending the hearing of the

application for special leave to appeal".

That was then extended subject to that. The

difficulty, of course, is the undertaking and what

we would ask is that a stay be granted until

further order but subject to the appellant

providing to the Registrar of the Bar Association a list of all matters in which he accepts briefs with the names of the instructing solicitors and the

list to be provided, for example, at the end of

each week or something along those lines,
Your Honour.	If that were acceptable to the Bar

Association or if the Court were to indicate that it was prepared to grant a stay along those lines, then no doubt the precise terms of the order could

be worked out between us.

BRENNAN J:	We will hear what Mr Cowdery has to say about your suggestion.
MR COWDERY:	Your Honours, we would be opposed to a stay on

those terms, because it does not include any of the

safeguards to which Your Honour Mr Justice Toohey

referred, of course, or anything of that kind.

Might I just refer the Court to page 414 in the

reasons of the Chief Justice when the removal of

the condition on the stay was refused on

Smith.R(3) 73 30/4/92

20 December last year. At page 414 His Honour

referred to a number of factors in the first

paragraph on the page which we would submit have

some relevance to the question, and the second

paragraph.

BRENNAN J:	Have you anything to say in reply, Mr Jackson?
MR JACKSON:	Your Honour, it is a matter of the Court's

evaluation of the significance of those matters, having heard the argument in the case. I really

could not say any more about it without going over

ground I have been over already today,

Your Honours.

BRENNAN J:  The Court will adjourn briefly in order to

consider which course it should take.

AT 3.28 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.42 PM:

BRENNAN J: Before announcing the order which the Court

proposes to make at this stage, we might indicate

our indebtedness to counsel for the assistance that

they have given us in the course of this argument.

The Court proposes in due course to publish the reasons for the orders that I am about to

announce.

The appeal be allowed. The order of the Court

of Appeal made on 9 May ordering that the
appellant's name be removed from the roll of

barristers and that the appellant pay the

respondent's costs of the proceedings in the Court
of Appeal be set aside.	The order of the Court of

Appeal made on 4 July 1991 ordering that the

application by the appellant to set aside the

orders of the Court of Appeal of 9 May 1991 be

dismissed with costs be set aside. Order that the

matter of the application by the respondent against the appellant be remitted to the Court of Appeal of

New South Wales to be dealt with in accordance with

the reasons for judgment of this Court to be

published.

We shall make such further orders as may be

desirable including possible orders for costs on

delivery of the reasons for judgment.

Smith.R(3) 74 30/4/92

Does either counsel have any submission to

make at this stage with respect to the matter of

costs or as to the form of order?

MR JACKSON:  Your Honour, it is a matter on which I would

like to take some instructions and to put in any

submission in writing which, Your Honour, we might

perhaps do so within a matter of, say, two days.

BRENNAN J:  Yes. Have you any objection to that course,

Mr Cowdery?

MR COWDERY:	None at all, Your Honour.
BRENNAN J:	You have no present submission to make then with

regard to the matter of costs?

MR COWDERY:  Not as such, if Your Honour pleases. Might we

have the opportunity to respond to any submissions

by the appellant?

BRENNAN J:  Of course, yes, and you could do that within the

following week of the proceedings.

MR COWDERY: Certainly, Your Honour.

BRENNAN J: If there are any further submissions to be made

as to the form of any orders to be made, they might

accompany the submissions to be made with respect

to costs, Mr Jackson, and your reply with regard to

those, Mr Cowdery.

The orders, however, that I have announced are

made as of now.

AT 3.45 PM THE MATTER WAS ADJOURNED SINE DIE

Smith.R(3) 75 30/4/92