The Council of the New South Wales Bar Association v Davison

[2006] NSWSC 65

CITATION:	THE COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION v. DAVISON [2006] NSWSC 65
HEARING DATE(S):	4, 5, 6, 7 October 2005
JUDGMENT DATE :	28 February 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	(1) A declaration that, since on or about 10 November 2001 until 30 September 2005, the defendant has practised as a barrister without being the holder of a current practising certificate issued by the Bar Council under Part 3 of the Legal Profession Act 1987, in contravention of s.25(1) of the Legal Profession Act 1987; (2) An order pursuant to s.720(1) of the Legal Profession Act 2004 restraining the defendant from practising as a barrister in contravention of s.14(1) of the Legal Profession Act 2004 by:- (a) providing, for a fee, as defined in Schedule 1 (“Fee”), advice involving the application of legal expertise in relation to a claim under any legislation or environmental planning instrument, or at common law; (b) providing, for a fee, advice involving the application of legal expertise in relation to the preparation and conduct of any proceedings, as defined in Schedule 1 (“Proceedings”); (c) providing, for a fee, advice involving the application of legal expertise, and including statutory interpretation and the application of case law, in relation to rights and obligations under any legislation or environmental planning instrument or at common law; (d) providing, for a fee, advice involving the application of legal expertise in relation to the evidence of any expert or other witness in connection with a claim under any legislation or environmental planning instrument, or at common law, or proceedings; (e) providing, for a fee, advice involving the application of legal expertise in relation to a decision, judgment, order or determination in proceedings; (3) In this order, the terms “fee” and “proceedings” have the following definitions:-; “Fee means any hourly or daily remuneration, payment for the reimbursement of expenses, retainer, salary, success fee, expectancy, direction of remuneration to a company for the provision of services by the defendant, or other form of valuable consideration. Proceedings means proceedings in any court, including any body described as a court, or any other judicial or statutory tribunal, statutory investigation, mediation, or compromise negotiation.”; (4) It is noted that, in accordance with s.14(3) of the Legal Profession Act 2004, nothing in this order is intended to interfere with the performance of any general legal work by the defendant for Walker Corporation Pty. Limited, insofar as it is done by the defendant:- (a) in his capacity as an employee of Walker Corporation Pty. Limited; and (b) in the ordinary course of his employment by Walker Corporation Pty. Limited; and (c) for which he receives no fee, gain or reward for so doing other than his ordinary remuneration as an employee of Walker Corporation Pty. Limited.; (5) I grant leave to the parties to make any further submissions in relation to the declaration sought in paragraph 2 of the Further Amended Summons.; (6) I grant leave to the parties to adduce any evidence in relation to the matter referred to in paragraph [177] or for the Court otherwise to be advised on that matter by agreement between the parties.; (7) I grant leave to the parties to make any submissions on the question of costs.
CATCHWORDS:	Plaintiff contends the defendant has practised as a barrister without holding a current practising certificate - contravention of the Legal Profession Act - wilfully and without reasonable excuse - plaintiff seeking a declaration that the defendant is guilty of professional misconduct - plaintiff seeking an order restraining defendant from practising as a barrister in contravention of the Legal Profession Act - practice as a barrister - work or services provided by the defendant - whether the defendant gave legal advice - town planning advice - distinction between work or specialist barristers in areas of local government, planning and environmental law and that of town planners - Jones v. Dunkel inference - defendant and his wife were not called to give evidence - "must not practice as a barrister or solicitor"
LEGISLATION CITED:	Legal Profession Act 1987 Legal Profession Act 2004 Land & Environment Court Act 1979 Administrative Decisions Tribunal Act 1997 Environmental Planning & Assessment Act 1979 Land and Environment Court Act 1979 Legal Profession Act 1968 (Vic)
CASES CITED:	Prothonotary of the Supreme Court of New South Wales v. McCaffery [2004] NSWCA 420 Briginshaw v. Briginshaw (1938) 60 CLR 336 New South Wales Bar Association v. Harrision [2001] NSWADT 213 Neat Holdings Pty. Limited v. Karajan Holdings Pty. Limited (1992) 67 ALJR 170 Kekatos v. The Council of the Law Society of New South Wales [1999] NSWCA 288 Makita (Australia) Pty. Limited v. Sprowles (2001) 52 NSWLR 705 Ironhill v. Transgrid (2004) 139 LGERA 398 Jones v. Dunkel (1958) 101 CLR 298 Manly Council v. Byrne [2004] NSWCA 123 State Bank of NSW v. Brown (2001) 38 ACSR 715 Re Veron: ex parte Law Society of New South Wales (1966) 34 WN 136 Coe v. New South Wales Bar Association [2000] NSWCA 13 Re Mack; ex parte New South Wales Bar Association (1968) 88 WN (NSW) Pt.1 68, 70 Australand Holdings Limited v. Hornsby Shire Council (1998) 98 LGERA 312 Weal v. Bathurst City Council & Anor [2000] NSWCA 88 In re Sanderson ex parte The Law Institute of Victoria (1927) VLR 394 Downey v. O'Connell (1951) VLR 117 Cornall v. Nagle (1995) 2 VR 188 Apothecaries Company v. Jones (1893) 1 QB 89 Knott v. Physiotherapists Registration Board (1961) WAR 70 Felman v. Law Institute of Victoria [1998] 4 VR 324 ICI Australian Operations Pty. Limited v. Trade Practices Commission (1992) 110 ALR 47 Iannella v. French (1968) 119 CLR 84 Fitzgerald v. Montoya (1984) 16 NSWLR 164
PARTIES:	THE COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION v. DAVISON, William Roy
FILE NUMBER(S):	SC No. 13657 of 2005
COUNSEL:	Plaintiff: C. Adamson, SC./S. Pritchard Defendant: In person
SOLICITORS:	Plaintiff: Eakin McCaffery Cox Defendant: N/A

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL, J.

TUESDAY 28 FEBRUARY 2006

No. 13657 of 2005

THE COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION v. WILLIAM ROY DAVISON

JUDGMENT

1 HIS HONOUR: The plaintiff, The Council of the New South Wales Bar Association (“the Bar Council”), commenced proceedings against the defendant, William Roy Davison, by summons filed on 15 August 2005. Subsequently, an amended summons was filed on 14 September 2005 and a Further Amended Summons on 5 October 2005. The plaintiff contends that the defendant has practised as a barrister without being the holder of a current Practising Certificate issued by the Bar Council under Part 3 of the Legal Profession Act 1987 and by so doing has contravened the provisions of s.25(1) of that Act.

2 The Bar Council relied upon the affidavit of Rosemary MacDougall sworn 16 August 2005 and the material constituting Exhibits A to K.

3 The plaintiff claims declaratory relief and a restraining order to prevent the defendant from practising as a barrister in contravention of s.14(3) of the Legal Profession Act 2004. The precise nature of the relief and orders sought is set out in paragraph [15] and is the subject of consideration later in this judgment.

4 The period in which it is claimed the defendant carried on practice as a barrister is the period from about 10 November 2001 until 30 September 2005. The reference to the “relevant period” in later paragraphs is a reference to that period.

5 This Court has the power to grant injunctive relief on such terms as it thinks appropriate restraining a person from engaging in specified conduct pursuant to the provisions of s.720 of the Legal Profession Act 2004. The operation of that Act commenced on 1 October 2005. Accordingly, this case is the first occasion on which those provisions have been invoked.

6 On 14 September 2005, the defendant consented to an interlocutory injunction sought by the Bar Council. The terms of the orders made by the Court (Brereton, J.) were formulated in short minutes of orders. A note thereto records that the orders were not intended to interfere with the performance by the defendant of any general legal work for Walker Corporation Pty. Limited insofar as it is done by him:-

(a) in his capacity as an employee of Walker Corporation Pty. Limited; and

(b) in the ordinary course of his employment by Walker Corporation Limited; and

(c) for which he receives no fee, gain or reward for so doing other than his ordinary remuneration as an employee of Walker Corporation Pty. Limited, whether or not such relationship constitutes a relationship of employment.

7 The terms of 6(a), (b) and (c) reflect the provisions of s.14(3) of the Legal Profession Act 2004.

8 Ms. Christine E. Adamson, SC., with Ms. S.E. Pritchard, of counsel appeared on behalf of the plaintiff Bar Council pursuant to s.51(1)(b) of the Legal Profession Act 1987. The defendant was self-represented. Mr. Davison opposed the relief claimed in the Further Amended Summons.

1. Factual background

9 The defendant was admitted to practice as a legal practitioner on 28 May 1965. Having practiced as a solicitor in this State for almost 15 years, he was admitted to practice as a barrister on 7 March 1980. Mr. Davison practised for several years both as junior and senior counsel specialising in the fields of local government law, environmental and planning law and in compulsory acquisition compensation claims. A significant part of his practice was in the Land and Environment Court of New South Wales, the jurisdiction of which is specified in Part 3 of the Land & Environment Court Act 1979 (NSW). He continued to practice as a barrister until the cancellation of his Practising Certificate by resolution of the Bar Council on 1 November 2001 which took effect at midnight on 9 November 2001.

10 On 2 July 2004, the Council of the New South Wales Bar Association commenced proceedings in the Administrative Decisions Tribunal, Legal Services Division, against the defendant by the filing of an information pursuant to the provisions of s.167 of the Legal Profession Act 1987. On 18 August 2004, at the request of the solicitor for the Bar Council, the Tribunal issued a summons to produce documents to Sydney Development Services Pty. Limited. The defendant’s wife, Vicki Jean Davison, is the sole director and shareholder of that company. On 8 February 2005, the Tribunal also granted leave to the Bar Council to issue certain Summonses to Produce Documents. On 9 February 2005, the Tribunal issued a further summons to produce documents pursuant to s.84 of the Administrative Decisions Tribunal Act 1997, requiring the defendant to produce a range of specified documents. He subsequently produced two CDs. Following the making of orders for access, arrangements were made for records contained on the CDs to be printed. On 30 June 2005, by consent, the Tribunal made orders in relation to the documents contained on the two CDs as follows:-

“(1) Upon the Informant by its Counsel undertaking to use the documents produced in these proceedings by William Roy Davison for the purposes only of exercising its functions under the Legal Profession Act (being a purpose that is collateral to these proceedings), the Informant be released from its implied undertaking to the Tribunal not to use documents produced in these proceedings by the respondent, William Roy Davison.

(2) The Tribunal notes that the respondent, William Roy Davison, has given his free and informed consent to the order in paragraph 1 above”’

11 Following the commencement of proceedings in this Court, the Bar Council served subpoenae upon Walker Corporation Limited and Sydney Development Services Pty. Limited. The Council also served two Notices to Produce on the defendant. The documents produced in answer to the subpoenae and the Notices were admitted into evidence in these proceedings as Exhibit G.

12 According to the evidence, the defendant’s wife resides with her husband and their residence is also the principal place of business of Sydney Development Services Pty. Limited. That company commenced under its present name on 23 November 2001 and it was on that date that the defendant’s wife was appointed its sole director and secretary.

13 It is not disputed that in and after December 2001, Sydney Development Services issued tax invoices in respect of professional services rendered by the defendant. A central question in the present proceedings is the nature or character of the services that have been provided by the defendant to third parties since his Practising Certificate was cancelled.

14 A considerable body of evidence was tendered on behalf of the plaintiff and its case is essentially a documentary one.

2. The relief claimed

15 The plaintiff in its Further Amended Summons claims relief in the following terms:-

“1. A declaration that, since on or about 10 November 2001, the defendant has practised as a barrister without being the holder of a current practising certificate issued by the Bar Council under Part 3 of the Legal Profession Act 1987, in contravention of s.25(1) of the Legal Profession Act 1987.
2. Further, a declaration that the conduct described in Prayer One was done wilfully and without reasonable excuse, and accordingly that the defendant is guilty of professional misconduct within the meaning of s.25(4) of the Legal Profession Act 1987.
3. An order pursuant to s.720 of the Legal Profession Act 2004 restraining the defendant from practising as a barrister in contravention of s.14(3) of the Legal Profession Act 2004 by:-
(a) providing, for a fee, as defined in Schedule 1 (“ Fee ”), advice involving the application of legal expertise in relation to a claim under any legislation or environmental planning instrument, or at common law;
(b) providing, for a Fee, advice involving the application of legal expertise in relation to the preparation and conduct of any proceedings, as defined in Schedule 1 (“ Proceedings ”);
(c) providing, for a Fee, advice involving the application of legal expertise, and including statutory interpretation and the application of case law, in relation to rights and obligations under any legislation or environmental planning instrument or at common law;
(d) providing, for a Fee, advice involving the application of legal expertise in relation to the evidence of any expert or other witness in connection with a claim under any legislation or environmental planning instrument, or at a common law, or Proceedings;
(e) providing, for a Fee, advice involving the application of legal expertise in relation to a decision, judgment, order or determination in Proceedings.
4. Costs.”

16 In Schedule 1 to the amended summons, the following terms are defined:-

“ Fee means any hourly or daily remuneration, payment for the reimbursement of expenses, retainer, salary, success fee, expectancy, direction of remuneration to a company for the provision of services by the defendant, or other form of valuable consideration.
Proceedings means proceedings in any court, including any body described as a court, or any other judicial or statutory tribunal, statutory investigation, mediation, or compromise negotiation.”

17 I will return to the question of the relevance of the scope of the relief sought in paragraphs 3(a), (b), (c), (d) and (e) to the nature of the work which the Bar Council claims was undertaken in the relevant period and which it maintains constituted the work of a barrister (see paragraph [47]).

3. Legal Profession Act 1987

18 The Legal Profession Act 1987 operated during the whole of the period in which it is alleged the defendant practised as a barrister without being the holder of a current Practising Certificate issued by the Bar Council under Part 3 of the Act.

19 Section 25(1) of the Act is contained within Part 3, Legal Practice, Division 1, Practising Certificates. It is in the following terms:-

“A legal practitioner whose sole or principal place of legal practice is this State must not practice as a barrister or solicitor and barrister without being the holder of a current practising certificate.”

20 Section 25(4) provides:-

“A legal practitioner or interstate legal practitioner who contravenes this section wilfully and without reasonable cause is guilty of professional misconduct.”

21 By s.3 a legal practitioner means a person enrolled in the Supreme Court as a legal practitioner.

22 Section 27(1) provides:-

“The Bar Council may, on application, grant a practising certificate to a legal practitioner authorising the practitioner to practice as a barrister.”

23 I will refer briefly to some additional provisions in Part 3.

24 Section 32(1) authorises the issue of a certificate either unconditionally or subject to conditions.

25 Section 33 specifies the conditions that may be attached to the practising certificate of a barrister or solicitor.

26 Section 34 of the Act specifies conditions of particular kinds that may be attached to the practising certificate of a barrister.

27 Section 38G(1) states that practice as a barrister is subject to the Barristers’ Rules (defined as meaning rules made under the 1987 Act by the Bar Council: s.3(1) of that Act) and that practice as a barrister is not subject to any other rules, practice, guidelines or rulings of the Bar Association or Bar Council.

28 Section 57A provides that the Bar Council may make rules for or with respect to practice as a barrister. The power to make rules is not limited to the matters for which the Act specifically authorises the making of barristers’ rules (s.57A(2)).

29 ”Barrister” is relevantly defined in s.3 of the Legal Profession Act to mean “a legal practitioner who holds a current practising certificate as a barrister”.

30 Section 57D provides that “barristers’ rules” are binding on barristers.

31 In Prothonotary of the Supreme Court of New South Wales v. McCaffery [2004] NSWCA 420, McColl, JA. with whom Sheller and Beazley, JJA. agreed, observed that a practising certificate means that the “barrister” is subject to the Barristers’ Rules made under the Legal Profession Act by the Bar Council: s.38G. Furthermore, prior to issuing a practising certificate, the Bar Council is required to be satisfied that there is, or will be, in force with respect to the barrister an approved indemnity insurance policy: s.38R. There are other aspects of the Legal Profession Act which demonstrate the significance of a barrister holding a practising certificate. McColl, JA. also stated in McCaffery that the regulation of the profession through practising certificates seeks to uphold and maintain professional standards and to provide a safeguard for the public (at [38]).

4. Contentions and issues arising on the Further Amended Summons

32 In relation to the declaratory relief sought in paragraph 1 of the Further Amended Summons, the essential contentions in the plaintiff’s case are:-

(a) that the defendant has practiced as a barrister;

(b) that he has done so without being the holder of a current practising certificate issued by the Bar Council under Part 3 of the Legal Profession Act .

33 In relation to the declaratory relief sought in paragraph 2 of that Summons, the plaintiff’s contends:-

(a) that the defendant has contravened the provisions of s.25(1) by engaging in conduct specified in the section;

(b) that he has done so “wilfully and without reasonable excuse” : s.25(4).

34 I will return later in this judgment to separately consider each of these contentions.

5. “Practice as a barrister …”

35 There is no definition in the Legal Profession Act 1987 or in the Legal Profession Act 2004 of this key phrase. It is essential that its meaning and scope be determined, at least to the extent that is necessary for the purpose of evaluating the facts in the present proceedings.

36 The work of a barrister may embrace appearance work in courts or tribunals involving advocacy skills. It may also include chamber work involving both litigious and non-litigious legal work.

37 The New South Wales Barristers’ Rules made under s.57A of the Legal Profession Act 1987, in particular, Rule 74, under the sub-title “Barristers’ work” outlines the nature of a barrister’s professional work in restrictive terms as follows:-

“74. A barrister must confine the barrister’s professional work to:-

(a) appearing as an advocate;

(b) preparing to appear as an advocate;

(c) negotiating for the client with the opponent to compromise the case;

(d) representing the client in a mediation;

(e) giving legal advice;

(f) advising on document to be used in the client’s affairs;

(g) acting as a referee, arbitrator or mediator; and

(h) carrying out work properly incidental to the kinds of work referred to in (a) to (g).”

38 In general terms, the work of a barrister in relation to litigation may be taken as including the following:-

• providing advice on legal rights or entitlements (relevant to a right to prosecute or defend proceedings);

• providing advice on prospects of success of litigation;

• providing advice in relation to gathering evidence required for legal proceedings;

• providing advice in relation to the form of and/or the presentation of evidence;

• undertaking work associated with the drafting of submissions for use in proceedings;

• appearances at hearings of proceedings before courts or tribunals.

39 Accordingly, the work generally of a barrister (whether litigious or not), may embrace:-

• advice work;

• the drafting of documents (including agreements, legal instruments, pleadings, correspondence, particulars of a claim or defence);

• advice in relation to the compromise or settlement of disputes;

• litigious work (including appearance work);

• alternative dispute resolution, in particular, mediations;

40 Again in general terms, the work of a barrister may impact upon or affect persons or entities including:-

• courts or tribunals;

• other legal practitioners (whether solicitors or barristers);

• statutory bodies charged with the role of performing or discharging public functions (eg., local government bodies);

• clients;

• witnesses.

41 There will sometimes be no clear boundary or bright-line between the work undertaken by legal practitioners and other professionals in certain areas of legal practice including the areas of local government and those involving environmental regulation and planning issues. Work performed in areas such as these may involve a number of professionals (including lawyers) who necessarily interact one with the other in the provision of advice to clients and in assisting them in disputes or proceedings. Accordingly, the work of a town planner, for example, may involve advising clients in both a non-litigious context and in the provision of advice in relation to legal proceedings. Their advice may draw on and expressly refer to precedent cases for the purposes of identifying and applying authoritative principles in relation to particular issues with which clients are concerned. In such cases, legal practitioners may perform overlapping or similar functions. A question can arise, as in the present proceedings, as to whether a particular aspect of work involves or requires the application of legal expertise by a legal practitioner (in particular that of a barrister), or whether it falls within the province of a town planner or of both.

6. The approach to an evaluation of the defendant’s conduct

42 In New South Wales, a person who holds qualifications as a legal practitioner is required to hold the necessary authorisation or certification before he or she may practice as a barrister or as a solicitor. Such authority arises upon the issue of a practising certificate formerly under the Legal Profession Act 1987 (NSW) and now under the Legal Profession Act 2004 (NSW). In the case of a barrister, the certificate plays a central part in the regulatory scheme under each of those Acts. Accordingly, as discussed earlier, once a certificate issues, a barrister is subject to the barristers’ rules: s.38G of the 1987 Act; s.81(1) of the 2004 Act. The Bar Council may not issue a practising certificate to “an insurable barrister” unless it is satisfied that there is or will be in force an approved indemnity insurance policy for that person: s.38R(1) of the 1987 Act and s.98(2) of the 2004 Act.

43 These provisions are in the nature of and operate as protective measures for members of the public who engage the services of legal practitioners. Certain of them are directed, as McColl, JA. in McCaffery observed (see [31] above) to upholding and maintaining professional standards of those who practice as barristers. In the event that a person undertakes practice as a barrister without a certificate, he or she does so unlawfully. The purpose of the legislative requirement is to ensure that those who practice as barristers are subject to the regulatory scheme. The work of barristers necessarily impacts upon the administration of justice. It is essential for the courts in which they practice that barristers who provide legal advice in relation to legal proceedings and/or who appear in such proceedings are subject to ethical and other constraints and to the potential sanctions that arise in the event of a breach of professional duty.

44 The following general propositions are noted:-

(a) The provisions of s.25(1) and s.25(2) respectively prohibit:-

(i) practice as a barrister or solicitor or solicitor and barrister without being the holder of a practising certificate (s.25(1)); and
(ii) the holding out by a person that he or she is a barrister (s.25(2)). It is to be observed that there is no element of “holding out” in relation to a contravention of s.25(1).


(b) Whether or not a person does practise as a barrister is a question of fact to be objectively determined on the evidence.

(c) The determination of that question requires the court to examine any advice given or services provided in order to determine whether either may be properly characterised as practising as a barrister .

(d) The evidence presented in the present proceedings, in many instances, consists of fragmentary or limited communications. Factual findings in relation to them in some instances are readily made by reason of their express terms. However, in the case of some documents, findings depend on related or surrounding documentary evidence from which inferences sometimes may be drawn.

45 It will be necessary to refer to some of the detailed evidence concerning the work or services provided by the defendant in and after December 2001 in order to determine whether or not in the relevant period he undertook the work of a barrister, as claimed by the plaintiff. In evaluating the evidence, it has been necessary to have regard to:-

• the essential nature or substance of his conduct including the type of advice given and the nature of documents drafted or representations made by him on behalf of others;

• the dealings between the defendant and others to whom he provided services, and, in particular, the context in which services were rendered as well as the nature and basis upon which fees for services were rendered and paid.

• the extent to which any particular conduct of the defendant required, involved or demonstrated the application of legal knowledge or expertise;

• the occasional statement made by the defendant that he was either not giving legal advice or that clients should seek legal advice on a particular matter from another qualified legal practitioner.

• the fact that particular conduct should not always be examined in isolation but in the context of the operation of Sydney Development Services Pty. Limited noting, as appropriate, any pattern of conduct concerning the services rendered.

46 There is no evidence that the defendant appeared before any courts or tribunals in the relevant period. Appearance work and advocacy, of course, typifies the barrister’s work. But, the work of some legal practitioners who practice as barristers, including, in particular, those who specialise in certain areas of the law, may not require or involve any or a great deal of appearance work. Their practice, for instance, may involve advice work and the drafting of legal instruments or other documents.

7. “Legal advice”

47 The terms of the injunctive relief sought (see paragraph [15]) are directed to restraining the defendant from practising as a barrister by providing for a fee “advice” of various kinds. These may be briefly summarised in terms of paragraph 3 of the Further Amended Summons as involving advice, namely.:-

“3(a) advice in relation to specified types of claims.
3(b) advice involving the application of legal expertise as to legal proceedings, namely, their preparation and conduct.
3(c) advice involving the application of legal expertise including statutory interpretation and the application of case law.
3(d) advice involving the application of legal expertise in relation to evidence in connection with a claim or proceedings.
3(e) advice involving the application of legal expertise in relation to a decision, judgment etc.”

48 The expression “legal advice” does not have a precise nor a narrow meaning. The defendant in a limited number of documents to which reference will later be made, stated that he could not give legal advice. These references are of importance for they could be taken as indicative of an attempt by the defendant to avoid contravening the restrictions arising under s.25(1) of the Legal Profession Act 1987. There are, however, three observations to be made here. The first is that the defendant appears to have adopted a very narrow definition of what constitutes “legal advice”. I will return to this point below. The second is that there is a substantial amount of evidence that the defendant did provide for, a fee payable to Sydney Development Services, advice on a number of matters that can in fact be classed as “legal advice” given the scope of that expression. The third point is that, on occasions, there is evidence that the defendant did in any event provide advice on matters falling within the narrowest meaning of the expression “legal advice”. Examples include advice given by him on the meaning and application of certain statutory provisions relevant to the powers of local government authorities. This matter is discussed further in paragraphs [109] to [113].

8. The relevant standard of proof

49 The Further Amended Summons raises matters and issues which, if established, will have serious repercussions on the defendant. As previously noted, one issue arising is whether the defendant wilfully and without reasonable excuse contravened the provisions of s.25(1). That issue will be considered separately later in this judgment at [164] to [178].

50 It has been held that the standard of proof that applies in disciplinary proceedings is that referred to in Briginshaw v. Briginshaw (1938) 60 CLR 336; see New South Wales Bar Association v. Harrison [2001] NSWADT 213 (12 December 2001, per McColl, JA. at [43]). In that case her Honour referred to the well-known passage in the judgment of Dixon, J., as his Honour then was, at 362, namely, that “the gravity of the consequences following from a particular finding” was relevant to the question whether an issue had been proved. Dixon, J., there stated that “reasonable satisfaction should not be conducted by inexact proofs, indefinite testimony, or indirect inferences”. See also Neat Holdings Pty. Limited v. Karajan Holdings Pty. Limited (1992) 67 ALJR 170.

51 In proceedings where the issue is whether or not a person has practiced as a barrister without being the holder of a current practising certificate, the civil standard of proof applies. However, the nature and consequences of the proceedings and the gravity of the Bar Council’s allegations have to be taken into account especially so where the Bar Council seeks to establish that the defendant contravened the section wilfully and without excuse in order to establish a basis for a declaration of professional misconduct under s.25(4) of the Legal Profession Act; Kekatos v. The Council of the Law Society of New South Wales [1999] NSWCA 288 at [19]. On that basis, the Briginshaw standard should be applied: see also McCaffery (supra) per McColl, JA. at [43]. In making factual findings which underpin the ultimate conclusions expressed later in this judgment, I have sought to apply that standard.

9. The work of town planners

52 The defendant relied upon the evidence of Mr. Terrence Paul Byrnes to support his submissions that in giving advice he had provided town-planning advice and not legal advice as a barrister.

53 Mr. Byrnes has been a registered architect since 1962. He is a Fellow of the Royal Australian Institute of Planners and has been a qualified city planner since 1971. He is a Fellow of the Planning Institute of Australia.

54 He swore an affidavit in these proceedings on 26 September 2005. Ms. Adamson, SC. objected to it being read, inter alia, upon the basis that it did not comply with the principles in Makita (Australia) Pty. Limited v. Sprowles (2001) 52 NSWLR 705, especially at 729-740 per Heydon, JA. (as his Honour then was). Those principles concern the duty of experts in giving opinion evidence, to furnish criteria enabling evaluation of the validity of their conclusions. The affidavit, however, was allowed to be read, except for paragraph 3, which was held to be inadmissible. Leave was granted to the defendant to adduce oral evidence as to the subject matter of that paragraph.

55 Mr. Byrnes’ affidavit was, in certain parts, framed in very general terms. The material that had been supplied to him for his consideration in preparing his affidavit consisted of the documents comprising Exhibits 1, 2 and 3. Exhibit 1 included documents produced by Leichhardt City Council, Randwick City Council and the defendant. Exhibit 2 comprised documents produced by Planning Workshop Australia. Mr. Byrnes expressed the opinion that the documents in Exhibit 1 were of a nature “generally within the scope of technical material advised by planners”. This broad statement of opinion, however, failed to identify specific documents within the many documents in Exhibit 1 to which it was said to relate. It, accordingly, became necessary for Ms. Adamson on behalf of the plaintiff to take Mr. Byrnes through many of them. Having done so, Mr. Byrnes in relation to a number of documents conceded that the defendant had in fact provided advice to Randwick and Leichhardt City Councils in the nature of legal advice (see separate discussion of advice given to those Councils (at paragraphs [75] to [84]).

56 Mr. Byrnes’ affidavit did not attempt in any comprehensive way to describe the nature and content of the work of town planners who practice in this State. The approach that he adopted in evidence was essentially:-

• to emphasize the need that town planners had to be familiar with current decisions and trends in judgments and decisions of the Land and Environment Court and, as appropriate, with particular judgments of the New South Wales Court of Appeal;

• to emphasise the practice, where appropriate, of town planners to provide legal referencing in their opinions on certain matters and the need for them to keep abreast with changes to planning and other relevant laws.

57 Mr. Byrnes both in his affidavit as well as in his oral evidence sought to characterise the work undertaken by the defendant as planning work, emphasising that his references to planning instruments, to court decisions and prescribed guidelines were consistent with what one would expect of a town planner called upon to provide advice on planning and other matters.

58 His evidence in this respect, however, amounted to little more than assertion. Mr. Byrnes stated in paragraph 9 of his affidavit:-

“In my experience, the dividing line between legal and planning opinions can be a grey area where it arises in the circumstances of a court hearing …”

59 It is clear, of course, that town planners must have an awareness and knowledge of relevant law including planning instruments and they are required to update on an ongoing basis their knowledge of relevant court decisions. However, the application of laws, legal instruments and the observance of relevant legal principles occurs in many fields of professional endeavour, eg., hospital management, policing, nursing, financial advising etc. The provision of legal advice on matters involving legal interpretation or on legal rights or duties is the preserve of the legal profession. The evidence which the defendant adduced from Mr. Byrnes as to advice or services provided by him to Randwick and Leichhardt City Councils failed to observe the distinction that must and does exist between the professional work of specialist barristers in the areas of local government, planning and environmental law etc. and that of town planners. Without Mr. Byrnes having attempted to examine in the necessary detail the relevant documents by reference to the work of each profession, the task he set himself of characterising the advice provided by the defendant as that of town planning was made all the more difficult. At the end of the day, I am of the opinion that with respect to the work identified in paragraphs [75] to [84], for reasons later discussed, Mr. Byrnes’ evidence did not establish the proposition that such work was in the nature of town planning advice rather than legal advice.

10. The business description of Sydney Development Services Pty. Limited

60 As earlier noted, Sydney Development Services Pty. Limited was registered on 23 November 2001. The only evidence as to the company’s business activities is documentary. These include the company’s tax returns and a number of email transmissions in relation to particular transactions.

61 The evidence establishes that since December 2001 the company has issued tax invoices for the provision of professional services rendered by the defendant. The first invoice was issued on 19 December 2001 to “P. Montgomery” in an amount of $22,000.

62 In the company’s tax return for the year 1 July 2001 to 30 June 2002, the main business of Sydney Development Services is described as “Legal aid service”. The industry code on the return (78410) is that of barrister. Gross income is recorded as $63,275.

63 In a letter dated 7 January 2002 to Ms. Margaret Lyons, solicitor, of Leichhardt City Council under the defendant’s wife’s name, it is stated:-

“Development and Local Government consultancy services are offered at an hourly rate of $400 plus GST%.”

64 The company’s tax return for the 2003 year gave the description of the main business activity as “barrister” and again inserted the abovementioned industry code. Whilst such descriptions could not amount to admissions by the defendant, no evidence was adduced by him for the purpose of explaining the basis upon which the activity descriptions were inserted in the returns. The plaintiff relied upon the defendant’s failure to call evidence from his wife (see paragraphs [66] to [68]), who was the signatory to the returns. Ms. Adamson, SC., for the Bar Council, submitted that the Court would infer that nothing either the defendant or his wife could have said on this aspect would have assisted the plaintiff’s case. In any event, it was further submitted, the description of the business activity of the company provided in the returns ought as a matter of inference be drawn from the evidence. It was contended that the defendant has continued to conduct practice as a barrister “without appearing robed in a courtroom but has behind the scenes performed many of the tasks which are commonly and regularly performed by barristers and that required the application of legal expertise”. I will return to the question of the characterisation of his activities later in this judgment.

65 In the disciplinary proceedings in the Administrative Decisions Tribunal (referred to in paragraph [10]), the defendant accepted that the clients of the company, and to whom his services were rendered through it, were “in the main” clients who formerly engaged him when he held a practising certificate. He also conceded in those proceedings that neither he nor Sydney Development Services carried professional indemnity insurance.

11. The defendant’s failure to give and call evidence from certain witnesses

66 Ms. Adamson submitted that the failure to give or adduce evidence from the following persons permitted a relevant Jones v. Dunkel inference to be drawn:-

(a) the defendant himself;

(b) the defendant’s wife;

(c) solicitors and at least two barristers who dealt with the defendant (except for Mr. Montgomery who gave instructions in the Ironhill Pty. Limited v. Transgrid (2004) 139 LGERA 398 proceedings) - see paragraphs [85] to [91].

67 The Court was accordingly invited to draw an inference that evidence from the above persons would not have been of assistance to the defendant.

“… In circumstances in which a plain inference is open from facts proved by the Bar Council that the defendant has practised as a barrister notwithstanding the cancellation of his practising certificate, the circumstances that the defendant has chosen not to give evidence requires an inference that the evidence could not have assisted his case to be drawn: Jones v. Dunkel (1958) 101 CLR 298.” (Plaintiff’s written submissions, paragraph 50).

68 The plaintiff’s submissions refer to a number of solicitors and two counsel (one of whom is a senior counsel) who had dealings with the defendant. Such persons, it was submitted, could have been called to provide evidence on matters relevant to the characterisation of services provided by Mr. Davison through Sydney Development Services. On the issue as to the characterisation of the defendant’s role and the nature of the advice provided by him (as discussed, in particular in paragraphs [60] to [64] and [72] to [108]), there is a ground for the drawing of a Jones v. Dunkel inference in accordance with the principles stated by the High Court in that case, especially at pp.308 (Kitto, J.), at p.312 (Menzies, J.) and at p.319 (Windeyer, J). As to a recent statement on Australian law on the effect of a party failing to call an available witness, see judgment of Campbell, J. (with whom Beazley, JA. and Pearlman, AJA. agreed) in Manly Council v. Byrne [2004] NSWCA 123 at [44] to [54] inclusive. It is important to observe that before a Jones v. Dunkel inference can be drawn, there must exist evidence from which an inference may be fairly drawn. In this respect, I refer to the observations of Spigelman, CJ. in State Bank of New South Wales v. Brown (2001) 38 ACSR 715 at [17] to [18] (whose reasoning was adopted by Hodgson, JA. at [104]) (with whose reasons Handley, JA. agreed).

12. Was the defendant under an obligation to give evidence?

69 Senior counsel for the Bar Council relied upon Re Veron: ex parte Law Society of New South Wales (1966) 34 WN 136 to support the proposition that in proceedings such as these the defendant ought to give evidence. I am not as ready to accede to the proposition which the Bar Council makes based upon what was stated by the Court of Appeal in Veron (supra). In that case, specific charges of misconduct had been made against the respondent Veron to show cause why he should not be dealt with by the Court for professional misconduct. In that case, there had been a report and affidavits provided by an investigating chartered accountant to the Law Society of New South Wales which established excessive charges for costs. The Council of the Society had resolved to receive the report and passed a further resolution that there has been, prima facie, a pattern of conduct on the part of the solicitor which the Council regarded as “disgraceful and dishonourable”. Particular charges were then brought against the solicitor. The solicitor was called upon to show cause why he should not be dealt with. In response, the court stated that, as an officer of the court, the solicitor could not “lie by and engage in a battle of tactics … to endeavour to meet the charges by mere argument” (at p.142).

70 The circumstances of the proceedings here are different. The defendant’s conduct had not been subject to any prior investigation which established any facts adverse to him let alone a prima facie case of professional misconduct. Nor was he facing in these proceedings any charges as in Veron based on a particular set of facts established to a prima facie level by an investigator. The circumstances accordingly are markedly different from Veron and Coe v. NSW Bar Association [2000] NSWCA 13, which latter case was also relied upon by the Bar Council. In the latter case, a determination of wrongdoing (swearing an affidavit in Family Law proceedings which was substantially false) had actually been made by the Legal Services Tribunal on 19 May 1997. The proceedings were adjourned to 13 June 1997 to enable the parties to present further evidence. The appellant was the only person who could have explained his actions but he failed to swear an affidavit in relation to the Tribunal’s earlier finding. See also Re Mack; ex parte New South Wales Bar Association (1968) 88 WN (NSW) Part 1, 68, 70.

71 I am accordingly not prepared to proceed upon the basis that the defendant was obliged to give evidence. The effect, if any, of his decision not to do so is to be evaluated in accordance with ordinary evidential principles to which I have referred in paragraphs [66] to [68].

13. “Re-labelling” advice and incorporating advice by the defendant into solicitors’ advice

72 On a limited number of occasions, requests by solicitors directed to the defendant were re-labelled as requests for “planning advice” rather than “legal advice” or as the provision of “consultative services”. The context or circumstances where this occurred (see below) was such that “re-labelling” was little more than an exercise in semantics.

73 On 18 July 2002, Ms. Lyons, solicitor, sought advice, which Mr. Byrnes conceded was legal advice. A number of questions were raised by a Council employee in a memorandum for the purpose of seeking “legal advice”. The very same questions in the same terms were subsequently referred to the defendant for “planning advice”. The questions were:-

1. Whether the construction and use of Derbyshire Road as a temporary school for two years is development.
2. If yes, can it be approved on the open space and roadway and what mechanism?
3. Is the only option the prohibited development provisions of the Act?
4. If no, is the Roads Act all I have to worry about?

74 The submission, which I accept, was that in such cases the so-called “planning advice” provided by the defendant involved “legal advice”. The Bar Council also relied upon the fact that on several occasions, legal advice was sought by Randwick City Council from Bowen & Gerathy, solicitors. Those solicitors in turn referred the matters for advice to the defendant for his advice. Advice given by him on a number of occasions, was incorporated into the response by the solicitors to their client Council. In the case of Leichhardt Council, advice sought from the solicitor for the Council was referred to the defendant for his advice.

14. Advice provided to local government authorities

(a) Advice and services provided by the defendant to Randwick City Council

75 Exhibit F included documents produced under summons by the firm, Bowen & Gerathy. Some of the documents established that Randwick City Council on occasions sought advice from that firm. The firm, as noted above, in turn sought advice on the matters in question from the defendant. Several advices tendered by him were related to legal questions or issues. Apart from two occasions (see below), advice provided by him (pursuant to the Council’s engagement of Sydney Development Services Pty. Limited) was provided in a similar manner to that of a barrister advising on legal matters pursuant to a retainer or engagement by a firm of solicitors.

76 In a letter of 10 September 2002 addressed to “Bill Davison, Sydney Development Services Pty. Limited” concerning a development application entitled “Re Randwick City Council and Department of Defence”, the author of the letter wrote:-

“We refer to the writer’s brief telephone discussion with you earlier today and confirm that we seek your services as an expert consultant to assist in our providing advice to Randwick City Council with respect to its consideration for determination of the abovementioned development applications.”

77 Advice provided by the defendant between 10 September 2002 and March 2004 including the following:-

• Advice on proposed conditions of development consent supported by case law and statutory references.

• The inclusion of additional draft consent conditions.

• Comment upon amendments to conditions proposed by Council on issues raised in the defendant’s “preliminary advice” .

• Advice on proposed remediation and validation of Department of Defence land and the regulatory powers of Council.

• Advice to Bowen & Gerathy on dealing with a modification application under s.96(1A) and s.96(1) and in relation to additions proposed.

• Advice by the defendant to Bowen & Gerathy on specific questions raised by Randwick City Council on a proposed plan of management with respect to the creation of a parkland from surplus Defence land. The questions raised issues that fall within the specialist knowledge of a legal practitioner practising in the field of local government law.

• Advice as to whether Council should enter into a deed with the Department of Defence in relation to the following: the Department’s commitment to a plan of management, required works concerning a proposed parkland area and the dedication of the parkland to Council. Advice was also provided by the defendant on the need for Council to impose certain conditions on specified development applications concerning Defence land.

• Conditions of consent concerning proposed parkland and the need to include specific matters with respect to the Department’s obligations for maintenance costs following transfer or dedication.

• A further draft condition (condition 61) concerning maintenance costs sent to the defendant for his approval and advice.

• Advice provided on specific legal questions:-

(a) as to when roads vest – specifically, not as a consequence of the deed in question but upon registration of the relevant plan;

(b) concerning the question as to whether the terms of a deed have been diminished or enlarged by rights of a specified party.

78 Advice was also provided by the defendant upon the operation of particular statutory provisions on the question of the lapsing of development consents – including the power of councils to modify consents and the availability of the power to alter them under particular statutory provisions.

79 The defendant also advised Bowen & Gerathy upon the operation of a specified EPAA regulation on deferred commencement of a consent with reference to a number of propositions on deferred commencement consent as expressed in the judgment of Bignold, J. in Australand Holdings Limited v. Hornsby Shire Council (1998) 98 LGERA 312. Bowen & Gerathy incorporated the defendant’s advice on the question into the firm’s advice to Council. The advice (dated 15 April 2004) included an analysis of the judgment in light of relevant statutory provisions.

80 In the period during which the defendant provided advice to the Council (that is between September 2002 and March 2004), he twice made reference to restrictions on him in giving legal advice. On 20 September 2002, in an email to Bowen & Gerathy, he made a brief comment on development conditions for a property in Bundock Street, Randwick and concluded with the comment:-

“I confirm, however, that I cannot give legal advice. If legal advice is required, the Council should rely on you.”

81 In another matter, Mr. Davison was asked by Planning Workshop Australia for advice (on 23 June 2005 in relation to “Quay Street”). The defendant again recorded “I am not able to give legal advice”. The available records suggest that no advice was tendered by the defendant on this occasion.

82 It is significant that from September 2002, the defendant, in fact, provided advice in the nature of legal advice to Bowen & Gerathy/Randwick Council on a range of matters. It is evident that he did provide an advice on a number of occasions pursuant to Randwick Council’s request through Bowen & Gerathy for advice upon development consent powers and conditions. In relation to the Department of Defence property at Bundock and Avoca Streets, Kingsford, he again made reference to restrictions on his capacity to provide legal advice. In relation to advice sought on 22 October 2002 with respect to the application of regulatory powers of Council concerning Commonwealth works, a solicitor’s note records “not able to provide legal advice”. Specific advice, however, was given by the defendant on a significant number of occasions on legal questions without any such express reservation.

(b) Advice provided by the defendant to Leichhardt Council

83 The evidence establishes that the defendant provided advice in the nature of legal advice to Leichhardt Council’s in-house solicitor. I have previously referred to the Council’s solicitor seeking from the defendant what she termed “planning advice”. On analysis the advice given by him was in the nature of legal advice (see below).

84 Advice sought by Leichhardt Council’s solicitor and provided by the defendant included:-

• Advice on whether a record of the issue of Ordinance 42 licences for a boarding house at a particular property was sufficient evidence of lawful commencement or of lawful use to attract the regulation of SEPP10.

• Advice that a roadway that had not been closed had not been “acquired” for open space.

• The circumstances relating to a particular property wherein temporary use would not prevent Council from permitting development.

15. Advice and services provided by the defendant in relation to legal proceedings

(a) The Ironhill v. Transgrid litigation

85 This litigation arose out of the compulsory acquisition of land for a transmission line easement and the construction of a transmission line causing loss of dwelling units on a golf course development. Ironhill Pty. Limited brought a claim for compensation in the Land and Environment Court. It retained the firm Pike, Pike & Fenwick, solicitors, to act for it on the claim. It also retained Sydney Development Services Pty. Limited. The defendant, through that retainer, provided a substantial level of advice in relation to the claim. The charge-out rate for Sydney Development Services was $500 per hour, exclusive of GST.

86 Mr. Peter Guy Montgomery, a director and shareholder of Ironhill and also a solicitor was called to give evidence on behalf of the defendant. In his short affidavit sworn 23 September 2005, Mr. Montgomery stated that Ironhill owns Bonville International Golf Club and the land on which it operates. He stated that he had previously engaged the defendant when he was in practice as a barrister. He was aware of the fact that his practising certificate had been cancelled. In December 2001, he asked the defendant if he would be able to represent Ironhill’s interests in the management of its claim. The defendant replied that he was engaged by Sydney Development Services and the company would be able to fulfil that role. He told Mr. Montgomery that he would not be able to give any legal advice.

87 Mr. Montgomery, who is a practising solicitor, said he was aware of that fact. He said he relied on his lawyers to do the legal work. He added:-

“I told him I did however wish him to instruct the lawyers and the experts on Ironhill’s behalf and ensure the instructions were carried out in a timely manner” (paragraph 8 of his affidavit)

88 The evidence in Exhibit C establishes, however, that the defendant rendered services involving the application of legal knowledge and experience in relation to the following:-

(a) A memorandum to Mr. Montgomery which the latter agreed in cross-examination was in the nature of an advice on evidence. It would perhaps be better described as a single page outline identifying specific matters for the attention of expert witnesses.

(b) A brief draft letter to be considered as a draft response to a letter from the solicitors acting for Transgrid.

(c) Drafting letters to be sent on the letterhead of Ironhill’s solicitors.

(d) Comments on and suggestions by the defendant in relation to draft expert reports.

(e) A request by him to Ironhill’s solicitors to issue subpoenae for Transgrid files and Coffs Harbour City Council in relation to a master plan.

(f) Advice to Ironhill to make an application under s.96 of the Environmental Planning & Assessment Act .

(g) Drafting Points of Claim.

(h) Drafting particulars of an estoppel claim for inclusion in the Points of Claim document.

(i) Advice not to prosecute Supreme Court proceedings in relation to an estoppel issue but to proceed in the Land and Environment Court.

(j) Drafting correspondence - suggesting the incorporation of a comment in a letter from Ironhill’s solicitors to Transgrid’s solicitors and providing case references to the former.

(k) Settling the terms of a notice to produce.

(l) Preparing a statement for an expert witness, Mr. David Crompton.

(m) Producing a memorandum setting out paragraph references in the expert reports of Transgrid for specific response by Ironhill experts under the heading “evidence in reply” .

(n) Drafting questions to be addressed by Mr. Crompton for evidence in reply.

(o) Checking draft expert reports to be relied upon in the Ironhill proceedings.

(p) Preparing an “Elements of Claim” document for use in the proceedings and “resolved” and “remaining issues” document.

(q) Engaging in discussions for the purposes of the proceedings with senior counsel briefed for Ironhill.

(r) Preparing draft written submissions and sending the draft document to the solicitor for Ironhill for him to provide to counsel.

(s) Drafting questions for cross-examination of experts.

89 Mr. Montgomery impressed me as a witness. He gave evidence in what I considered to be a very straight-forward manner. He made it clear that whilst the defendant purported to draw a line between “legal” and non-legal matters, he found it difficult at times to discern into which category specific work undertaken by the defendant fell:-

“… Mr. Davison, on a number of occasions, both orally and in writing, said to me, ‘this is a legal matter which you should take legal advice on’. He had a precise view of the matter. Sometimes it seemed to be a little blurred to me, I couldn’t – but he was very precise from time to time as to when his advice should be, in a sense, put to one side and the matter had to be decided by counsel or our solicitors.
Q. When you say that the line seemed to you, from time to time, a little blurred, does that mean you were unable, as it were, to appreciate the distinction he was drawing between what he could do and what he couldn’t do? A. Yes. (t.111)

90 Mr. Montgomery stated that the defendant did not attend the hearing before the Chief Judge of the Land and Environment Court, adding:-

“… that’s what I thought would be clearly crossing the line of what he may be able to do, but he would not be able to appear in court in any form.” (t.113)

91 Mr. Montgomery’s evidence does establish, however, that Mr. Davison was very substantially involved in the preparation of evidence for the proceedings and in providing advice on the preparation and presentation of Ironhill’s case in terms of identifying “issues” or “elements” in the claim and drafting written outlines of submissions for use in the proceedings. Following the delivery of judgment on 16 December 2004, he provided advice to Ironhill representatives on whether he considered grounds of appeal existed. The defendant produced a document containing seven points of possible attack upon the judgment (no appeal was in fact lodged).

(o) 16.12.04 Email from WRD to Peter Montgomery, subject: Ironhill v Transgrid. WRD reviews the judgment of McClellan Chief Judge of the Land & Environment Court (as he then was) in Ironhill v Transgrid and indicates areas where the decision could be attacked on appeal. Exhibit A, Ironhill Box M, P 28

8. The defendant also provided advice on a number of miscellaneous matters pertaining to legal proceedings. Examples of such advice include:-

(a)	2.9.02	Email from WRD to Pike, Pike and Fenwick cc: Peter Montgomery and John Webster, subject: Bonville. WRD provides the advice “I would not threaten Supreme Court proceedings as a precursor to Land and Environment Court proceedings but as a consequence if the Land and Environment Court held it had no jurisdiction”.	Exhibit C P 168
(b)	11.2.03	Email from WRD to Matt Crews, cc: John Hughes, subject: Ballast Point. WRD provides Matt Crews with an indicative timetable for the exchange of pleadings, exchange of reports, callover and the likely range of hearing dates.	Exhibit D P 219
(c)	6.3.03	Email from Penny Hollott to WRD cc: John Whitehouse, subject: Ballast Point: Resumption Case. Penny Hollott seeks WRD’s comments on the proposed timetable for experts reports. Reply on same date by WRD to Penny Hollott indicating agreement with the proposed timetable.	Exhibit D P 204
(d)	19.8.03	Email from WRD to Michael Hewett cc: Peter Montgomery and John Webster, subject: Ironhill v Transgrid-mediation. Request by WRD to Mr Hewett of Pike Pike and Fenwick to write to Mallesons Stephen Jacques advising a view is unnecessary.	Exhibit C P 143
(f)	16.12.04	Email from WRD to John Hughes, subject: Charmhaven. WRD discusses cases in relation to payments which may be considered voluntary.	Exhibit A, Walker Box M, P 23,24

9. The defendant provided advice on general legal matters in relation to the Ballast Point and Ironhill proceedings as well as in relation to the Rhodes and Glebe proceedings.

(a)	8.7.02	Email from WRD to Margaret Lyons, cc: Revay & Unn (architects), subject: 53-55 Hereford St Glebe. WRD requesting a consultation regarding a request to him to examine the s 96 application before callover.	Exhibit D P 21 (from folder entitled Archive Leichhardt PST)
(b)	31.10.02	Email from WRD to Penny Hollott, “Penny, could you ascertain whether the statutory valuation has been made and communicated? If not could you press for it and say you would wish to be heard if any application is made to extend the 30 day limit?”	Exhibit D P 242
(c)	12.8.03	Email from WRD to Peter Montgomery and Michael Hewett, subject: basis of claim for mediation. Observation by WRD on basis of claim for mediation re Ironhill proceedings on the assumption of demolition and underground placement of the electricity line.	Exhibit C P 144
(d)	28.10.04	Email from WRD to Sylvia Hrovatin and Sally Lewis (both from Walker Corporation), subject: Rhodes. Provides advice regarding the form of notification and provides a case law reference regarding the notification requirement	Exhibit A, Walker Box M, P 45

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