Smith v New South Wales Bar Association

The applicant, Mr. Smith, sought special leave to appeal to the High Court of Australia against decisions of the New South Wales Court of Appeal. The proceedings involved the respondent, the New South Wales Bar Association.

The legal issues before the High Court concerned whether the Court of Appeal had misapprehended evidence regarding a conversation between Mr. Smith and a solicitor, Mr. McDonald, and whether the Court of Appeal erred in refusing to admit evidence of testimonials concerning Mr. Smith's character. A further issue related to the correctness of the approach to be taken in determining the appropriate order, specifically the extent to which Mr. Smith's conduct should be considered dominant in that determination.

The applicant argued that the Court of Appeal's majority had misunderstood the evidence concerning the conversation with Mr. McDonald. Furthermore, the applicant contended that the Court of Appeal wrongly excluded character testimonials, which were relevant to the question of disbarment. The applicant also raised a point concerning the weight to be given to his conduct when deciding on the disciplinary outcome. The High Court was informed that in a subsequent consideration by the Court of Appeal, one judge, Mr. Justice Samuels, concluded he was not persuaded that the applicant had lied to the tribunal, providing a reason against disbarment. However, this view was in the minority, with Mr. Justice Meagher and Mr. Justice Mahoney taking a different approach regarding the significance of the conversation and its timing.