Smith v New South Wales Bar Association

[1991] HCATrans 326

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

THE NEW SOUTH WALES

BAR ASSOCIATION

Respondent

Application for special

leave to appeal

DEANE J

TOOHEY J

GAUDRON J

Smith.R 1 15/11/91

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY. 15 NOVEMBER 1991. AT 9.49 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:  May it please the Court, 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, MS J.C. PENTALOW, for the

respondent. (instructed by Oibbs, Crowther &

Osborne)

DEANE J:	Mr Jackson.
MR JACKSON:	Your Honours, there are three bases on which it

is submitted special leave should be granted. The

first two relate, if I may say so immediately, to

the interests of the administration of justice in

the particular case. The third raises an issue

which, it is submitted, is one of general

application.

May I deal with the third issue last because

the approach to it may be influenced by some

considerations arising in relation to the second

ground which I will indicate in just a moment,

Your Honours?

DEANE J:  Mr Jackson, you can proceed on the basis that we

have all read the material in the book and, I

think, in all cases, with more than usual care.

MR JACKSON:  Your Honour, thank you. Your Honours, could I

indicate then the first two grounds? They are

these: whether, in the majority of the Court of

Appeal, there was a misapprehension of the evidence

concerning a conversation between a solicitor,

Mr McDonald, and the applicant and, secondly,

whether there was error in the Court of Appeal in

refusing to admit evidence of testimonials

concerning the applicant's character.

Your Honours, may I then move to what occurred

in the Court of Appeal on the second occasion when

the matter came before it because that is germane
to the first and second issues with which I wish to

deal?

TOOHEY J: Could you just identify the third issue,

Mr Jackson?

MR JACKSON:	I am sorry. The third issue is the correctness of the approach to be taken in relation to the
order which should be made. Your Honour, I say "order which should be made" because the expression
"penalty" is one that might be thought to be
perhaps inappropriate in a case of this kind. But
the particular aspect of it to which I intend to make reference is the extent to which the question
Smith.R	15/11/91

of the particular conduct of the applicant is to be

treated as being dominant. I am sorry, I tried to

make that seem a little elusive but may I explain

it a little more fully later?

Your Honours, so far as the matters in the

Court of Appeal are concerned, Your Honours will

see that when the matter came again before the

Court of Appeal it appeared that there had, in

fact, been a much earlier reference to the

conversation by the applicant with Mr McDonald and

he had given evidence of that at a time prior to

that which the Court of Appeal in its first reasons

for judgment had thought was appropriate.

Your Honours, the approach taken by

Mr Justice Samuels was to consider the matter

afresh and when he did so he arrived at the
conclusion that he was not persuaded that the

applicant had lied to the tribunal. That appears

at page 64, line 9, and that that provided a

further reason why disbarment was not required.

Could I go to page 64, lines 9 to 16. Now,

Your Honours, on this question Mr Justice Samuels

was in the minority. Mr Justice Meagher took the

opposite view. That appears at page 75, line 20,

Your Honours, going through to page 76, line 20.

Now, Your Honours, Mr Justice Mahoney arrived at

the same conclusion as Mr Justice Meagher,

Mr Justice Mahoney dealing with the issue at

page 74. In particular, Your Honours, Your Honours

will see in the penultimate paragraph of

His Honour's reasons for judgment on that occasion,

he said, in the second sentence:

The fact that, as I shall assume, there was a

conversation about the Skipper matter some

weeks before did not -

et cetera. Now, Your Honours, could I pause at

that point to say that the reference to the

"Skipper matter" does not derive at all from what

had been said in the conversation, the earlier

reference to which had not been appreciated by the Court of Appeal but it derives from evidence which

had been sought to be adduced at the second hearing

before the Court of Appeal.

Your Honours, may I indicate what I mean by

that? The conversation in question, the earlier

reference to which had not been appreciated by the

Court of Appeal, appears at page 54. Now,

Your Honours, commencing at about line 8 and going

to the bottom of the page, the conversation is

there set out. Your Honours, no reference to a

Smith.R 3 15/11/91

"Skipper matter", a reference to the "Capsanis", as

it were, matter.

Where His Honour Mr Justice Mahoney at page 74

appears to have derived the view that the

conversation was about the Skipper matter and was

some weeks before was not from that, but was from an affidavit at page 85, and that is an affidavit

of Mr McDonald, the solicitor, which was adduced by

the applicant on the second hearing before the

Court of Appeal.

Your Honours will see two things about it. The first is in paragraph 2 that he said he did have a conversation with the applicant but it was

his clear recollection that the:

conversation was some days prior to the

"Capsanis" incident.

Your Honours will see "some days prior". The

second thing is in paragraph 3; what he says about

conversation, that is, it:  the identity of the subject-matter of the

was about a client of mine known as Skipper,

not about the Capsanis person.

Now, Your Honours, if I could just say the

"Capsanis" incident was 11 November 1986. A

reference to "some days before", one would think,

must be a reference to some period in, let us say,

four, five or six days, or two or three, or

something of that order beforehand. And the

applicant's evidence to which I referred earlier

had been that the conversation of which he was

speaking had occurred on, I think, 6 November, in

the week before.

But Mr Justice Mahoney refers consistently to

the conversation in his second reasons for judgment

as having taken place some weeks before. Could I

go, Your Honours, back to page 74? Now,

Your Honours will see the passage to which I
referred where he says:

the Skipper matter some weeks before -

then, if I could go back to page 72. Your Honours,

it is about two-thirds of the way down the page. I

am sorry I cannot give the line numbers because

some are obscured in the copy that I have:

But, more significantly, it is clear that, if

there was a conversation about the Skipper

matter, it took place some weeks before.

Smith.R 4 15/11/91

And, Your Honours, at the end of the same

paragraph:

it is clear that, if there was such a

conversation -

it took place -

before 11 November 1986. Arid then the bottom

of that page, 72, and the top of the next

page, "some weeks before" again.

Now, Your Honours will see that the result of all that is that when His Honour - and His Honour,

of course, was one of the two judges who was

forming the majority - is dealing at page 74 with

the error of fact which had occurred in the

previous decision. He is assessing the weight and

relevance to be given to the events which had in fact occurred by reference to a matter which was not in fact the error which had occasioned the

reconsideration of it because, Your Honours, he

speaks, of course, about a conversation some weeks

before and a conversation about a different matter.

Your Honours, the result is, in our submission, that the decision of one of the two

members of the majority is based on a

misapprehension of what the evidence had been.

Now, Your Honours, could I say in relation to that,

this is a case which had its first hearing in the

Court of Appeal. That court was exercising an

original jurisdiction. The facts had not been

found at a trial at first instance.

Your Honours, we would also submit, in

relation to it, that if it be right to say that
there is an apparent error in the decision of the

Court of Appeal in this sense, the interests of

justice do merit the grant of special leave on this

ground. Your Honours, could I say in that regard

called to the bar for some 23 years at the time of	that as appears from page 4, lines 14 and following, the applicant was a person who had been
the hearing in the Court of Appeal. He had been a Crown Prosecutor for four years of that term until
ill health forced him to resign. He was,
Your Honours, if I could be permitted to use the
argo of the Criminal Court, "an absolute
clean-skin" and the result for him was disastrous.

DEANE J:  Mr Jackson, I am not sure that I read

open to be read in the way that the first part of	Justice Mahoney's judgment the way you do. Is it
the second-last paragraph refers to the new
evidence and deals with His Honour's view as to
that and it is only the last two sentences which,

Smith.R 15/11/91

in somewhat peremptory fashion, deal with the error

of fact?

MR JACKSON: Well, Your Honour, our submission is, with

respect, no. One starts from, first of all, the

heading: heading 4, ttError of facttt.

DEANE J: Yes, I follow that.

MR JACKSON:  Yes, that is a factor. The second thing is

that what His Honour seems to be saying is that

both before and after the earlier two sentences, I think it is, of the second paragraph he is dealing with the error that is the subject of the

application. And, Your Honours, that seems to be

so from, first of all - I will not repeat it - the

heading; then what follows immediately after the

two sentences to which Your Honour referred, that
is, "to the extent that there was an error in the

recital of the facts, it was not", et cetera, so

matter, Your Honour. that he seems to be dealing with the whole subject-

Perhaps I should also say this: that, in any

event, if Your Honours look at what he says, on any

basis, it is not, with respect, correct because it

does not seem to be a fair interpretation of

Mr McDonald's evidence that the conversation had

taken place some weeks before.

DEANE J:  I follow the second point but if you look at the

previous paragraph, His Honour says, in effect:

considering the matter afresh -

well now, that involved, did it not, two matters or

two main matters: one was Mr McDonald's evidence

which had been accepted; the second was the error

about new invention or whether your client had

referred to the other conversation on the previous

occasion?

MR JACKSON:	Yes.
DEANE J:	I must say it is not evident to me that His Honour is making the somewhat unlikely mistake you suggest
he made.

MR JACKSON: Well, Your Honour, may I say, with respect, two

things: the first is that Your Honour puts them to

me - and if I could just go back to the first part

of Your Honour's question - as two separate things. Of course, the question of the weight to be placed

upon the fact that the conversation had been

adverted to earlier was something to be taken into

account in determining what view should be taken of

the evidence. So, Your Honour, with respect, they

Smith.R 6 15/11/91

were not two separate things as Your Honour put to

me in the prefatory way.

But going on from that, Your Honour, what one

sees is - and I could only put it in this way -

looking at the passage under the heading "Error of

fact", the first thing is that it commences with

dealing with that topic; it finishes dealing with

that topic. What seems to be the case,

Your Honours, is that the last sentence in the

first paragraph under that heading is stating a

conclusion, it is true to say, but the paragraph

following that is one giving reasons for that

conclusion and, Your Honour, that is the ordinary reading of it, we would submit, because the first

two sentences are followed by a subject-matter

which is exactly the same as what has preceded.

DEANE J:  I see that but how could His Honour have thought

that the error of fact was that the conversation of

which Mr McDonald gave evidence for the first time

on the rehearing had somehow been overlooked?

MR JACKSON: Well, Your Honour, one might equally ask, with

respect, how could His Honour have said that the

conversation was one that had taken place three

weeks before when the tone of the affidavit would

seem to be contrary to that? Your Honour, one

might equally ask, I suppose, how could the three

members of the Court of Appeal on the first

occasion have overlooked the evidence?

Your Honour, these things happen.

DEANE J:	You will not get a sympathetic response to that:
"How could a court make a mistake?"
MR JACKSON:	No, Your Honour, I was not asking for a

response which was sympathetic but I was simply

seeking to indicate that things sometimes otherwise

inexplicable do occur and they can occur to the

great injustice of people sometimes.

Your Honours, may I move then to the second

issue with which I wish to deal? That concerns the

Court of Appeal's refusal to admit evidence on the second hearing, evidence consisting of four

testimonials as to the applicant's character.

Your Honours, could I indicate first the documents

in question which, unfortunately, have not formed

part of the application book but I am going to give

them to Your Honours in just a moment. They are

the documents referred to in Mr Burn's affidavit at

page 81 in paragraph 13 and the top of page 82 in

paragraph 14.

Your Honours, I wonder if I could hand to the

Court bundles of documents? The documents also

Smith.R 15/11/91

contain some cases to which I will refer in a

moment but the affidavits are, I think, at the

bottom of each of the bundles.

Now, Your Honours will see that amongst those

documents are two affidavits. Your Honours, I

should say, very shortly in respect of one of them,

it is simply an affidavit which was thought

appropriate to place before the Court in which

Mr Smith deposes to his belief, rightly or wrongly.

Your Honours, the affidavit presently material is

an affidavit which includes in paragraph 5 the

material, and indicates it, and then annexes the

documents in paragraph 8.

Your Honours, I shall not read the documents

but may I ask Your Honours to look at them. The

first is a handwritten testimonial by Mr Luland, QC

and, Your Honours, they are thereafter

self-explanatory.

DEANE J: What character evidence was put before the Court

of Appeal on the first occasion?

MR JACKSON:  Your Honour, the evidence before the Court of

Appeal on the first occasion really appears to be

that summarized in the passage to which I referred

Your Honours at page 4, commencing about line 14. Your Honour, it is not 100 per cent clear to

me from the transcript of proceedings but there may

have been an earlier version of the document which

is the testimonial from the Aboriginal Legal

Service annexed to an affidavit. Your Honour,

could I say that at the first hearing before the
Court of Appeal, as best it is possible to

ascertain from the transcript of it and from the

written submissions which were put forward, there

were no submissions made on the question of the

appropriate order to be made apart from two pages

in the transcript where my learned friend was asked

what were the orders being sought.
Your Honours, could I come to that in just a
moment.	When the matter came before the Court of

Appeal on the second occasion, the applicant was then appearing on his own account and he sought to

put those four testimonials into evidence before

the court. Your Honours, there was no objection on

the ground of informality as to the manner of their
tender; nor, in our submission, could there have
been any suggestion of prejudice which could not

have been cured; nor, it is submitted, could it

have been denied that the material might have

tipped the scales in favour of the applicant.

Smith.R 15/11/91

Your Honours, in that regard, may I give

Your Honours a very brief reference to an

observation in one of the cases in the bundle I

gave Your Honours:  Ziems v The Prothonotary of the

Supreme Court of New South Wales, (1957)
97 CLR 279, and may I take Your Honours to page 288

where Justice Fullagar said in the new paragraph on

the page:

In a case of this kind it is essential,

in my opinion, to begin by defining the ground

on which an order of disbarment is to be made.

It is stated in general terms by saying that

the person in question is not a fit and proper

person to be permitted to practise at the Bar.

The next question is - at what facts is it

proper to look in order to see whether that

conclusion is established? The answer must

surely be that we must look at every fact

which can throw any light on that question.

And then His Honour goes on to expand upon that in

the next few sentences.

Now, Your Honours, in our submission, the

documents were plainly material. Their weight, of

course, was a matter for the court but the

consequences of their non-admission were

potentially particularly dramatic for the

applicant.

Your Honours, if one looks at the other side

of the coin the only feature that could be said in

support of their non-admission was that three of

the four testimonials had been, as appears from

their dates, in existence at the time of the first
hearing but had not then been tendered. The
fourth, that from Father Connors, came into

existence later as Your Honours will see from its

date.

very briefly, to the reasons of the Court of Appeal Your Honours, could I go then, and I do so	on this question, and may I go first, Your Honours,
to what was said by Mr Justice Samuels at page 48, commencing at about line 10. The particular aspect, Your Honours, is at about line 24 where he
refers to there being -

tributes to the opponent's good character.

That is where His Honour indicates what it was.	He
goes then and decides on the point at page 64,
commencing, Your Honours, at about line 17.	He
says:

Smith.R 9 15/11/91

I have summarised the new evidence ..... I would not take it into account because it is

all material which was available to be

tendered when the original application was

before this Court.

Now, Your Honours, His Honour's obs.ervation that it

was "all material available to be tendered

originally" is not, with respect, correct. One of

the four was not.

Mr Justice Mahoney's decision on the point

appears in two places: page 66, line 20.

Your Honours, it is referred to as being -

evidence which he desired to bring forward at

the original hearing -

but, of course, one of the letters, as I have said,

was not. And then page 73 - - - DEANE J: Which is the one which was not?

MR JACKSON: Father Connors, Your Honour, it is the last, I

think, of the annexures.

DEANE J: Thank you.

MR JACKSON:  Your Honours, page 73, line 18, going through

to the top of the next page, again, there is a

reference, amongst other things, to the fact that

the evidence was available at the first hearing.

Mr Justice Meagher, at page 76, line 22, in

paragraph 5, simply said that:

the application must fail.

Now, Your Honours, in relation to this issue,

one needs to look - and I shall do so very briefly,

indeed - at the state of the proceedings then

before the Court of Appeal. The Court of Appeal

had delivered reasons for judgment. No judgment

had been entered but the reasons, of course, had

contained an error. The court was considering the course which it should take, no final order having

been entered. It was doing so pursuant to the

rule, Part 40 rule 9, which is set out at page 49

of the reasons for judgmen~. All that the	applicant was seeking to do was to adduce further
evidence material to the question of the final order to be made against him.

Your Honours, may I deal with the matter then

on two bases? The first is this: if the

proceedings be - - -

Smith.R	10	15/11/91
DEANE J:	Did the Court of Appeal appreciate that?	I mean,

was that made clear to the Court of Appeal, that

the new material was directed to the order that

should be made and not to the merits?

MR JACKSON:  Yes, indeed, Your Honour. The applicant filed

written submissions on the question in which the

material was referred to and it was expressly

stated as going to the question of the order that

should be made.

DEANE J:	I see.
MR JACKSON:	Now, Your Honours, I said I wished to make two

submissions. The first is this: if one treats the

proceedings as being adversary proceedings, in the

ordinary sense of that term, we would submit that

every consideration of justice would militate in

favour of allowing the evidence at that point

notwithstanding that the parties' cases had been

closed at the original hearing, but, if I could go

on to the second point, if one takes into

consideration the peculiar nature of the

proceedings where the "penalty" - if I could put

the expression in adverted commas - could be

affected by the court's disbelief of evidence given

before it and where one will not know what has

happened until the judgment has been given, we

would submit that the need for a liberal approach

to the exercise of discretion to admit the evidence

is manifest.

Your Honours, I wondered if I might give

Your Honours a reference to some observations of

Mr Justice Sheppard where he summarizes the various

cases dealing with the question of admission of

evidence at a point after the trial has ordinarily

finished, in a practice decision which is reported,

Joyce v GIO of New South Wales, 2 Ritchie Supreme

Court Procedure, 13,028. It is one of the cases in

the bundle of cases, a single page decision, and

His Honour says that the prime consideration is

doing justice between the parties. The relevant

passages, Your Honours, are set out in the first
paragraph, particularly the third and fourth lines

a broad approach and that, we would

and His Honour records a submission and, submission as

submit, is a perfectly correct approach.

DEANE J: Yes. One of your problems, of course, is that in

almost all of the aspects of the case that you were

raising, the Court of Appeal was exercising a
discretionary judgment to a greater or a lesser

extent.

Smith.R 11 15/11/91

MR JACKSON:  Your Honour, I accept that, but having said

that, it is a case where, Your Honours, if one is

endeavouring to find - I am sorry, Your Honours,

may I go back one stage? One is dealing with the

case as being an application for special leave.

The particular basis on which this part of it is

being put, Your Honour, is that in the particular
case the interests of justice merit the grant of it. Your Honours, that means that one does have to

look at what occurred in the particular case. .

Militating in favour of the grant of special leave

is the fact that unlike most cases, one is looking

at a discretion which is exercised for the first

time in the Court of Appeal. There is nowhere to

go apart from here, Your Honours, of course. But,

having said that, if one looks then at the

particular case, it is difficult, we would submit,

with respect, to see that there is any basis upon

which the discretion could have been exercised

against admitting the material.

Now, Your Honours, if that is arguably the

case, we would submit that it is appropriate for
the Court - and, Your Honours, I will not elaborate
upon the facts - to entertain the appeal in the
present case. Your Honours, I do not know whether
I can put it further than that.

DEANE J:  I am not trying to raise problems but I really

want answers. One cannot really assess the force

of what you are saying about this testimonial

evidence without knowing a little more about what

evidence was already before the court. I mean, if,

for example, the court already had 90 testimonials

from barristers and a testimonial from the

Archbishop of Sydney, this additional material

would really have been a waste of time.

MR JACKSON:	Your Honour, I accept that. But the material before the court consisted, as I understand the position, of two things: the first is material in	an affidavit of the applicant, the effect of which	is summarized in the passage of Mr Justice Samuels'
reasons for judgment to which I referred earlier -
page 4. The second thing is that there was one
testimonial and that was an earlier testimonial,
which I am sorry, Your Honour, does not form part
of the material, which was annexed to an affidavit
of the applicant and it was given by an officer of
the Aboriginal Legal Service and that was it.

DEANE J: What about the material before the tribunal? Did

that include any testimonial evidence?

MR JACKSON:  As I understand it, no, Your Honour. As I

understand it, the material is as I have said.

Now, Your Honours, could I just say that in

Smith.R 12 15/11/91

relation to the question of penalty - and this is a

matter to which I adverted before - there were, as

we understand the position, neither written nor

oral submissions made on the question of the

appropriate order to the Court of Appeal on the

first occasion with the exception that there had

been a statement made which appears at pages 112

and 113 of the transcript. I am sorry,

Your Honours, I have omitted to include this in the

documents. May I give Your Honours copies of what

there appears? Your Honours will see at page 112 -

Your Honours, the first page is purely to indicate

the starting date of that part of the transcript -
about a quarter of the way down the page, the

presiding judge asked what were the submissions on

the question of power to make declarations. Now,

Your Honours, on the next page one comes to the

material matter. That is about a third of the way

down the page. And, Your Honours, from there to

the bottom of the page is it.

TOOHEY J:  Mr Jackson, it is right to say, is it not, that

the clarification that was sought of the car park conversation on the rehearing and the testimonial

evidence were directed at the order that ought to

be made, it being accepted that the finding of

unprofessional conduct should stand?

MR JACKSON:  Yes, Your Honour, yes. Your Honour, could I

just indicate exactly how that came about? I can

do so in a couple of sentences. It was accepted

that there were not, in fact, instructions for the

applicant to act in the particular matter. The

issue was whether the applicant reasonably believed

that he had such instructions. The court held that

he could not have reasonably believed that

question. The difference between the members of

the court was on the question whether he had been

telling or not telling the truth when he said that

he reasonably believed, to put it shortly, that

those things had occurred.

TOOHEY J:	You mean, the difference at the rehearing?
MR JACKSON:	Yes, Your Honour.

TOOHEY J: Not on the first occasion?

MR JACKSON:  Yes. Your Honours, could I turn then to the

third question, namely, the test applied by the

majority to determine the order which should have

been made? Now, Your Honours, it is clear, in our

submission -

DEANE J:  Mr Jackson, can I take you back to your second

submission? Am I correct that the basis on which

you refer us to this transcript is really that not

Smith.R 13 15/11/91

much having been said or done about the order on

the first hearing is a consideration favouring

reception of the additional evidence?

MR JACKSON:  Yes.

DEANE J: It is not suggested that the first hearing also

miscarried because he was given no opportunity of

dealing with - - -

MR JACKSON:  No, Your Honour. What Your Honour puts to me

is correct, and what is being said is that in the

light of what had and what had not occurred at the
first hearing, it was made even more appropriate
for the court to exercise its discretion in favour
of the admission of the material and it reinforces

the obverse submission that in circumstances of

that kind no basis could appear for not admitting

the material.

Your Honours, could I, as I said, go to the

third question and that is the question of the test

applied by the majority to determine the order

which should have been made. Now, Your Honours, we

would submit that it is clear from the approach

taken by the majority that they regarded the
decisive consideration on penalty as being the fact

that the applicant had not told the truth to the

Court of the Appeal. Could I, in that regard,

indicate to Your Honours very briefly the passages

in question? The first is that of

Mr Justice Mahoney at page 43. Now, Your Honours

will see at page 43 about line 4 that His Honour

said that he had:

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.

And he went on from there. Mr Justice Meagher, at

page 44, said - and Your Honours will see the

second and third paragraphs. Your Honours, on the

further hearing, Mr Justice Mahoney, in effect,

reaffirmed his previous decision, but

Mr Justice Meagher, at page 76, dealt with the

matter at paragraphs 2, 3 and 4.

Now, Your Honours, could I say first two

things? The first is that it is no doubt correct,

as a broad general proposition, to say, as was said by, for example, Justice Fullagar in the passage to

which I referred a moment ago, that the ultimate

question is whether the applicant is a fit and

proper person to be permitted to practice at the

Smith.R 14 15/11/91

bar and it is also true to say, as has been said by

the Court and I will give Your Honours the passage

in a moment, that the Court has expressed the test

protective and that there is no element of as being that a court's jurisdiction is entirely

punishment involved. That was dealt with by the

Court in New South Wales Bar Association v Evatt,

(1968) 117 CLR 177, at page 183. I am sorry,

Your Honours, I suspect the case is not amongst the

bundle.

DEANE J:  I do not think you need authority for - - -

MR JACKSON:  No. But, Your Honours, it surely, we would

submit, cannot mean - the expression, if I could

put it this way, that there is no element of
punishment involved, in our submission, cannot mean

that considerations which would be material to, if

I could call it "penalty" if one were talking in a

different context, are to be treated as irrelevant
or are to be given a somewhat debased currency when

compared with the entirely protective nature of the

jurisdiction. Your Honours, so much is recognized

in Ziems, 91 CLR, at pages 288, in the passage to

which I referred earlier, and in the judgment of

Justice Kitto at page 298. Your Honours, the

passage commences at the top of the page.

DEANE J:  The problem is that most of our pages have not got numbers.

MR JACKSON: Your Honour, I am sorry. It is in

Justice Kitto's reasons for judgment. It is the	second page. Your Honours will see particularly -
and I would refer particularly to the paragraph commencing in the middle of the page and, also, Your Honours, at page 301, which is the second page
of Justice Taylor's reasons for judgment where
His Honour is speaking of disbarment in a context
of a man who had been convicted of manslaughter,
and says:

But, on the other hand, it cannot be suggested

that a- barrister should be disbarred upon

proof that he has committed any offence

whatever its nature or consequences.

So that, Your Honours, the point I am seeking to make is simply that Ziems recognizes that the case must depend to some extent on circumstances. But what we would submit needs to be further examined

by the Court is the approach to be taken to the

relationship between the character of the conduct

in question and the history of the individual.

Your Honours, of course, the character of the

conduct must be significant because its existence

is the occasion for the potential exercise of the

Smith.R 15 15/11/91

power. But the approach which is currently taken

as evidenced by, for example, Mr Justice Meagher's

approach, is one which gives the character of the

conduct in question a dominance in what must be,

for practical purposes, in every case a dominance

which cannot be justified.

DEANE J:  Mr Jackson, there is obvious force in what you say

but the other side of the coin may be that

traditionally, as I recall the approach of the New

South Wales Full Court or Court of Appeal has been

that if the conclusion is reached that a member of

the bar has, to use Mr Justice Meagher's words, "lied to the court in the proceedings", that is

really the end it, and I think I could name a

couple of cases where that occurred.

MR JACKSON:  Yes.

DEANE J: Well now, obviously, there is room for differing

views about whether that is right or wrong but it

would be very difficult for this Court to say it

was not open to the Court of Appeal to take that

approach.

MR JACKSON: Well, Your Honour, could I say· first a general

thing and then, secondly, a particular thing in

response to that? The general thing is this:

Your Honour, the New South Wales Court of Appeal,

no doubt, and the Full Court before it, may have

taken a particular view but of course, Your Honour,

we are now in a situation which is very different

from that because there are practitioners commonly

practising throughout Australia and the question is

not as - if I might use the expression, with

respect - not as regional as it was and, importance to legal practitioners throughout

Australia and it is a time for the setting of one

standard so far as there are similarities, and

there are obvious similarities because,

Your Honours, apart from anything else, one now has

so much federal jurisdiction which did not exist

before and ·rights to appear derived from that.

Your Honours, the second thing about it is the

particular thing and in that regard what we would

submit is this, that the approach which was taken

by the Court of Appeal is one which, in the end,

was open to him but by approaching the matter on

the assumption that the test to be applied was that

a finding that there had been an untruth told to

it, for practical purposes inevitably merited

striking off, the consequence was that the test

that was applied was not, with respect, a correct

one.

Smith.R 16 15/11/91

TOOHEY J: 

Mr Jackson, you use the expression "striking

off". What were the consequences of the Court of
Appeal's order which was, in terms, that the

practitioner's name be removed from the roll of

barristers?

MR JACKSON: Well, that is it, Your Honour.

TOOHEY J: Yes, but that is it in what sense? You mean, he

was precluded from practising - speaking as one

more familiar with a fused profession, you mean he

was

MR JACKSON: Well, Your Honour, one is admitted as one or

the other.

TOOHEY J: Yes.

MR JACKSON:  So, he was not able to practise as a barrister

barrier to an attempt to seek admission - a

and was not admitted as anything else. And, be a

barrier as a very practical matter -

attempt to seek admission.

DEANE J: The situation used to be that someone in your

client's position, if the order stands, could

obtain permission to be, for example, employed in a

solicitor's office under supervision doing legal

work. Has that changed?

MR JACKSON:  Your Honour, I think the answer is no. Perhaps

I might check on that. I think the answer is no

but, Your Honour, that, of course, is very	much a
third or fourth best.

DEANE J: Yes.

MR JACKSON:  Your Honour, could I also just say this

finally? The issue, as I have submitted earlier,

is one of considerable importance because of the

position in which the applicant is left. His only

prospects, of course, are to do nothing or to seek	at some time to reapply for admission or, as I am
instructed may be the case, to seek, once again at
a later point, to try to set aside the reasons for
decision of the Court of Appeal on the basis of seeking to demonstrate that there was some further material which might have taken into account in dealing with the evidence of Mr McDonald. Those are our submissions, Your Honour.

DEANE J: Thank you, Mr Jackson. Yes, Mr Cowdery?

MR COWDERY:  Your Honours, dealing with the three points in

turn that have formed the basis of my learned

friend's submissions.

Smith.R 17 15/11/91

The submission has been made that the majority

on the second occasion misunderstood the evidence

of the conversation that was given by Mr McDonald

in his further affidavit and the effect of that

further evidence. Might I make these submissions

in that regard? The error, if it be an error, was

enunciated by Mr Justice Mahoney. That occurred in

the second judgment at pages 72 and 74. Might I

take Your Honours to those two passages? At

page 72, at line 10, His Honour referred to "The

Capsanis conversation" or sometimes called the "car

park conversation" and said it -

was significant also because it provided the

basis for the suggestion made by Mr Smith that

the Capsanis hearing having been mentioned

between him and Mr McDonald, Mr Smith could have believed that Mr McDonald was briefing him in the Capsanis proceeding on 11 November

1986.

Might I pause there and remind Your Honours of the

affidavit of Mr McDonald that was filed to be found

at page 85, in which Mr McDonald reaffirmed his

evidence that there was no conversation between

himself and the applicant about the Capsanis

matter, but in paragraph 2 said:

I did have conversation with -

him -

but it is my clear recollection that this

conversation was some days prior to the

"Capsanis" incident.

The "Capsanis" incident presumably being

11 November, the date of the hearing. Paragraph 3:

My clear recollection is that the conversation

was about a client of mine known as Skipper,

not about the Capsanis person.

Returning then to page 72, Mr Justice Mahoney

said:

If the conversation which took place was about the Skipper matter, it could hardly have

supported a belief by Mr Smith that he was

instructed in the Capsanis matter. But, more

significantly, it is clear that, if there was

a conversation bout the Skipper matter, it
took place some weeks before.

And that does not seem to be, it must be conceded, supported by Mr McDonald's affidavit.

Smith.R 18 15/11/91

Mr McDonald's affidavit clearly refers to "some days before". His Honour went on to say:

Mr McDonald did not attempt to pinpoint with

accuracy the date on which, if there was such

a conversation, it took place. But from his

affidavit and from the facts relating to the

Skipper matter, it is clear that, if there was

such a conversation, it was some weeks before

11 November 1986.

Now, that affidavit was part of the material

which, in a strict sense, was not before the court

but which the court referred to and made

assumptions about for the purpose of reconsidering

the judgment and the reasons for judgment that had

been enunciated earlier.

The way in which it is phrased at page 72 is

in these terms, that if the conversation which took

place was about the Skipper matter, certain things

follow from it, and that approach to the question

is repeated at page 74 where, under the heading

"Error of fact", His Honour referred to his earlier

judgment, his acceptance of -

the statement of facts set forth in the

judgment of Samuels JA.

He went on to say:

I shall not detail the process of reasoning by

which I arrived at the conclusions I then

stated or detail which of the facts in

question was significant in it. It is

sufficient to say that, considering the matter

afresh, my opinion in this regard remains what

it was on 9 May 1991.

Now, that was His Honour's finding on that issue at that point. His Honour stated that he had

considered the matter afresh, considered the

process of reasoning that he had formally followed

and, having done that, had found no reason to

change the opinion that he had expressed on

9 May 1991. His Honour went on to say:

On 11 November 1986 Mr Smith knew that

what he told the magistrate in the Local Court

was not correct.

Now, the next sentence, in our submission, might

well appear in parenthesis because it goes over to

the question raised in Mr McDonald's supplementary

affidavit, the question of the conversation being

about Skipper and not Capsanis and the sentence,

Smith.R 19 15/11/91

really, is in isolation in the context of that part

of the judgment.

GAUDRON J: The problem about all this is one finds it

difficult to know how any conclusion could have

been reached about this matter.

MR COWDERY:  About the conversation?

GAUDRON J: Yes, on the basis of which the evidence was

left. It is very strange, is it not: you go back

before a court that has made one finding and on the

basis of what would seem to be incomplete material,

at least, the finding is then reviewed but

confirmed?

MR COWDERY:  And in reviewing that finding, the court,

although not formally admitting material, stated

that it had regard to it. And one of the

statements to that effect is the sentence to which

I have just referred.

GAUDRON J:  It does seem to be a very strange course that

was taken, does it not?

MR COWDERY:  Your Honour, we would submit that it was a

course which operated for the benefit of and in

favour of the applicant.

GAUDRON J:  It is very difficult to see that when you have a

finding, a most damning finding, which forms the

basis, as it were, of why you are back there a

second time and it is then looked at in this

half-light, as it were.

MR COWDERY: Well, the finding that Your Honour refers to as

"a damning finding" was confirmed upon a

reconsideration of the evidence and of the process
of reasoning. There was considered also such

material as the applicant sought to put before the

court on the second occasion on that question of
the reconsideration.	So that the applicant had the

benefit of having that additional material taken into account even though it is expressed to have been dealt with on the basis of assumed material,

for example, in that sentence, the fact that "as I

shall assume there was a conversation about the

Skipper matter some weeks before", and

Mr McDonald's affidavit was an affidavit sought to

be introduced by the applicant, by the opponent at

that time.

GAUDRON J:  Why did it remain in that state?

MR COWDERY: Well, that is a very difficult question for me

to answer, Your Honour. The court appears, in our

submission, to have considered such additional

Smith.R 20 15/11/91

material as was sought to be put before it as would

have some bearing on the findings of fact that it had made and such material as would bear upon the

effect, if any, of the original error in the making

of that finding.

Mr Justice Meagher, both, in the terms of their The majority, Mr Justice Mahoney and

judgments, clearly had in mind all of the

additional material that was sought to be placed

before the court by the applicant, in our

submission, and having considered that, they were

unpersuaded that there should be any change in the

findings that were made originally on the principal
issues.

We take issue with the submission that the

decisive consideration was the question of whether
or not the applicant had lied to the Court of

Appeal. We would submit that the court acted upon

all of the circumstances: that he sought to appear

without the intervention of an instructing

solicitor; that he was not, in fact, instructed;

that he did not honestly believe that he was

instructed; that he lied to the magistrate about
being instructed; that he lied to the disciplinary

tribunal, by inference, and to the court and that

all of those circumstances were matters that were

taken into account by the court in coming to its

decision on the appropriate order, the majority.

DEANE J: Except can you really say that? I mean, look at

page 44 which is Justice Meagher's judgment. It is

a matter of absolute speculation what order if he had not found, as he says, that:

Mr Smith .•... lied to this Court, and on oath.

MR COWDERY:  Yes, although His Honour did say that he agreed

with the judgment of Mr Justice Samuels -

on all matters except the question of penalty.

And in the judgment of Mr Justice Samuels those

findings of fact were made.

DEANE J: But so far as I am concerned, if you were to ask

me what order would the Court of Appeal have made

but for its finding that Mr Smith lied to it, my

answer would be, "I haven't got the faintest idea".

MR COWDERY:  Your Honour, in the circumstances, we would

submit, with respect, that that does not matter

because - - -

Smith.R 21 15/11/91

DEANE J:  I was just querying your suggestion that the

finding about lying to the Court of Appeal was not

critical, or - - -

MR COWDERY:  Not decisive, that is the submission.

DEANE J: Well, not decisive, yes. If one is left with

absolute speculation about what order they would

have made but for that finding, it is so close to

being decisive for relevant purposes that it does

not really matter, but do not let me delay you,

Mr Cowdery. But while I am interrupting: one of

the problems about this approach that if you have

an issue of credibility and you resolve it against
the practitioner, the next step is to say, "Not

only did he do what he is charged with but he has

lied to this court and therefore he is not a fit

and proper person", is that it really represents a
great problem to the proper resolution of issues of

fact. In other words, if a practitioner is faced

with a black and white issue, he is almost faced
with the situation that if he proclaims his

innocence he is going to be struck off for

proclaiming his innocence by the court that finds

against him.

MR COWDERY:  We would submit not, Your Honour, that it does

not follow by a defence to the issue.

DEANE J: Yes, it does not necessarily follow.

MR COWDERY:	No.
DEANE J:	But if the issue is whether A or the

practitioner - A being the person making a charge -

is lying, one does come to the situation where the

court dealing with the matter, if it finds against

the practitioner, is going to, as it were, punish

him for having maintained his innocence.	Now, I am
not suggesting that is wrong.	It has got a problem
though.

MR COWDERY:  Your Honour, we would submit that it does not

necessarily follow that a practitioner maintaining

his innocence and being found to be guilty, as it

were, must necessarily be regarded as having misled

or lied to the court making the inquiry.

DEANE J:  I put to you in a case where it is obvious that

either the person making the allegation or the

practitioner is lying?

MR COWDERY: Well, in that case if it requires a finding in

order to resolve the issue that the practitioner
has lied, then we would submit that as a matter of

general principle there is no objection to that

forming the basis for a disciplinary order. We,

Smith.R 22 15/11/91

with respect, submit that there is no difficulty in

that at all, that it is part of the duty of a legal

practitioner, part of a qualification of being a

fit and proper person to practice that there be

absolute candor with any court and, moving to the

end of that spectrum, that a practitioner not lie

to a court in any circumstances, either as a

practitioner or as a witness. We, with respect,

submit that there is no difficulty about that

proposition, that it is consistent with authority

and with authority throughout Australia, indeed,

throughout the common law world.

GAUDRON J: Except that what you are dealing with is not

necessarily an absolute fact, it is a finding.

MR COWDERY:  Yes, most certainly, Your Honour, yes.

GAUDRON J: And it is a finding which is based on a failure

to believe. It is quite different from a

perjury-type finding where there has to be

something more than a refusal to believe.

MR COWDERY:  In the end result, yes, Your Honour, but there

is another course and the other course was taken in

this case by Mr Justice Samuels who, on reflection

in his second judgment, was not prepared to adhere

to his finding that the applicant had lied to the

court but admitted of the possibility of his being

mistaken or confused or suffering from a defect of
memory. So, there is a different course and it
would only be, in our submission, upon very firm

grounds that a court, particularly a court in these

circumstances, would come to the affirmative

decision that a person has lied, that is,

deliberately told the court something that was

false and that that is a safeguard in the process,

if I could put it that way, that it would be a

finding that would only be reached by a judge of

any court upon very cogent evidence.

But the submission, if I could summarize it,

as to the first point is this, that the Skipper

conversation - - -

DEANE J: But it may be, Mr Cowdery, that if a court is

going to act on its finding that the practitioner

has lied to it, it should not proceed to make an

order without giving the practitioner the
opportunity of leading evidence and dealing with

that finding and its relevance to the order which

should be made.

MR COWDERY:	Your Honours were referred to the transcript, at pages 112 and 113. Although it does not appear
from the document, counsel was present appearing
for the applicant. Counsel's name appears on

Smith.R 23 15/11/91

page 112. Although he was not specifically asked

whether he had any submissions to make on that

aspect of the matter, either on page 112 or

page 113, he was present taking part in the hearing

and certainly had the opportunity to put any

submissions that he might have felt appropriate.

DEANE J: Yes, except it is a very strange opportunity to

say that somebody fighting a charge is expected to

make submissions on the basis that he loses and not

only loses but the court finds that he deliberately
lied in the evidence before the court about the
charge. In one sense, that is a problem that has

occurred over time in other proceedings, I think.

MR COWDERY: Well, Your Honour, it was foreshadowed. At

page 113 at about point 4, Mr Justice Samuels put

the question:

Assume that the court was of the opinion that

Mr Smith knew that he was not properly

instructed and simply went ahead so that his

explanation was to falsely acknowledge and

his evidence is false here as well.

So, it is clear that it was within the

contemplation of the court that there might be a question about that and submissions were invited

and there was an opportunity at that point for

counsel for the applicant to make submissions if he

so wished. And there had been throughout the

course of the cross-examination of the applicant a

clear suggestion that what he said in his evidence

was false, and deliberately false. So, that issue

had been clearly raised in the course of

cross-examination.

Your Honour, the submission on the first point

is that the Skipper conversation deposed to by

Mr McDonald was essentially irrelevant to the

issues that were being examined by the court.	The
question was whether or not there had been a

conversation about Capsanis because without

reference to that particular matter and that

particular name the conversation could have no part also, in our submission, substantially irrelevant.

in the belief asserted by the applicant. And so,
to that extent at least the references by

Bearing those considerations in mind, we would

submit that neither the justice of the particular

case nor the considerations of justice generally

would require the grant of special leave to examine

that issue.

Smith.R 15/11/91

The second point that was raised was the question of the admission of the additional

character evidence. Our submission, in broad

terms, is that that was a matter that was within

the discretion of the court at the time. The court

was reconsidering its findings in the light of a

factual error that had been drawn to its attention.

And at page 48 in the judgment of

Mr Justice Samuels in the second hearing,

His Honour said, at line 5:

The review is sought substantially on two

grounds. First, that there was in my

members of the Court agreed, an error of fact	judgment, in which, in this respect, the other
which, it is suggested, influenced the
findings to which I came and which the other members of the Court adopted. Secondly, the
opponent has filed affidavits offering new
evidence not tendered at the hearing. It was submitted, however, that the interests of
considered. justice required this material to be

And the material was then described in the

judgment. So, the application that was being heard was upon the two bases set out there, and the - - -

GAUDRON J: The context here was a little peculiar, was it

not? I mean, it was not so much a case that had

concluded. I mean, that is one thing, and

different considerations might apply. It was a

case in which the court was being invited to

reconsider and you really come back to that

half-light proposition that I put earlier: how

could there be a reconsideration other than by

having regard to all these things?

MR COWDERY: Well, the curiosity that seems to have occurred

was that the additional material was taken into

account although not formally admitted, and one

sees, time and time again, reference in the

assumptions. being made about it without it being	judgments to the additional material and to
formally admitted.

GAUDRON J: That is not so in the case of the testimonials.

MR COWDERY: No, that material has been treated separately.

GAUDRON J: That, on any view, must bear on the credit of a

person whose credit is in issue in review

proceedings, as it were.

MR COWDERY:  Might I say this, Your Honours, that the

hearing proceeded upon the basis, and the

transcript reflects this, that the applicant was a

Smith.R 25 15/11/91

person otherwise of good character. There was no

suggestion otherwise and that is the way on which

the hearing proceeded and the way in which he was

dealt with. The additional material may have

brought some additional weight to bear upon that

proposition but it was, except for one item,

material that was available at the time of the

hearing and which, for reasons unexplained, was not

put forward by counsel then appearing. Our

submission, in short terms, is this, that it was

within the discretion of the Court of Appeal in
those circumstances, notwithstanding that it was
reconsidering a decision, to refuse to accept that

additional material and that, for that reason,

there is no question raised in respect of that

aspect of the matter that would require or make

desirable the grant of special leave.

The third matter I think I have probably touched upon, Your Honours, sufficiently for our

purposes. We would submit that the final order was

made upon the findings of all of the matters

particularized in the summons to which was added

the finding that he had, in the opinion of the
majority, lied to the Court of Appeal and, in those
circumstances, again, we submit it·was well within

the discretion of the court to make the order that

it did.

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

MR JACKSON:	Your Honours, may I say three things by way of reply? The first is that the issue raised by
Your Honour Justice Deane in relation to the
appropriateness of the procedure of having to deal with questions of "penalty" at the same time as the hearing did arise starkly here because in the way
in which the case arose the applicant did seek to
adduce evidence on penalty but he was not allowed
to do so.

Your Honours, the second point is this: that

our learned friend, in relation to the first

argument which we advanced, said that the passage

at page 74 in the reasons for judgment of

Mr Justice Mahoney should be treated as if they were, in effect, in parenthesis in the context in

which they appeared. Your Honour, I have spoken

about the context already and I shall not repeat it
but, Your Honours, it would be a strange case, in

our submission, where one would treat a matter of

this importance as being determined by parentheses

around a statement which, in any event, is

incorrect.

Your Honours, the third thing is that as to

the ultimate test to be applied, the way in which

Smith.R 26 15/11/91

our learned friend answered Your Honour's question

was to the effect that if in the end on an issue

involving the credit of one of two witnesses the

practitioner was found not to have told the truth,

then the ordinary consequence would be that there

would be an order for striking off. Your Honours,

that would have the effect, if that be the

principle, that every imperfection of personality

manifested in circumstances of stress was to be

disregarded, that the consequence was as appears to

have been the approach taken by the majority that

striking off is automatic.

DEANE J:  Mr Jackson, the Court will give its decision on

this application at 2 pm, but can I ask you this:

if leave were granted, what would you be asking an

appeal court to do?

MR JACKSON:  Your Honour, the case in the end would have to

go back to the Court of Appeal.

DEANE J: And do the matters you have raised fit into the

amended notice of appeal, pages 93 and 94?

Justice Mahoney does not seem to get a mention in

them.

MR JACKSON:  Your Honour, I am sorry. He does, in fact,

Your Honour, that is at paragraph 2(a) about

line 24.

DEANE J:  I am sorry; he does not seem to get a mention in

relation to your primary attack on that second-last

paragraph?

MR JACKSON: Well, Your Honour, I wonder, if the Court were

minded to grant special leave, the Court would

permit us to amend the notice of appeal?

DEANE J: Well, which of those grounds do you say are

relevant, to help our consideration of it?

MR JACKSON:  Your Honour, the grounds that are relevant there are 2(a) as, I suspect, should be amended

somewhat; 2(b) and, Your Honours, the third matter

that I argued is referred to in the affidavit but

it does not seem to be set out in the notice of

appeal. Your Honour, it is encapsulated, in

effect, although I must say perhaps put slightly

differently, in paragraphs 15 and 16(b) at page 82.

Your Honours, the notice of appeal would require
amendment and I would ask Your Honours, if

Your Honours were otherwise minded to grant special

leave, to grant us leave in that regard.

Smith.R 27 15/11/91

DEANE J: As I indicated, the Court will give its decision

in this matter at 2 pm.

AT 11.13 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.01 PM:

DEANE J:  Mr Jackson, in this case there will be a grant of

special leave to appeal restricted to the matters

raised in argument which, of course, will, as you

said, require a different notice of appeal.

MR JACKSON:  Thank Your Honour.

DEANE J: Are there any questions about stays or

undertakings that - - -

MR JACKSON:  Your Honour, the present position is that there

is a stay of the order which will now continue to

operate until the hearing of the appeal. However,
that permitted the applicant only to carry on the

work that he had previously been retained in. Your Honour, we will be seeking to obtain the

agreement of the Bar Association to a variation of

the stay to enable that to be enlarged and if it is

not possible to arrive at agreement, then we would

make an application to the Court.

DEANE J: Very well. The order of the Court is that -

MR COWDERY:  Your Honour, could I just add to what my

learned friend has said. I think the stay was

ordered pending the determination of the

application for special leave to appeal.

DEANE J:	I think that is right.
MR COWDERY:	So there will need to be a further order extending that stay beyond today.
MR JACKSON:	I am sorry; my learned friend is right. That appears at page 87.

DEANE J: Pending the possibility of agreement to the

contrary, the current undertaking will continue.

MR JACKSON:	Yes, Your Honours.
DEANE J:	I note the continuation of the current undertaking

by the applicant. The Court extends the existing

Smith.R 28 15/11/91

stay until the hearing of the appeal or further

order. And, as I said, special leave to appeal is

granted.

AT 2.05 PM THE MATTER WAS ADJOURNED SINE DIE

Smith.R 29 15/11/91