Smith v New South Wales Bar Association

[1991] HCATrans 182

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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

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

Smith 1 29/7/91

AT SYDNEY ON MONDAY, 29 JULY 1991, AT 10.21 AM

Copyright in the High Court of Australia

MR C.T. BARRY:  May it please the Court, I appear with my

learned friend, MR M. BRABAZON, for the applicant.

(instructed by Yvonne Swift and Burn)

MR P.R. GARLING:  May it please the Court, I appear with my

learned friend, MR J. ARMFIELD, for the respondent.

(instructed by Dibbs Crowther & Osborne)

HER HONOUR:  Before we commence, gentlemen: I have had a

quick look at the papers and from reading it, it

appears that the applicant was a Crown Prosecutor

at a time when I was Solicitor-General in

New South Wales. I do not know if anyone has any

problem on that account.

MR GARLING:  We certainly have no difficulty with that,

Your Honour.

MR BARRY:  Would Your Honour pardon me while I just get some

instructions in relation to that?	We have no
difficulty with that.

HER HONOUR:	Thank you, Mr Barry.
MR BARRY:	Can I indicate, Your Honour, what I would seek to

do? Having taken Your Honour to the summons and

the evidence in support, I would then seek to hand

Your Honour a chronology outlining the history of

this matter because the history is a little

complex, both in terms of the applications for

stays in the court below and also in terms of the
number of judgment, there having been two separate

judgments of the Court of Appeal dealing with this

matter. Thereafter, I would seek to hand

Your Honour an outline of argument, that is, the

applicant's argument in support of the application

for the stay and then take Your Honour to the

arguments.

The summons, Your Honour, was the summons that

was filed on 25 July 1991 seeking a stay of the

orders of the Court of Appeal, in effect, striking

off the applicant from the roll of counsel in

New South Wales pending the hearing of the

application for special leave, and if that

application is successful, thereafter pending the

hearing of the appeal.

The evidence in support of the application is

the evidence of the applicant, Ralph Edward Smith.

His affidavit is the affidavit sworn on

25 July 1991.	Does Your Honour wish me to read
that?

HER HONOUR:  No, I do not think so. I am sorry, I have read

most of it.	I have not had regard to the
annexures.	I do not know, do - - -?

Smith 2 29/7/91

MR BARRY:  There is nothing turns on the content of the

annexures and if Your Honour's annexures are not

much better than mine, Your Honour may have had

difficulty in reading them in any event. Some of

the photocopying is not entirely clear. But there

is nothing that turns on the content of the

annexures for the purposes of this morning's

application.

HER HONOUR:	Yes, thank you.
MR BARRY:	The next document then I would seek to - and I

would seek to tender this with one amendment - is a

chronology of what has happened in this matter.

Could I hand Your Honour two copies, one an original and one, perhaps, "a working copy" it

might be described.

HER HONOUR:  Is there a copy for Mr Garling?

MR BARRY:  Mr learned friend has this. He has indicated to

me this, that he has no difficulty with any of the

dates and they are, to that extent, agreed, as it

were, an agreed statement of facts by the parties

except for one entry. That is an entry of

6 November 1986. Now, I think the extent of the

agreement is that if Your Honour were to, by

consent, amend that to "about 6 November 1986".

HER HONOUR:	Yes.
MR BARRY:	Then the whole of that could go in as an agreed

statement of facts. May I take Your Honour through

it? Your Honour will see the applicant's date of

birth; when he was admitted to the Bar; his career,

briefly, set out therein, that he was an

instructing officer with the clerk of the peace,

then a Crown prosecutor. Before being a Crown

prosecutor he was at the private Bar and then has

practised at the Bar from 1984 to date.

The conversation which has now been amended to

read "about 6 November 1986" was a matter which

attracted the review application in the court below

because there was conceded by the Court of Appeal

to have been an error in relation to a finding made concerning that conversation which was the subject-

matter of the second judgment. Your Honour will

see-the reference to 11 November 1986. That was

the date upon which the matter was before the
magistrate out of which the complaint or summons in

the Court of Appeal arose where the applicant was

said to have lied to the magistrate about whether

or not he was instructed. Your Honour will see the

summons was filed by the Bar Association on

17 August. The hearing took place. Then there was

a first judgment of the Court of Appeal; there was

Smith 3 29/7/91

a motion for a stay pending review of the hearing. Your Honour, that was granted. There was then the

motion to set aside the court's order because of
the error of fact disclosed in the first judgment
about that conversation; then there was the

hearing of the application, the second judgment,

whereby a majority of the court affirmed its

earlier order striking the applicant from the roll

of counsel.

The court on that occasion then granted a stay

of the court's order up until 4 pm this afternoon

and when doing so directed that any further stay

that the applicant sought should be sought from the

High Court and not from the Court of Appeal. I

will be taking Your Honour to certain authorities

in relation to the propriety of that order in due

course. And then, Your Honour, the application for

special leave to appeal was filed in the High Court

last Thursday.

The applicant's argument in support of the

application for a stay has been reduced to writing

to a large extent. May I hand Your Honour two

copies of that, one an original and one a working

copy.

HER HONOUR:  Thank you.

MR BARRY: Paragraph 1, Your Honour, I have already dealt

with. Paragraph 2 sets out the relevant principle

applicable in cases of this type. If I may take

Your Honour to Jennings Construction, 161 CLR 681.

The particular passage, Your Honour, which sets out

the relevant principles applicable in applications

of this type is at page 685 at the top of the page.

Mr Justice Brennan set out the relevant matters in

the first paragraph on that page. Those principles

have, themselves, been applied by the Court in one

authority which I have referred, Manfal. I do not

think I need to separately take Your Honour to

that.

The balance of the applicant's argument seeks

to then take Your Honour to the particular criteria

which are set out in Mr Justice Brennan's judgment.

Your Honour will see a reference to other

autporities including a judgment of Your Honour in

Polyukhovic v Commonwealth of Australia and others but I do not believe there is any dispute that the
principles set out by Mr Justice Brennan in the

Jennings Construction case have been applied

consistently as being the relevant ones for the

purposes of this type of application.

The first one, Your Honour, is whether the applicant has failed to take whatever steps are

Smith 4 29/7/91

necessary to seek a stay from the court in which

the matter is pending. In Jennings Construction,

at page 684 point 8, Mr Justice Brennan said this:

When an application for special leave to

appeal is made to this Court, a jurisdiction

to stay may be exercised by the court below

and it is to that court - the court in which

the matter is pending and which is familiar

with the matter - that an application to stay

should first be made. In this case the Court

of Appeal, not wishing to pre-empt the view

that may be expressed in this Court, tailored

its order accordingly. In future, there

should be no inhibition on the court in which

the matter is pending framing a stay order, if

a stay be appropriate, to avoid the necessity

for application to this Court.

Now, following the Court's statement of that

proposition, the Court of Appeal in New South Wales

had, up until this matter was before it, adopted

that practice. If I might take Your Honour to

where that was first done. It is in the matter of John Fairfax & Sons v·Kelly (No 2), (1987) 8 NSWLR 510. At page 512, at about line C, in the judgment

of the court which comprised the President,

Mr Justice Mahoney and Mr Justice McHugh,

Their Honours said this:

Accordingly, upon signification to the

Court of the intention of a party to an appeal

to this Court that it will seek special leave

to appeal to the High Court of Australia, this

Court will in future not insist, as in the

past, that any such stay (except in

exceptional circumstances) should be granted

by a justice of the High Court of Australia.

Instead the Court will normally grant a stay of twenty-one days from the date of the

judgment of this Court, to permit an

application to be made for special leave to

appeal to the High Court of Australia. Such a

stay will normally endure until such

application is made or, if leave be granted,

the appeal pursuant to such leave is disposed

of by the High Court or until the High Court

itself otherwise orders.

That practice was affirmed in the second case

in the outline, that is, Sibuse v Shaw, (1988)

13 NSWLR 125 where Mr Justice Kirby, at page 127C,

said:

In Jennings Construction Ltd v Burgundy

Royale Investments Pty Ltd, Brennan J expressed the view that applications for a

Smith 29/7/91

stay as ancillary to proceedings in the High

Court, should first be made to the court from

which special leave to appeal was sought.

His Honour said that such courts should not

feel inhibited in considering such

applications. He stated that such courts

would often have an advantage over the

High Court of being familiar with the matter

and therefore able to tailor their orders to

meet the particular fact situations of each

case.

And at page 131, at about line D, of the joint

judgment of Mr Justice Hope and

Mr Justice Priestley, Their Honours said:

Since Brennan J made the observations in

Jennings Construction Ltd v Burgundy Royale

Investments Pty Ltd which appear at 684 of the

report, this Court has entertained

applications in the nature of stays pending
application for special leave to the High

Court on a somewhnat different basis from that

previously adopted.

And then he goes on and states the previous practice and then, as it were, declares what the

practice has since become.

Now, in this application, that practice was

not adopted and the New South Wales practice itself

appears to have been one which the High Court or

certainly the Chief Justice has favoured, if I can

take Your Honour to Smith Kline and French

Laboratories {Australia) Limited v Secretary,

Department of Community Services and Health, (1991)

65 ALJR 360, at page 362. That was an

interlocutory injunction case. The only parts of

this judgment which are material are the last two

paragraphs of the Chief Justice's judgment where

His Honour said this:  In passing, I note that Sheppard J

granted an injunction for a very limited

period. I should draw attention to the

comments of Brennan Jin Jennings Construction

Ltd v Burgundy Royal Investments Pty Ltd,

where his Honour said:

"In future, there should be no inhibition on

the court in which the matter is pending

framing a stay order, if a stay be

appropriate, to avoid the necessity for

application to this Court."

His Honour's remarks in that case apply with

equal force to an application for an

Smith 6 29/7/91

determination of a special leave application	interlocutory injunction pending the
and, if special leave is granted, pending the determination of the appeal.

In the result, the application for an

interlocutory injunction is refused.

Now, Your Honour, in this case, for reasons

which appear to be contrary to the earlier practice

of the Court of Appeal and contrary to what the

Court has indicated ought to be done, the stay was

granted up until 4 pm this afternoon. It was

granted because of an indication by the applicant

that he would seek leave to appeal to the High

Court of Australia but it was granted for a limited period, up until 4 pm this afternoon. There is,

therefore, nowhere else that the applicant can go

and, in our submission, the first criterion that is

contained in the judgment of Mr Justice Brennan in

the Jennings Construction case would appear to be

satisfied.

The second criterion is whether the grant of a

stay will cause loss to the respondent. As noted in the written argument that appears to relate to

financial loss and would not be appropriate in this

case.

The third criterion is the balance of

convenience and on the applicant's side, the

applicant submits that there are the five matters

which are particular to him which would support his

application. On the respondent's side there is, of

course, the argument that it is, on the face of it,

undesirable that a barrister who has been ordered

to be struck off by the Court of Appeal should be

allowed to practice pending an application for

special leave but, at the same time, that is in

fact what the Court of Appeal had done in any

event. They had made that order but up until 4 pm

this afternoon.

The final matter, Your Honour, is whether

there is a substantial prospect that special leave

to appeal will be granted. That will involve

taking Your Honour, to the extent that it may

app~ar to be necessary, to the grounds in support

of the application for special leave. They have
been taken in reverse order and the third ground is

the severity of the order.

As is common ground, in this case, the

applicant had been in practice at the New South

Wales Bar for 17 years prior to the order having

been made and had been in practice for something in

the order of four and a half years since the events

Smith 7 29/7/91

which led to the summons being filed by the Bar

Association. The Court of Appeal, or the majority

of the court, took a very severe view of that and I

will take Your Honour to the judgment shortly, but

the approach that appears to have been taken by the

majority was that it was axiomatic that if a

barrister lies to the court he should be struck

off.

Such a view, in the applicant's submission, is

contrary to what had earlier been said in similar

circumstances. May I take Your Honour to what was

said in Ziems v the Prothonotary of the Supreme

Court of New South Wales, (1956) 97 CLR 279. If I

may take Your Honour first to what was said by

Mr Justice Taylor at page 301 to 302. At the

bottom of page 301, His Honour said this:

The first difficulty which arises in the case

will, therefore, readily be appreciated when

it is remembered that the expression

manslaughter is a compendious expression and

that the acts which may constitute it range

from culpable negligence on a particular

occasion to the most infamous and

reprehensible conduct. That being so mere

proof of a conviction for manslaughter gives

no real clue to the conduct of the person

concerned nor could it enable a court to make

any real assessment of his character or

reputation. This could not be done without

some knowledge of the underlying facts.

The Full Court, however, was not

concerned with the appellant's conduct as

such; it was concerned merely with the fact

of conviction and sentence and the underlying

facts were thought by the members of the court

to be irrelevant. But, whilst I respectfully

agree with the observations of the learned

Chief Justice concerning the high standard of

conduct expected and required of members of

the Bar, I find it impossible to assent to the
proposition that proof of the fact of the
appellant's conviction and sentence, without

more, made it inevitable that an order should
be made directing that his name be removed

from the roll of barristers; the vital
question, in my opinion, in such cases, is not

whether a practitioner has been convicted of

an offence against the criminal law but

whether his conduct has been such as to show

that he is unfit to remain a member of his

profession.

In the same case at page 298 point 5,

Mr Justice Kitto said this:

Smith 29/7/91

Yet it cannot be that every proof which he may give of human frailty so disqualifies

him. The ends which he has to serve are lofty

indeed, but it is with men and not with

paragons that he is required to pursue them.

It is not difficult to see in some forms of

conduct, or in convictions of some kinds of
offences, instant demonstration of unfitness
for the Bar. Conduct may show a defect of

character incompatible with membership of a

self-representing profession; or, short of

that, in may show unfitness to be joined with

the Bench and the Bar in the daily co-

operation which the satisfactory working of

the courts demands. A conviction may of its

own force carry such a stigma that judges and

members of the profession may be expected to

find it too much for their self-respect to
share with the person convicted the kind and

degree of association which membership of the

Bar entails. But it will be generally agreed

that there are many kinds of conduct deserving
of disapproval, and many kinds of convictions
of breaches of the law, which do not spell
unfitness for the Bar; and to draw the
dividing line is by no means always an easy

task.

HER HONOUR:  Mr Barry, could you take me to the passages in

the judgment where you say that Their Honours in

the Court of Appeal erred in this respect?

MR BARRY:  Yes, Your Honour. The judgment of

Mr Justice Meagher who, with Mr Justice Mahoney was

in the majority. It is a one-page judgment and

what His Honour said - the whole of his judgment

perhaps I could read:

I have had the benefit of reading in

draft the judgment of Samuels JA, and agree

with it on all matters except the question of

penalty.

HER HONOUR:  I am not too sure that you and I have the same

document.

MR BARRY: It is the first judgment, 9 May 1991. It is the

very last page of that judgment.

HER HONOUR:	Yes, thank you.
MR BARRY:	I had read the first paragraph, Your Honour, and

Your Honour will see there the reference to

question of penalty, indicating, on the face of it,

that His Honour may have been perhaps distracted in

what the nature of the jurisdiction required.

Smith 9 29/7/91

On this question I agree with Mahoney JA,

whose draft judgment I have also read.

Mr Smith lied to the magistrate, and has

subsequently lied to this Court, and on oath.

It must be in the public interest that

the profession be purged of those of its

members who succumb to the temptations of

mendacity. The legal system can only operate

effectively if magistrates and judges can

accept the word of legal practitioners, and it

must be in the public interest that the legal

system can operate effectively.

I agree with the orders proposed by

Mahoney JA.

The relevant passages in Mr Justice Mahoney's

judgment which tend to support two propositions,
first the axiomatic notion that if a barrister is

found to have lied to the court, that disbarment, irrespective of other factors, is the appropriate

order and the second question of whether it is a

penalty is in page 2 of the judgment of

Mr Justice Mahoney. About half-way down the page,

His Honour said this:

One of the things, if not the thing, at the heart of the role of a barrister is that

he is to be both frank and honest with the

court before whom he appears. He is to do

what he legitimately can do for his client.

But in doing that he must not mislead the

court:	a fortiori, he may not tell the court
something that he knows is false.	As

Samuels JA has demonstrated, that is what

Mr Smith did before the Local Court.

But in addition he attempted to support

his case before this Court by saying that he	had a conversation, with Mr McDonald, which,	as Samuels JA has demonstrated, he did not
have. A court cannot place trust in the word
of a person who acts in this way.

And I just stop there to interpose one further

rel~vant matter and that is that what was being

adopted in relation to that conversation was, in

part, which gave rise to the error which brought on

the second hearing.

HER HONOUR:  Mr Barry, the judgments were handed in this

morning, were they not? They certainly were not

available prior to - maybe I have found the

documents, thank you. They certainly were not made

Smith 10 29/7/91

available before this morning and I am not familiar

with them. Now, are you reading from 9 May?

MR BARRY:	Yes, I am reading from the first judgment, that is 9 May 1991 and if Your Honour goes to the very
last page of that, that is the judgment of
Mr Justice Meagher, two points arise: one, penalty
and two, the axiomatic notion.
HER HONOUR:	But now, you cannot be seeking leave to appeal

from this judgment, are you?

MR BARRY:	No, but
HER HONOUR:	What actually is the application that has been

made or is proposed to be made?	It must be from
the second judgment.

MR BARRY: That is so.

HER HONOUR:	And the error that you allege must be in failing to set aside the first judgment, or do you
wish to complain about both judgments? I think
this might actually be important to know.
MR BARRY:	The applicant wishes to complain about both

judgments because both of them must be read
together because what was said by Their Honours in

the first judgment appears to have affected the

view that they took in relation to the second one.

HER HONOUR: Yes. Well, your application is, however, I

think, only made in respect of the second judgment.

MR BARRY: Technically, with respect, Your Honour, that is

correct. If I could take Your Honour to passages

in the first judgment. They are those that I

indicated to Your Honour, but there is one matter

that I do want to say about what was said by

Mr Justice Mahoney and that is the particular

finding of fact which was made at the bottom of

page 2 of his judgment where His Honour said this: I appreciate the pressures that may have

been upon Mr Smith. What he said to the

Magistrate was not, I suspect, premeditated.

HER HONOUR -well, that does not take the matter very far,

does it?

MR BARRY: Well, it does to this extent, that on the

question of a fit and proper person, whether or not

he had told a deliberate untruth as a result of

premeditated conduct may have about it a quality

which is different from somebody who had, as it

were, gone about their conduct in a way which was

planned in advance and in a premeditated fashion.

Smith 11 29/7/91

So that that was a relevant factor, as it were, in

his favour and the particular finding by

Mr Justice Mahoney that it was probably not

premeditated is one that the applicant submits he

can rely on.

Then on the second page, again this is where

the conversation with Mr McDonald arises, one of

the factors which appeared to have influenced

Mr Justice Mahoney was:

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.

That was the conversation which gave rise to the

second application. That was what was said in the

first judgment and to the extent that I can derive

any assistance from it, I rely on it.	The second
judgment which - - -

HER HONOUR:  We are, in any event, at cross-purposes, I

think, Mr Barry. Your application, one would

think, must be to stay the order that emerged from
the first judgment. It is the first judgment that

resulted in the striking off order, is it not?

MR BARRY: That is so.

HER HONOUR:  And the second judgment was merely a

confirmation?

MR BARRY: That is so, Your Honour, yes. Yes, the second

judgment - Mr Justice Meagher said, "I therefore

favour dismissing this application with costs and

confirming our original order", so that in the

second application what they did was confirm the

striking off order.

HER HONOUR: 

That seems to me, at the very least, that you

have got, to obtain the stay, to seek leave to
appeal from the first decision and to bring that
application out of time, I think.

MR BARRY: 

Yes.

HER HONOUR: 

I mean, one can certainly understand how it is that it has not happened, it is merely a question

of the -

MR BARRY: Yes, I am indebted to Your Honour. With respect,

I must do that. I would seek leave to amend the

summons to seek leave to make the application out

of time.

Smith 12 29/7/91

HER HONOUR: Well, I will give you leave to file an amended

summons.	I take it it would be done within a very
short time?

MR BARRY:  Yes, yes.

HER HONOUR: That does also, though, indicate that it has

really got to be with the first judgment that one

finds errors.

MR BARRY:  The error, yes. I had taken Your Honour to what

was said by Mr Justice Meagher. The applicant's

submission is that there are two errors that appear

in Mr Justice Meagher's judgment. The first is

that he approached the matter on the basis of what

penalty should be imposed, which is not the nature

of the jurisdiction. The second is that he took

the view that the order for striking off was

axiomatic once it had been established that

Mr Smith lied to the magistrate and lied to this

court, to the Court of Appeal, and the first ground

of the application for special leave is that both

of those constitute error.

Mr Justice Mahoney who also was in the

majority, at page - - -

HER HONOUR:  Is there a problem about onus of proof or

standard of proof, perhaps, more correctly in the

first judgment?

MR BARRY: 

Yes, the Court of Appeal took the view that the

standard of proof was upon Mr Smith, that it was he
who was required to demonstrate that he had been

truthful, yet he was.not the moving party.

HER HONOUR: 

The problem I am having at this stage is you do

not seem to have formulated matters, really, with

respect to that first decision.

MR BARRY: Yes.
HER HONOUR:	I dare say you really should have two

applications.

MR BARRY:  Yes. Two applications for special leave.

HER HONOUR:-_ I mean, you may be able to rely on errors in

the second but, I do not know, if you want - - -

MR BARRY: Well, the error that the applicant relies upon in

this respect appears in both judgments. To the

extent that the second considers and confirms the

first, the same approach was taken. In effect,

what the Court of Appeal said on the rehearing was,

"It is true that there was an error of fact in the

findings we made about the conversation with

Smith 13 29/7/91

Mr McDonald but notwithstanding that, we take the

view that the orders that were earlier made ought

to be confirmed" and, in that judgment, again, the

view was taken that the finding that he had lied to
the magistrate and the finding that he had lied to

the Court of Appeal warranted an order for striking

off although there were portions of the first

judgment where the Court of Appeal took such a

serious view of the conversation with Mr McDonald,

that appeared to influence the court in the view

that it had formed. Mr Justice Samuels expressed

the view that he had fabricated that conversation

with Mr McDonald. That, Your Honour, was the

conversation where the applicant said he believed

he was instructed because he had had this

conversation with Mr McDonald, his instructing

solicitor, the week before. In the initial

judgment they said the first time he had mentioned

that was in the Court of Appeal, therefore it was a

fabrication. On the rehearing it was demonstrated

Mr Justice Samuels recognized that in the second

judgment that there was an error of fact. He had

in fact given evidence about that before the

Disciplinary Tribunal which led to the reconsideration of that particular finding but ultimately the order was the same.

So, the applicant would submit that the same

error affected both the first judgment and the

second judgment although, technically, the second

one was only confirmatory of the first.

HER HONOUR:	Can I just have regard to your application?
MR BARRY:	Yes.

HER HONOUR: If I just look at that. That just seeks

special leave to appeal from the decision of

4 July.	I guess that that does you no good at all,
does it?

MR BARRY:	No .
HER HONOUR:	But I dare say it does not - in practical

terms, you will have to apply for leave from both.

MR BARRY:	Yes.
HER HONOUR:	Yes, thank you. All right, we are clear about

that.

MR BARRY:  In view of the fact that we are here, may I make

an application now to amend upon an undertaking to

file the necessary amended application?

HER HONOUR: Yes.

Smith 14 29/7/91

MR BARRY: Because, otherwise, we are seeking a stay today

in respect of an application for special leave

which will not ultimately be the application for

special leave.

HER HONOUR: Well, you cannot get a stay on your application

that is before me, really, is the problem or a stay

on that application does you no good.

MR BARRY:	Yes.
HER HONOUR:	But I do imagine, for the sake of completeness,

you have got to deal with both of them in due

course.

MR BARRY:  Yes. Well, I would seek to amend - the summons

for a stay does seek a stay in respect of the

orders made on both occasions. So, perhaps the

summons for a stay is right.

HER HONOUR:  I am looking at your application.

MR BARRY:  Yes. But the application is not. The order that

I would seek in relation to that is that the

applicant have leave to file an amended application
for special leave to appeal from the first order,

that is, the one made of 9 May 1991 and/or the

second one on 4 July 1991.

HER HONOUR:  Yes. I think you will probably have to do

both, will you not?

MR BARRY:	Yes.
HER HONOUR:	You do not object to that?

MR GARLING: Certainly not, Your Honour.

HER HONOUR:  Leave will be granted in those terms.

MR BARRY:  By 4 pm on Wednesday for the amended document?

HER HONOUR:	Yes.
MR BARRY:	May it please the Court.
HER HONOUR:	And, of course, that will extend to the grounds

of appeal because they will necessarily have to

encompass that.

MR BARRY:  And if I could foreshadow to my learned friend I

may be adding an additional ground in relation to

the onus of proof. I do not believe he would have

any objection to that.

So, the first ground which applies to both

judgments is what the applicant contends is an

Smith 15 29/7/91

error in both the reference to penalty and also the
view that telling a lie of itself was the end of
the matter.

Mr Justice Samuels, who was in the minority in the first judgment, took a different view and his

view is at 39 point 2 to 40 point 7. Can I invite

Your Honour to read what His Honour there said

about the same matter?

HER HONOUR:	Yes.
MR BARRY:	And in the second judgment the relevant portions,

the judgment of Mr Justice Meagher, appear to be on page 2 of his judgment. Could I invite Your Honour

to read paragraphs 3 and 4.

HER HONOUR:  Yes.

MR BARRY: Again, the applicant submits that the same two

errors arise. In the judgment of

Mr Justice Mahoney the relevant passage is at

page 9 under the heading "4. Error of fact", if I

could invite Your Honour to read those two

paragraphs.

HER HONOUR:	Yes.
MR BARRY:	Mr Justice Samuels indicated that the error

having been established, led him more comfortably

to take the view that the appropriate orders were

somewhat less than striking off, indeed there was a

significant difference. Mr Justice Samuels took

the view the appropriate order should be that the

applicant be censured and be ordered to pay the

costs, whereas the majority took the view that he

should be struck off. Those matters are, as it were, the first ground upon which special leave

will be sought in respect of both judgments.

The second ground is the failure to admit

testimonials. On the second occasion, the

applicant sought to tender to the court a list of
what could be described as character references.

Whether or not to accept or admit such fresh

evidence on a rehearing undoubtedly involves an

exercise of discretion but the applicant's
sub~ission is that there is no proper basis upon

which the discretion could not have been exercised

other than in favour of that, in view of the nature
of the matter that was before the court. Yet the court, on the second hearing, did not address its

mind to what prejudice or what countervailing facts might persuade them to do otherwise. The applicant

relies upon that in two respects: firstly, a

miscarriage in the exercise of the discretion; but secondly, but more importantly, an illustration of

Smith 16 29/7/91

the approach that the court below had taken to the order that ought to be made in view of the finding

that he had lied to the court, that is the

complaint that they took it to be axiomatic that

striking off was the appropriate order to be made

under the circumstances.

On the application for special leave, the applicant would rely on both of those matters as

being available from the fact that the discretion

was not exercised in favour of the admission of the

testimonials.

The third ground is that the judgment of the majority in the second judgment again contained a

further error of fact. Mr Justice Mahoney found

that the conversation in the carpark with

Mr McDonald that Mr Smith had himself relied upon

in support of this contention that he was retained

in the matter, Mr Justice Mahoney found that that

had occurred some weeks before, in the passage to

which I had taken Your Honour. The evidence of

Mr McDonald in his affidavit was that it had taken

place some days before, that is on about

6 November.	The hearing of the Capsanis matter, as
it was described, took place on 11 November.	So

that there was an error of fact in the finding that

had been made by Mr Justice Mahoney and that matter

had the effect of, in the applicant's submission,
rendering unreliable a judgment thereafter based on

it.

Your Honour, they are the grounds upon which

the application for special leave will be made,

together with the additional ground in relation to

the way in which the Court of Appeal dealt with the

onus of proof as to -

HER HONOUR:  I just asked that question. That may not be

something you wish to rely on.	I do not even know
if you raised it below.

MR BARRY:  And I cannot assist Your Honour in that regard.

I was not in the case in the court below. That

would be something upon which the applicant would

rely because it does appear that the Court of

Appeal took the view that Mr Smith bore the

standard of proving that he was in fact telling the
truth in relation to that conversation. They are

the applicant's submissions.

HER HONOUR:  Thank you. Before you sit down, Mr Barry,

there is one matter about this. I am not in any

position to indicate where or when your application

for special leave might be dealt with, but do I

take it that you would be in a position to deal

Smith 17 29/7/91

with that at such place as is convenient to the

Court?

MR BARRY:	Yes, Your Honour.
HER HONOUR:	I have in mind that it may well be Canberra or

Melbourne, rather than Sydney.

MR BARRY:  Yes, Your Honour. My instructions from Mr Smith

are that he would wish to have the application

dealt with as soon as it could be dealt with by the

Court and wherever is convenient to the Court.

HER HONOUR:	Yes, thank you. Yes, Mr Garling.
MR GARLING:	The application for a stay is opposed. It is

the respectful submission of the respondent to the

application that the application for a stay

discloses no special or exceptional circumstance

sufficient to justify the Court's exercise of its

inherent jurisdiction.

HER HONOUR: Its subject-matter is itself, is it not,

exceptional in one sense? The question of one's

livelihood and professional status is at risk, is

it not, in a way that is somewhat different from an

ordinary judgment?

MR GARLING: Certainly it is different from the ordinary

judgment of argument about property rights or other

such judgments, but it is - - -

HER HONOUR:  Yes, it is different from some matter where

money is to pass hands or interest runs or

something of that nature.

MR GARLING: Certainly, Your Honour. It is no different,

with respect, in concept from a bail application or

the liberty of the subject, in concept, and the

Court has always applied, in matters involving bail

applications, the same test as it applies to

matters involving interlocutory orders dealing with

property rights or matters of mere money.

HER HONOUR: That is not entirely correct, but - - -

MR GARLING: With respect, in my respectful submission, in

dealing with a bail application which arises in the

inherent jurisdiction of the Court, it is the

authority of the Court that special or exceptional

circumstances are to be looked for in considering

whether or not a grant of bail ought be made.

Your Honour adverted to that in a recent decision

of Your Honour on an application, in effect, for

bail in a case of Robinson which was heard, I

think, about a month ago; adverted to that very

point and adverted to the authority of the Court in

Smith 18 29/7/91

Chamberlain (No 1), and I was about to invite

Your Honour's attention to a decision, a photocopy

which has been handed to Your Honour, of

Your Honour's fellow Justice Brennan in Beljajev v

Director of Public Prosecutions, 65 ALJR 400. That

was an application where the applicant sought an

order for his release from custody pending the

hearing of the special leave application.

The circumstance in that had been, as I

understand it, that the trial judge had granted

bail pending the hearing of the trial and the

supreme court allowed an appeal from that decision

and ordered that the applicant be committed to

custody. The applicant filed an application for

special leave to appeal - - -

HER HONOUR: There were, however, very distinct bail

provisions.

MR GARLING: That is so, in Victoria, but may I just take

Your Honour to the remarks of the Court. Firstly,

His Honour at page 400 in the right-hand column, at

about paragraph F, draws attention to the decision of the Court in Federal Commissioner of Taxation v

Myer Emporium, which was a decision dealing with

the question of whether or not a payment of money

ought be made pending an application for special

leave. I need only just invite Your Honour's

attention to the first remarks, namely:

Special circumstances justifying a stay will

exist where it is necessary to prevent the

appeal, if successful, from being nugatory.

Then it goes on to say, at the bottom of that quotation - - -

~

HER HONOUR:  The appeal will to some extent be rendered

nugatory if, in the interim, the applicant is

denied what is at the heart of the appeal, namely

his right to practice.

MR GARLING:  No, with respect, the appeal will not be

rendered nugatory -

HER HONOUR:	To some extent, because he will have been denied his right to practice in the meantime, will
he not?

MR GARLING: He will have been denied his right to practice

pending the appeal, that is certainly so,

Your Honour, but the question - - -

HER HONOUR:  And what happens? The roll is treated as though the order were never made?

Smith 19 29/7/91

MR GARLING: That is so, Your Honour.

HER HONOUR: There may be considerations, like a jury

verdict, which would operate in relation to a bail
application, which would not necessarily operate in

relation to an application of this kind.

MR GARLING:  Yes, may I come back to that, Your Honour. May

I put this submission, with respect. What the

Court has looked at, when dealing with the question
of whether the absence of a stay would render the

appeal nugatory is to look at what would be the

position of the applicant after a successful appeal

had been determined. In other words, assume that

the applicant's appeal is successful, will his

position thereafter be inevitably affected by an

absence of a stay for the period leading up to the

appeal. That is what, in my respectful submission,

the court looks at when dealing with the question

of whether the appeal would be rendered nugatory.

With respect, in this instance, the

applicant's position after a successful

determination of an appeal in his favour would be

precisely the same as it is today, namely, he has

his right to practice; he is able to practice; and

he is able to practice without any fetter on that

right.

HER HONOUR:	And with the same seniority?
MR GARLING:	Yes, Your Honour.
HER HONOUR:	What happens to that period in which he had no

income, and in which his clients were not

represented by him?

MR GARLING:  As to the question of financial position, one

looks at the facts of this case and that is a

matter which is taken into account on the side of

the applicant in a balancing exercise to which, in

my respectful submission, if the Court finds

special circumstances, it comes. But it does not

go to the initial question, with respect - - -

HER HONOUR:  But it is, to some extent, a little like

pe~haps the situation you encounter in other

jurisdictions where the punishment, for example, is

the cutting off of the hand.

MR GARLING: With respect, Your Honour, we do not see that

as an appropriate analogy. This applicant, the

evidence discloses, is not left without income by

an absence of a stay. He has, I do not suggest, as

much income as he otherwise would have, but he is

not left without income. So that is· the first

point, with respect, but we submit that a mere

Smith 20 29/7/91

financial circumstance is not, and is held by this

Court not to have been, a special circumstance of itself. It might be, with respect, one looks at

that question when dealing with a balancing
exercise but, with respect, the temporary removal
of a right to practice, which is what occurs in the

absence of a stay, does not render nugatory the

consequences of a successful appeal to the

applicant.

Might I invite Your Honour's attention to some

of bail in the middle of the left-hand

further remarks of His Honour Justice Brennan in refusal

column and then, between C and Din the left-hand

column His Honour says:

And the question there, of course, was whether

or not the jurisdiction should be exercised.

That case illustrates the necessity to

identify the subject matter of the litigation

in order to determine whether a refusal of a

stay order will render futile the proceedings

in this Court and will prevent a successful

it must be restoration has been omitted,

Your Honour, or return -

to his former position.

In the present case, if no order is made,

will the applicant's right to seek special

leave to appeal and, if granted, to appeal, be

rendered futile if the appellant remains in custody in consequence of the order made by

Marks J? I cannot think that it will. It is

imperative that the jurisdiction to grant a

stay be recognised as extraordinary and that

applications seeking to invoke that

jurisdiction are not made simply in order to

His Honour then refers to some remarks in Edelsten preservation of a status quo. secure the intervention of this Court in the

v Ward (No 2) and he says:

I said that the jurisdiction can be exercised

_ only in extraordinary circumstances and added:

"It is as well to emphasize that

observation again lest the impression be
created that, in the conduct of litigation,
the orders of this Court are available to keep
matters in status quo until the litigation is

finally resolved. That is not the purpose of

the inherent jurisdiction. Something quite

Smith 21 29/7/91

exceptional must be shown before that

jurisdiction is exercised."

His Honour then goes on to say:

This must be so, particularly in the case of

interlocutory applications in a criminal

jurisdiction.

His Honour then refers to some remarks in

Clarkson's case and then at about Bin the right-hand column says:

The jurisdiction of this Court is not

fitted to the supervision of interlocutory

processes of a criminal trial. It is not

therefore necessary for me to consider the

strength of the application for special leave

which is now pending in this Court. All that

is necessary for me to determine is whether

the applicant's right to seek special leave to

appeal and, if granted, to appeal, would be rendered futile if the appellant remains in custody in consequence of the order made by

Marks J. ·

Then His Honour goes on to consider that question and finds, in the circumstances of that case, that

a stay ought not be granted. In my respectful

submission, Your Honour - - -

HER HONOUR:  What happened in Edelsten v Ward? What was

that an application to stay?

MR GARLING: Edelsten v Ward was, to my recollection, an

application to stay an order striking Dr Edelsten

from the roll of medical practitioners pending an

application for special leave. Ward, I think, was

the name of His Honour Judge Ward who headed the

medical tribunal that heard the decision and it is

my recollection that that application failed,

although I cannot say to Your Honour that I have

read the reported decision.

HER HONOUR: There had been an appeal, had there, to - - -

MR GARLING:  An appeal as of right to the Court of Appeal

anci_ there was then an application for special leave

to this Court, and it is my recollection, although

I can have the case turned up for Your Honour, that

the application for a stay pending that special

leave application was dismissed. Your Honour, it

is therefore our submission that one starts the

inquiry on an application such as this by looking

for special or exceptional circumstances over and

above the preservation of the status quo and, with

respect, in the circumstances of this case, the

Smith 22 29/7/91

applicant simply seeks what is in effect a

preservation of the status quo and cannot point to

any factor which renders the result of a successful

appeal nugatory or futile.

All that is in contemplation is the right of

the applicant to practice pending the determination of the appeal. Firstly, the ability to practice as

a barrister is not an inalienable right. It is a

right which continues, in effect, during the good

conduct of a person who holds a practicing

certificate. Secondly, it is to be recalled that

this Court has said on many occasions, in matters

involving the disciplinary role and jurisdiction of

the Court of Appeal of State supreme courts, that

this Court intervenes in such matters with the

greatest reluctance. That, Your Honour, has been

oft repeated by this Court in cases starting as far

back as re Lenehan, 77 CLR. The reasoning behind

that is that the disciplinary jurisdiction of a

particular supreme court is peculiarly something

within their own area. I do not mean to suggest,

Your Honour, that the Court does not intervene, but

it does so with reluctance.

Thirdly, it is my respectful submission that

the process through which the applicant has gone by

which he arrives here demonstrates that the Court

of Appeal has given the greatest and most careful

consideration to the applicant's position. What

has occurred is this: in respect of the first

judgment of 9 May, the Court of Appeal delivered

that judgment consequent upon a three day hearing

before it. There is an extensive analysis of the

factual position by Mr Justice Samuels - and may I

interpolate to say, with respect to the question of

onus of proof that Your Honour raised, at page 27

of His Honour's judgment of 9 May he specifically

and plainly deals with that in what I submit are

unexceptional terms. At page 27 His Honour

completes a review of the factual material and then

at about point 5 he says this:  Hence, I am comfortably satisfied -

and refers to the decision of Briginshaw -

that the opponent did not believe on

reasonable grounds that he was instructed by

Malcolm McDonald & Co to appear for Andrew

Knight. That finding determines

particular (a) in the schedule.

That is a reference, Your Honour, may I indicate,

to the fact that the way in which these proceedings

were developed was there was a sched~le to the

Smith 23 29/7/91

original summons setting forth the matters of fact

giving rise to the complaint.

It may be that, strictly, the opponent's

answer to this first complaint, namely that

although he was not in fact instructed he

believed on reasonable grounds that he was, is

strictly matter of exculpation or excuse, the

onus of establishing which lies on the

opponent. If so then, a fortiori, I am not

satisfied on the probabilities that the

opponent held the belief he asserts.

So His Honour, adverting to the onus, found that

the claimant - - -

HER HONOUR: Is that right? Is that right, what His Honour

said.

MR GARLING:  Yes, Your Honour, with respect. He found that

the claimant - - -

HER HONOUR:  Why would it not, being a matter of exculpation

or excuse, reverse the onus? I mean His Honour

does not rely on it so it does not matter, but that

might be so in an analogy from a civil matter, but

it would not be the analogy you would draw in other

jurisdictions, would it?

MR GARLING:  I think it is an analogy to which His Honour is

referring in terms of a statutory proviso or an

exculpatory provision in a statute where, for

example, a person is found on a premises without

reasonable cause or excuse. I think that is the

matter to which His Honour is referring but, in my

respectful submission, what that paragraph

demonstrates is that His Honour has held that the

claimant, ie the Bar Association, has made out its
case to the Briginshaw standard in respect of

satisfying the court that the opponent did not have

the belief which he asserted.	So that even if in
one sense he has considered the second step, .that

is irrelevant, because he has in fact relied on the

first step.

HER HONOUR:	Yes, nothing turns on it.
MR GARLING:-_Nothing turns on it.	I just thought I ought

draw that to Your Honour's attention. What

occurred in the first judgment was each of
Their Honours found professional misconduct.

Their Honours Mr Justice Mahoney and

Mr Justice Meagher thought the appropriate order

was a striking off order and in considering that,

it is plain from the terms of both their judgments

that they looked at the question of the proper

protection of the public and membership of the Bar,

Smith 24 29/7/91

having regard to the individual conduct of the

applicant.

What then occurred was this, Your Honour:

before the formal entry of the order the applicant

moved for a review of the factual basis giving rise

to the finding of professional misconduct and,

consequently, the orders that were made. That,

Your Honour, is the second decision of the court of

4 July.

HER HONOUR:	Has the order in fact been taken out?
MR GARLING:	No, because there is a stay of it up until 4 pm

today.

HER HONOUR:	Of course.
MR GARLING:	But on 4 July, what occurred is that after a

further full day's hearing the court reviewed the factual findings and affirmed the factual finding

that there was no conversation of the type relied

upon by the applicant, namely, sufficient to ground

a basis for saying to the magistrate that he was

properly instructed. · The only difference in the

second judgment is that Mr Justice Samuels said, "I

am not prepared to find that it was a deliberate

invention.", whereas Mr Justice Mahoney and

Mr Justice Meagher did not vary their original

findings that they formed the view that it was a

deliberate invention.

In reaching those findings, as an examination

of the judgments will show, with respect,

Your Honour, the court relied upon demeanor; it relied upon the demeanor of the applicant and

Mr McDonald, who was the competing witness; it

preferred Mr McDonald's evidence, having weighed up

that evidence in the witness box and then, on a

review, which is really the second procedure

through which they went, carefully reconsidered all

questions of fact but resolved not to vary their

original finding.

Now the task, with respect, that the applicant faces in establishing before this Court that there

has been a factual error sufficient to justify a

grant of special leave is a very hard task indeed

where the court has, in effect, had the opportunity

and has conducted its own review of factual

findings. In order to succeed on a grant of

special leave, the applicant will need to

demonstrate, in my respectful submission, that the

review carried out by the court also fell into error sufficient to justify a grant of special

leave. In my respectful submission, having regard

to the way in which the proceedings were dealt with

Smith 25 29/7/91

by the Court of Appeal, the likelihood of the applicant obtaining a grant of special leave,

should that be a relevant consideration, is not so

plain as would necessitate a stay.

May I finally respectfully submit this: if

the Court is otherwise satisfied that there are

special or exceptional circumstances, this Court

must come to a question of whether, in the exercise

of its discretion, a stay ought be granted. The

Court of Appeal has delivered an order that - - -

HER HONOUR:  I do not understand this order until 4 pm

today. How did that come about and why was it in

those terms?

MR GARLING:  There were no reasons delivered by His Honour

such that I could answer Your Honour's question

from something which fell from the court. I would

submit that the inference that Your Honour should

draw from the fact that it was granted until 4 pm

today is that, in the full knowledge of the

authorities and the practice to which Mr Barry took

Your Honour, the court was not persuaded that it was an appropriate case for it to grant a stay.

HER HONOUR:  Then you would not grant any stay at all, one

would think.

MR GARLING: Well, Your Honour, that would be one logical

consequence of the submission but, in my respectful

submission, what the court was trying to do was to

indicate, on the one hand, that it was not of the

view that it was appropriate to grant a stay.

However, having regard to the particular subject-matter, that they would afford the

applicant the opportunity of moving this Court, and

that is what it has done. But, in my respectful

submission, the inference that this Court, if it is

a relevant inference, should simply draw from that

decision the view that the court did not think it

open-ended stay in the sense that it would depend	appropriate to grant what, in effect, would be an
upon when the application for special leave was
heard and whether or not, if that was granted, when an appeal was heard and determined.

- _ But secondly, with respect, the question that

Your Honour must give careful consideration to is whether the interests of justice in the State of

New South Wales are properly and adequately served

by the granting of a stay. The court's careful

finding, in my respectful submission, demonstrates

a view that the applicant is unfit to practice.

That finding stands unless and until it is

overturned by this Court. The interests of justice

in the State of New South Wales, in my respectful

Smith 26 29/7/91

submission, would necessitate that that finding be

permitted to stand unless and until it is

overturned by this Court and that the need to grant

a stay by Your Honour would be outweighed by the

need to protect - - -

HER HONOUR:	That is an odd submission in view of the continued practice up until 4 o'clock today from
the events in question.
MR GARLING:	No, with respect, not.

HER HONOUR: There is no suggestion, is there, that this

conduct has involved any dereliction of

responsibility to clients?

MR GARLING:	Your Honour, with respect, I do not accede to that proposition for this reason, that the conduct
in question was that the applicant was appearing in a local court without the intervention of an instructing solicitor and contrary to the practice
of the Bar in this State and that conduct may well involve the notion of dereliction of duty.

HER HONOUR:  The Court of Appeal did not think that. The

Court of Appeal thought that the general arrangement, if sustained, involved no problem.

MR GARLING:  That was not the issue that was before the

court, with respect.

HER HONOUR:	No, of course not.
MR GARLING:	So one would not have expected the court to

have determined it, but may I say this: it is

certainly clear that at no stage since

11 November 1986 is there any suggestion that the

conduct of the applicant has involved the

dereliction of duty to his client. May I answer

Your Honour's proposition in that way.

HER HONOUR:  So in those circumstances, the interests in the

administration of justice have got to be looked at

from the perspective not of clients, not of the

public, but of the courts, is that right?

MR GARLING:	Yes, Your Honour.
HER HONOUR:	And you say, well, that may have an adverse impact on the clients in any event?
MR GARLING:	Yes, Your Honour, for this reason, that as

Your Honour no doubt is well aware of what this

Court said in Ziems' case, (1957) 97 CLR 279, and I

invite Your Honour's attention in particular to

what His Honour the Chief Justice, Mr Justice Dixon

Smith 27 29/7/91

said, at the bottom of page 285, the last

paragraph:

In dealing with the question whether a man should remain on the roll of barristers the special if not singular position of

counsel should be borne steadily in mind. If

counsel is adequately to perform his functions

and serve the interests of his clients, he

should be able to command the confidence and

respect of the court, of his fellow counsel

and of his professional and lay clients. When

a barrister is justly convicted of a serious

crime and imprisoned the law has pronounced a

judgment upon him which must ordinarily mean

the loss by him of the standing before the

court and the public which, as it seems to me,

should belong to those to whom are entrusted

the privileges, duties and responsibilities of

an advocate. There may be convictions for a
crime of which this is not true, but I cannot

think that the present is one of them.

The part of that passage to which I invite

Your Honour's particular attention is the sentence

commencing:

If counsel is adequately to perform his

functions and serve the interests of his

clients, he should be able to command the

confidence and respect of the court, of his

fellow counsel and of his professional and lay

clients.

The question is whether, having regard to the

particular conduct in this case, this counsel can

continue to command the respect of the courts, the

confidence of his fellow counsel and his lay

clients and, in my respectful submission, if

Your Honour is not satisfied that he can, then the

interests of justice are not served by permitting
him to practice.	So it becomes not just a question

of whether or not in dealings with one or other of
those elements he has not fallen under notice
adversely since the instance in question and it is

for that reason, Your Honour, I put the submission

that I put that in any balancing exercise, having

reg~rd to the protective nature of the

jurisdiction, Your Honour should look at and

consider the question of the interests of justice

in New South Wales.

Your Honour also asked a question about this

applicant continuing in practice. In the affidavit

of Mr Smith of 25 July 1991 which was read to

Your Honour earlier, in paragraph 5 there is a list

of matters which are presently in prospect and on

Smith 28 29/7/91

that page is a reference to an undertaking which

the applicant gave to the Court of Appeal on

4 July 1991 - - -

HER HONOUR:	No, I do not know about this.
MR GARLING:	Does Your Honour have the affidavit?
HER HONOUR:	Of the applicant?
MR GARLING:	Of the applicant of 25 July 1991.

HER HONOUR: Yes, thank you.

MR GARLING:  In paragraph 5, which is on page 2, there is a

list of various matters. If Your Honour goes down

to 2 September 1991, the largest paragraph, the

applicant says:

I have been asked to act, but in accordance

with my undertaking on 4.7.91 have not

accepted this brief. If stay is granted I

would like to appear in this matter. I

already am to appear for McHenry in another

matter.

I can inform Your Honour this that on

4 July 1991, which is when the first stay was

granted by the Court of Appeal, immediately it

handed down its second decision, the court sought an undertaking from the applicant which was given

that he would not accept any new briefs, and it is

a reference to that undertaking that that paragraph

refers. If Your Honour were minded to grant a

stay, we would ask that a similar undertaking be

proffered to this Court.

HER HONOUR:	Yes, thank you.
MR BARRY:	Your Honour, the position of somebody who is

seeking bail is in, in my submission, a radically

who is seeking a stay pending an application for	different situation than the case of a barrister	special leave to appeal. If a stay is not granted
and Mr Smith succeeds in his application and
thereafter in his appeal, he then becomes the
barrister who was struck off, who had the damage to
his_professional reputation caused by the practical
effect that if people ring him up or seek to have
conferences with him or whatever, he may have no
dealings with them. That damage to reputation is
something that, in my respectful submission, must be permanent as a result of his failure to succeed
in an application for a stay. That is quite a different situation then the situation of the
applicant in the matter to which my learned friend
took Your Honour.

Smith 29 29/7/91

Secondly, my learned friend relies upon the process in support of his opposition to the

continuation of a stay. One of the peculiar

features about the process in this application is

that the Court of Appeal was sitting, in effect, as

a primary tribunal and not as an appellate tribunal

because they heard evidence for three days and they

then determined questions of fact. So that in a

sense when the matter comes before the High Court

it does not come as it were after it had been

through the process of an appeal in the ordinary

sense, but it comes from a primary tribunal, namely

the Court of Appeal to this Court, so the process,

in my submission, is one which is more likely to

attract an order for a stay than might otherwise

have been the case.

The third matter is that if what my learned friend says is right, it is a bit odd that a stay

would be granted pending an application for special

leave to appeal but then, when granted, not

thereafter. In effect the applicant has received

half a stay, even though the Court of Appeal

plainly took the view that a stay for some term was

appropriate.

The next matter raises the question of the

protection of the community. As I understand the

argument, there is something in the particular

conduct which is relied upon, and Your Honour has

been taken to the fact that in the four and a half

years that has elapsed there has been no other
matter. It is of course relevant that in the

17 years which preceded the particular conduct

which grounded the summons there have been no

complaints and in six of those years the applicant

held the commission as a Crown prosecutor which he

resigned for reasons of ill health. When it comes,

as it must do, to a balancing exercise, the

applicant would submit that those factors are as

relevant as the four and a half years since.

As far as the undertaking is concerned,

Your Honour may have difficulty understanding what

it is about the clients who Mr Smith was already

retained to appear for as set out in paragraph 5

which puts them in a different circumstance in

te~s of their protection than other members of the

public, and in those circumstahces - - -

HER HONOUR: These are all matters that are - some are part

heard - - -

MR BARRY:  Some of them are part heard, yes. In respect of

those matters there are, of course, considerations
of the interest of administration of. justice in

relation to conduct of those which are different,

Smith 30 29/7/91

but in relation to others, plainly enough

Mr McHenry, as he is identified, Your Honour will

see at the end of paragraph 5 on the next page of

the affidavit, there is a reference to a matter of:

Date not finalised yet	: Odgen v McHenry -
Local Court Wyong

Plainly enough, as is said in the affidavit,

Mr McHenry, for whatever reason, seeks that

Mr Smith be retained as his counsel. So there is

the deprivation to Mr Smith which, in my respectful

submission, could not be regarded as anything other

than permanent on any view of it.

Secondly, of course, there is the reliance in

relation to clients who are part heard and the
dislocation that that might cause in relation to

their matters being disposed of in the ordinary

way. So that as far as there is - - -

HER HONOUR:	How was the undertaking originally given?
MR BARRY:	I do not have the form of it, Your Honour.
HER HONOUR:	No, not the form; I mean the circumstance. Are you opposing the giving of an - - -
MR BARRY:	The applicant's submission would be that it is

not necessary, but - I do not know how to put this

politely, Your Honour, but if it be the case that

he cannot get a stay unless he gives an

undertaking, then plainly he would do so.

HER HONOUR:  The difficulty I have with this undertaking,

Mr Barry, is simply this: it seems to me it may

have been a matter that was involved in the

decision of the Court of Appeal. I am in no

position to do anything other than reach a

superficial judgment about the issues involved and

then only to the extent that that is necessary for

dealing with the stay application. I would have

some difficulty in proceeding on the assumption

that such an undertaking had really no role to

play.

MR BARRY:  My learned friend wishes to say something on

thi~.

MR GARLING: Could I just hand to Your Honour a three-page

document that was given to me after I had sat down

which contains a very short statement of the court

when the stay was granted and the undertaking was

sought and the terms of the undertaking.

MR BARRY:  I have not seen that.

Smith 31 29/7/91

HER HONOUR:  Perhaps Mr Barry should have a look at that and

then we will both be advantaged.

MR GARLING:  Because that, I think, may answer Your Honour's

question and Your Honour, I think, should have

that.

MR BARRY: Will Your Honour pardon me just a moment while I

read this. This is the first time I have seen

this. My learned friend does not usually do this.

MR GARLING:	I had not seen it either.
MR BARRY:	Yes, I have read that. Might I hand that to

Your Honour. It does deal with the matters that

Your Honour has raised.

HER HONOUR:  Yes. Now that is concerning the stay. I was

really -

MR BARRY: At the bottom of page 2, I think, is the form of

the order, the last sentence I think.

HER HONOUR:	Yes.
MR BARRY:	I can indicate, Your Honour, that my instructions

are that Mr Smith would be prepared, if Your Honour
required it, to give a similar undertaking,

although again, Your Honour would be in a better

position that I would to know what the listing

arrangements might otherwise be, but if it were for

a period much in excess of - that really are his

affairs up until December - one would hope that the

Court may otherwise be able to dispose of the

special leave application before then. That would

be the only difficulty.

HER HONOUR: Perhaps not in Sydney, though.

MR BARRY:  I think I have indicated, Your Honour, my

instructions in that regard.

HER HONOUR:	I am satisfied, gentlemen, that this is a case involving special or exceptional circumstances.
The issue which is involved in the application and
the proposed application for special leave to
appeal is one of the applicant's right to practice
and~ indeed, to continue representing litigants in
some cases in which he has already given professional advice or services, in other cases in
which his services have been requested.
It seems to me that were no stay to be granted the appeal would be rendered futile, at least to
the extent that he was unable to practice and
unable to represent clients in the period between

Smith 32 29/7/91

4 o'clock today and the time at which the appeal

were determined.

As to the balance of convenience and the

matters which have been put, I simply note that

there is no suggestion that any matter other than

that which has led to the order reflects in any way

upon the professional ability of the applicant or

can be made or has been made the basis of any

suggestion of dereliction of duty towards his

clients.

In those circumstances I would, on an

undertaking on terms such as that given to the

Court of Appeal, grant a stay until the

determination of the application for special leave
to appeal. That would mean that, of course, it

would be necessary to apply for a further stay at

that time.

Now, I should certify that this is an

appropriate case for counsel to attend, should I?

Do I need to certify?

MR GARLING:  I think Your Honour does need to certify for

counsel and would Your Honour perhaps reserve the

question of costs of this or order that costs be

costs in the cause.

HER HONOUR:	I think costs in the cause.
MR BARRY:	Yes, may it please the Court.

MR GARLING: If the Court pleases.

HER HONOUR:	Is there anything else that needs to be done?
MR GARLING:	Not so far as the respondent is concerned.

MR BARRY: Just this one formal matter - - -

HER HONOUR: I think perhaps the undertaking should be noted

and I think also one should note the need to file

an amended notice of appeal.

MR BARRY:	Could I ask Your Honour for an order that the applicant file an amended application by 4 pm on
Wednesday?

HER HONOUR:  Yes. Now, the terms of the undertaking is not

to accept fresh briefs or other professional

engagements pending the hearing of the application

for special leave to appeal.

MR BARRY: That undertaking is given, Your Honour.

Smith 33 29/7/91

HER HONOUR:  And it will be a matter for you to'consider

whether that matter should be taken further at that

time.

MR BARRY:	Yes, Your Honour.
HER HONOUR:	There will be an order in those terms.
MR BARRY:	May it please the Court.

AT 11.56 AM THE MATTER WAS ADJOURNED SINE DIE

Smith 29/7/91