The Council of the New South Wales Bar Association v Sahade - [2007] NSWCA 145

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: THE COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION v SAHADE [2007] NSWCA 145

HEARING DATE(S): 7 May 2007

JUDGMENT DATE:
19 June 2007

JUDGMENT OF: Mason P at 1; Santow JA at 2; Basten JA at 3

DECISION: (1) Appeal dismissed; (2) Appellant to pay the Respondent’s costs of the appeal; (3) Cross-appeal dismissed, with no order as to the costs of the cross-appeal.

CATCHWORDS: LEGAL PRACTITIONERS – professional misconduct – whether barrister a fit and proper person to remain on the roll – evidence of change in character subsequent to the misconduct – whether fitness to remain on the roll is to be assessed at the time of the misconduct or at the time of hearing – s 127 Legal Profession Act 1987 (NSW)

LEGISLATION CITED: Crimes Act 1914 (Cth), s 29B
Legal Practitioners Act 1898 (NSW), s 9
Legal Profession Act 1987 (NSW), ss 59D, 127, 131, 138, 147A, 148, 167, 171C, 171F
Legal Profession Act 2004 (NSW), ss 562, 729A, Sch 9 cl 15
Legal Profession Amendment (Disciplinary Provisions) Act 2001 (NSW), s 59D
Legal Profession Reform Act (1993) (NSW)
Supreme Court Act 1970 (NSW), s 75A

CASES CITED: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
A Solicitor v Council of the Law Society of NSW (2003-2004) 216 CLR 253
Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655
In Re Davis (1947) 75 CLR 409
Kennedy v The Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563
Konigsberg v State Bar 353 US 252
NSW Bar Association v Meakes [2006] NSWCA 340
Prothonotary of the Supreme Court (NSW) v Costello [1984] 3 NSWLR 201
Smith v NSW Bar Association (1992) 176 CLR 256
Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279

PARTIES: The Council of the New South Wales Bar Association – Appellant
Marcel Victor Sahade - Respondent

FILE NUMBER(S): CA 40101/06

COUNSEL: P.R. Garling SC/C.A. Webster – Appellant
B.W. Rayment QC/G. Heathcote - Respondent

SOLICITORS: Eakin McCaffery Cox – Appellant
Oliveri Lawyers - Respondent

LOWER COURT JURISDICTION: Administrative Decisions Tribunal – Legal Services Division

LOWER COURT FILE NUMBER(S): ADT 032025

LOWER COURT JUDICIAL OFFICER: J. Nader QC – ADCJ (Deputy President); S. Norton SC – Judicial Member; A. O’Neill – Non-Judicial Member

LOWER COURT DATE OF DECISION: 8 February 2006

LOWER COURT MEDIUM NEUTRAL CITATION: [2005] NSWADT 159; [2006] NSWADT 39

CA 40101/06
ADT 032025

MASON P
SANTOW JA
BASTEN JA
19 June 2007

THE COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION v Marcel Victor SAHADE

In 1999 the Respondent, Mr Sahade, pre-registered and applied for shares in Telstra through a public offering by the Commonwealth. The information made available to the public indicated that multiple applications from the same person would not be allowed. Mr Sahade made 353 pre-registration applications and 215 applications for shares using slight variations of names and addresses. In November or December 1999, the New South Wales Bar Association instituted proceedings against Mr Sahade in the Administrative Decisions Tribunal, seeking a finding that Mr Sahade was guilty of professional misconduct on the basis that he had used dishonest tricks and devices for the purposes of concealing the fact that the applications were multiple applications by a single person.

In March 2005, the Tribunal made a finding that the Barrister was guilty of professional misconduct under s 127(1)(b) Legal Profession Act 1987 (NSW) and was not at the time of the conduct a fit and proper person to remain on the roll of practitioners, but did not make orders consequential on its findings. A further hearing in relation to orders was conducted in November 2005 and the Tribunal found that Mr Sahade was no longer likely to offend against the ethics of the profession. The Tribunal ordered Mr Sahade to pay a fine of $10,000, publicly reprimanded him and ordered him to pay the costs of the proceedings.

The Council of the New South Wales Bar Association appealed from the decision of the Tribunal, seeking that the Tribunal’s orders be varied to provide that Mr Sahade be removed from the roll. Mr Sahade cross-appealed, seeking an order that the Information laid against him be dismissed.

The Court of Appeal held, in dismissing the appeal and cross-appeal:

(per Basten JA, Santow JA agreeing, Mason P not deciding)

1. An appeal from a decision of the Administrative Decisions Tribunal under s 171F Legal Profession Act 1987 (NSW) is by way of rehearing, pursuant to s 75A(6) Supreme Court Act 1970 (NSW): [15]

(per Basten JA, Mason P and Santow JA agreeing)

2. The failure of the Tribunal to advert in its reasons to affidavits of character referees was not a material error casting doubt on its factual conclusions: [45]. The Tribunal must form its own view as to the character of the practitioner and is entitled to give such weight as it sees fit to the views of others: [46]

3. At general law, conduct occurring other than in connection with the practice of law may be relevant to whether a practitioner is of good fame and character or a fit and proper person to remain on the roll, particularly where the conduct contains an element of dishonesty or deceit: [58].

Kennedy v The Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563; Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 applied.

4. Section s 127(1)(b) should not be interpreted as introducing a temporal requirement that good fame and character or fitness to practice be assessed at the time of the hearing. It was a definitional provision establishing criteria against which conduct was to be assessed: [69], [74]

A Solicitor v Council of the Law Society of NSW (2003-2004) 216 CLR 253; Prothonotary of the Supreme Court (NSW) v Costello [1984] 3 NSWLR 201 considered

5. The Tribunal was correct to conclude that at the time of the conduct the practitioner was guilty of misconduct which would satisfy a general law finding of professional misconduct, but erred in its treatment of the evidence regarding the practitioner’s fitness to practise at the time of the second hearing. However, as the parties agreed to a separate hearing as to orders, it was open to the Tribunal to revise its views as to the practitioner’s fitness after the second hearing. The penalties imposed by the Tribunal were within an appropriate range. Accordingly, the appeal should be dismissed: [84] and [88].

6. The cross-appeal was not pressed in the event that the appeal was dismissed and did not need to be decided: [89]

CA 40101/06
ADT 032025

MASON P
SANTOW JA
BASTEN JA
19 June 2007

THE COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION v Marcel Victor SAHADE

Judgment

1 MASON P: I agree with Basten JA. In doing so, I reserve my position as regards the issue in NSW Bar Association v Meakes [2006] NSWCA 340 to which his Honour refers at [15]. The issue was not debated before us.

2 SANTOW JA: I agree with Basten JA. I consider on the evidence before the Tribunal and on its observation of Mr Sahade, it was well able to reach the favourable conclusion concerning Mr Sahade it did at the second hearing, and impose only a penalty of $10,000.

3 BASTEN JA: Mr Sahade (“the Barrister”) was admitted to practise as a barrister in March 1995. Some four years later he took steps to acquire securities in Telstra Corporation Ltd (“Telstra”) through a public offering conducted by the Government in the second half of 1999. The Government anticipated that the offering might be over-subscribed, but provided that members of the public who “pre-registered”, prior to 16 August 1999, were provided with a “green personalised application form” and were guaranteed an allocation of 400 shares. The information made available to the public noted that the Government “reserves the right to reject multiple applications that appear to be from the same person”.

4 Between 26 July and 14 August 1999, the Barrister made 353 pre-registration applications each with slight variations of name and address. The Barrister then lodged 215 application forms for shares, together with a personal cheque for $1,800 for each application, making a total payment of $387,000.

5 This conduct became the subject of proceedings brought by the Australian Securities and Investments Commission and by the Commonwealth Director of Public Prosecutions. These proceedings are not presently relevant, except to the extent that the Barrister made formal admissions and gave evidence in the criminal proceedings in May 2001. Those proceedings were brought under s 29B of the Crimes Act 1914 (Cth) (now repealed) which made it an offence for a person to impose upon a public authority under the Commonwealth by an untrue representation with a view to obtaining a benefit or advantage. On 31 May 2001, the Barrister was acquitted of the criminal charges.

6 In November or December 1999, the New South Wales Bar Association was made aware of the conduct and referred the matter to a professional conduct committee for investigation. On 5 November 2003, the Council of the Association filed an Information in the Administrative Decisions Tribunal (Legal Services Division) seeking findings, and consequential orders, on the basis that the Barrister was guilty of professional misconduct. The Information was laid under s 167 of the Legal Profession Act 1987 (NSW) (“the 1987 Act”), pursuant to which the Tribunal was required to conduct a hearing into each allegation particularised in the Information: s 167(2).

7 The Tribunal conducted a hearing on 7 and 8 March 2005 and delivered reasons, in relation to specific findings with respect to the conduct of the Barrister, on 13 July 2005: New South Wales Bar Association v Sahade [2005] NSWADT 159 (“the first reasons”). The decision concluded with the following paragraphs:

“[122] We find that the Barrister is guilty of professional misconduct under s 127(1)(b) of the Act in respect of each ground of the Information. In particular we find that he is not of good fame and character.

[123] We have made no decision as to the appropriate orders to be made. The matter will be listed to consider that question.”

8 Despite the adverse finding, the matter appears to have thereafter proceeded in a somewhat desultory fashion. The foreshadowed further hearing in relation to orders did not take place until 24 November 2005 and orders were not made until 8 February 2006: New South Wales Bar Association v Sahade (No 3) [2006] NSWADT 39. (Although the decision of 13 July 2005 was not so identified, it appears to have been the second decision, there having been a previous decision on interlocutory matters which are not presently relevant. There was no decision between 13 July 2005 and that identified as Sahade (No 3) of 8 February 2006, which will be referred to as “the second reasons”.)

9 The Association had sought an order removing the Barrister’s name from the roll of legal practitioners, pursuant to s 171C(1)(a) of the 1987 Act. The Tribunal declined, in its second reasons, to make that order but fined the Barrister $10,000 and publicly reprimanded him: at [138]. The Barrister was also ordered to pay the costs of the proceedings in the Tribunal: at [139].

10 The Association, as Appellant, now seeks to have the orders made by the Tribunal on 8 February 2006 varied, either to provide that the Barrister’s name be removed from the roll (now known as the roll of local lawyers) or for some other order of greater severity than that imposed by the Tribunal. The Barrister has cross-appealed, seeking an order that the Information laid against him be dismissed.

11 Before identifying the issues raised by the appeal and cross-appeal, in the circumstances provided by the factual findings made by the Tribunal, it is appropriate to identify the source of the appellate jurisdiction of this Court.

Jurisdiction

12 Between the first decision of the Tribunal given on 13 July 2005 and the making of orders on 8 February 2006, the 1987 Act was repealed, effective from 1 October 2005, and replaced by the Legal Profession Act 2004 (NSW) (“the 2004 Act”). However, the complaints contained in the Information were required to be dealt with as if the 2004 Act had not been enacted, pursuant to the savings and transitional provisions in Schedule 9 and particularly cl 15.

13 The powers available to the Tribunal were to be found in s 171C of the 1987 Act, as it stood at the date of repeal. As at that date, s 171C relevantly read as follows:

171C Determinations of Tribunal

14 Immediately prior to its repeal, the 1987 Act provided for appeals against orders and decisions of the Tribunal in s 171F, which relevantly provided as follows:

171F Appeals against orders and decisions of Tribunal

(1) An order or other decision made by the Tribunal under this Part may be appealed to the Supreme Court by a party to the proceedings in which the order or decision was made.

Supreme Court Act 1970

15 In NSW Bar Association v Meakes [2006] NSWCA 340, an issue arose as to whether s 171F of the 1987 Act was the source of a right of appeal in relation to orders made by the Tribunal after the repeal of the 1987 Act. A majority of the Court (Tobias JA, Bryson JA agreeing) held that it did not matter whether the relevant right of appeal arose under the 1987 Act or the equivalent provision of the 2004 Act, namely s 729A. I expressed the view, to which I adhere, that the relevant provision is s 171F of the 1987 Act: Meakes, [100]-[108]. In either event, the powers of this Court under s 75A(6) of the Supreme Court Act 1970 (NSW) are invoked and the appeal is by way of a rehearing, this Court having the powers of the Tribunal in relation to appropriate orders: s 75A(10).

16 On the basis that the Tribunal was exercising power under s 171C of the 1987 Act in imposing a disciplinary order with respect to the finding of professional misconduct, the maximum fine which could be imposed was, at all material times from the date of the conduct the subject of the charge until the repeal of the provision, $50,000 in the case of professional misconduct: s 171C(1)(d). The appropriate penalty must thereby be assessed against that maximum and not by reference to the higher figure ($75,000) provided in the 2004 Act: s 562(7).

Issues

17 A significant issue in this appeal turns on the statutory definition of professional misconduct. Both when the conduct occurred, and at the time of the hearings before the Tribunal, the 1987 Act relevantly provided:

127 Professional misconduct and unsatisfactory professional conduct

professional misconduct

(a) unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence, or

(b) conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law which, if established, would justify a finding that a legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners, …

(2) For the purposes of this Part:

unsatisfactory professional conduct

18 In its first reasons, the Tribunal made unqualified findings that the Barrister was not, at the time of the conduct (in 1999) a fit and proper person to remain on the roll of practitioners and, later, that he “is not” of good fame and character: at [117] and [122]. The Tribunal held that if he “honestly thought that his conduct in connection with the purchase of the shares was justifiable, he would demonstrate such a purblind critical faculty in matters of basic ethics as to demonstrate unfitness to practice law”: at [120]. However, the Tribunal adopted an alternative view, namely that the Barrister was not ever “in doubt about the serious wrongness of what he did and that his protestations of an innocent mind were false”: ibid.

19 Following delivery of the first reasons on 13 July 2005, the Barrister filed a further affidavit dated 14 November 2005, together with further affidavits as to his character. On 24 November 2005 a second hearing was held by the Tribunal with respect to the appropriate orders to be made. In its second reasons, it took quite a different view of the Barrister’s character, concluding that it was “confident that the Barrister will not offend against the ethics of his profession again”: [2006] NSWADT 39 at [119] and that, although what the Barrister had done in 1999 was “seriously wrong” it was sufficient to impose a fine of $10,000 and publicly reprimand him: at [137] and [138].

20 In substance, the Appellant’s primary contention was that the earlier assessment made by the Tribunal was appropriate and that there was insufficient evidence to justify the view that there had been a significant change in his character over the ensuing months. If the Barrister remained a person not of good fame and character, as at the date of the second hearing, an order striking his name from the roll of practitioners, as foreshadowed in the first reasons, should have been made: see [2005] NSWADT 159 at [119]. In that passage the Tribunal had stated:

“We look for indicia that the Barrister is not now unfit to practice law. Nothing that emerged from the Tribunal hearing leads us to believe that, between the time of the offending conduct and the end of the hearing itself, the Barrister had changed significantly in any material respect. Quite apart from the equivocal recognition given by him in evidence that what he had done was wrong, we have to say that as the tribunal of fact we found his evidence unconvincing in any event. It impressed us as being shaped in order to gain a favourable result from the hearing.”

21 By way of response to the appeal, the Barrister contended that, by agreement between the parties and with the consent of the Tribunal, the first hearing had been directed to the question whether the charges of professional misconduct should be sustained. If so satisfied, the Tribunal would then hold a further hearing in relation to the appropriate order. Accordingly, to the extent that the Tribunal foreshadowed its proposed order in the first judgment, such indications were inappropriate and it was entirely open to the Tribunal to take a different view following the second hearing, as indeed it did.

22 The Respondent further contended that the tentative view formed as to the appropriate order was in any event flawed by the failure of the Tribunal to take into account six affidavits of good character which had been tendered at the first hearing, but not referred to in the first reasons. In any event, it was contended that the additional material before the Tribunal at the second hearing provided an adequate basis for the conclusions reached by the Tribunal in its second reasons.

23 In written submissions, counsel for the Barrister said that it was not open to the Tribunal in its first reasons to make findings adverse to the Barrister on the basis of conduct which was subsequent to the complaints identified in the Information and as to which no separate charge was laid. The approach adopted by the Tribunal in that respect was said to involve procedural unfairness, in breach of the principles set out by the High Court in Smith v NSW Bar Association (1992) 176 CLR 256, esp at 272 (Deane J). That complaint was also made before the Tribunal on the second hearing, but no challenge to the Tribunal’s rejection of it was pressed in oral argument on the hearing of the appeal. Given the fact that there was a subsequent hearing and that the Tribunal changed its views as to the Barrister’s present character, the circumstances are materially different from those which arose in Smith. Although not formally abandoned, the claim for procedural unfairness not having been pressed at the oral hearing of the appeal, should be rejected.

24 The Barrister also sought, by way of cross-appeal, an order that the Information be dismissed. The precise basis on which that order was sought was left unclear at the hearing. In the written submissions, the contention appeared to be that if, at the date of the final hearing, the Tribunal was not satisfied that the Barrister was either unfit to practice, or otherwise than of good fame and character, the statutory definition of “professional misconduct” was not made out. This conclusion appeared to depend upon a construction of s 127(1)(b) of the 1987 Act which was inconsistent with that presented in oral argument.

25 In any event, senior counsel for the Barrister explicitly stated that the cross-appeal was “defensive”, and was not pressed if the appeal were dismissed.

26 For reasons set out below, in my view the appeal should be dismissed and hence the cross-appeal need not be determined. It is necessary to say something more about the statutory provisions in the 1987 Act concerning professional misconduct and the procedure adopted before the Tribunal. Before addressing those issues, however, it is desirable to provide some background in relation to the circumstances of the conduct undertaken by the Barrister.

Conduct engaged in

27 As noted above, the relevant conduct involved the lodgement by the Barrister of 353 applications to “pre-register” for shares in Telstra in the second public offering by the Commonwealth. It was anticipated that the offering might be over-subscribed but “pre-registration” guaranteed an issue of 400 shares.

28 A member of the public could apply for shares without pre-registering, but no guarantee was provided as to the number of shares which would be allocated. Apart from public applicants, existing Telstra shareholders and eligible employees were also given specified entitlements. In addition, stockbrokers could obtain allocations for their firms, which could be distributed amongst clients. Finally, an “institutional offer” was made via a “book-building process”. The institutional offer contained no guarantee of allocations and payment of the first instalment was fixed at $4.75 per share, whereas individuals received an allocation at $4.50 per share. A discount of 15¢ per share was promised to individuals in relation to the final payment instalment.

29 There was no limit on the number of shares for which a public applicant could apply, although the Commonwealth stated that it reserved the right “to treat any application for 100,000 shares or more as an application in the Institutional Offer”: Offer Document, p 10. The document continued:

“In addition, where the Commonwealth is advised by the Joint Global Coordinators that investors who would typically be regarded as institutional investors have applied as Public Applicants … the Commonwealth also reserves the right to treat such applications as applications in the Institutional Offer.”

“Public Applicants must not lodge multiple applications. The Commonwealth reserves the right to reject or aggregate applications which appear to be multiple applications from the same person. However, eligible employees and clients of Stockbrokers receiving firm allocations may also lodge an application under the public offer.”

30 As the Tribunal concluded, by reference to the offer document, at [48] of its first decision:

“The expression, ‘multiple applications from the same person’ is, certainly in the circumstances of this case, synonymous with the phrase, ‘more than one application from the same person’. Therefore, an applicant was prohibited from making more than one application for any number of shares. The prohibition was directed to persons, not to names. One person, by whatever name or names s/he or it may be known, was permitted to make only one application.”

31 The Barrister applied to pre-register electronically. He did so by lodging 353 applications, each using his own surname but different first names and minor variations of a number of addresses, the variations being sufficient, on one view, to mislead the Commonwealth, but not sufficient to mislead Australia Post in delivering any relevant correspondence. The Barrister, either himself or through his brother, had an association with each of the addresses sufficient to ensure that he would obtain mail sent to that address. Having received personalised application forms in response to his multiple pre-registration applications, he lodged 215 applications, each with an accompanying cheque for $1,800 signed by him on his own account. The Barrister subsequently received 215 allocations of 400 instalment receipts each, being a total 86,000 Telstra instalment receipts.

Element of dishonesty

32 In the Information filed on 5 November 2003 by the Appellant, the first ground alleged professional misconduct by the Barrister in lodging 353 applications to pre-register for shares “using dishonest tricks and devices for the purpose of concealing the fact that the applications were multiple applications by a single person, in circumstances where he believed that the policy of the Commonwealth would be likely to be to reject multiple applications for pre-registration from the same person”. The second ground was in similar terms, but related to the 215 applications to purchase shares, “using dishonest tricks and devices for the purpose of concealing the fact that the applications were multiple applications by a single person”. As the Tribunal noted at [52] of its first decision:

“The Barrister is not accused of making multiple applications; he is accused of using dishonest means to disguise the fact that his applications were multiple applications by one person.”

“Therefore, we should consider whether the Barrister believed that unless he acted deceitfully, as he did, his multiple applications for shares might have been rejected.”

33 Thus, the Tribunal correctly understood the focus of the dispute as to the particular state of mind of the Barrister in lodging pre-registration applications (in relation to ground 1) and in lodging the applications to purchase shares (ground 2). The Barrister’s state of mind needed to be identified with respect to the three matters particularized in each ground, two of which were common, namely making the applications in names other than his own and making applications with false or “artificially variegated” addresses. The third particular in relation to the pre-registration applications involved stating false telephone numbers, whilst in relation to the share applications, the third particular involved signing the applications otherwise than in his own name and with his own signature.

34 The Tribunal found that the Barrister’s justification for using different names, as provided in his evidence to the Tribunal, was “evasive and unconvincing”: at [56]. The Tribunal continued:

“It became clear that there was no explanation that the Barrister was able to give, worthy of credence that did not involve his using the false names in an attempt to deceive the share issuing authority in an important respect.”

35 The categorisation of the Barrister’s evidence before the Tribunal has already been noted at [20] above. The Barrister sought to draw a distinction identified by the Tribunal in the following terms in its first reasons:

“[110] It is needless to go to every part of the transcript of the Barrister’s evidence relevant to his state of mind. It is a fair assessment that, whilst he eventually conceded that what he did was in fact misleading and deceptive, he persisted to the end in saying that it was not his intention to act deceptively or dishonestly when he did the acts.

[111] We do not accept this claim of subjective honesty because the scheme was manifestly deceptive and dishonest and its very motivation was to deceive.

[112] One must suspect the Barrister of playing to the Tribunal. He knew that if he continued to insist that he could see no wrong in what he did he risked being found unfit to practise law by reason of his inability to distinguish right from wrong in an important respect. On the other hand he may have persisted in saying that, when he did the acts he thought they were permissible, in order not to appear to have been a dishonest and deceitful person.”

36 The cross-examination of the Barrister before the Tribunal was substantially undertaken on 7 March 2005, and concluded on the morning of 8 March 2005. In his re-examination, he made what the Tribunal described as “his most unequivocal concession that what he had done was misleading, deceptive and dishonest”: at [107]. However, the Tribunal also stated, at [116]:

“This eleventh hour acknowledgment by the Barrister of the deceitful and misleading nature of his conduct makes it quite impossible to accept the sincerity of this evidence under re-examination. We were not told by the Barrister what had occurred to give him more insight into his conduct than he showed at any time until his re-examination. The re-examination coming after an overnight adjournment suggests that the Barrister may by then have realised that in order to show that he is now a fit and proper person … he had to change his position. We can think of no other explanation for the marked change.”

37 No doubt mindful of the need to address this finding, the Barrister swore a further affidavit dated 14 November 2005 in which he asserted that he had formed the view in 2001, in the weeks after his criminal trial, that his conduct had been “misleading and deceptive”: Affidavit, par 2. He continued:

subjectively

38 In his further affidavit the Barrister then addressed his reply to the Information and his affidavit of 30 January 2004, with respect to his “state of mind in 1999”. He continued:

“But I was not attempting to assert that I was otherwise justified in doing what I did, nor that I was presently of the same state of mind. In preparing for the hearing I believed that my current state of mind was simply irrelevant to the hearing of Professional Misconduct (regardless of whether the allegation brought against me was one of objective or subjective dishonesty) and I thought that it was only relevant on the question of penalty.”

39 He then asserted that he would have pleaded to the charges if the Bar Association had acknowledged “that my state of mind in 1999 was not subjectively dishonest, albeit that my actions were objectively dishonest”. He then conceded that his actions “were based on a lack of objective judgment at the time”. Whether that satisfactorily answered the Tribunal’s assessment, at [112] of its first reasons, set out at [35] above, may be questioned. However, the Appellant did not seek to cross-examine the Barrister on this further affidavit.

40 At the further hearing on 24 November 2005 the Deputy President of the Tribunal stated that he wished to ask the Barrister “a question or two” and added “he doesn’t have to go into the witness box”. Counsel for the Bar Association took no objection to that course. The following interchange occurred (Tcpt, 24 November 2005, p 30):

“DEPUTY PRESIDENT: Come forward, Mr Sahade. You can sit down there. Mr Sahade, I’m not going to put you on oath unless somebody wants me to. I am going to assume that you are now a person, certainly now if not always, who will tell the truth without taking an oath; is that right?

MR SAHADE: Yes, thank you.

DEPUTY PRESIDENT: How do you feel about all this now? Are you ashamed of what you did?

MR SAHADE: Terribly ashamed.

DEPUTY PRESIDENT: It has caused a lot of suffering to you and your family?

MR SAHADE: Yes, indeed, very much.

DEPUTY PRESIDENT: Is there any chance of your ever doing anything like this ever again?

MR SAHADE: No, sir. Inconceivable.

DEPUTY PRESIDENT: Does anyone wish to ask Mr Sahade any questions? No. You may step down, Mr Sahade.”

41 The Tribunal, in its second reasons, set out the evidence given by the Barrister in his affidavit, and referred at some length to the evidence of his referees. The Tribunal then concluded at [117]:

“It was very obvious that when he testified at the most recent hearing, the barrister was a changed person. He conceded his wrongdoing without qualification. He had the appearance of a man who had been suffering extreme anxiety for a long time.”

The Appellant challenged this conclusion of the Tribunal, based only on the affidavit of 14 November 2005 and the brief answers to the questions of the Deputy President. However, before addressing that challenge it is necessary to refer to the character references provided to the Tribunal on behalf of the Barrister.

Character evidence

42 Six affidavits were tendered at the first hearing, none of the deponents being cross-examined. As already noted, no reference was made to the them in the first reasons of the Tribunal. Of those, one, from a client for whom the Barrister appeared on a pro bono basis, did not directly address the issues in dispute. Secondly, there was an affidavit from the Barrister’s wife, a medical practitioner, who affirmed her belief in his honesty and other aspects of his character, but again did not address the specific issue for consideration. Thirdly, there was an affidavit by a retired barrister, Mr Cavell Becher, who affirmed the Barrister’s general abilities and his willingness to do pro bono work. Fourthly, and of more direct relevance, was an affidavit from Mr David Hipsley, a barrister then employed as Director of Practical Legal Training at the University of Technology Sydney. Mr Hipsley noted that he had shared chambers with the Barrister between 1997 and 1999. He stated that the Barrister had never shown “any propensity to do anything which would go beyond the bounds of what is lawful” and that he, Mr Hipsley, did not believe that “he would have done anything which he believed to be morally or legally wrong”. Mr Hipsley’s view was entitled to some weight, because he stated that he had read the evidence in the criminal proceedings, the Information in the present proceedings, and the Barrister’s reply and had discussed both sets of proceedings with the Barrister.

43 A fifth affidavit, also from a barrister, Ms Patricia Conway, was based on knowledge of “the circumstances that bring [the Barrister] before this Tribunal” and on a “close following” of the District Court proceedings and their outcome. Ms Conway expressed the view that the conduct related to activities “completely unrelated to his work as a barrister” and stated that she had always found him to be “a person of the utmost honesty, always ready to admit a mistake and accept responsibility for his actions”. She further expressed the view from her knowledge of his character that “he would not, for any reason, knowingly deceive”. Finally, there was an affidavit from Mr Aldo Monzo, who also attested to his knowledge of the Barrister since 1995, when they undertook the Bar Association reading course together. He expressed his conviction in the Barrister’s “strength of character, honesty and integrity” and referred to various conversations which they had had in relation to daily experiences at the Bar. These led Mr Monzo to conclude:

“Matters of ethics and professional conduct would often arise and it is through these discussions that I formed and still hold to the view that [the Barrister] would never knowingly do anything that he considered to be dishonest, disreputable or unethical.”

44 Mr Monzo also indicated his knowledge of the circumstances which gave rise to the complaint (and the prior proceedings by ASIC and the criminal prosecution) and stated:

“Based upon my knowledge of [the Barrister] over the past decade, I believe that at the time he truly believed that what he was doing was permissible within the rules of the float. I do not think it possible that [he] would ever engage in such conduct if he believed that to do so would be dishonest and/or against the rules governing the sale of the float. I accept [his] explanation for his actions as truthful.”

45 As the Tribunal noted in its first reasons – set out at [35] above – the Barrister faced a dilemma. The use of more than 200, and probably as many as 353, false names and varied addresses undoubtedly permitted the inference that he sought, by deception, to disguise the fact that his applications were multiple applications by one person, in breach of the rules governing the float. A bland statement by a friend or colleague who purported to know the relevant circumstances, as to the unlikelihood of the Barrister having taken those steps as a part of deceptive conduct, involving a form of dishonesty, would carry little weight. Alternatively, if there were a failure to appreciate that the conduct was inappropriate, some further comment would have been required as to the apparent lack of judgment shown by the Barrister. Given the absence of any such analysis in the character affidavits, and given the views of the Tribunal, having heard extensive evidence from the Barrister, it is unlikely that any significant weight would have been placed by the Tribunal on the affidavits from the referees. Whilst one might have expected that the Tribunal would at least advert in its reasons to the affidavits, as providing some evidence to the contrary of the views it was inclined to reach, the lack of real weight to be accorded to this material, at least in relation to a finding with respect to the conduct in issue, indicates that the failure was not a material error casting doubt on the factual conclusions reached by the Tribunal.

46 The relevance of the affidavit material must be understood in a practical way. Tribunals dealing with professional discipline are routinely supplied with character references: indeed, it would be unusual to find a case in which a professional who was seeking to resist disciplinary orders failed to take that step. Sometimes the affidavits are numerous. In some cases, the deponents will assert knowledge of the particular conduct the subject of the hearing and nevertheless express a view as to the likelihood of the person to act in such a manner, whether, if he or she did so act, it was out of character and whether, if he or she did so act, it would change the deponent’s view of the person’s character. Usually it will be unclear what precise information has been supplied and taken into account by the deponent and in what manner. No doubt those circumstances could be clarified by calling the deponent and permitting cross-examination. However, to do so would undoubtedly extend the length and cost of disciplinary proceedings, sometimes significantly. An informant in such proceedings should not be put in the practical position of having to require that each deponent be called for cross-examination, lest the Tribunal were to take the statements of the deponent at their highest, in the absence of such challenge. As a general rule, such a course should not be encouraged. On the ultimate issues, the Tribunal must form its own views and is entitled to disregard, or at least give little weight, to the views of others.

47 Some confusion appears to have arisen as to the precise scope of the separate question identified as the subject of the first hearing, a matter which will be referred again below. That may have provided a further reason why the Tribunal did not discuss in its first reasons the six character affidavits. It did not need to discuss them in its second set of reasons because, by that stage, further and more detailed evidence had been given by each of the original deponents except the former client. Importantly, there were fresh affidavits from a number of other legal practitioners, including Mr Desmond Andersen QC, who not only had known the Barrister since 1992, but had appeared for him at his District Court trial. In addition, there were affidavits from members of his current chambers, including Mr Rory McCrudden who had licensed a room to him and Mr Robert Webb, to whom he disclosed his adverse disciplinary finding, made in the first reasons of the Tribunal, prior to taking rooms at Sydney Chambers.

48 It is not necessary to set out the content of each of these affidavits as they are summarised, in more detail in some cases than in others, by the Tribunal in its second reasons at [36]-[113]. As the Tribunal noted at [49]:

“It has always been a consideration in cases of this kind that the person in question should be one whom his fellow barristers, with the knowledge of his wrongdoing, are prepared to accept as a colleague.”

“[115] The fact that some twenty members of the Bar, members of Sydney Chambers, having had disclosed to them fully by the Barrister himself the wrongdoing which brought him to the District Court and to this Tribunal have accepted him as a colleague on their own floor is very much in his favour. There can be little doubt that barristers have an important role to play in judging the fitness of their fellows to serve the community. As a group, with few exceptions, they maintain high standards and would not readily accept as a colleague a person whom they do not expect to [maintain] similar standards.

[116] The sheer number of referees and the force with which they express their opinions cannot be ignored.”

49 These opinions drew some criticisms from the Appellant. For example, it was pointed out with some truth that there was no real evidence that all members of Sydney Chambers had had the nature of the conduct complained of disclosed to them nor was there direct evidence of willing acceptance of him on the floor. Mr McCrudden said that he had read the first reasons of the Tribunal and that the Barrister had given “written application in which he made the above disclosure and which I in turn handed to the Secretary of my Chambers”. He then entered into a licence agreement with the Barrister. Mr Webb, also a member of Sydney Chambers, stated that the Barrister had disclosed the circumstances to him and that he had told him to disclose it in writing to the floor secretary and to inform Mr McCrudden. He did not say what further disclosure took place within chambers, if any. On the basis of this material, the Appellant was entitled to be critical of the bald statements of fact made by the Tribunal in the passage at [115] set out above.

50 It is clear that the Tribunal also placed significant weight on the affidavit of Mr Andersen QC. In the course of his affidavit, Mr Andersen, who had represented the Barrister at his District Court trial stated:

“At that trial he made full and frank admissions in respect of all the physical acts that he engaged in and he gave oral evidence as to his honest state of mind at the time that he engaged in those actions – this being the sole issue for the determination of the jury.”

“Mr Sahade is certainly not a cheat or a person who practises in deception. In my view he is indeed trustworthy, frank and honest. I believe he is an honourable person … .

In my opinion Mr Sahade is a fit and proper person to remain on the roll of legal practitioners. I would not give this opinion lightly in respect of any person, but I give it without reservation in respect of Mr Sahade and I volunteered to give evidence on his behalf in this Tribunal hearing. In my opinion, the wrongness that Mr Sahade engaged in was an aberration from the true character of Mr Sahade that in my view clearly shines through him today.”

51 Mr Andersen also offered to act as a “tutor” to the Barrister and to “supervise him for such period as the Tribunal may deem appropriate”. Mr Andersen was present at the second hearing before the Tribunal and, at the request of the Deputy President, gave an undertaking to the Tribunal “that if, in the period of 12 months he has offered to exercise supervision, anything happened that was sufficiently untoward he would bring it to the attention of the Bar Council”: Tcpt, 24 November 2005, p 11.

52 Before considering further the challenge made by the Appellant to the final orders of the Tribunal, it is convenient to set out the legal principles relevant to the procedures and findings of the Tribunal.

Legal standards and procedures

53 Historically, the superior courts which admit legal practitioners to practise have been understood to enjoy inherent disciplinary powers as an incident to the power of admission: see In Re Davis (1947) 75 CLR 409 at 414 (Latham CJ), 419 (Starke J), 423 (Dixon J, Williams J agreeing); see also Kennedy v The Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563 per Rich J in an unreported passage, at p 1:

Re Blake

Kennedy

“But the charge of misconduct need not fall within any legal definition of wrongdoing. It need not amount to an offence under the law. It is enough that it amounts to grave impropriety affecting his professional character and is indicative of a failure either to understand or to practise the precepts of honesty or fair dealing in relation to the Courts, his clients or the public.”

54 The concept of conduct sufficient to result in the name of a professional being removed from the relevant register has been identified in different language over the last century or more, by courts and statute. Thus, in 1894, the English Court of Appeal in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 considered the meaning of “infamous conduct in a professional respect”, being the criterion by which the General Council was empowered to strike a medical practitioner’s name from the register. The Court held, adopting the language of Lopes LJ, that such a criterion would be satisfied (at p 763):

“If it is shewn that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency.”

55 That, or similar language, has been adopted in relation to both medical and legal practitioners in this country, although the actual language is now seen as dated. More recently, there have been attempts to include appropriate definitions in statutory form: see, the Legal Profession Reform Act 1993 (NSW), inserting a new Part 10 in the 1987 Act. However, long before statutory intervention, the courts had accepted a jurisdiction going beyond misconduct in a professional respect, as discussed in Allinson, to include personal misconduct of a kind which was seen to render a practitioner unfit to remain on the roll: see Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, a case in which a barrister had been found guilty of manslaughter in causing the death of a motor cyclist whilst driving a motor car under the influence of alcohol and had received two years imprisonment. As Kitto J stated at p 297, the issue for the Court was whether the appellant had been shown to be “a fit and proper person” to be a member of the Bar. His Honour continued:

“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-respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily cooperation 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 of 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. …

In the present case it is not the conduct, but because of a conviction, that the appellant has been disbarred. …

The conviction is of an offence the seriousness of which no one could doubt. But the reason for regarding it as serious is not, I think, a reason which goes to the propriety of the barrister’s continuing [as] a member of his profession. The conviction relates to an isolated occasion, and, … it does not warrant any conclusion as to the man’s general behaviour or inherent qualities. … It has neither connection with or significance for any professional function.”

56 The relevance of personal misconduct may be seen as a corollary of the requirement that, in order to be admitted as a legal practitioner, the applicant must be a person of good character or, in the language long ago accepted in the Legal Practitioners Act 1898 (NSW), s 9, “of good fame and character”. As was noted by Black J, delivering the judgment of the US Supreme Court in Konigsberg v State Bar 353 US 252 at 263 (1957) of the test adopted at that time in California, namely “good moral character”:

“It can be defined in an almost unlimited number of ways for any definition will necessarily reflect the attitudes, experiences, and prejudices of the definer. Such a vague qualification, which is easily adapted to fit personal views and predilections, can be a dangerous instrument for arbitrary and discriminatory denial of the right to practice law.”

57 In considering whether a solicitor who had been struck off for misconduct should be readmitted, on the basis that he was now a fit and proper person to be a solicitor, it has been suggested that it is not reputation but “intrinsic character” which should be considered: see Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 at 692 (Higgins J). A similar approach may be identified in judgments of the other members of the Court, including in particular Isaacs J at, eg, p 688. A conclusion as to character, whether accurate or not, may properly be based on conduct and behaviour: a reputation may be based on flimsy and unidentified grounds and may be either better or worse than a careful analysis of character, as revealed in conduct or behaviour, would justify. To uphold or deny a right to practice on the basis of reputation would be to risk arbitrary decisions, or judgment based on prejudice, in a manner properly treated as unacceptable in Konigsberg.

58 Further, some aspects of character are likely to be of limited relevance to the practice of law. However, willingness to engage in deceptive or dishonest behaviour will generally be a matter of central relevance. Such a characteristic may be revealed by conduct in the practice of law or in conduct unrelated to the practice of law. Whatever the context of the conduct, the element of character thus revealed is likely to be relevant although if based on conduct in the practice of law, that context will usually give rise to heightened concern.

59 In the present case, the Tribunal proceeded on the basis that the conduct complained of did not occur in connection with the practice of law: [2005] NSWADT 159 at [77]. However, as the Tribunal rightly stated in the same reasons, after reference to the judgment of Kitto J in Ziems at p 298:

“[83] A difficulty in this case is that deceitfulness is a character flaw that is thought by most legal practitioners as well as others not to be confined in separate compartments of one’s life. It is commonly thought that people who have indulged in deceit for their own advantage are likely to be deceitful again when it suits them, whatever they are involved in and whether it be in the course of legal practice or otherwise. Trust is one of the cornerstones of legal practice. Honest dealing is fundamental to fitness to practice law.”

60 Bearing the focus of these matters in mind, it is necessary to note the definitions of misconduct in s 127 of the 1987 Act as it was at the date of its repeal, as set out at [17] above. First, it must be noted that the definition of “unsatisfactory professional conduct”, although stated to be an inclusive definition, only identified conduct occurring “in connection with the practice of law”. To the extent, therefore, that the definition of “professional misconduct” incorporates in par (a) a serious form of unsatisfactory professional conduct, that limb can have no application in the present case, given the approach of the Tribunal noted above which was not challenged by the parties. Accordingly, only the second limb is engaged, being par (b) dealing with conduct occurring “otherwise than in connection with the practice of law” being conduct of a kind which would justify a finding that a practitioner “is not of good fame and character or is not a fit and proper person to remain on the roll”. Because the definition of “professional misconduct” was said to be inclusive, it would appear to have recognised the existence of forms of misconduct which would constitute professional misconduct, but which were not included within the statutory formula. The Information laid against the Barrister did not specify whether the allegation of “professional misconduct” was limited in some way to the formula contained in s 127, or was to be considered more broadly. But, in the course of considering the Barrister’s state of mind, the Tribunal stated: [2005] NSWADT 159 at [61]:

“We have decided that we ought not to rely upon any common law concept of professional misconduct. … His pursuit of this advantage may have been closely enough related to a barrister’s professional activity to amount to professional misconduct in the common law sense. … But, for the avoidance of any misunderstanding, we repeat that we rely only on the statutory definition of professional misconduct: section 127(1)(b) of the Act. The statutory definition requires no connection with the practice of law.”

61 Further, the Tribunal concluded that the use of the present tense in the definition was significant, and, referring to A Solicitor v Council of the Law Society of NSW (2003-2004) 216 CLR 253 at [21], noted that the question of fitness “is to be decided at the time of the hearing”: at [70].

62 This course led the Tribunal into procedural difficulty. If, in the course of the first reasons, it were to conclude that the Barrister had engaged in professional misconduct, it had to be on the basis that he was either not of good fame and character or was not a fit and proper person to remain on the roll, at the time of the first hearing. As the Tribunal noted at [69]:

“It is not easy to see how such a finding could result in any order other than removal from the roll of legal practitioners.”

63 In fact the Tribunal in its first reasons concluded that the Barrister was not, at the time of the conduct, a fit and proper person to remain on the roll; looked unsuccessfully for indications that he had changed in any material respect; found particularly that he “is not of good fame and character” and yet declined to find that he “is not” at the time of hearing a fit and proper person to remain on the roll. These findings reflect a contortion designed to allow the Tribunal to express the conclusions which it had then reached on the evidence before it, whilst acknowledging that the first hearing had proceeded on the basis that it would not deal with the issue of the appropriate protective order, in the event that the Information was upheld.

64 In the course of opening the Barrister’s case before the Tribunal at the first hearing, senior counsel then appearing for the Barrister made a distinction between the relevance of matters that occurred after the conduct in question under the general law, where they might be considered as relevant to penalty, as compared with the situation under s 127(1)(b), making express reference to the use of the present tense. He continued (Tcpt, 7/3/05, p 30):

“So, in effect, what happens is that the section rolls the question of the original conduct into one of present fitness to make issues of present fitness on that particular type of professional misconduct a critical aspect of the equation.”

65 There was no demur from that approach on the part of the Association and, indeed, in this Court that approach was expressly endorsed on behalf of the Association, now the Appellant. On the other hand, the proposition, as stated above, might have alerted either counsel or the Tribunal to the difficulty of a split hearing; if the statutory definition were understood to require that questions of subsequent conduct must be relevant to the definition of “professional conduct”, they would therefore need to be considered in determining whether such a finding should be made or not.

66 What precisely the parties had in mind is unclear. When the difficulty appears to have come to the notice of the Deputy President after the hearing, and before delivering judgment, he sought further submissions from the parties with respect to penalty. However, both parties responded in terms (put in evidence before this Court) to the effect that they were unable properly to make sensible submissions in relation to penalty until they had the Tribunal’s reasons with respect to “liability”.

67 Once the further evidence was placed before the Tribunal at the second hearing, the Tribunal was satisfied that, although what the Barrister did in 1999 “was seriously wrong”, he no longer “presents any risk to the public”: see [2006] NSWADT 39 at [135] and [137]. The Tribunal expressly concluded that it had confidence that the Barrister “will not offend against the ethics of his profession again” and that experience had “tempered the character of the barrister in such a way that he now has a better understanding of the conduct required by the profession”: at [119]. Although the Tribunal did not say so in express terms, at least implicitly it must have concluded that he was now, at the date of the second decision, a person of good fame and character and that he was a fit and proper person to remain on the roll.

68 Had the Barrister adhered to his construction of s 127(1)(b), as set out above, and had he contended, as he did on the appeal, that the first finding was merely interlocutory and was not a final conclusion in relation to professional misconduct, the finding of professional misconduct could not be sustained. However, he did not adhere to that construction, perhaps in part because he was faced with a complaint from the Appellant that the Tribunal had improperly restricted its approach, considering only the concept of “professional misconduct” as contained in s 127(1)(b). In any event, senior counsel appearing on the appeal (who did not appear at the first hearing before the Tribunal) contended for a different construction of the statutory provision. The argument put on behalf of the Barrister was that the word “is” in s 127 should not be read as referring to the time of the finding, rather, it should be read as meaning “is, at any time” or “is, at the relevant time”.

69 This construction involved reading the definition in context. Thus, it should be accepted that s 127(1) was in the true sense a definitional provision and not an operative provision: accordingly, the defined terms, when they appeared in relevant operative provisions, should have been given the meaning identified in the definition section. Thus, the Commissioner established under the Act was empowered to receive “complaints about professional misconduct”: s 131(1)(a), and later s 59D(1)(a): see Legal Profession Amendment (Disciplinary Provisions) Act 2001 (NSW). When accepting a complaint, the Commissioner had to be satisfied that it “concerns an allegation of professional misconduct” and that it is necessary in the public interest to investigate the complaint: s 138(2)(b). It was the complaint which had to be passed through various procedural steps including investigation: see ss 147A and 148. Further, pursuant to s 155, either the relevant Council or the Commissioner was required to institute proceedings in the Tribunal with respect to the complaint “if satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct”. As was illustrated by the present case, proceedings were instituted in the Tribunal “with respect to a complaint” against a legal practitioner, by laying an information and the Tribunal was required to conduct a hearing into each such complaint: s 167. Further, the legal practitioner was required to file “a reply to the allegations in the information”: s 167(3).

70 It is tolerably clear from these provisions that a complaint was made in relation to misconduct which had occurred in the past (though it could include misconduct which was continuing), being misconduct which could be investigated and assessed against appropriate professional standards. So understood, it was the misconduct which, if established, would justify a particular finding, regardless of subsequent rehabilitation or reformation of character. It was unlikely that the lay complainant was required to assess the present character of the practitioner in order to make a valid complaint, or that the Council or Commissioner was required to carry out such an assessment in order to determine whether the complaint should have been accepted and investigated. Indeed, this was consistent with the very term being defined, namely a concept that involved “misconduct”. So understood, the reference to fitness to practise was not to be understood as requiring a prediction as to the actual order a Tribunal would be likely to make, but rather was to be understood as the classification of the conduct according to the importance of the standard and the seriousness of the breach.

71 Further support for this approach could be found in the separate provision, then in s 171C of the 1987 Act (as set out at [13] above) as to the orders the Tribunal might make if satisfied that the legal practitioner “is guilty of professional misconduct or unsatisfactory professional conduct”. There may have been cases in which a practitioner who was found by the Tribunal at the date of its determination to be not of good fame or character, or to be not a fit and proper person to remain on the roll, but whom the Tribunal might yet have considered should not be removed from the roll. Nevertheless those would have been truly unusual cases and it would be surprising if the range of powers conferred under s 171C were indiscriminately assumed all to be relevant both to a finding of professional misconduct and to a finding of unsatisfactory professional conduct. However, as the present case demonstrates, there is nothing anomalous about conferring such a range of powers, even in the case of a finding of professional misconduct, if the finding could properly have been made by the Tribunal in relation to past misconduct, judged in isolation from subsequent events. Circumstances in which the Tribunal could then properly have declined to make an order in the nature of disbarment, because the practitioner was found no longer to be unfit to remain on the roll at the date of the order, can readily be envisaged. The panoply of alternative protective orders would then become relevant.

72 As Mr Rayment QC, senior counsel for the Barrister, noted on the hearing of the appeal, some confusion may have crept into the discussion with respect to the statutory definition arising from the recent, though unsurprising, statement of the High Court in A Solicitor v Council of the Law Society of New South Wales (2003) 216 CLR 253 at [21] that fitness “is to be decided at the time of the hearing”. That comment was made in the context of a statement that “professional misconduct may not necessarily require a conclusion of unfitness to practise, and removal from the roll”. It is clear that “fitness” in that passage was a reference to fitness as a precondition to continued practice. If the reference to “professional misconduct” was intended to include professional misconduct as defined in the statute, the statement provides support for the view that the definition does not preclude a finding of professional misconduct, where there is a finding that a person is fit and proper at the date of the hearing. On the other hand, the Court was probably using the term “professional misconduct” more broadly. The joint judgment had noted in the previous paragraph that the definition of “professional misconduct” under s 127 of the 1987 Act did not apply to the case in hand.

73 In an earlier passage, the joint judgment in A Solicitor also noted that “not all cases of professional misconduct justify or require a conclusion that the name of a practitioner should be removed from the Roll”: at [15]. In relation to that proposition, the joint judgment referred to the decision of this Court in Prothonotary of the Supreme Court (NSW) v Costello [1984] 3 NSWLR 201. There, the joint judgment of Glass and Samuels JJA referred to a number of incidents of what their Honour described as “a style of advocacy” which they condemned as “thoroughly reprehensible”: p 204D-E. In the course of that discussion, they referred to the conduct as “misconduct” and, on occasion, as “professional misconduct … of different degrees of gravity”: p 204E. Thus, an isolated incident, or even incidents which would fall within the Allinson criteria would not necessarily demonstrate unfitness to practice, requiring removal from the roll. Particularly may that be so where the incidents arose in the past and the barrister has taken steps to satisfy the relevant tribunal of his or her present fitness. The facts of Costello are not, of course, directly relevant, because the case pre-dated the Legal Profession Reform Act 1993. There might be a question under the 1987 Act (after 1993) as to whether the kind of misconduct there involved, although clearly occurring in connection with the practice of law, fell short of a standard of competence and diligence, referred to in s 127(2). If it did not, it might still have constituted professional misconduct under the general law, though it would not have fallen within the definition in s 127(1), in either limb. On the other hand, if the conduct did fall within the definition of “unsatisfactory professional conduct” then the additional qualification, to make it professional misconduct, might be satisfied where there was a “substantial or consistent failure” to reach the relevant standard. Either way, the Tribunal would be entitled, and indeed required, to make a finding of professional misconduct with respect to the particulars alleged, and in relation to the time when they occurred. It could, as Costello suggests, make such a finding and yet not find demonstrated unfitness requiring disbarment. It would be curious if a different temporal approach were required for conduct which fell within par (b) of s 127(1).

74 The better view is that conduct occurring otherwise than in connection with the practice of law will only constitute professional misconduct if it would justify a finding of the kind identified in the definition. In other words, the definition may be expansive in respect of personal misconduct, but only in respect of misconduct sufficiently serious to warrant a finding of unfitness or lack of good character. There is no temporal element involved in this, rather the identification of a high standard.

75 It follows that I would accept the construction put by Mr Rayment QC in the course of the argument on the appeal. Whether this approach has any relevance to the outcome of the appeal remains to be seen, although the Appellant contended that acceptance of a statutory construction not contended for before the Tribunal might have implications for costs, if the appeal were unsuccessful on that basis. (Nor is it necessary to consider whether a similar conclusion should be reached in relation to s 562 of the 2004 Act, which is not identical with the repealed s 127.)

Assessment of the appeal

76 The nature of the challenge brought by the Bar Association in relation to the findings made by the Tribunal in its second reasons have already been identified and, to some extent discussed. The first and probably the central complaint concerned the assessment by the Tribunal of the Barrister’s present fitness.

77 There was a degree of inconsistency between the findings made by the Tribunal in its first reasons and the conclusions with respect to the appropriate protective orders made in the second reasons. That level of inconsistency arose because of the inappropriate separation of the proceedings into two parts (at least on the construction of s 127(1) as presented to and accepted by the Tribunal) which meant that the Tribunal understood that it could not make a finding with respect to professional misconduct, without assessing present character and fitness. It did so, but at the same time sought to avoid precluding further consideration of the appropriate protective order. Nevertheless, the Tribunal reached an adverse finding as to his character in July 2005, based on evidence given in March 2005. A different conclusion was reached in the second determination made on 8 February 2006, based on the hearing which occurred on 24 November 2005. There was, in effect, a period of eight months between the two relevant hearings.

78 Relevant passages from the affidavit of the Barrister and the whole of the questioning by the Tribunal which occurred at the second hearing, have been set out above. Given the nature of his wrongdoing, as identified in the first reasons, it is far from clear that, at the second hearing, he “conceded his wrongdoing without qualification” as stated by the Tribunal at [117]. Nevertheless, in that passage, as well as identifying the concession, the Tribunal asserted that it was “very obvious that when he testified at the most recent hearing, the barrister was a changed person”. The reasons continued that he “had the appearance of a man who had been suffering extreme anxiety for a long time”.

79 As the Appellant noted, it was not entirely correct to say that he had “testified” at the second hearing. However, the form in which the Barrister answered the questions was perhaps less significant than the leading nature of the questions posed by the Deputy President and the brevity of the answers given. Purely on a reading of the transcript, little weight would be placed on that material. Further, the fact that he appeared to have been suffering “extreme anxiety for a long time” may well have been true: the anxiety was no doubt induced in part at least by the real possibility of disbarment. However that possibility, together with, for a period, the possibility of criminal conviction, had been hanging over him at least since late 1999, for a period of some five years prior to the first hearing. It is not clear what difference the additional eight months had made, unless the anxiety had been heightened, as perhaps it was, by the first reasons of the Tribunal.

80 On the other hand, apart from a comparison between the very brief appearance of the Barrister at the second hearing, as compared with his lengthy presentation in the witness box at the first hearing, it is difficult for the Appellant to undermine the Tribunal’s conclusion that, at the second hearing, the Barrister was “a changed person”, based as the Tribunal asserted, on appearances.

81 The second matter raised by the Appellant was a complaint as to the manner in which the significant evidence of Mr Andersen QC was assessed. The Tribunal stated at [2006] NSWADT 39 at [48]:

“A matter which we think is of significance was referred to by Mr Anderson in his affidavit (par 11) and augmented in his oral evidence. Mr Anderson said that the barrister is now practising from Sydney Chambers, a floor of approximately 20 barristers whereas, at the time of the application for shares, to the best of Mr Anderson’s recollection, the barrister was practising in shared accommodation with only one other barrister. When Mr Anderson was asked whether the approximately 20 barristers referred to were aware of the barrister’s activities with respect to Telstra shares, he said that they were aware and that notwithstanding that knowledge they were willing to have the barrister join their floor.”

82 This passage is troubling. It was an undisputed fact that Mr Andersen was present at the second hearing of the Tribunal and that the Deputy Chairperson commented on his presence and indeed obtained from him, but through counsel appearing for the Barrister, an undertaking referred to above. It is equally undisputed that neither Mr Andersen, nor anyone else except arguably the Barrister, gave oral evidence at the second hearing. How three members of the Tribunal came to the conclusion that he did is obscure. Nor, it should be added, did he give evidence at the first hearing, in case that might have been thought to be a source of confusion. Even more troubling is the suggestion that Mr Andersen had given evidence that the 20 barristers in Sydney Chambers were aware of the Barrister’s activities with respect to the Telstra share offer. He gave no such evidence. He was not a member of Sydney Chambers and merely stated at paragraph 11 of his affidavit:

“I note that Mr Sahade is now practising from Sydney Chambers, a floor of approximately 20 barristers whereas, at the time of the application for shares, to the best of my recollection, he was practising in shared accommodation with only one other barrister.”

83 A further difficulty with this evidence, as already noted, is that neither of the barristers from Sydney Chambers who supplied affidavits (neither of whom gave oral testimony) said in so many words that his disclosure went beyond themselves, as secretary of the floor and licensor of a room to the Barrister, respectively. If a broader inference was open, it was not to be made in the manner suggested by the Tribunal, which was factually mistaken. That factual assertion appears to have been repeated in an earlier passage in the second reasons, where the Tribunal sought to explain its changed view of the Barrister’s character and therefore the Barrister’s fitness to practise, which, it stated, flowed from having “the benefit of a subsequent hearing where a large amount of evidence was presented relating to the Barrister’s character” which included “the fact that a significant number of other members of the Bar, knowing the material facts, have readily accepted him as a colleague”: at [24]. Unless the Tribunal implicitly treated the earlier material as irrelevant at the first hearing, it is difficult to understand why the four barristers and a retired barrister whose affidavits were tendered at the first hearing constituted so insignificant a pool of evidence as not to deserve a reference, whereas the addition of six further barristers at the second hearing constituted “a significant number of other members of the Bar”.

Reassessment

84 The factual errors identified in the second reasons of the Tribunal require that this Court, on a rehearing, reconsider the orders made by the Tribunal, including the public reprimand of the Barrister and the imposition of a fine of $10,000. However, in so doing, the Court should act on the basis that the Tribunal was entitled to reach a conclusion, based on its observations, and on the evidence of the character witnesses, that the Barrister demonstrated a change of attitude between the two hearings. Further, although the later affidavit of the Barrister appeared not to demonstrate expressly the understanding that the distinction between subjective and objective dishonesty tended to demonstrate a failure to realise that the complaint as to his conduct in 1999 was that he failed to conduct himself on the basis of shared values as to what was and what was not acceptable conduct in a barrister, yet senior counsel for the Bar Association declined the opportunity to cross-examine him on his further evidence. It may have been thought that enough was enough, or that the inadequacy of the further affidavit was readily apparent without cross-examination; nevertheless, it placed the Tribunal in a situation where it was effectively required to take the affidavit at face value, which it did without drawing the inference of inadequacy of explanation. This Court is in a similar position.

85 Further, the Tribunal was undoubtedly right to identify the evidence in the character affidavits as having significant weight. Several members of the Bar of significant seniority, and with knowledge of the specific conduct complained of, have given the Barrister unqualified support for the purposes of the second hearing as well as, to a lesser degree, at the first hearing. The Tribunal correctly identified these matters as having weight.

86 It is also relevant that the conduct complained of involved share purchases and was, in that sense, unrelated to the practice of law. The conduct revealed a defect in character, because of its deceptive or deceitful nature. Whilst that aspect of character is of high importance in relation to practice as a legal practitioner, it may be accepted that individuals behave differently in different circumstances. It would be wrong in the present case simply to assume that a reasonably brief period of deceptive conduct in relation to private investments, is of weighty significance in relation to the practice of law. Furthermore, the Tribunal was correct to place weight on the fact that the conduct occurred when the Barrister was 27 years of age and, as he stated in his first affidavit, relatively inexperienced personally in financial and commercial matters.

87 In one sense, the delay which occurred between the time of the conduct and the time at which the first hearing occurred, may have counted against the Barrister. It provided a lengthy period over which it could be said that he failed to acknowledge in a satisfactory manner the gravamen of the complaint against him. On the other hand, it can also be said that neither before nor after the conduct complained of did any evidence emerge of deceptive or dishonest conduct in the practice of law.

88 In the all the circumstances, I would reject the argument for the Appellant that disbarment was (and remains) the only appropriate outcome. The Tribunal was correct to conclude that, at the time of the conduct complained, in 1999, the Barrister was guilty of misconduct otherwise than in the practice of law, which would at least satisfy a general law finding of professional misconduct because it demonstrated dishonesty and deceit, being aspects of character which were inconsistent with the honesty and fairness which are essential attributes of a legal practitioner. However, because of the manner in which both parties approached the hearing, it was inappropriate for the Tribunal to make findings with respect to protective orders, at the end of the first hearing; to the extent that the Tribunal appeared to express such findings in a conclusive fashion at that stage, those findings should be understood as tentative and not final expressions of opinion. Accordingly, it was open to the Tribunal to revise those views after the second hearing, which it did. Despite the adverse findings of the Tribunal in its first reasons and the errors made by the Tribunal in reaching its different findings in its second reasons, reference to the key elements of the charges, and to the evidence before the Tribunal, demonstrates that the penalties imposed were not outside an appropriate range. Accordingly the appeal should be dismissed.

89 In these circumstances, the cross-appeal is not pressed and need not be further considered.

90 In relation to costs, the dismissal of the appeal is not contingent upon a particular construction of s 127(1). Accordingly, the Barrister should not be deprived of costs on the basis of a changed approach in that respect.

91 On the other hand, there were deficiencies in the reasoning of the Tribunal at the second hearing which required this Court to reconsider the appropriate orders. That of course does not justify the bringing of an appeal: the Bar Association should have been as well placed as this Court to consider whether the conduct, including the explanations given by the Barrister, taken in the context of the other material, including the character references, required a different order to that made by the Tribunal. If this Court concludes that no different order was required, there is no reason why the Bar Association should not be required to bear the Barrister’s costs of seeking to assert the contrary. If further confirmation for that conclusion is desirable, it may be found in the failure of the Bar Association to cross-examine the Barrister with respect to his second affidavit. Different views might have been taken as to the inferences properly to be drawn from the affidavit, but if the informant wished the Tribunal to draw inferences adverse to the Barrister, it would have been proper to raise them with the Barrister in cross-examination. That was not done and that fact might have properly affected a decision to appeal in the present case.

92 I would propose the following orders:

(1) Appeal dismissed.

(2) Appellant to pay the Respondent’s costs of the appeal.

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Citations

The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145

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CITATION:	THE COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION v SAHADE [2007] NSWCA 145
HEARING DATE(S):	7 May 2007
JUDGMENT DATE:	19 June 2007
JUDGMENT OF:	Mason P at 1; Santow JA at 2; Basten JA at 3
DECISION:	(1) Appeal dismissed; (2) Appellant to pay the Respondent’s costs of the appeal; (3) Cross-appeal dismissed, with no order as to the costs of the cross-appeal.
CATCHWORDS:	LEGAL PRACTITIONERS – professional misconduct – whether barrister a fit and proper person to remain on the roll – evidence of change in character subsequent to the misconduct – whether fitness to remain on the roll is to be assessed at the time of the misconduct or at the time of hearing – s 127 Legal Profession Act 1987 (NSW)
LEGISLATION CITED:	Crimes Act 1914 (Cth), s 29B Legal Practitioners Act 1898 (NSW), s 9 Legal Profession Act 1987 (NSW), ss 59D, 127, 131, 138, 147A, 148, 167, 171C, 171F Legal Profession Act 2004 (NSW), ss 562, 729A, Sch 9 cl 15 Legal Profession Amendment (Disciplinary Provisions) Act 2001 (NSW), s 59D Legal Profession Reform Act (1993) (NSW) Supreme Court Act 1970 (NSW), s 75A
CASES CITED:	Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 A Solicitor v Council of the Law Society of NSW (2003-2004) 216 CLR 253 Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 In Re Davis (1947) 75 CLR 409 Kennedy v The Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563 Konigsberg v State Bar 353 US 252 NSW Bar Association v Meakes [2006] NSWCA 340 Prothonotary of the Supreme Court (NSW) v Costello [1984] 3 NSWLR 201 Smith v NSW Bar Association (1992) 176 CLR 256 Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279
PARTIES:	The Council of the New South Wales Bar Association – Appellant Marcel Victor Sahade - Respondent
FILE NUMBER(S):	CA 40101/06
COUNSEL:	P.R. Garling SC/C.A. Webster – Appellant B.W. Rayment QC/G. Heathcote - Respondent
SOLICITORS:	Eakin McCaffery Cox – Appellant Oliveri Lawyers - Respondent
LOWER COURT JURISDICTION:	Administrative Decisions Tribunal – Legal Services Division
LOWER COURT FILE NUMBER(S):	ADT 032025
LOWER COURT JUDICIAL OFFICER:	J. Nader QC – ADCJ (Deputy President); S. Norton SC – Judicial Member; A. O’Neill – Non-Judicial Member
LOWER COURT DATE OF DECISION:	8 February 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	[2005] NSWADT 159; [2006] NSWADT 39