Smith v New South Wales Bar Association

[1991] HCATrans 379

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S82 of 1991

B e t w e e n -

RALPH EDWARD SMITH

Applicant

and

NEW SOUTH WALES BAR ASSOCIATION

Respondent

Application for a stay

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY. 20 DECEMBER 1991, AT 10.17 AM

Copyright in the High Court of Australia

Srnith.R(2) 1 20/12/91

MR D.F. JACKSON, QC: If Your Honour pleases, I appear with

my learned friend, MR J.R.K. PRYDE, for the

applicant. (instructed by Yvonne Swift and Burn)

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

my learned friend, MR P.R. GARLING, for the

respondent. (instructed by Dibbs, Crowther &

Osborne)

HIS HONOUR:	Mr Jackson.
MR JACKSON:	Your Honour, may I indicate the material on which I rely: first of all, I read the summons in
the present application; secondly, the affidavit of the applicant sworn 6 December 1991; thirdly, the affidavit of the applicant sworn 25 July 1991, and
I read paragraphs 1 to 7 and 9 and 10 of that
document; the affidavit of the applicant sworn on
14 November 1991 and, Your Honour, I seek leave to
file in Court a further affidavit of the applicant
sworn today, bringing up to date one aspect of the
material in the affidavit of 25 July 1991.
HIS HONOUR:	Any objection to that, Mr Cowdery?
MR COWDERY:	No, Your Honour.
HIS HONOUR:	I grant leave to file that affidavit in Court.
MR JACKSON:	Your Honour, I mentioned an affidavit of

14 November 1991. That was an affidavit which we

were given leave to file during the course of the

application for special leave to appeal.

Your Honour, one always has an element of doubt

about whether it was actually filed or not.	May I
give Your Honour a copy of it, just in case.

HIS HONOUR:	Yes.
MR JACKSON:	Your Honour, that is the material upon which I

seek to rely.

HIS HONOUR: Yes. I am not sure - in fact, I do not think I

have read all of this affidavit material to which

you have referred, Mr Jackson.

MR JACKSON:  Your Honour, I intend, in the course of my

argument, to take Your Honour to the relevant parts

of it.

HIS HONOUR:	I see.
MR JACKSON:	Your Honour, that is my material. This is a

case in which the applicant has been granted

special leave to appeal.	The appeal is listed for
hearing on 30 April next.	The application - - -

Smith.R(2) 2 20/12/91

HIS HONOUR: That is the tentative date given to it, is it?

MR JACKSON:  Your Honour, it was originally tentative. I

was informed yesterday it was the date, listed for

30 April and 1 May.

HIS HONOUR:	Yes.	Two days?
MR JACKSON:	Yes, Your Honour.	I must say I think it will

probably finish in a day - - -

HIS HONOUR:  I would have thought so.

MR JACKSON: It probably will, Your Honour.

HIS HONOUR: Unless your style of advocacy has changed for

the worse, Mr Jackson.

MR JACKSON:  Your Honour, the special leave application took

a while and there is an element in the case -

HIS HONOUR:  I read through it. It did not seem to me to

take that long.

MR JACKSON: It did to me, Your Honour.

HIS HONOUR:	You must have been speaking very slowly.
MR JACKSON:	Your Honour, could I just say that I just have

a suspicion the case might tip over into a second

day, that is all. I do not think it will take two,

but I think it might go into a second.

HIS HONOUR:  You are not getting off to a very encouraging

start in this application.

MR JACKSON:  Your Honour, I am sorry, may I go back to it.

The application in substance is for an order for a stay pending the hearing of the appeal. I use the

expression "in substance" and may I indicate the

reasons for doing that.	As appears from the
affidavit sworn 6 December in paragraphs 2 and

following the applicant's name was ordered to be

removed from the roll of barristers by the New

South Wales Court of Appeal on 4 July and that

court granted a stay, as appears from paragraph 3

on 8 July.

HIS HONOUR:  Just stopping you there for a moment. The

court seems to have made two orders removing the

applicant's name.

MR JACKSON:  Yes, Your Honour, can I indicate why. The

first was an order removing the applicant's name.

Before the order was entered the applicant brought

further material before the court, or sought to do

so, and sought to have the court review its

Smith.R(2) 3 20/12/91

decision, partly on the ground that in the reasons for judgment that had been delivered by the court,

there was an error which appeared. The court was

under a misapprehension as to some facts.

HIS HONOUR:  Yes, and Mr Justice Samuels dealt with that error in his judgment.

MR JACKSON:  Yes, Your Honour. So the first order, in

effect, was replaced as it were by the second one.

HIS HONOUR:  So that your appeal is confined to the second

order. One treats the first order as having been,
as it were, merged in or substituted by the second

order.

MR JACKSON:  That is what we would submit. I do not now

recall whether the notice of appeal does refer to

both; if it does -

HIS HONOUR:  I do not think it does, but I may be wrong in

that.

MR JACKSON:  Your Honour, there was a suggestion, I gather,

at an earlier application of this nature before

Justice Gaudron that perhaps there was a need to

appeal from both and that might have resulted

in - - -

HIS HONOUR:	I noticed that.
MR JACKSON:	But the first order was never completed, as it

were.

HIS HONOUR:  I retract what I said. I notice in paragraph 1

of the further amended notice of appeal the appeal

is from the judgments of the Court of Appeal given

on 9 May and 4 July.

MR JACKSON:  Your Honour, that is for safety sake. As is

apparent from paragraph 3 of the affidavit, the

stay was granted on 8 July and, Your Honour, the

stay was to cover the period until the hearing of

the application for special leave to appeal. It
was for a period of 21 days from 8 July. The order
granting the stay included recording an undertaking

on behalf of the applicant not to accept any fresh

briefs or other professional engagements, so that

he was limited to the work he had.

The application for special leave was made, of course, and on 29 July, which was the day the stay

given by the supreme court expired, Her Honour Justice Gaudron made an order dealing with the

position, pending determination of the application

for special leave to appeal.	Once again,
Your Honour, the stay was granted.	It was again on

Smith.R(2) 4 20/12/91

terms of a similar undertaking and Her Honour's

order is annexure A to the affidavit to which I

have just been referring. Your Honour will see at

the bottom of the first page and the top of the

next page the matters to which I have just

referred.

Special leave was granted on 15 November and the stay was continued and the appeal, as I said,

is to be heard - - -

HIS HONOUR:  Upon a continuation of the undertaking?

MR JACKSON:  Yes, Your Honour, and may I just come back to that in a moment. The appeal is to be heard on

30 April. The stay continues, but the cupboard is

bare, as it were, because as Your Honour will see

from paragraph 10 of that affidavit - - -

HIS HONOUR:	I have read that.
MR JACKSON:	As appears from the correspondence annexed to

it, the Bar Association was asked to agree to a

relaxation of the undertaking and declined to do

so. Your Honour, in those circumstances, may I

proceed to indicate the considerations which, in

our submission, would militate in favour of the

grant of a stay.

The first is that the decision of the Court of

Appeal was not unanimous. The majority,

Mr Justice Mahoney and Mr Justice Meagher, were in

favour of striking off; Mr Justice Samuels thought

a censure and an order for payment of costs was

sufficient. Three Justices of the Court, in

granting special leave, have regarded the

appellant's case as sufficiently arguable to merit

the grant of special leave. The third thing is

that stays, albeit more limited in ambit, have been

granted by the Court of Appeal and by

Justice Gaudron at a time when special leave had

not yet been granted.

The appellant's personal circumstances are very difficult and that is the respect in which I

wish to take Your Honour to the material. May I go

first to the affidavit to which I have so far been

referring and refer Your Honour to paragraphs 10 to

13.

HIS HONOUR:	Yes, I have read those paragraphs.
MR JACKSON:	May I then go to the affidavit which was that

sworn on 25 July and may I refer Your Honour to

paragraphs 3, 6 and 7 of it. I wish to refer most

especially to the matter set out in paragraph 7.

Smith.R(2) 5 20/12/91

HIS HONOUR:  I have read to the end of 7; I have not read 9

and 10.

MR JACKSON:  Your Honour, I do not think they matter for present purposes. May I go then to the affidavit

that Your Honour granted leave to file today.

Paragraph 3 of that brings up to date the position

in relation to the arrears of rental of his

chambers at Penrith and the lease - in short, the

lease has been terminated because of his inability

to meet the arrears in rent.

HIS HONOUR:	Yes.
MR JACKSON:	The next matter to which I would go is this; this is the fifth point: the appellant is a person
against whom no complaint had earlier been made -
that appears from the documents to which I have
referred.  He has been in practice for quite some
years.  He is also a person, Your Honour, who is
generally highly regarded.  I put that badly. I do
not mean, by the word "generally" to add a
qualification to what I was saying, but I used it
to indicate, of course, one has the decision of the Court of Appeal the other way.
But I wanted to refer Your Honour to the testimonials which are annexed to his affidavit of
15 November 1991. Your Honour, that is the
document which was relied upon on the application
for special leave to appeal. It is the one I
handed to Your Honour this morning.  It should have
six paragraphs on the front page, Your Honour.
HIS HONOUR:	Yes, I have it.
MR JACKSON:	The purpose of the affidavit on the special

leave application was to identify documents which

it was said the Court of Appeal had not taken into

account but should have done. But I wish to refer

to the tributes that are referred to in paragraph 5

and are annexures A to D for the purposes of this

application. They are, first, a statement made by

Mr Luland QC; one by Mr Norrish; a third by

Mr McNamara and finally, one by Father Connors.

Your Honour, the last factor we wish to say is this: the applicant is in a position where, if his

appeal is allowed, he cannot in a sense be restored

to his former position unless there is a stay. I

am conscious of the fact, of course, in saying that

that if he does succeed in the appeal, then the

result will be that he will once more be a person

who is able to practice without limitation, subject

of course - - -

Smith.R(2) 6 20/12/91

HIS HONOUR:	Is that so? I can understand that if the applicant is successful in the appeal the current
order for disbarment would be set aside. The
matter would be remitted to the Court of Appeal. But then the question would again arise before the
Court of Appeal as to what course it should take in
the circumstances, there being at that stage,
amongst other things and other material before the
court, an uncontested finding that the applicant
had been guilty of unprofessional conduct, and I want to ask you a question about that in a moment, and secondly, a finding that the applicant had
knowingly given untruthful evidence before the
Court of Appeal.  One question I should ask you
about that second finding is, is that finding
challenged in the appeal?
MR JACKSON:	Yes, it is, and one of the bases of challenge

to that decision is that one of the members of the
majority on that point - because Your Honour may

recall that two members of the court were of the

view, one was not - that is Mr Justice Samuels in

the minority - now, so far as the members of the

majority were concerned, it is right to say that

Mr Justice Meagher's approach to it is not one that

demonstrates an error which, in that respect, we

are able to challenge. So that, in effect, leaves

it one all, as it were, but the judgment of

Mr Justice Mahoney is one in relation to which our

submission is - and this is one of the grounds on

which the Court permitted us to pursue the appeal

to the Court - that His Honour was again in error,

with respect, in relation to a factual matter in
the case on the new material that had come before

the Court of Appeal.

HIS HONOUR:	Now that is the first ground in the notice of appeal, is it, that Mr Justice Mahoney was mistaken
as to the date when the alleged conversation with
Mr McDonald took place?

MR JACKSON:	That is right, Your Honour. And His Honour's view on that was a factor which was material in him
forming the view that the applicant had lied to the
Court of Appeal.  Now, Your Honour, if that is an
error, then subject to the Court being satisfied as
to the materiality of it, then the issue that there was or was not in the applicant's conduct before
the Court of Appeal - - -
HIS HONOUR:	I must say the notice of appeal is not

particularly clear in terms of what its

consequences are. The ground does support what you

say, but in fact the notice of appeal does not

actually set out that you wish to have that

finding, in a sense, set aside.

Smith.R(2)	7	20/12/91
MR JACKSON:	Your Honour is correct.	I am sorry, it does

not say that. That is what	we seek to do, however,
in consequence of the first	ground. The other two
grounds essentially go to -

HIS HONOUR:  The exercise of the discretion. Well, one goes

to admissibility of evidence, but that bears on the

exercise of a discretion.

MR JACKSON:  Yes, Your Honour. So we do in fact seek to

have the decision of the Court of Appeal that there

was professional misconduct set aside on what is

undoubtedly a narrow, but very important, basis.

Your Honour said, I think, there were two things

Your Honour was going to ask me.	That was one of
them.

HIS HONOUR:  Yes, one was about the finding of

unprofessional conduct. Now, I understand that the

critical finding seems to have related to the
incident or, let me say, the instructions - the
appearance flowing from the critical conversation

alleged to have taken place with Mr McDonald. But

can I ask you, on how many occasions did the

applicant appear without the intervention of a

solicitor according to the findings made by the

Court of Appeal?

MR JACKSON:  The once, Your Honour.

HIS HONOUR: Just the once?

MR JACKSON:  As I understand it, yes, just the once. And it

was held to be - if I could just perhaps say one

thing about it, Your Honour - the Court of Appeal,

no doubt correctly, regarded it as being something

capable of division into two parts: one was

whether, in fact, he had instructions; the other

was whether he - - -

HIS HONOUR:  Had reasonable and honest belief or just honest

belief.

MR JACKSON:  Yes, Your Honour. As to the first of those

things, it was held he did not have instructions

and that position was accepted on behalf of the

applicant. Now, no doubt he should have had them.

On the second question, however, that is the issue on which there was a split of view in the Court of

Appeal.

HIS HONOUR:	Yes.
MR JACKSON:	And it followed, from the view of the majority,

that in telling the Court of Appeal that he

believed he had instructions, that he was then not

telling the truth to the Court of Appeal. This is

Smith.R(2) 20/12/91

not a case, of course, where one is now seeking a

stay pending an application for special leave to

appeal, so - - -

HIS HONOUR:	No, you can proceed on the footing that the exceptional jurisdiction to grant special leave to
appeal has been exercised, so that hurdle is
overcome.  And you can proceed on the assumption
that you have a - to use the words you have already
used - a "sufficiently arguable" case on the
appeal. Apart from that, I would not be able to
form any judgment as to whether the appeal was
likely to succeed. It is not one of those cases in
which one can say it is a strong case or otherwise.

MR JACKSON:  No, Your Honour. So one is then left in a

situation where one has a person who has been a

practitioner for a long period of time. Apart from

the incident in question there has never been a

complaint about him and nothing is alleged against

him. He is in a situation which is financially of

some desperation. We would submit in those

circumstances the Court should exercise its

discretion in favour of a stay. Your Honour, if

necessary, we would give an undertaking - we, I

mean the applicant - not to take matters which

would involve him in professional engagements

beyond the date on which the matter is listed for

hearing.

HIS HONOUR: 

Mr Jackson, I suppose a strong consideration

against you is the fact that whilst this evaluation
of the evidence in the Court of Appeal stands

against the applicant, that is that he knowingly

gave untruthful evidence and that giving that

untruthful evidence was, in the estimation of the

Court of Appeal, so serious as to warrant his disbarment, that necessarily, whilst the Court of

Appeal judgment stands, tends to undermine that

confidence in the integrity and probity of a member

of the profession which the Bench, the profession

and the public are entitled to repose in a

practicing barrister.

MR JACKSON: 

Your Honour, may I say two things in response

to that: the first is that - I do not seek to

count heads at all, but it is not a case where

three members of the Court of Appeal were of that

view.

HIS HONOUR:	No, I follow that.
MR JACKSON:	But the second feature is, of course, that that

view must be regarded as being muted to some degree

by the fact that the Court of Appeal itself was

prepared to grant a stay pending the application

Srnith.R(2) 9 20/12/91

for special leave, and the stay inherently

involved - - -

HIS HONOUR:	But that was very short, was it not?
MR JACKSON:	Yes, but the court specifically said that after

that it was a matter for the High Court. So the

court was contemplating the possibility that there

would be a further stay. I can give Your Honour a

copy of the reasons for decision of the Court of

Appeal in that regard if it is of any assistance to

Your Honour.

HIS HONOUR:	No, I do not think so, Mr Jackson.
MR JACKSON:	So that the point about it is really that what

Your Honour put to me is muted, we would submit, by

the fact that the Court of Appeal was prepared to

grant a stay, and a stay pending an application for

special leave, and one would have thought that

inherent in that was two things: one was the

possibility it might continue; the other being an

expression of view about the relative seriousness

of the conduct because one would have thought that

if the Court of Appeal was of the view that the

case was one which merited striking off, as it

were, instanter, then it would not have been

appropriate to grant a stay of that kind, because

involved in the nature of the stay was to permit

him to engage in a number of matters which are

listed in one of the affidavits to which I

referred.

HIS HONOUR:  Was the stay granted a stay without

qualification? By that I mean did the Court of

Appeal insist on an undertaking of the kind that

was given to Justice Gaudron?

MR JACKSON:  Yes, Your Honour, that is where the undertaking

started.

HIS HONOUR: It originated there?

MR JACKSON:  Yes. The order that was made was upon him

undertaking to the court, and they noted the

undertaking had been given, not to accept any fresh

briefs or other professional engagements, and to

deliver to the Bar Association details of any

briefs or professional engagements now held. On

that, the court then dissolved the current stay and

granted the further stay until the time when the

special leave application might be made.

So, Your Honour, that we would submit is a

factor which is germane to evaluating, as it were,

the view taken by the Court of Appeal.	Those are
our submissions, Your Honour.

Smith.R(2)	10	20/12/91
HIS HONOUR:	Thank you, Mr Jackson.	Yes, Mr Cowdery.

MR COWDERY:  Your Honour, the applicant is seeking, in

effect, an unconditional stay, although there has

been a suggestion of some further undertaking being

given, beyond the undertaking that is presently

given to the Court.

HIS HONOUR: 

Yes, the undertaking of it is that he would not

accept briefs which required him to act as a
barrister beyond the period of time before the
Court gives its decision on the appeal.

MR COWDERY: 

Your Honour, when the stay was first granted by

the Court of Appeal and the undertaking given by

the applicant, it was approached on the basis that

it was in the public interest that that course be

taken for a limited time. In other words, the

submissions that were made in support of the
application at that time, and that was the origin
of the stay, was that the applicant had obligations

to clients, to members of the public that had

already been incurred and that it was in the public

interest that those obligations be satisfied. It

was very much with that attitude in mind that the

undertaking was sought and given and the stay given
for a limited period, initially upon that

undertaking.

It was, in our submission, that consideration

that lay behind the continuation of the stay
through the various stages of proceedings and the

renewal of the undertaking. The circumstances now

appear to have changed - I withdraw that; not the

circumstances, the ground on which the continuation
of the stay is being sought appears now to have

been changed and the question of the public
interest, which was foremost before the Court of

Appeal and originally before this Court, now seems to have receded and it is being put on the basis of

personal hardship to the applicant. In our

relevant circumstances that would need to be acted	submission, there has been no change in the
upon in an application of this kind.

HIS HONOUR:  But there is a material change, is there not,

in the context? At the time the stay was being
discussed on earlier occasions the applicant was

confronted with the necessity of obtaining special

leave to appeal and, therefore, the parties

naturally recognised that they were seeking an

exceptional indulgence from the Court. The

material change is that special leave has now been

granted and there is a pending appeal. You are

not, therefore, in a context in which exceptional

circumstances of that kind are relevant.

Smith.R(2) 11 20/12/91

MR COWDERY: Certainly, Your Honour, we accept that that

circumstance has changed, yes, of course. But the

jurisdiction which is sought to be invoked in

continuing the stay or, in this application, in

having the terms of the undertaking varied is, we

would submit, an extraordinary jurisdiction, one to

be exercised only if it is necessary to avoid the

result of the appeal becoming futile. There are

other ways in which it has been put in some of the
decisions of single Justices of the Court but,
nevertheless, we would submit that in this case the
failure to enlarge the terms of the undertaking or
the terms of the stay would not render futile an

order following a successful appeal.

HIS HONOUR:  Does that principle apply once special leave is

granted?

MR COWDERY:  We would submit it does; that the granting of

special leave is one step in the process towards

the hearing of an appeal. As Your Honour has said,

it results in this situation merely in the

acceptance of an arguable appeal, nothing more than

that, and it is simply one step that has been

passed along the way towards the hearing of an

appeal, the result of which may be successful or

not.

HIS HONOUR:	If that principle is applicable now, it must have been applicable at the time the application
was made to Justice Gaudron.  How was it that the
applicant got a stay at that stage?

MR COWDERY: Because, in our submission, the consideration

of the public interest permitted it, made it
appropriate. But now, the evidence discloses that

those obligations to existing clients have been

satisfied, that element of the public interest has

disappeared and the enlargement of the stay is

being sought upon a purely personal basis, on the

basis of circumstances personal to the applicant.

We would submit that is the difference between the	time when the stay was originally granted and now.
Your Honour, there are a number of decisions of the Court - I do not know whether I need to take
Your Honour to them.

HIS HONOUR:  What are the propositions you want to support

by authority?

MR COWDERY:  That the jurisdiction sought to be exercised by

the granting of a stay is extraordinary and that

applications seeking to invoke that jurisdiction

should not be made and should not be granted simply

in order to secure the status quo.

Smith.R(2) 12 20/12/91

HIS HONOUR:	Now what is your best authority in terms of the application of that principle after special leave
has been granted?

MR COWDERY: I do not have any authority to take Your Honour

to directed to that stage of the proceedings.	The
authorities - - -

HIS HONOUR:  Does the principle apply to that stage of the

proceedings?

MR COWDERY:  We would submit it does because the

principle - - -

HIS HONOUR:	Have you got any support for that?
MR COWDERY:	Only from those decisions that have been given

prior to the grant of special leave, because those
decisions refer in terms to the result of the

appeal, not to the result of the application for

special leave but to the result of the appeal and

the question of whether or not a successful appeal

would be rendered futile.

HIS HONOUR: 

But are not those decisions founded on the

proposition that the grant of special leave is an
exceptional jurisdiction?

MR COWDERY: 

We would submit not, Your Honour.

HIS HONOUR: 

Have you got a statement of principle in

general terms which supports your position?

MR COWDERY:  I believe so, Your Honour, in Beljajev v

Director of Public Prosecutions in Victoria. Might

I hand up to Your Honour a copy of that decision?

HIS HONOUR:	Certainly. Where is the passage?
MR COWDERY:	At page 401 in the first column, the paragraph beginning after the letter D, that paragraph.

HIS HONOUR:  But it is in the context, is it not, of an

application for special leave?

MR COWDERY:  Certainly it is, but His Honour in that case,

in the third line, went on to say, "and, if

granted, to appeal".

HIS HONOUR: Yes, but His Honour is not enunciating a

principle there; His Honour is, as it were, dealing

with the consequences in the present case.

MR COWDERY: There is a general statement in the second half

of the paragraph, "the jurisdiction to grant a

stay".

Smith.R(2) 13 20/12/91

HIS HONOUR:	Yes, well that is a criminal case.
MR COWDERY:	Yes. That is, as Your Honour says, the best

proceedings.

statement of principle to which I can take of the

It is our submission that, shortly put, the

enlargement of the stay that presently exists is

not necessary to preserve the subject-matter of the

appeal or to prevent a successful appeal being

rendered futile and for that reason the
extraordinary jurisdiction, as we submit it is,

should not be exercised. We submit, further, that

the existing stay was granted out of considerations

of the public interest. That situation has now

changed in that those obligations have now been

satisfied and the application is being put simply

now on the basis that the applicant be permitted to

preserve his situation as a practicing barrister

pending the appeal and that it is inappropriate

that such orders be made where there have been

findings of fact, by the Court of Appeal, that the

applicant lied to the local court, lied to the

Court of Appeal, is not a fit and proper person to

practice as a barrister and that his name should be

removed, and those findings remain, of course,

until the hearing of the appeal.

HIS HONOUR:  Now, Mr Cowdery, even on the principle that you

espouse, it can be said, can it not, that what is

in question here is the applicant's right to

practice as a barrister and his right to practice

as a barrister involves his livelihood? Is that

not essentially the subject-matter of this appeal?

MR COWDERY: It appears to be, Your Honour, yes - of the

appeal or of the application, may I ask?

HIS HONOUR:  Of the appeal.

MR COWDERY:	Of the appeal, yes.
HIS HONOUR:	And is it not also clear that to disbar him

from any practice at all between now and the

ultimate disposition of this case, which could take

anywhere between, say, three and a half months to

some period after that if the Court were to reserve
judgment, involve a very substantial injury to his

livelihood?

MR COWDERY:  The evidence supports that proposition,

Your Honour, yes, but might I submit this, that

there is an antecedent question and that is the

question of the fitness of the applicant to

practice, in respect of which there have been

Smith.R(2) 14 20/12/91

factual findings and an order of the Court of

Appeal.

HIS HONOUR:	Oh yes, I follow that.
MR COWDERY:	And those are matters that are relevant, in our submission, to the exercise of this jurisdiction at
this point in time prior to the hearing of the appeal. Those are our submissions, Your Honour.

HIS HONOUR:  Thank you, Mr Cowdery. Mr Jackson.

MR JACKSON:  Your Honour, in relation to jurisdiction, may

I make a submission about the principle to be applied.

HIS HONOUR;	Yes.
MR JACKSON:	What we would submit is that the principles to

which my learned friend has referred are not the

principles to be applied in determining an
application of this kind after the grant of special

leave. Could I indicate first the sources of power under the Judiciary Act and the rules. Section 77U of the Judiciary Act simply says that:

When an appeal has been instituted, the

High Court or the Court or Judge appealed from

nay order a stay of all or any proceedings

under the judgment appealed from.

Now, Your Honour, one goes then to Order 70

rule 8(1) which reverses what was earlier the case

and now provides that:

Unless the Court or a Justice otherwise

orders, an appeal shall not operate as a stay

of proceedings.

That would seem, in our submission, to make the

situation no different, in broad principle, from

that which obtained at the time when, for example -

I am sorry, Your Honour, I just do not have the

book with me at the moment - Your Honour decided

Clyne v Commissioner of Taxation, which is, I think

(1982) 56 ALJR. The proposition that was then put

was that there had to be special circumstances

shown why the automatic stay would not apply and

Your Honour said, it is not a question of being

special circumstances, it is a question whether in

all the circumstances there should or should not be

a stay. I may not have exactly paraphrased what

Your Honour said but the point about it is that if

one applies that to the present circumstances, it

is not a case of there being a requirement for

special circumstances to be demonstrated before

there is a stay; what is required, in our

Smith.R(2) 15 20/12/91

submission, is whether the circumstances merit the

grant of a stay in the particular case.

Now, Your Honour, that is not a discretion

which should be in any way trammelled by a

requirement for special circumstances. Of course,

particular cases will most obviously lead to

particular conclusions; particular factors will

almost always be taken into account; but the

ultimate test, in our submission, is one that is

not limited by any such requirement. In

particular, Your Honour, it is not limited by the
considerations which were referred to, for example, by Justice Brennan in Beljajev v Director of Public

Prosecutions. What Your Honour will see, at the

first page of that decision in the right column

between the letters D and E, the first new
paragraph, is that His Honour sets out the topic

that he was considering and the topic he was

considering was:

The jurisdiction of this Court to make an

order either preserving the status quo pending
the hearing of an application for special
leave to appeal or to grant bail pending the

hearing of such an application" -

that is, an application for special leave to

appeal. And the observations which were made at,

for example, page 401 in the right column in the

paragraph commencing just under letter B, where it

speaks of:

right to seek special leave to appeal and, if

granted, to appeal, would be rendered futile -

is where His Honour, in using the words "if

granted, to appeal" is looking at the position from the point of time before the grant of special leave

and, Your Honour, it is in those circumstances that

the observations are made. His Honour was not -

and the earlier decisions refer - - -

HIS HONOUR:	No, I think that is clear enough, Mr Jackson.
MR JACKSON:	So that we would submit there is no broad

principle of the nature contended for by our

learned friends.

HIS HONOUR:  I cannot help thinking that, historically, it

would be rather extraordinary if the alteration of

the rules sub silentio produced this remarkable

change. Under the rules as they stood, as you

pointed out, there was an automatic stay. The

Court was then confronted with applications as to

were the circumstances such that a stay should be

lifted. Now, all that happened under the rules was

Smith.R(2) 16 20/12/91

a reverse situation was provided for. Itwould be

taking it a long way to erect on top of that an
inbuilt, but unexpressed, requirement for

exceptional circumstances.

MR JACKSON:  Your Honour, may I, with respect, adopt that.

Could I also say this: under the old provision

there was a temptation to appeal to the Court as of

right in order to obtain the benefit of the stay.

HIS HONOUR:  That was the mischief which was sought to be

corrected.

MR JACKSON:  So there were appeals that started but nothing

happened in relation to them of any consequence,

and particularly in those parts geographically

where the Court did not go frequently, for example,

if one took Queensland or any of the other States,

and the result was that there - - -

HIS HONOUR:  It is only a Queensland counsel who would say

that, Mr Jackson.

MR JACKSON:  Who would know about it, Your Honour.

Your Honour should ask Justice Brennan who taught

one these things.

HIS HONOUR: That is what I keep on saying to him, actually.

MR JACKSON:  But that is what happened. That is why it

changed, so that there had to be an appropriate

case for a stay. So, too, there does today, but it

does not have to be exceptional.

Your Honour, those are our submissions.

HIS HONOUR:  I shall announce my decision in this matter at

11.45 am. In the meantime, the Court will adjourn.

AT 11.01 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.51 AM:

HIS HONOUR:  On 9 May 1991 the Court of Appeal of New South

Wales found that the applicant, who was a

barrister, was guilty of unprofessional conduct in

that he sought to appear for Mr A. Knight without

the intervention of an instructing solicitor and

deliberately misled the court by informing it that

he was instructed by Malcolm McDonald & Co when in

fact he was not so instructed. The Court of Appeal

Smith.R(2) 17 20/12/91

further found that he said things in his defence in

the Court of Appeal which he knew to be untrue.

The Court, by majority, Mahoney and

Meagher JJA, with Samuels JA dissenting, ordered

that the applicant's name be removed from the roll

of barristers. Samuels JA thought that a censure

and an order for payment of the costs of the

proceedings would have been an appropriate and

sufficient order in the circumstances. It seems

that the majority thought that the applicant's

untruthful evidence to the Court of Appeal required

his disbarment.

The applicant subsequently applied to the

Court of Appeal for a review of its judgment. In

his application, the applicant did not contest the

finding of unprofessional conduct but sought, in

effect, a rescission of the order for disbarment.

The application for review was based, amongst other

things, on evidence designed to show that the

applicant had honestly, or honestly and reasonably,

believed as a result of a conversation with

Mr McDonald, a solicitor, that he had instructions

to act in the relevant matter.

On 4 July 1991 the Court of Appeal rejected

the claim of honest, or honest and reasonable

belief, though Samuels JA was not persuaded that

the applicant's claim that there was such a

conversation was a deliberate invention. However,

Mahoney and Meagher JJA found that it was. The

court, by majority, made a further order removing

the applicant's name from the roll of barristers.

The applicant having obtained a limited stay from the Court of Appeal then applied for special leave to appeal from the order removing his name

from the roll of barristers and sought a stay of

the orders made by the Court of Appeal. On 29 July

this year, Gaudron J made an order staying the

orders made by the Court of Appeal until the

determination of the special leave application upon the applicant undertaking that he "would not accept fresh briefs or other professional engagements

pending the hearing of the application for special

leave to appeal".

On 25 November this Court granted special

leave to appeal and extended the stay pending the
hearing of the appeal by the Full Court upon a

continuation of the existing undertaking given by

the applicant to Gaudron J. The applicant now

applies for the following orders:

Smith.R(2) 18 20/12/91

1. That the undertaking given by him on

29 July 1991 and renewed on 15 November 1991

be discharged.

2. That he be permitted to accept fresh

briefs and professional work pending the

hearing of the appeal.

The applicant offers a more limited undertaking,

namely an undertaking that he will not accept any

brief or professional engagement extending beyond the disposition of the proceedings in this Court. The applicant has not accepted fresh briefs since

giving his undertaking. He has completed all

briefs accepted before that date and has therefore

exhausted all the work which is available to him.

He has no income, apart from a limited

superannuation pension, and his rent in respect of

his chambers is substantially in arrears. It is

likely that his appeal will not be heard until

30 April or 1 May next year.

The grounds of the applicant's appeal are

directed to the order for removal. They seek to

challenge the majority finding concerning the

deliberate untruthfulness of the applicant's
evidence before the Court of Appeal by showing that

Mahoney JA misapprehended the effect of the

evidence on one aspect of the matter. The grounds

of appeal also raise a question relating to the

admissibility of certain testimonial evidence

which, it is suggested, the majority rejected.

Otherwise the notice of appeal challenges the

exercise of discretion by the Court of Appeal in

deciding that disbarment was the appropriate course

that should be followed.

Mr Cowdery submits that no stay should be

granted unless exceptional circumstances are shown

to exist and that means that the applicant must

show that the subject-matter of the appeal will be

destroyed unless a stay is granted. He relies on

the judgment of Brennan Jin Beljajev v Director of

Public Prosecutions, (1991) 65 ALJR 400, at 401.

Beljajev was a criminal case in which a stay was

sought pending the hearing of a special leave

application at a stage when it is clearly

established that exceptional circumstances must be

shown to exist. The position is different, in my

opinion, in a case such as the present when special

leave has been granted and an appeal is pending.

In such a case, the Court has a discretion to grant a stay unqualified by the restraint of exceptional circumstances.

I acknowledge that the evidence establishes

that apart from the conduct which is now in

Smith.R(2) 19 20/12/91

question the applicant is a person of good

character and that he has no other blemish on his

professional reputation. I acknowledge also the

very considerable hardship that he will sustain if

he is not released from the present undertaking and

the effect that compliance with that undertaking

will have on his professional practice and

livelihood, even if he ultimately succeeds in

having the orders of the Court of Appeal set aside.

However, there are other factors which must be

taken into account.

Apart from concluding that the applicant's

case on the appeal is arguable, I am unable to form

an opinion as to its prospects of success. I am

left with an unchallenged finding that the
applicant was guilty of unprofessional conduct in a

respect which would not, on its own, warrant

disbarment and it is accompanied by a finding,

challenged in the pending appeal, that the

applicant knowingly gave untruthful evidence to the

Court of Appeal. Even if the applicant succeeds in

his appeal to this Court, the matter will be
remitted to the Court of Appeal to be dealt with on

the footing, inter alia, that the applicant was

guilty of unprofessional conduct and, depending on

the fate in this Court of the first ground of

appeal, that he knowingly gave untruthful evidence

to the Court of Appeal. In this situation I do not

have a firm impression that the applicant will

succeed in his appeal or, if he succeeds in his

challenge to the exercise of discretion by the
Court of Appeal, that that success will necessarily

lead to an ultimate outcome of the proceedings

which will be favourable to the applicant.

Furthermore, and more importantly, having

regard to the Court of Appeal's majority finding

concerning the untruthfulness of the applicant's

evidence before that court, I do not consider that

it would be correct to allow him to practice
pending the appeal.	The majority evaluation of

that finding as one which, in the circumstances,

warranted the applicant's disbarment necessarily

must undermine and set at risk the confidence which

the Bench, the profession and the public are

entitled to have in his probity and integrity as a

barrister. The effect of the court's evaluation of

the applicant's conduct must, it seems to me,

continue to subsist until such time as the court's

orders and findings are set aside.

In the result, I refuse the application.

Smith.R(2) 20 20/12/91

MR JACKSON: If Your Honour pleases.

HIS HONOUR: Court will now adjourn sine die.

AT 12.02 PM THE MATTER WAS ADJOURNED SINE DIE

Smith.R(2) 21 20/12/91