Walsh v Law Society of NSW

[1999] HCATrans 36

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S136 of 1998

B e t w e e n -

RONALD JOHN WALSH

Appellant

and

LAW SOCIETY OF NEW SOUTH WALES

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 MARCH 1999, AT 10.18 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR J. J. PRIESTLEY, for the appellant.  (instructed by Stockman & Evans)

MR J. BASTEN, QC:   If the Court pleases, I appear for the respondent.  (instructed by the Law Society of New South Wales)

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, as is apparent from the written submissions, the appellant’s appeal is concerned with the order made by the Court of Appeal that his name be removed from the roll of legal practitioners in New South Wales.

The Court will have seen that the appellant had been before the Legal Services Tribunal on five complaints made by the respondent.  Two of those had succeeded; they were the first and fifth.  The other three had been dismissed.  The sanction imposed by the Tribunal was the imposition of a fine of some $8,000 on the first complaint, and $2,000 on the second.

The “professional misconduct”, if I put that expression in inverted commas, the subject of the first complaint, possessed that character because of the provisions of section 127(1)(b) of the Legal Profession Act 1987. May I take your Honours to that now? Your Honours will see that section 127 contains a number of definitions, but you will see in subsection (1) it provides that:

For the purposes of this Part, professional misconduct includes –

if I could pause there to say that the expression “includes” indicates, no doubt, that what might be described as professional misconduct under the general law would seem to fall within the concept of professional misconduct for the purposes of the Act.

Your Honours will see that it is defined as containing a number of matters.  One is:

(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 –

Then one comes to the provision of particular relevance for present purposes:

(b1) conduct…..occurring otherwise than in connection with the practice of law which, if established, would justify a finding that an interstate legal practitioner is not of good fame or character or is not a fit and proper person to remain on the roll…..of legal practitioners – 

Your Honours will see that the relevant identification of professional misconduct by section 127(1)(b) is, as it were, by definition not conduct occurring in the practice of law.

KIRBY J:   We are not concerned with (c).

MR JACKSON:   No, your Honour.  Your Honours will also note that section 127(2) defines “unsatisfactory professional conduct” and it is defined to include:

conduct…..occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner or interstate legal practitioner.

GLEESON CJ:   That concept of unsatisfactory professional misconduct seems to be directed towards standards of professional competence and diligence rather than things such as honesty.

MR JACKSON:   Yes, your Honour, yes, although one should note that the expression is defined to include the matters set out as distinct from it being expressed to be an exhaustive definition.

GUMMOW J:   Are there any collection of the sections referred to in (c) which says:

by any provision of this Act.

Do we know what the provisions are?

MR JACKSON:   Well, your Honour, I have not got a list I can give your Honour now but I will endeavour to do so.  Your Honours, could I then say that as perhaps one might expect from the nomenclature adopted, the term “unsatisfactory professional conduct” appears to refer to conduct not having the same seriousness as professional misconduct and one can see that from, for example, the provisions for sanctions in section 171C(1) where it is provided that:

If…..the Tribunal is satisfied that the legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct, the Tribunal may do any one or more of the following –

Can I pause to say, your Honours, your Honours will see the opening words relate to both types of conduct.  Then one sees the list set out and I would refer in particular to subparagraph (d) which provides for monetary penalties, and your Honours will see that it provides for a penalty:

not exceeding $50,000 if the legal practitioner is guilty of professional misconduct or not exceeding $5,000 if the legal practitioner is guilty of unsatisfactory professional conduct –

Your Honours, I will come back to the provisions of the Act a little later, if I may.

May I just mention one matter in passing.  It is this, namely that in our learned friend’s submissions in paragraph 2.5, it is suggested that we are not really entitled to say, as we have sought to do in paragraph 35(c) of our submissions, that this was an isolated incident in an unblemished career.  May I say in relation to that, however, your Honours, that we were simply picking up what the respondent’s then counsel said in the Tribunal in the final address after the evidence had concluded, and may I indicate that to your Honours in two passages in volume 1 at page 74, line 30:

Whilst that will almost certainly be an isolated incident in Mr Walsh’s long hitherto unblemished career as a solicitor –

and then on the previous page, page 73 in the second paragraph on the page, the second sentence:

That, in my submission, will have considerable relevance in this case because the matter is an unusual one in many ways in that Mr Walsh is a solicitor of unblemished prior record.

KIRBY J:   Would you just give me that reference again?

MR JACKSON:   Yes, it is page 73, your Honour.

KIRBY J:   I see, it is the earlier page, 73.

MR JACKSON:   It is page 73 in volume 1.  If one is looking at the line of numbers down the left-hand side of the page it is about line 15 – between 15 and 20 – and on the next page the one I first referred to between lines 30 and 35.

KIRBY J:   Yes, I got the first one.  I notice that Justice Beazley in her reasons talked of the question being one of the punishment appropriate.  It may have changed with this Act but my recollection was that one was careful not to talk of it as punishment.  It is a protective order.  But, has that changed with the new Act?  I see it says “penalty” but that is for specific offences, criminal offences.

MR JACKSON:   Well, your Honour, I was going to say in answer to your Honour, if one looks at the terminology used in section 171C(1)(d) to which I referred a moment ago your Honour will see it says:

order that the legal practitioner pay a fine -

and, your Honour ‑ ‑ ‑

KIRBY J:   It may be that things have shifted with the new Act.  A fine can only be a punishment, really, can it not, unless you are thinking of it conceptually as being for protection of the public but it is hard to see how the fine which goes into the coffers of the Law Society, I suppose, is for the protection of the public.

MR JACKSON:   Your Honour will also see (h) “make a compensation order” which ‑ ‑ ‑

GLEESON CJ:   I thought there was a decision of the Court of Appeal, fairly recently, that pointed out that whil, the consequence of an order upon the individual in question would usually be punitive.

MR JACKSON:   Yes, your Honour.

GLEESON CJ:   There is no escape from that.

MR JACKSON:   No, indeed, your Honour.

GLEESON CJ:   It is not much comfort to a man who is maybe struck off the roll to assure him that he has not been punished; it is just that others have been protected.

MR JACKSON:   Indeed, your Honour.

KIRBY J:   It used to be, though, I think, in the old days the convention of the court that it would avoid the word “punishment” lest it get into its mind the fact that it was sitting there as a punishing tribunal as distinct from having the purpose which hangs over all these cases, of protecting the public, as distinct from punishing the practitioner.  The consequence may be punishment in the real sense but you kept your eyes fixed on the purpose of the jurisdiction.

MR JACKSON:   Yes.  Your Honour, could I just say in relation to that, that it is very difficult, with respect, to adopt a concept which, without being exceptionally vague, covers every range of circumstances.  What I am seeking to indicate by that is, if one takes for example some species of professional misconduct on the one hand and on the other hand some of unsatisfactory professional conduct.  Now, cases of unsatisfactory professional conduct can be brought about simply by a lack of competence.  Now the lack of competence may be brought about by a decline in health for example, or matters of that kind for which it would be inappropriate to describe the sanction that is imposed as being one which can be readily identified as being punishment, because it would simply be what is thought to be appropriate to protect the public.

On the other hand, one can have a situation where the conduct in which a practitioner has engaged is something that, by any standard, would be regarded as deserving a fairly condign sanction and, in those circumstances, it would be appropriate to describe it as punishment albeit that one of the ultimate objects was the nature of protecting the public.

KIRBY J:   I only asked the question because in the back of my mind there is the thought that by reason of the circumstances of this case your client really never was a danger to the public.  The circumstances - the members of a family are members of the public, but one could reach a view, or the Tribunal could reach a view that there was no risk, remove the peculiar circumstances the family conflict and so on, that let loose on society your client is any danger to members of the public.  It took a combination of rather peculiar circumstances to bring on the events that have occurred in this case.

MR JACKSON:   Your Honour, that is a matter that I will be seeking to submit.  We do not endeavour to say to the Court that what was done in relevant respects was something that was proper or appropriate to be done.  But, what we do seek to say is that when one comes ultimately to the penalty that is appropriate, it was not something that was in the range of penalties adopted by the Court of Appeal.

KIRBY J:   Your client never really made a fulsome statement of acknowledgment that he now appreciated that this was wrong conduct on his part.  I think that affected the Court of Appeal, and it is a relevant consideration.  Even Ms Foreman made such a handsome statement - - -

MR JACKSON:   I am sorry, I did not hear the last thing your Honour said.

KIRBY J:   Ms Foreman did, in the end.  Please do not go off your path because I think it is better that you deal with it as you have ordered your mind to deal with it rather than in response to my observations.

MR JACKSON:   May I just say this:  it is dealt with in paragraph 30 of our written submissions.  My learned friend brought to our attention that the numbering of our written submissions jumped from paragraph 18 to 25.  There are no missing gems, it is simply the numbering is wrong.  It is in paragraph 30 of our written submissions, and I will come to that in a moment.

May I simply go on to say, at this point, there was no appeal in the Court of Appeal by the respondent against the dismissal of the second complaint, but there was an appeal in respect of the third and fourth complaints – that is the dismissal of those - and, your Honours, a cross‑appeal by the present appellant.

The result in the Court of Appeal, of course, was an order for removal of his name from the role of legal practitioners, and may I move then to our written submissions which I will seek to follow, generally speaking, the course of, and endeavour to develop some points in them.  May I take your Honours to our submissions in paragraph 6 at page 2 of our written submissions?

If one goes to paragraph 6 of our submissions, your Honours will see the nature of the relevant facts.  I had not intended to take your Honours to the detail of those, except in a couple of instances.  It was simply a case where the mother had died on 2 July 1988 and the events in question occurred after her death.  The only persons who were the beneficiaries under her will, which your Honours will see in volume 2 at page 245, were the appellant and his two sisters.  The mother was a person in relation to whom there was no prospect of her changing the will because she was suffering from Alzheimer’s disease and was in a situation where, obviously, she was not going to get any better, or her mental condition improve.

KIRBY J:   She did give your client instructions to remove the, so it is said, remove the sister, Mrs Brain, from the will but your client did not think she was competent to give those instructions.

MR JACKSON:   Yes, that is right, your Honour, yes.

KIRBY J:   But she was competent to give a power of attorney?

MR JACKSON:   Well, your Honour, she had given a power of attorney at a point in, I think, 1986.  It was two years later that she died and at the time when she gave the power of attorney it was not the appellant who was responsible for obtaining it.  Your Honour will recall she lived in the place called Hillville near Taree and one of her daughters lived, I think, next door and the other daughter also, at that stage, lived in the area and it was the daughters who suggested to the appellant that the time had come when there needed to be a power of attorney and that was obtained by using a solicitor in the area who satisfied himself about the matter.

Your Honours will see that in the Court of Appeal Justice Powell said that maybe the power of attorney was no good.  That may be an interesting inquiry but the fact of the matter is it was not a matter that was the subject of any complaint against the appellant.

GLEESON CJ:   Well, it was prepared by a highly reputable solicitor.

MR JACKSON:   Yes, your Honour.  Your Honours will then see, if I could go to paragraph 7 of our submissions at the top of page 3, that her husband had died, she was the only person who, at that point, was living on the farm and then the appellant and his sisters removed from the home and divided up amongst themselves her personal possessions.

Now, your Honours, may I deal with what we seek to develop, the submission that we have made in footnote 1 on page 3, and that is that Mr Justice Powell in the Court of Appeal made some fairly strong criticism of the conduct of the appellant and his sisters for dealing with her personal effects in that way.

May I take your Honours to that in volume 2 at page 356.  Your Honours will see that commencing at about line 42 and it goes through to the top of page 357 about line 11.  The material upon which that is based your Honours will see in a statement by the appellant in volume 1 page 100 lines 24 to 50 and, your Honours, if one looks at page 100 lines 24 to 50 what one sees ‑ ‑ ‑

KIRBY J:   Could I just ask how the appeal proceeded under the Act?  The appeal is by way of a fresh hearing and in some cases, as in Ms Foreman’s case, the practitioner gave oral evidence.  Now, I understand in this case your client did not give oral evidence and it must therefore be accepted that it was agreed between the Society and your client that the appeal, though a fresh hearing would be conducted on the footing that you would all accept the written material from the Tribunal hearing.  We do not have the transcript of the proceedings.

MR JACKSON:   No, your Honour, no.

KIRBY J:   It would be helpful to me, as your complaint is, as I understand it, one of procedural unfairness, to be told, if it is not already clear in your submissions, which matters were specifically put to your client during the fresh hearing and which were not so that if there is the complaint, we can accept without having the transcript in the Court of Appeal that certain matters were not brought to your side so that they could respond to them.

MR JACKSON:   Well, your Honour, the proceedings in the Court of Appeal were conducted upon the material that there had been in the Legal Services Tribunal.  By that I mean that the material before the Court of Appeal consisted of the initiating document, of course, together with the reasons for decision.  Then one had the transcript of evidence – oral evidence before the Tribunal, then one had in addition to that the documentary material that had been before the Tribunal, and there was no oral evidence adduced or sought to be adduced by either side in the Court of Appeal and if I could use an expression that was used by Mr Wales, who was then appearing for the appellant, at the commencement of his address in response he adverted to the fact that this was being treated as “a conventional appeal”.  That was the expression which he used.

Now, your Honours, in relation to the matter, what we are seeking to say is that so far as the conduct of the appellant was concerned, so far as the matters that were alleged against him were concerned, all one sees is that the case was an appeal, albeit it a fresh hearing, in that sense, but an appeal from the decision of the Tribunal together with a cross-appeal by him.

KIRBY J:   It puts the Court of Appeal in a rather awkward position, does it not, if the practitioner does not give evidence in the sense that it has to deal with the matter on the footing, although it has its own obligations, as Justice Sheller said in one of the cases cited, to reach its own conclusion on what is the proper order accorded to it, it must deal with it on the basis of cold transcript without the advantage of having any assessment of the contrition, explanation, mitigation that the solicitor puts before the court.

MR JACKSON:   Your Honour, could I just say that in relation to that that one really is not dealing with a procedure whereby the matter is, in effect, initiated in the Court of Appeal.  There is nothing to stop independent proceedings being initiated in the Court of Appeal because – I think it is section 171M of the Act preserves the “Jurisdiction of the Supreme Court” but a different jurisdiction, as it were, was enlivened in the proceedings that were before the court.  Perhaps I could take your Honours for just a moment to the relevant provisions which we have endeavoured to set out in our written submissions in paragraph 14 and if I could just say before going to the provisions themselves, your Honours, that what they seem to set out is that there will be a procedure whereby, instead of there being some kind of wide-ranging inquiry, what instead there is is a procedure where there have to be complaints made against the practitioner and it is those complaints which are the subject of the inquiry and then the subject of the appeal.

Your Honours, in that regard one starts with section 137 and you will see that it says the complaint has to:

be in writing, and (b) must identify the complainant and the legal practitioner…..give particulars of the alleged conduct of the legal practitioner that is the subject of the complaint.

So, the “particulars” are a matter that is specifically referred to.  One then sees in relation to the conduct of the proceedings in the Tribunal, if I could go to section 155(1) it provides:

the complaint is to be dealt with in accordance with this section.

You will see in subsection (2) that:

The Council or the Commissioner must institute proceedings in the Tribunal with respect to the complaint against the legal practitioner -

et cetera.  Then, your Honours, section 156, there has to be kept:

a record of its decision with respect to a complaint -

And then section 167(1):

Proceedings may be instituted in the Tribunal with respect to a complaint against a legal practitioner –

and then, your Honours, if one goes from that to section 167(2):

The Tribunal is to conduct a hearing into each allegation particularised in the information.

Now, your Honours, the ambit, as we seek to say at the end of paragraph 14, of the factual inquiry into which the Tribunal is engaged may be limited by the fact that the practitioner is required to file a reply to the allegations.  You will see that in section 167(3).  Now, when there is the ‑ ‑ ‑

GUMMOW J:   Is there specification of the form of the information?

MR JACKSON:   Your Honour, apart from the provision to which I referred earlier ‑ ‑ ‑

GUMMOW J:   Other than in 167?

MR JACKSON:   Section 137, your Honour, I think.

GUMMOW J:   No, the information, not the complaint.

MR JACKSON:   Your Honour, I think the answer is no, but may I check that.

GUMMOW J:   You see the proceedings are instituted by the information.

MR JACKSON:   Yes.  Your Honour will see section 167A gives power to vary the information but:

so as to omit allegations or to include additional allegations if the Tribunal is satisfied…..it is reasonable to do so.

You will see then 168 requires the rules of evidence to be followed, and then the nature of the hearing is dealt with in 170, followed by 171 and so on.  But then what your Honours will see, if I could go to 171C, is the hearing is to relate to the complaint against the legal practitioner and it is in relation to that that the various orders may be made to which I have taken the Court already.

Your Honours, the appeal is provided for by subsection F and your Honours will see from subsection (1) that it is an:

Appeal to the Supreme Court against the Tribunal’s determination of a complaint.

So that is the essence of the appeal.  Now, your Honours do not, I think, have subsection (4) in the form in which it was at the time of the hearing but your Honours will see that it said that the:

Appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the original hearing, may be given.

Now, your Honours, subject to that, of course, what the appeal remains is an appeal against, as subsection (1) says:

The Tribunal’s determination of a complaint.

Your Honours, it is in relation to that that we seek to make the submission that we have set out in paragraph 16(a) that in circumstances of that kind where evidence is not sought to be adduced on such a hearing, then the approach to be taken is similar to that taken in the ordinary class of case where there is an appeal against a finding of fact based in whole or in part on credibility.  That is a matter, of course, referred to in the various cases to which we have referred in paragraph 16(a), particularly as your Honour Justice Kirby went into it in some length in State Rail Authority v Earthline Constructions.

GLEESON CJ:   I presume there is a difference between an appeal by way of a new hearing and an appeal by way of rehearing.

MR JACKSON:   Well, your Honour, “rehearing” of course has a number of possible meanings, but in the ordinary course of events, I suppose in intermediate appellant courts one would treat “rehearing” as being a rehearing upon the written material before the court below but one in relation to which the court was entitled to apply the law as at the time of the rehearing.

GLEESON CJ:   That expression “a new hearing” I presume means the same thing as appeal by way hearing de novo  ‑ ‑ ‑

MR JACKSON:   Yes.

GLEESON CJ:    ‑ ‑ ‑ and the usual example of that kind of appeal was what used to be called a quarter sessions appeal from a magistrate, was it not?

MR JACKSON:   Well, your Honour, yes, in some jurisdictions.  It is certainly so in New South Wales, but in a variety of jurisdictions one does see that.  I would accept that the expression “new hearing” in the present case does refer to a hearing de novo.

KIRBY J:   Does that mean that although this was a Law Society appeal and although it was a fresh hearing, which you say is de novo, though it can by the words additional, it is clear that it is intended that it could proceed either in whole or in part on the basis of the transcript, that by your not calling the practitioner in the Law Society’s appeal you can fix the Law Society and the court with the credibility findings which have been made by the Tribunal at first instance, though the Court of Appeal is engaged in its own jurisdiction and on a fresh hearing?

MR JACKSON:   Well, your Honour, I do not like the word “fix”, with respect, but the ‑ ‑ ‑

KIRBY J:   That is the result, is it not?

MR JACKSON:   Well, your Honour, the position is that what one is dealing with is an appeal from the decision of the Tribunal, of course.  Now, in dealing with that, one would have thought that the Law Society, if it appealed, or on our cross-appeal, if either party wanted to arrive at a different decision on matters such as whether the practitioner or any other person should or should not be believed, they could call evidence or, as a practical matter, require that the practitioner give evidence.  Your Honours, it would not take much prodding, one would have thought, either from the other side or maybe from the Bench in the course of the hearing.

GLEESON CJ:   What you would do as a matter of practice, I would have thought, is say to the Court of Appeal, “If you are going to permit the practitioner to rely upon the evidence that was given by the practitioner before the Tribunal, then you should only do that on terms that counsel for the Law Society would have the opportunity further to cross-examine the practitioner, if counsel wants to do so”.

MR JACKSON:   Your Honour, it is a matter for counsel.  If counsel said, “If you are going to rely on the evidence given below, I want to cross‑examine on it”, then there is nothing to stop them doing that, really.  That is why one sees – and, it may be worthwhile if I provide your Honours, I cannot do it this moment, but provide to your Honours copies of the transcript of proceeding below, that Mr Wales said, “This is being dealt with as a conventional appeal”, and there seemed to be no dissent from that proposition in the course of the case.

KIRBY J:   So I suppose you can say whatever may be the course that can be taken, in this particular case the course was taken with no objection from the Society that it proceed as an ordinary appeal, and that the one thing that cannot be done is that then in the appeal, proceedings should go off on a basis that was not signalled to the practitioner before the appeal.

MR JACKSON:   In that regard, as to the course that is appropriate to be followed in cases of this kind, we have given your Honours a reference to this Court’s decision in Uranerz (Aust) Pty Ltd v Hale (1980) 54 ALJR 378. The relevant passages are at page 381. In the paragraph commencing in the left column immediately above letter C – I should say that Chief Justice Gibbs’ reasons were agreed in by Justices Stephen, Mason and Wilson. His Honour said:

It is of course well established that an appellate court which hears an appeal on documents and not on oral evidence will generally defer to the conclusion which the trial judge has formed upon the question which of the witnesses, whom he as seen and heard, are credible.  The same principle applies when a court is hearing what is called an appeal but is in law and –

“an”, I think that word should be -

exercise of original jurisdiction.

His Honour discussed various matters until – and perhaps if I could just pass over them – until one gets in the same column to letter G, where his Honour said:

If a rehearing is conducted solely on written material, whether that material be technically evidence or a record, the appellate court should generally defer to the conclusion on a question of credibility formed by the tribunal from whom the appeal is brought and whose members saw and heard the witnesses.

In the right column on the same page, letter F, his Honour referred to the fact that:

the Tribunal accepted Mrs. Hale as a witness of truth.

If I could go down four lines:

Gallop J. was not entitled to reverse the finding of the Tribunal which was based on its view of the credibility of the witnesses unless it was seen clearly to be wrong on ground which did not depend merely on credibility –

and then his Honour referred to the approach which has been adopted in various cases and going over to the top of the next page. 

McHUGH J:   What was the statutory basis of the appeal in Uranerz because if it is an appeal, the question is whether or not the decision was right at the time, is it not?  If it is a new hearing then the question is for the appellate tribunal to make up its mind.

MR JACKSON:   You will see at page 380, your Honour, between D and E in the right column there is a reference to the provision of the Worker’s Compensation Ordinance which said – this is a few lines further down:

than an appeal may be brought against a determination of the Tribunal on a question of fact or law…..and that “such appeal may be by way of rehearing”.

Now, at page 381 in the passage to which I referred, your Honours will see between C and D the reference to “original jurisdiction” and, your Honours, in the part I really have not read out, there is a discussion of the position generally and effectively what his Honour was saying, in our submission, is that whatever be the precise jurisdiction that is being exercised, whether it be original jurisdiction in the fullest sense of there being a hearing de novo or whether it be a rehearing in the more limited sense that has come to be used in an ordinary appellate jurisdiction, then the position which obtains is that respect has to be given to findings of fact based on credibility.

GLEESON CJ:   What was that judgment of Sir Anthony Mason’s in which he discussed the various kinds of appeal?

McHUGH J:   Sperway, is it not?

MR JACKSON:   Your Honour, Sperway v Builders’ Licensing Board, I think, your Honour.

KIRBY J:   There may be two points here.  Point number one being what the Court of Appeal can and should do in a professional discipline matter which has been traditionally within the general jurisdiction of the Court of Appeal to be the guardian, in a sense, the ultimate guardian and what, if it does decide to question or reach different views on matters that could be affected by credibility, it should do by way of alerting the person who is affected.

I say the second because if it is a fresh hearing and if the Court of Appeal has its own obligation to reach its own conclusion and if that takes on the colour or character of the court’s protective jurisdiction, then it may be that is just its own obligation.  If it looks at the facts and says this is absurd to say that the solicitor did not realise, that he should have notified his solicitor, his sister or that he should not have used a power of attorney after his mother’s death, then that is reaching its own conclusion on the credibility issues.  Justice Powell did not stumble into this.  He did acknowledge that this was an issue and he reached his conclusion on the matter after reflection.

MR JACKSON:   In what your Honour has put to me, several questions are involved.  I do not think I can answer them, I am afraid, in the kind of rolled-up plea.  But could I just say your Honour in relation to what perhaps is the first of them and that is what really was the Court of Appeal doing which is involved in the question your Honour put to me, I think.  What one sees, your Honour, in the structure of the Act is that it really involves two streams, perhaps overstates it, but two procedural conceptions, if I can put it that way.  One is that you have the stream, as it were, that leads to the Court of Appeal via the complaint information hearing by the Tribunal and then the appeal.  That is something that ends up in the section 171F mode.  Your Honour I will come back to that if I may in just a moment.

Having said that, one then sees that in the miscellaneous part of the Act in section 171M Division 10 Miscellaneous, one sees the reservation to the Supreme Court of:

The inherent power to jurisdiction of –

that court -

with respect to the discipline of legal practitioners –

not being affected by what is in the Part.  Now, your Honours, one could perfectly well have, in reliance upon the inherent jurisdiction preserved by section 171M, circumstances where you have an officer of the court being directed to take out proceedings in the Court of Appeal.  One could have circumstances where the Court of Appeal itself says proceedings should be initiated in it in relation to certain matters.

But if one is looking at, what we would submit is the other stream, if proceedings follow the structure that is contemplated by section 171F, the proceedings end up as being an appeal.  Now, if there is no reliance upon material other than what was before the Tribunal, it is an appeal on that material from the decision of the Tribunal.  Now, your Honours, it may be -and perhaps one needed not worry about the numbers or procedure of it - that in the course of such a hearing the Court of Appeal could say, “As a new and separate matter we think” this or that, and giving rise to some other allegation which is made and which calls for an answer.

Now, if one comes to that point, that would be in reliance upon section 171M, not, in our submission, upon the procedure that has led to the court hearing the matter in the first place which does involve particularisation of complaints and so on.

If the court does that, or if in the hearing of an appeal, it wishes to suggest that a different view should be arrived at then, at the very minimum, that is something that would fall within the approach that was adopted by this Court in Smith v New South Wales Bar Association where the view adopted by the Court was that, in relation to particular circumstances where it was suggested that there had been lies told by the practitioner when giving evidence in the Court of Appeal, that if that was to be raised as a separate issue then that should be raised as a separate issue with notice given to the practitioner.

McHUGH J:   I am not sure that Smith is not a different case because they relied on, in effect, a new head of conduct.  The point here that you seem to be making is not that they relied on a new head of conduct but they relied on a new evaluation of the facts, or the evidence.

MR JACKSON:   It is a bit more than that, your Honour.  We have a number of complaints, of course, but dealing with the particular thing your Honour is putting to me, it really goes beyond that if one takes, for example, the fourth and fifth complaints which were ones where the allegations were that there had been conduct which fell below the standard.  They were not allegations of professional misconduct, they were allegations of conduct falling below the standard.  Now, in relation to complaints of that kind and in relation to, I think the third complaint, where there was a finding in the appellant’s favour in relation to his belief about whether he had used the power of attorney some years later - his belief some years later about whether he had used the power of attorney - it is one thing to say, “We will give a different penalty for the conduct which has been found to have occurred” but it is another thing altogether to give the conduct an entirely different character ‑ ‑ ‑

GLEESON CJ:   But there might be different shades of meaning there.  There is nothing unusual about the Court of Appeal taking a more serious view of the conduct than the Tribunal, is there?

MR JACKSON:   No, your Honour, I do not suggest that but if one takes, for example, the question of whether, at the time in 1994, the appellant said that he had not used the power of attorney, the finding of the Tribunal, based on oral evidence from him was that he honestly believed at the time he sent that document that he had not.  What one sees is that the appeal that was brought in relation to that was not against that finding but against the further finding of the Tribunal that when giving that answer he should have taken more care to chase up the facts before he gave the answer, to put it shortly.

GLEESON CJ:   That is one of the awkward aspects of this jurisdiction and it is one that I have encountered myself.  You can have shades of difference between the appellate court looking at uncontested facts and simply taking either a more serious or a less serious view of those facts than the Tribunal took.  On the other hand, you could have the appellate court taking a different view of the facts in the sense that it does not accept an explanation of them that is being given by the practitioner which is an explanation that had been accepted by the Tribunal.

MR JACKSON:   Well, the last thing that your Honour put to me might well, if I may say so, with respect, really be described as the Court of Appeal not taking the view that the explanation that had been treated as adequate by the Tribunal was an explanation which in truth could be regarded as adequate.  But, if what one is talking about is in relation to particular conduct where the only allegation made against the practitioner and the one which is the subject of the appeal is relevantly that the practitioner should have taken more care in doing things, it goes a long way to take the view that what the practitioner had said, even though his oral evidence had been believed, was something that was either dishonest or reckless and, your Honours, it is matter of that kind which form the subject of the appeal.

GUMMOW J:   Just before you part from that, Mr Jackson; is this discussion proceeding on the footing that 171F(4) applied in the Court of Appeal?  Because if so, I am not sure that is right.

MR JACKSON:   That is what it is proceeding on, yes.

GUMMOW J:   Because I think it was repealed by the Courts Legislation Further Amendment Act 1995.

MR JACKSON:   Your Honour, there is no doubt, it has been repealed, of course.  It is referred to in the Court of Appeal’s reasons as being applicable, although I do not know that the reasons why it remained applicable are there set out.

GUMMOW J:   Maybe there is some transitional provision, but the institution proceeding in the Court of Appeal was October 1996, and the Tribunal decided in September 1996.

MR JACKSON:   Your Honour, the current provision was substituted in 1997.  Prior to that the 171F was inserted in 1993.

GUMMOW J:   That is right.

MR JACKSON:   And then was amended in 1995.

GUMMOW J:   By the section I have just referred to, which omitted 171F(4) on the footing that such matters would now be governed simply by section 75A of the Supreme Court Act. Further evidence only on special grounds, and the appeal would be by way of rehearing. It might need to be looked at.

MR JACKSON:   I will have to check that myself, but it was not conducted on that basis, I have to say.

GUMMOW J:   It might be time to do it now.

McHUGH J:   It is very much in your favour, is it not, if 171F(4) is not applicable to the proceedings.

MR JACKSON:   Yes.

GUMMOW J:   That is right.

MR JACKSON:   It would remove the need to endeavour to get Uranerz applicable to the present case.

McHUGH J:   Notwithstanding what was said in Uranerz, what troubles me is that the subsection (4) procedure seems more akin to what the Chief Justice described as a Quarter Sessions appeal than an appeal by way of rehearing, as was the appeal under section 26 of the Northern Territory’s Workers Compensation Act in Uranerz.  At least as a matter of practice, in my experience, if in a Quarter Sessions appeal you tendered the depositions, the District Court judge took no notice whatever of what the magistrate thought about findings of credibility.  The judge made up his own mind on the depositions.

MR JACKSON:   Your Honour, what happened de facto may not have been what should have happened de jure.

GLEESON CJ:   There was a good reason for it.  Originally a Quarter Sessions appeal was from a lay magistrate.  Your Quarter Sessions appeal was the first time a case came before a lawyer, a professional judge, and they were not usually in the habit of deferring to the opinions of the justice of the peace or the lay magistrate from whom the appeal was brought.

KIRBY J:   The mere fact that they would have the advantage of seeing the witnesses was not considered strong enough.  Justice Murphy referred to some of these problems as he reserved in Uranerz in McCormack 143 CLR, 323 to 324, but he did say in that case that the trial judge had raised the problem. It seems to me to get back in this case to the question of whatever was the obligations of the Court of Appeal, the one obligation they could not escape, if they were going to reach a view different on credibility, making their own decision on the appeal by a fresh hearing, would be to raise the issue with the party affected.

MR JACKSON:   Well, your Honour, I will accept that proposition, of course.  But, your Honour, what we would seek to say also is that if one looks at what the Court of Appeal did, it is very difficult to see how, without setting aside findings based on credibility, the court could have arrived at the conclusion which it did when there was really no basis for adopting that course.

KIRBY J:   Well, I wonder about that.  To say that some of - as Justice Powell sets it out at considerable length, the statements and the affidavits, and just to say that as a lawyer looking at this some of the assertions seem self-evidently and on their face difficult to accept, impossible to accept.  But that would have to be raised with your client before you could reach a view contrary to that because he may then say, “Well, I will give evidence, I want you to hear me before you reach that conclusion”.

MR JACKSON:   Well, your Honour, the case proceeded with argument on either side.  One sees in the transcript of proceedings in the Court of Appeal, for example, the matters in relation to the way in which the three members of the family dealt with the estate, as it were, prior to the mother’s death.  One sees the judge, as it were, fulminating about that in court, but then saying, “Well I really cannot go into that”, and things of that kind.  Then one see in the reasons for decision that he has dealt with it.

McHUGH J:   Yes, I must say that, having regard to the terms of the section, I would have thought the proper procedure was either to call all the witnesses afresh or simply to tender the transcript of evidence and not the findings of the Tribunal, but the most powerful point in your favour seems to be what Mr Wales said at the beginning, that this was a conventional appeal and if there was to be any departure from that, then you are entitled to notice of it.

GLEESON CJ:   What would be the position in law if the date of commencement of the operation of a statute amending section 171F was precisely the same date as the date on which the information was filed in the Tribunal.  Would the amendment commence at midnight on the end of that date, or earlier?

MR JACKSON:   Well, your Honour, in the ordinary course of events, one would think that absent some particular provision, the operation of the amendment would be in relation to the institution of appeals after the time when the amendment had come into force, unless there was something saying this applied to previous things.  Now, it may be that the Interpretation Act provisions might continue the old system in force  ‑ ‑ ‑

GUMMOW J:   Not in relation to procedural matters.

McHUGH J:   It is a question of whether it is an accrued right, is it not?  And it raises some the questions that have ended up before this Court on more than one occasion.

MR JACKSON:   Yes, your Honour, and certainly now I have been in two cases about it which seem to be differently decided, with respect.  But ‑ ‑ ‑

GLEESON CJ:   We just seem to have here a situation in which the amendment took effect on the same date as the information was relayed, namely, 8 March 1996.

MR JACKSON:   Your Honour, that being ‑ ‑ ‑

GUMMOW J:   Your point is that is in advance of the appeal.

MR JACKSON:   Yes.  May I check those dates, your Honours.  I accept what your Honours say.  I am sorry to have misled the Court.

GLEESON CJ:   Mr Priestley will be able to do that for you.

GUMMOW J:   Is there anywhere in the Court of Appeal where they specify in which form they are taking 171F as applicable?

MR JACKSON:   Your Honour, I thought there was, I must say, in part of the reasons for judgment.

GUMMOW J:   Do not go away from that.

MR JACKSON:   Your Honours, could I go on then to our written submissions.  I had been dealing earlier with the matters referred to in paragraph 6 through to paragraph 13.  Your Honours, I do not propose to go through the detail of those.  Your Honours will see the various submissions and pages we refer to there.

But may I seek to refer to paragraph 16(b) of our submissions and that follows on from the submissions I have been making earlier.  Could I take your Honours to volume two at page 411.  What your Honours will see there is the underlying approach that has been taken by Mr Justice Powell.  Your Honours will see at page 411, the second paragraph on the page, in a passage which goes through to the top of the next page and what his Honour said is that:

The manner of the formulation of the complaints against the Respondent and the manner of the conduct of the appellant’s case before the Tribunal have, as it seems to me, tended to obscure the facts, first, that the ultimate question for the Tribunal was, and the ultimate question for this Court is, to determine whether the conduct of the Respondent renders him a person not of good fame and character –

and so on.  Your Honours will see that elaborated upon in that paragraph and following.  But, your Honours, could we seek to say that if one follows through the provisions of the Act, what one sees is that the ultimate question before the court was whether the appeal and cross‑appeal from the Tribunal were appeals that should be allowed or dismissed.  What I mean by that is that one has seen from the provisions relating to the Tribunal that it does provide for a rather elaborate system of complaints, allegations which are particularised and the matters then to be dealt with by the Tribunal and a penalty to be imposed if the complaint has been made out.  Your Honours have seen the opening words of section 171F which deals with the provision for the various penalties, if I can so describe them.  It works on the assumption, your Honours, not there is to be the wide‑ranging inquiry that seems to be contemplated by his Honour’s observations but rather to answer the question posed by the opening words of the appeal provision, subsection (1).

KIRBY J:   Well, they point one way.  Pointing in the other way is the fact that the appeal is to the Court of Appeal of the State, the traditional guardian of professional standards; that it goes to the same judges whose inherent jurisdiction is preserved and it goes by way of an appeal which is not a rehearing but a fresh hearing and it goes to a court which is hearing an appeal which, even in the strict sense, must form its own views of facts and if, on their face, the facts appear to, self‑evidently, have led to a conclusion which appears to the Court of Appeal to be ridiculous, then they have their own duty in the fresh hearing to make their own mind up, to give effect to it, otherwise they are just prisoners of the Tribunal.  That would not be so even in an ordinary appeal.

MR JACKSON:   Well, your Honour, could we seek to say this, that what the Supreme Court is to do under section 171F(3) is to hear and determine an appeal under this section.  The appeal is, by subsection (1), against the Tribunal’s determination of a complaint.  So if one goes back through the provisions that relate to that, what one sees is that it is dealing with matters of a specific kind.  Your Honours, it is hardly unfair, really, that for the situation to be that if a practitioner is going to be put in jeopardy, as it were, that the complaints be particularised against - there be a hearing of those complaints and there be an appeal in relation to those complaints.

KIRBY J:   That goes to the second question of what notice has to be given.  I am talking about the power of the court to whom it goes in the first place.

MR JACKSON:   Your Honour, I accept that but what I am seeking to say is that the court relevantly has power that derives from two sources.  One is the preservation of the inherent jurisdiction under ‑ ‑ ‑

KIRBY J:   You say that does not exist in an appeal of this kind, that somehow they leave that outside the door when they go in and sit in the court.  I find that very hard to accept given that the Parliament has taken the trouble to preserve it.

MR JACKSON:   Your Honour puts it very vividly, with respect, but may I say in relation to it that if one is dealing with an appeal which is given by a statute, then one looks to the statute to see what the powers are in relation to the appeal.

KIRBY J:   And to whom it lies.

MR JACKSON:   Yes, indeed, your Honour.  It lies to the Supreme Court.  I mean, there is no doubt the division - the arrangement is provided for by the Supreme Court Act that take that to the Court of Appeal but the point I would seek to make is that what is preserved is an inherent jurisdiction in the court.  If that jurisdiction is to be invoked it has to be invoked.

GLEESON CJ:   Mr Jackson, I am wondering if what appears on page 411 at about line 40 is entirely accurate.  What were the matters that concerned Mr Justice Powell at the commencement and during the course of the hearing?

MR JACKSON:   It seems to be, your Honour, the way in which the notice of appeal was framed and if I take your Honour to that for just a moment.  Your Honour will see that at page 344 and, in particular, at page 345.  You see under the heading “Orders Sought”:

1.  In respect of the first ground of complaint:

(a) A declaration that the conduct…..did occur “in connection with the practice of law”…..

(b) No variation of the penalty imposed in respect of this ground of complaint is sought.

(c) Alternatively, if this Court finds that the conduct alleged in the first ground of complaint did not occur “in connection with the practice of law”…..an order that the solicitor’s name be removed from the Roll of Legal Practitioners.

McHUGH J:   Well, I appreciate that.  But on one view, the grounds of appeal are totally misconceived having regard to the terms of 171F(1) and (4).  What the appeal is against is the Tribunal’s determination of a complaint and so, if you ask what is the determination of the complaint, I would have thought it was the order that appears at 339, namely:

1.  The Solicitor pay fines of $8,000.00 –

That is the determination of the complaint.  That is what you appeal against.  And then having regard to subsection (4), the appeal against that:

is to be by way of a new hearing –

But the notice of appeal seems to proceed on the ground it is an appeal against the findings of fact made by the Tribunal.  And can I ask you what is the effect of subsection (2) of 171F in this case?  How does it fit in?

MR JACKSON:   Well, your Honour, the complainant would relevantly be not the Society but the lady – whose name eludes me now – who had made the complaint in the first place.

McHUGH J:   But it says:

(2)  the complainant may not make such an appeal except with respect to those aspects of the hearing that deal with the loss, if any, suffered by the complainant –

So, is subsection (2) a reference to the personal complainant as opposed to the Law Society which is regarded as a party to the hearing.

MR JACKSON:   Yes.  Section 169, your Honour, you will see in subsection (1) it list the persons who are entitled to appear at the hearing, and then (e) is:

the complainant, subject to subsection (2).

And then you will see the ambit of the complainant’s entitlement is reflected in the provision to which your Honour was just referring.

McHUGH J:   Yes.

GLEESON CJ:   What seems to have happened in part is that Mr Justice Powell, in the pages following 411, took a very dim view of certain aspects of the behaviour of the appellant and his sisters which were not the subject of any complaint before the Tribunal and which were not the subject of any criticism in the Tribunal, either by way of cross-examination by counsel for the Law Society or by way of finding by the Tribunal.  I am referring to the way in which they dealt with their mother’s property.

MR JACKSON:   Yes, your Honour, yes.  Yes, his Honour certainly did and it is clear, your Honours, that that played a part in his ultimate decision ‑ ‑ ‑

McHUGH J:   More than a part.  His Honour said it had a considerable bearing, did he not?

MR JACKSON:   Yes, he did, your Honour, and ‑ ‑ ‑

GLEESON CJ:   He thought it bore upon the fitness of your client to remain on the roll of solicitors, that he and his sisters, as the judge found, disregarded their fiduciary obligations to their mother, which had never been a matter in issue, had it?

MR JACKSON:   No, your Honour, no.  No, it had not.  There was no ‑ ‑ ‑

GLEESON CJ:   It was something that emerged as part of the background to the particular complaint that was made.  It was part of the background, for example, to the use of the power of attorney and the later disagreement with the sister.

MR JACKSON:   Yes, that is so, your Honour.  It is clear that it did play a part in the considerations of Justice Powell and it one of the matters to which I was about to take your Honours.  Your Honours will see, if I could just go to paragraph 17 of our written submissions, where we commence to deal with a number of these matters.  The first is that they are referred to - at page 413 in paragraph 4, his Honour took into account:

the real burden of the second complaint -

the second complaint being that there had not been notification of -

the St. George Building Society of the deceased’s death ‑ ‑ ‑

GLEESON CJ:   Well, what I wanted to ask you was, first of all, the principle to be applied.  What is to happen if, in the case of an appeal - in the course of an appeal, the Court of Appeal sees evidence which, in its view, has a bearing upon the fitness of the practitioner to be a solicitor but which has not been made the subject of a specific complaint?

MR JACKSON:   The Court of Appeal really, your Honour, has two choices.  Perhaps there are more but there are at least two.  One is to say, “This is a matter in which it would be possible to take into account but this is an appeal from the determination by the Tribunal of complaints made to it.  These matters, where never the subject, for example, of particulars and there has been no application or there had been no application to amend the information or to amend the complaint in any way, therefore, we do not feel we are able to deal with them as matters affecting our decision”.  That, your Honour, is the first approach.  That would, in our submission, be the ordinary one because, ex hypothesi, the matter which is referred to in it is unlikely to have been the subject of evidence that deals directly with that as an allegation, nor is there likely to have been material in the first instance which – I am working on the assumption that one is dealing with an appeal as this one was conducted – would militate against or in favour of the practitioner in relation to it.  So, that is one course that could be adopted; do nothing, in effect. 

The second course which could be adopted is for the court, seeing that, to seek to say, “Well, this court has an inherent jurisdiction.  It can, itself, take some action in relation to it.  If it is going to do that what it would have to do would be then to give notice of a complaint being made by the court itself as, in a sense, an independent complaint”.  A third possibility, your Honours, I suppose, and one that one might think in these days where there is a Legal Services Tribunal and where there are investigative bodies that exist would be for the matter to be a matter which was referred to the Law Society or referred to – I have just forgotten the name of the body which is the independent body, but referred to the body for investigation.

KIRBY J:   The Legal Services Commissioner, I think he is called.

GLEESON CJ:   Take a simple example:  just suppose that on an appeal to the Court of Appeal the practitioner does give evidence, and in the course of giving his evidence he comes out for the first time with an explanation of his conduct or a statement of fact which has never been the subject of a complaint but which, in the view of the court, produces the consequence that he is out of the frying pan and into the fire.  It is not difficult to imagine that emerging in the course of evidence.  How is the Court of Appeal supposed to handle that situation?

MR JACKSON:   In circumstances of that kind, the appropriate course would be for the court to adopt either the second or the third of the ways I mentioned before.  One would be to refer it to the commissioner for investigation, or the commission of investigation; another would be for the court itself to give notice saying, “This has emerged.  This is a matter upon which the court may form a view against you.  We will adjourn the proceedings to enable you to deal with it”.

McHUGH J:   You would have to do more than that, would you not, because you would have to amend the particulars of the allegation under 167A, and I have just recollected that – of course, we heard no argument from the respondent on the special leave application, but one of the things that exercised my mind, having just recalled in reading the papers, is that Justice Powell seemed to approach the case – the ultimate question for the court was whether or not the appellant was of good fame and character, and notwithstanding the particulars, they were entitled to have regard to the whole of the evidence to determine that question.  Whereas, at least arguably on the face of the Act, the question of good fame and character is controlled by issues raised in the complaint in terms of the particulars.

MR JACKSON:   Yes.

McHUGH J:   At 411 his Honour makes it very clear that he does not regard the particulars as in any way controlling the evidence that can be taken into account in determining whether the appellant is of good fame and character.

MR JACKSON:   Your Honour, I have to say that without checking I am not certain whether 167A was in force at the time of the proceedings before the Tribunal.  It came into force in 1996, but the exact date ‑ ‑ ‑

McHUGH J:   But if it is an appeal by way of new hearing, then it must, well, arguably, it would apply in the Court of Appeal, would it not?

MR JACKSON:   One would think so, your Honour, because it contemplates that there may be a variation of it, and if it is to be a new hearing it would be surprising if the appeal court had lesser powers than that of the body being appealed from.

GLEESON CJ:   We had better be particularly careful that we understand precisely what was the statutory regime that covered the ‑ ‑ ‑.

MR JACKSON:   Yes, I will, your Honour.

GUMMOW J:   Yes; I have been working off reprint No 6 which is 28 April 1998, which I think the Court has.  Maybe we should have reprint Nor 5.

KIRBY J:   In the matter of what one does; I remember that in Foreman 34 NSWLR, the question arose in the course of the hearing as to the suggested overcharging.  The case was before the court on the complaint concerning false documents.  The court dealt with it on that basis, but in the end of my reasons I drew attention to the concern about the overcharging, and suggested that that should be a matter of investigation then by the Society, because that was before the current regime.  So, I must say that I think it is very dangerous for the Court to proceed on new bases that have not been dealt with before, at least without giving notice to the party.  But, that was the course which I adopted.

McHUGH J:   Weaver v Law Society of New South Wales holds that even if the solicitor is acquitted by the statutory Tribunal and an appeal from that is dismissed, proceedings can still be instituted later on in the inherent jurisdiction of the court.

MR JACKSON:   Well, your Honour, it may well be that matters that emerge in the hearing are themselves of such a nature as to merit the making of a complaint but what is dealt with then is what has emerged and it is dealt with in one way or another separately from what has taken place earlier.

McHUGH J:   I know, but I mean Weaver – it is significant in this respect that Weaver was acquitted either by the statutory committee or on appeal but certainly it went to the Court of Appeal on appeal from the statutory committee and then later on proceedings were commenced in the inherent jurisdiction and Weaver was ultimately found guilty and struck off under the inherent jurisdiction.

MR JACKSON:   Yes, your Honour, I am not disputing the possibility of that.

McHUGH J:   Yes.

MR JACKSON:   All I am seeking to say is that if something emerged in evidence even on the hearing of an appeal it may be that that is not taken into account in dealing with the appeal but it is itself the ground of a subsequent complaint.

McHUGH J:   Complaint, yes.

GLEESON CJ:   I would have thought that the seriousness that you might attach to the way in which the present appellant and his sisters acted towards their mother when she was in a nursing home at the end of her life would depend to a great deal upon knowledge of the family circumstances and background and history which may have been a subject that was just never fully investigated at all.

MR JACKSON:   Well, it was investigated, your Honour, only to the extent of being background in relation to it and one saw that it emerged, really, from what was said by the appellant in giving the history of how the mother came to give the power of attorney, went to the nursing home and so on.  What had happened had been that one of the complaints that had been put to him had been that she had not been capable of giving a power of attorney at the time and in response to that he set out what the position was and then that material was material that was sent to the Law Society.

So too was material in relation to the allegations that were made by him and the litigation brought against him by his sister and he there set out what arrangements had been made between them.  That is how the material came into being but, your Honour, if the proposition before the Tribunal had been that he had engaged in some conduct which was inappropriate in relation to those matters then, undoubtedly, the circumstances of the family would be of the most material kind. 

Your Honours, as we sought to say in one of the footnotes to our submissions, if one looks just at the case of the two natural daughters, as it were, taking the jewellery, the daughter‑in‑law then taking what was left of the jewellery after they had chosen, it all seemed so very much the kind of thing one would expect to go on in a family.

GLEESON CJ:   But that is by pre-arrangement, it is the sort of thing that might have been discussed between a grandmother and a granddaughter over years.

MR JACKSON:   Over years, your Honour, who gets this and who gets that.

KIRBY J:   It seems to have shocked Justice Powell who was, of course, the probate judge for some time.

CALLINAN J:   Mr Jackson, following on from what the Chief Justice said, there were, in effect, adverse findings against those two ladies too who were not parties to the proceedings and as the Chief Justice suggested, they may well have been acting in accordance with an understanding or arrangement with their mother.

MR JACKSON:   More than just in effect, your Honour, there were adverse findings, at the top of page 411, it: “does not cast a favour light on either” of them.

CALLINAN J:   It seems to have been almost - and I say this with some restraint - an emotional response to what was done by these people.

MR JACKSON:   We have sought to describe it, your Honour, in footnote 1 on page 3 as being, with respect, a very rigid application of legal principles to a very typical family situation.

KIRBY J:   But I find it hard to imagine that Justice Powell would have restrained himself during the hearing from expressing either directly or indirectly his feeling of shock at this conduct on the part of an experienced solicitor who rose to be the treasurer of the Law Society who, as it were, just ignored the relevant law.

MR JACKSON:   No, your Honour, the ‑ ‑ ‑

KIRBY J:   You say it was never raised.  These matters on 411 to 413 were never raised with counsel.

MR JACKSON:   Your Honour, what he said was – he raised a number of matters with counsel.  But in the course of it - and I think I should give your Honours copies of the transcript because  ‑ ‑ ‑

KIRBY J:   I do not want to read the whole transcript of the Court of Appeal.  It will be hard enough to re-read the whole transcript here.

MR JACKSON:   It is not a very long case, in fact.  But it was obvious if one reads it, that he had formed a view adverse to the ‑ ‑ ‑

GLEESON CJ:   He was probably giving tentative indications of the tendency of his mind.

MR JACKSON:   Of course, your Honour.

GLEESON CJ:   And inviting comment by counsel.  But if we go to look at the transcript, for my part, I would be interested to look at what he was referring to at line 42 on page 411 and that is matters that concerned him at the commencement.  He does seem to have been worried about the procedural aspect of the matter.

MR JACKSON:   Yes.  Your Honour, that  ‑ ‑ ‑

KIRBY J:   Just whilst that is being got, we were told in an appeal yesterday in the area of company law that if all the corporators agreed, in certain circumstances, a technical breach of the law will not happen, the consequence that otherwise it would.  Is there such a doctrine in the field of probate that if all the beneficiaries agree on a course that they could just go ahead and do what they want to do because I am sure that must happen many times within families, many, many times?

MR JACKSON:   Your Honour, I do not know that I could say there is a doctrine that one can agree in any kind of binding fashion.  I should add a qualification to that.  There is no particular reason, your Honour, why three people who believe themselves to be beneficiaries under a will which they believe will end up with their being left the property could not agree amongst themselves that, upon their becoming entitled to the property, they will deal with it in particular ways, and one could see if there were three people and three properties, one each might say, “Well look, you take this, I’ll take that, we get valuations and we will adjust the money sums”.  That may well be in some circumstances an agreement which is binding.

KIRBY J:   Justice Powell who is very experienced in this area does not seem to think that is the law.  He seemed to think whilst you owe a fiduciary duties as the executor or trustee, you have to perform those and thereafter you can make your own arrangements.

MR JACKSON:   Well, your Honour, I do not think I can take it so far as to say that one would be entitled to get any property in the property by such an agreement at the time when the agreement is entered into.  Meaning by that, that the beneficiaries or potential beneficiaries who are only that at that point, cannot just say, “Well the property is ours”, because it is not of course.  But they could enter into an agreement in relation to what might happen to it in the future.

What his Honour seems to be referring to appears at the bottom of page 3 - your Honours will not have this – of the transcript of the hearing in the Court of Appeal and his Honour said that:

I must say I am not terribly excited about the way in which this complaint or information was framed and am not terribly excited about the form of the notice of appeal.  When I read the transcript I thought the matter was put very clearly by the Chairman at the top of page 1.

And if I could pause to say what in the transcript of the hearing of the Tribunal the Chairman, and your Honours have this in volume 1, the Chairman of the Tribunal said to Mr Wales:

You understand we are not bound by the penalty which is sought by the Law Society?  Your client understands that?

He said:

Yes.

That penalty being a fine which was sought in the information.  And, his Honour goes on to say:

That is the thing I find puzzling.  For some reason you framed the information seeking a fine which was puzzling and then you had this five bob each way in ground 1 of the notice of appeal - I think it is five bob one way and ten bob the other.

And, then, my learned friend said:

I accept what your Honour says about the information.  The notice of appeal was framed in the way it was because it was not felt that if the information in some way restricted the way in which the Tribunal could have dealt with it, then that is not our position but if it felt there was a problem, then we would look at it from both ways.

GLEESON CJ:   Part of the background to this was, was is not, that the Law Society had originally dismissed this complaint?

MR JACKSON:   Yes.

GLEESON CJ:   Then the sister, in effect, forced the matter before the Tribunal.  The Law Society then turned up before the Tribunal and said, “A fine would be sufficient” and then the Tribunal made its finding of lack of good fame and character and the Law Society then went to the Court of Appeal and said, “He should have been struck off”.  In those circumstances, the Law Society’s attitude to the matter could fairly be described as evolving and it is perhaps not surprising that Mr Justice Powell was a little troubled.

MR JACKSON:   Yes, your Honour, “evolving” accurately describes what it was but, your Honour, I do not know that I can take it beyond what I have read to your Honours.  I will give your Honours copies of it but I do not know if I can take it beyond that.

KIRBY J:   By the time the matter was before the Tribunal and the Court of Appeal had the disputes between the appellant and his sister with whom he had disputes been terminated, because there were disputes relating to the valuation of properties and things of that kind?

MR JACKSON:   Yes, your Honour.  In the end a deed of family arrangement was arrived at and I think the answer is that they had been resolved at the time when the matter had got to the Tribunal or nothing further was then happening in relation to, if I can put it that way.

KIRBY J:   So, the bottom line is that in respect of – well, the only people who were affected by what your client did were members of his family, being his two sisters?

MR JACKSON:   Yes.

KIRBY J:   And that none of them lost any money because the accountant reported that the estate was properly administered, on the whole, and in so far as there was prematurity of taking assets and so on, that was something which they, being the sole beneficiaries, all agreed to.

MR JACKSON:   Yes, that is so, your Honour, yes.

KIRBY J:   And no private client of your client was affected.  There was, of course, deception of the building society and there were, of course, answers to the Tribunal and the Society which, to put it no higher, were not entirely candid, some which were false.

MR JACKSON:   Well, your Honour, that is a matter with which I would seek to cavil, the last matter your Honour has put to me, but subject to that, yes, your Honour. 

Your Honours, I had been going to go to paragraph 17 of our submission dealing with the second complaint, and it refers to page 413 of what was said by Justice Powell, paragraph 4.  Your Honours will see he referred to the real burden of the second complaint but, of course, the second complaint was something in relation to which there was not an appeal to the Court of Appeal.  So far as there was a real burden, that was dealt with by the first complaint and, your Honours, it is difficult to see, with respect, why that was a matter that was appropriate to be taken into account.  It was a matter on which there had been success for the appellant below and there was no appeal about it.

Your Honours, the matter to which we refer in paragraph 18 concerns his assertion in the statement he made on 20 July that he had not used the power of attorney to gain access to the accounts.  You will see the statement at page 162, in volume 1, where he said at about line 23:

I did not use the power of attorney after my mother’s death.

And then at page 163, paragraph 4, second sentence, he said the same thing. 

Now, your Honours, the evidence before the Tribunal consisted, as we seek to say, both of the statutory declaration and also the oral evidence which he gave on the issue and we give your Honours the references to those two things, but one sees that the Tribunal expressly accepted his evidence, including his oral evidence which you see in volume 2 at page 328, lines 17 to 62.  Your Honours will see, after referring to his oral evidence on page 328, the Tribunal, at line 55, says:

The Tribunal accepts the evidence of the Solicitor that, he did not know the statement in the letter of 20 July 1994 to the Law Society from his solicitor that he did not use the power of attorney after the death of his mother was erroneous or was known to him to be so.

KIRBY J:   I just do not quite understand that.  Is the suggestion that the statement was prepared by a solicitor and he did not know that this was in it, or that it was in it and that he had a slip of the mind?

MR JACKSON:   The latter, your Honour.

KIRBY J:   Well, why would it not?  I mean, credibility findings or matters which might be affected by credibility have to be approached with great care, but in a fresh hearing, why is the Court of Appeal not entitled to say that is absurd?

MR JACKSON:   Well, your Honour, because you had a situation where he said, “I put this in a statement”, and your Honour will see it is a statement that answers about 20 different allegations that are put against him.  He says in relation to one of them, “I did not use the power of attorney”.  Now he is writing at a time which is six years after the event.

KIRBY J:   But this is in relation to things done after his mother’s death when he was in conflict with his sister, was he not?

MR JACKSON:   The conflict arose during that time, your Honour, it was not initially.

KIRBY J:   Why would it not be open to the Court of Appeal to say, “Of course we have to respect the view that the Tribunal found, but we are in a fresh hearing; we have to do it with all the disadvantages on the papers, and we look at the realities that he was in conflict with his sister, and doing things which were cutting corners, and we just think it is absurd to suggest that he did not know or remember that he had used the power of attorney after his mother’s death”.

MR JACKSON:   We would accept the possibility, if I can put it this way, that if one saw him giving evidence, one might take that view.  But, if you have a circumstance where a person does give evidence and says, and is asked about it, “This is what happened.  I realise now I made a mistake, but it was my belief at the time that I had not”, and he is speaking about something that had happened six years before.”, and…..if one looks at the statement, it is obviously some kind of misconstruction of what the use of the power of attorney was, it is perfectly possible to take the view that he honestly, but mistakenly, formed that view.  Your Honour would have seen that in 1990 there was an event of great sadness that affected the family badly, when their son died very suddenly.  So, one can see, we would submit, that it is something on which the Tribunal is perfectly entitled to say, “We believe him”.

KIRBY J:   That does not presently convince me, but it still is a question of what the Court of Appeal must then do.  Do you tell us that Justice Powell, a member of the Court of Appeal said, “Now, pull the other leg.  Really, you cannot expect us to really believe that, given the circumstances in which the power of attorney was used after the mother’s death”.

MR JACKSON:   I do, your Honour, yes.

KIRBY J:   It was not put directly to counsel appearing for the appellant in the Court of Appeal?

MR JACKSON:   No, your Honour.  I will give your Honours the references, if I may, a little later.

We refer in paragraph 18 of our written submissions to the various passages of the evidence, but what we seek to say is all the matters to which the judge referred, Justice Powell, were matters of which the Tribunal would have been well aware at the time when it was arriving at its decision, and that is, all the factors that militated in favour of his view were ones of which he would have been aware.

The next matter is that to which we refer in paragraph 25, and that is where his Honour expressed the view that the applicant’s conduct in failing to serve the notice of intended application for a grant of probate was at least devious, as it was put, and conduct in which a solicitor should not engage.  Your Honours, once again, he gave evidence accepted by the Tribunal that he was unaware that the obligation to do so existed.  What we would seek to say is that in a case of that kind there was really no basis for setting aside a finding of that nature, or for drawing the inferences which Justice Powell sought to draw in relation to it.  One must bear in mind that the case being made in relation to the fourth complaint was simply one of not having the appropriate level of professional competence.  It was not a case of anything more than that.

Could we refer then to paragraph 26 of our submissions, where we refer to the fact that at page 414 he referred to the appellant’s conduct in relation to the affidavits of assets and liabilities.  The point we would seek to make is that the only complaint that was being made, as is apparent from the terms of the complaint itself, the only complaint being made against him was the drawing of the affidavit in the form in which he did on 4 November fell short of the appropriate standard of competence and diligence because it had the defects that are referred to in paragraph (d) of the complaint which appears at page 331.

Your Honours, it was not the case where there was any deliberate falsity alleged and your Honours will see, and we give your Honours the references, that the cross‑examination concerned only whether he was acting as a solicitor in preparing it and secondly, concerned the inconsistency between his November affidavit on the one hand, a draft he had prepared in September and that which was finally lodged.

Now, your Honours, what we would seek to say about it is that the only complaint was one concerning his professional competency dealing with it.  It was not a case where there was in issue before the Tribunal or before the court matters of the kind to which Justice Powell referred at page 414 in paragraphs 6 and 7.

Your Honours, if I could go very briefly to that affidavit which appears in volume 2 at page 260, your Honours will see that at page 262, between lines 10 and 20, it referred to there being money due to the estate; $110,000 from Mrs Brain which reflected, in effect, the advance she had got.  On the next page ‑ ‑ ‑

KIRBY J:   Can I just say I have just looked at 414 and they do seem to be just comments on competency rather than on honesty or good fame or character or anything else.

McHUGH J:   I think he goes beyond that, does he not?  Over on 415, he says it was “at the least, devious”.

KIRBY J:   I see.  That is the word.

MR JACKSON:   Your Honour, I was referring particularly in paragraph 6 and 7 to a number of things.  About line 20 indicated:

that the Respondent was not averse to ignoring what he understood to be the true legal position if, by so doing, he could obtain an improper revenue advantage.

And then paragraph 7.  It is there said they:

would indicate that the Respondent’s knowledge of, and attitude to (inter alia) the law of contract, the law of vendor and purchaser and the requirements of the revenue laws was rather less than it should have been –

Your Honour, that is rather strange in a sense because that is what Justice Powell said when one came to page 430 that he was in equal trouble with Justice Beazley because he knew too much about it and your Honours will see that at page 430 about lines 42 to 50:

sophisticated knowledge of the legal and equitable principles of property law –

says her Honour.

CALLINAN J:   What reference is that, I am sorry?

MR JACKSON:   The second reference was page 430, Justice Beazley at line 40 to 50.  One compares that with page 414, lines 30 to 45.

GLEESON CJ:   What was the improper revenue advantage being spoken of?

MR JACKSON:   It does not really appear, your Honour, to put it shortly but presumably what was in mind was that there would not be some stamp duty payable on the transfer of the properties to the beneficiaries.

CALLINAN J:   Was there not another question about the deductibility for income tax purposes of the cost of repairs if they were done after the testatrix died rather than before?

MR JACKSON:   Yes, I am sorry your Honour, I was thinking about the transfer of the properties.  But your Honour is right.  There was one matter that was referred to they be deductible.  I must say,, your Honour, it seems a  little odd but the proposition seemed to be that they would be deductible by her, them being rental properties, but somehow they would not be deductible by those who succeeded to them.

GLEESON CJ:   But in any event, what is wrong with making sure you get a deduction?

MR JACKSON:   Your Honour, I do not know really, nothing.  That is the ‑ ‑ ‑

CALLINAN J:   I think the point was, Mr Jackson, that after the repairs were completed it would be unlikely that the properties would be let because they would be occupied by the daughters.  I think that was the point.

MR JACKSON:   That may be, your Honour.  In fact, one of the properties, of course, was being occupied at a rental.  I think the rental was lowered.

CALLINAN J:   I think they were both occupied and, in one case, closer to a commercial rent than the other one.

MR JACKSON:   Yes.  Your Honours, at the time of the death the third property was not occupied because it was being – but the daughter and her daughter were in two of the properties.

Your Honours what I was going to say at page 263, your Honours will see referred to the other two properties and what is referred to there is the balance payable by the appellant in respect of the Blakehurst property at the top of the page and then the balance payable by the other sister in relation to the Hillville property.

Now your Honours, so what one saw was that the – and the properties were disclosed - a view was taken about the agreement and it was only after the appellant received advice that the agreement was not enforceable, which was not his own view, right or wrong, that he swore the second affidavit which disclosed the properties themselves as being the assets.  You will see the reference in paragraph 27(b) of our submissions to the advice that he received that the agreement was not enforceable.

Your Honours, that is something in relation to which we sought to complain ourselves in the Court of Appeal so far as the Tribunal’s finding was concerned because, as your Honours will see in paragraph 28, the Tribunal had found that his motive was to ignore the interests of his sisters and in some way establish an entitlement to the Stuart Street property for a purchase price of $300,000.  But your Honours, that had not been put to him nor had the view of Justice Beazley which is at page 430 lines 40 to 50 that, in some way, in swearing the affidavit he had sought to benefit himself by his dishonesty.  Your Honours will see lines 49 and 50:

The only possible conclusion is that he sought to benefit himself by his dishonesty. 

Your Honours, that is a completely ‑ ‑ ‑

KIRBY J:   Justice Powell seemed to have thought that your client was incompetent and Justice Beazley, that he was an extremely sophisticated legal and equitable lawyer.

MR JACKSON:   I appreciate that, your Honour.  Whichever view was taken did not seem to avail him much.

GLEESON CJ:   That is a very serious finding that Justice Beazley has made.

MR JACKSON:   Indeed, your Honour, and it is put in very round terms and it is not something, in our submission, which was the subject of any relevant complaint.  Your Honours, I have already referred to what we say in paragraph 29 and to a reference to Justice Powell’s view that we were involved in an endeavour to obtain an improper revenue advantage.

In paragraph 30 we refer to a matter that your Honour Justice Kirby mentioned at an earlier point today, and that was that we had not expressed regret or contrition.  But, your Honours, he had in his affidavit evidence accepted that it was wrong of him to use his position.  Your Honours will see that at page 298, if I could take your Honours to that for a moment.

KIRBY J:   But would not this simply be a matter of the interpretation by the Court of Appeal of whatever statements your client made?  Is this said to be an error?

MR JACKSON:   Yes, it is, your Honour.  What his Honour said was simply to say what the Tribunal had said and that was that he had not expressed any regret or contrition.  Your Honour picked up what the Tribunal said.  But, the Tribunal appears to have overlooked what he said at page 298 and that was that in paragraph 6 at the top of the page:

I accept now that it was incorrect to withdraw the moneys in the way I did.  I accept -

and your Honours will see that goes through to the end of the next paragraph.  And, as we also seek to say, your Honours, this was not the case where he had done anything other than attempt to admit a great deal of the factual matters which formed the basis of each of the complaints and your Honours will see that at pages 5 to 7 where he admitted the facts that were relied on.  Your Honours will see, also, a matter that affected Justice Powell and referred to in paragraph 31, and that is where – if I could just take your Honours to page 413 where, in paragraph 5, his Honour said that he had:

admitted that, in the past, he had advised clients to practise similar deceptions in order to obtain a change of ownership to an account with a Bank or Building Society.

Well, your Honour, that is the first thing.  There is no question but that he said something along those lines, but your Honours, if one goes to where he said it and one looks at – it is in volume one, page 41 – you will see commencing at about line 4 he was asked:

If necessarily follows, doesn’t it, that using the power of attorney meant that you were practising a deception on the building society?

And, he said:

Yes, I would have to say that is true.

Then, your Honours, the passage goes through to about line 30 on the page and what your Honours will see particularly in the passage between lines 15 and 20 that what he is referring to is undefined but:

circumstances, on the death of a client where they have needed money to meet liabilities straight away.

Now, your Honours, without knowing what the particular circumstances were, it is very difficult, in our submission, to make a very adverse finding against him based simply on that.  There may have been circumstances involving the greatest need for funds to very deserving people who were entitled to them in the end in any event.  It does not appear how often it happened or what was the nature of it.

GLEESON CJ:   Well, the view that seems to have been taken against him is that this evidence indicates, consistently with his own conduct, that if he thought it was expedient to do so he would advise his clients to use a power of attorney given by somebody who had died.

MR JACKSON:   Well, your Honour, he said that on an occasion or occasionally in the past he had done that.  I cannot gainsay that but, your Honours, what I am seeking to say about it is that to have said that and no more does not indicate much more than that one does not know exactly what the circumstances were.  They may have been extreme circumstances and for a very brief time, for all one knows.

GLEESON CJ:   Yes, but in terms of reflecting his professional standards, what he seems to be admitting is that his professional standards were such that if a client needed money to meet liabilities straight away, he would advise the client – if it were expedient to do so – to use the power of attorney, notwithstanding the death of the donor of the power.

MR JACKSON:   Yes.  Your Honour, that is what the words say but all I am seeking to say about it is that it is very difficult to know, when one is speaking of over potentially a very long period, whether what he is talking about is something that may have happened years before and not happened again, or – because your Honour will see what he said.  He said, “I have to say that I have done that”.  It does not say when or where or how or why.

GLEESON CJ:   What seems to have gone on in this case, and there is a question as to whether it involved a lack of fairness to your client at some stage, but it is that every time anybody has had a progressively closer look at his conduct, they have taken a progressively dimmer view of it.

MR JACKSON:   Well, your Honour, I hope that the curve had peaked before here, with respect.  The ‑ ‑ ‑

CALLINAN J:   Mr Jackson, you do not mention, I do not think, section 168(1).  I wondered whether that might assist you in the sense that all that can be relevant before the Tribunal is matter that is relevant to the particulars and within the particulars.

MR JACKSON:   Your Honour, I am sorry, I thought I had actually mentioned section 168 on the way through  ‑ ‑ ‑

CALLINAN J:   Perhaps you did.  I am sorry.

McHUGH J:   You did.

MR JACKSON:    ‑ ‑ ‑ and what I was seeking to say about it is that it does reflect, particularly when one bears in mind the terms of section 167 which, in effect require a form of – I use the terms inexactly - pleadings on both sides.  So that one sees that there are matters which are in issue, are not issue and  ‑ ‑ ‑

CALLINAN J:   But which will govern very strictly the admission of evidence confining it to matters relevant to the complaints and within the particulars.

MR JACKSON:   Yes.  Indeed, your Honour, yes. 

McHUGH J:   That is contrary to the way Justice Powell approached it at 410.

MR JACKSON:   Yes, your Honour.

McHUGH J:   He took the view that there is an ultimate question and that the court was not controlled by the particulars.  They could look at the evidence at large in the case.

MR JACKSON:   Well, your Honour, that is why we seek to say that if one is looking at what the Court of Appeal was doing in this case.  What it was doing was hearing an appeal, and it was an appeal from a determination of the Tribunal.  The determination of the Tribunal is not one that is in broad, in globo, it is not something where you, in effect, throw all the facts in and see what emerges.  It is a decision is based on complaints and a structure is put in place for that to happen.  The appeal reflects that underlying structure.

GLEESON CJ:   But the ultimate conclusion – and it may have been unjustified – that the members of the Court of Appeal reached was that not just was your client not a person of good fame and character, that he was a person of a great deal worse fame and character than the Tribunal had realised.

MR JACKSON:   Your Honour, I think that is right, but that is certainly the tone or flavour of the reasons of the Court of Appeal.  But, your Honour, that is something that is arrived at, in our submission, by the adoption of some courses that were not, with respect, permissible.  I have dealt with some of them already and I shall not go over them.  But one did come down in the end to there being some very basic facts.  Your Honours, what we would seek to say - in effect, what I am about to go on to, paragraph 34 of our submissions - what one has in the situation where the Act contemplates that even in cases of professional misconduct, one of the possible sanctions is the imposition of a fine.

GLEESON CJ:   Yes, but if the factual findings in the Court of Appeal were right and were fairly arrived at, then the seriousness with which they viewed the conduct as reflected in the ultimate order they made is a little difficult to doubt, is it not?

MR JACKSON:   Well, your Honour, that is what we would seek to say about it, is that that is where the court was in error.

GLEESON CJ:   You have to make good your challenge at an earlier stage, do you not?  If you have not so far demonstrated error or unfairness on the part of the Court of Appeal, by the time you arrive at their ultimate order there is not much left, is there?  They made very serious findings of fact adverse to your client.

MR JACKSON:   Yes, your Honour.  They did but that is why we make the submissions that - accepting the underlying facts, if I could put it that way, your Honour, because there are really three levels of fact if I can so suggest, with respect.  One is the basic facts.  The second is the inference to be drawn from the facts and that is really reflected in – when I say “the inferences” I mean things like the Court of Appeal saying that his conduct was devious in one respect or something of that kind.  The third is the ultimate conclusion, whether he was a person of good fame and character.  We really seek to attack, I think, the second and third levels of that and I appreciate if we have no success in attacking the second level of that it becomes more difficult to attack the third.

Essentially, your Honours, the question should really be what is the result to follow from the first level of fact.  If one takes the basic facts, what inferences should be drawn from that in relation to the question of whether he was of good fame and character and that is where we would seek to refer to the matters that we set out in paragraph 35 of our submissions and I will not go through them but your Honours will see in summary what they are.  There was no misappropriation.  None ever intended.  The money spent on estate assets, the accounts, the estate was in order, the beneficiaries concurred in the steps and the will could not have been challenged as a practical matter.

Your Honours, it was, we would submit, subject to the admission in cross‑examination about previous occasions, an isolated incident in a long, otherwise unblemished career.  There was no possibility of loss to anyone and he had been involved in the law and serving it for a very long time. 

Your Honours, what we would seek then to say is that the view taken by the Court of Appeal that if you are found to be not of good fame and character that you should be struck off – well, most often you should be struck off - does, with respect, rather limit the range of discretions contemplated by the provision.

GLEESON CJ:   It is difficult to see how that issue arises in this case, however.  If the findings of fact made by the Court of Appeal adverse to your client were right and were not arrived at unfairly, were justified, then their ultimate conclusion that he should be struck off is a little hard to quarrel with, is it not?

MR JACKSON:   Your Honour, we would submit not.  What I would say in relation to that is that one does have to bear in mind that all that there was, essentially, consisted of the use of the power of attorney in the circumstances where it was used and, I suppose, the filing of the affidavit.

GLEESON CJ:   It is possible for a person of good fame and character to yield to the temptation to cut a few corners in a situation where that is not causing any harm to anybody, but the characterisation of your client’s conduct by the Court of Appeal went a great deal further than that.

McHUGH J:   That is what I was going to put to you.  Having regard to the finding at 430 by Justice Beazley that:

The only possible conclusion is that he sought to benefit himself by his dishonesty -

it would be hard to say, given that finding, that they were not entitled to make the order that they did.

MR JACKSON:   “The only possible conclusion”, yes.

GUMMOW J:   I do not know how that is a finding.  What does it mean, “The only possible conclusion”?  The only possible conclusion, a matter of logic?

MR JACKSON:   I have submitted earlier that is something that was not available to be drawn from the material.  If one takes that as reflecting something that is justified by the material, then I suppose one could draw the inference that an appropriate order was to strike off.  But, your Honour, it would not be the only appropriate order, in our submission.  One has to bear in mind that one is not talking about slogans in the abstract, what one is talking about is circumstances where the underlying circumstances are very clear.

KIRBY J:   But if you make good your attack at level 2, and that is to say the inferences that have been drawn, then is not the correct procedure, respectful of the Court of Appeal’s general supervision of the profession in New South Wales, to say this appeal as a process miscarried; and therefore it has to go back to be dealt with in the way that the law requires, rather than that we have to read through all of these facts and form our own views of the matter?  Is that not the correct way to respond to the complaints which you are having some success, if I can say so, in making good, that the Court of Appeal has really made findings against your client that were not charged and are really not supportable because he did not really have the appeal that the Act envisaged.

MR JACKSON:   I accept that is a possibility, of course.  But, having said that, and conscious of the role of this Court, we would yet say it is an appropriate case for the Court to deal with itself.  The basic facts – there is not really all that much to them in the end, and ‑ ‑ ‑

KIRBY J:   But this Court has said many times that the discipline of the profession ought, ordinarily, to stop at the Full Court, if it deals with it properly, and that is where issues of professional disciple within the States and Territories should be dealt with.

MR JACKSON:   And when it miscarries, it is appropriate for this Court to deal with it – the unusual case.  As your Honour said “ordinarily”, this is the unusual or the extraordinary case, and this is one where it is appropriate for the Court itself to deal with it.  In our submission, there is no special difficulty in doing that because one does have the decision of the Tribunal; the oral evidence is in a very short compass and ‑ ‑ ‑

KIRBY J:   How long did the appeal last before the Court of Appeal?

GUMMOW J:   One day.

MR JACKSON:   One day, I think, your Honour, yes.

GLEESON CJ:   But if part of your client’s complaint is that he was not given a proper opportunity to meet these more serious charges, he was not given sufficient notice of them, he was not given an opportunity to meet them by evidence, then the appropriate response to that is to give him the opportunity, is it not?

MR JACKSON:   Or for the charges to be laid elsewhere, your Honour, for the charges to be laid as charges.

McHUGH J:   You go beyond arguing that he was not given a proper opportunity.  You say it was not open to the court even to take into consideration these matters having regard to the terms of the complaints made against him.

MR JACKSON:   I do, your Honour, yes.  It is not just an opportunity matter.  The nature of the proceedings was limited by the ‑ ‑ ‑

KIRBY J:   That, although Parliament has preserved the inherent power - we will not go over it again.  But you are coming to the Court of Appeal which has an inherent jurisdiction and Parliament has reserved it.  It just seems very difficult to say that they are emasculated - - -

McHUGH J:   They are not an emasculated.  The can go back tomorrow and start again even if on all the charges he is acquitted.  That is what Weaver holds in express terms.

MR JACKSON:   Yes, your Honour.  I do not say their inherent power or jurisdiction is affected at all.  All I am saying is that these proceedings were not one in which that was being invoked.

McHUGH J:   But I am very concerned about whether or not the whole proceedings before the Court of Appeal were not misconceived by reason of the legislation.  Over lunchtime can you examine this question.  Can we have the benefit of your submissions on this point, Mr Jackson?

MR JACKSON:   Yes, your Honour.  Your Honours, what I was seeking to say was - and it is the last thing I will say in relation to paragraph 37 of our submissions.  What I was seeking to say was that it does not automatically follow that if one is found to be not of good fame and character, that the result is striking off.  Your Honours, one has to bear in mind that so far as the particular provision was concerned in this case, 127(1)(b), what it is speaking of is good fame and character and one would think that speaking of good fame and character over time, as distinct from in every case the inevitable result of just one event.

CALLINAN J:   But Justices Beazley and Clarke really said that there as a discretion.

MR JACKSON:   They did, your Honour, I accept that, yes. 

CALLINAN J:   It was only Justice Powell who said, in effect, there was not.

MR JACKSON:   Yes.  Your Honour, he may not have gone quite as far as that but he went almost as far as that.  But what your Honour will appreciate was that this was a matter which was an issue because of our cross‑appeal on the finding.

GLEESON CJ:   Could you just give us a practical example of a situation in which a person who is found today to be not a person of good fame or character should be left on the roll of solicitors?

MR JACKSON:   Your Honour, what I would say about that is that what your Honour puts to me involves the assumption of a meaning, if I may say so, with respect, about the term “good fame and character”.

GLEESON CJ:   Such a person would not be qualified to be admitted a solicitor, would he?

MR JACKSON:   No, your Honour, but again both those things involve a question of what is meant by the term “good fame and character”.

McHUGH J:   What about a Ziems’ type situation, a conviction for manslaughter, drunken driving, and Justice Kitto was prepared nevertheless to allow his name to be on the roll.

MR JACKSON:   Yes.

McHUGH J:   He would not have even suspended him if I recollect correctly.

MR JACKSON:   Your Honour, what I am seeking to say is this.  If one looks at the particular provision with which the court was concerned which is 127(1)(b) it is speaking of:

conduct…..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 –

Now, your Honours, it would be perfectly possible, in our submission, for there to be someone who has been a legal practitioner for many years but has some isolated fall from grace, as it were.

GLEESON CJ:   And has been rehabilitated.

MR JACKSON:   Your Honour, or it be it is the sort of thing that would not be likely to happen again.

GLEESON CJ:   Yes.  That is the problem as to why this issue arises in the present case.  On the findings of the Court of Appeal which you attack, that is not this case, is it, some isolated fall from grace?  That might be why it was opened by counsel for the Law Society.  As I have said, the Law Society’s approach to this matter has changed substantially over time but the Court of Appeal certainly did not treat this as a case in which there was an isolated lapse.

MR JACKSON:   Your Honour, one is talking about, of course, the use of a power of attorney to pay sums of money that, I think, are of the order of $35,000.  One is speaking also of that happening over a number of months.  One has a situation where on the worst for our client the affidavit is put, an affidavit was filed which did not set out the true situation but that, of course, was something which was only charged as being unsatisfactory professional conduct, not professional misconduct.

In relation to those things, apart from the admission by him in his oral evidence that he had, on some occasions in the past said what he said in relation to the use of powers of attorney, that is really the only course of conduct there is and that seems to relate only to a number of relatively defined events.  It is difficult, with respect, your Honour, to see course of conduct extending over years other than matters relating to a very narrow private family compass.

GLEESON CJ:   But the Tribunal seemed to have summed up the situation as being that here was a man who had never had much trouble before; who cut a few corners in a situation where nobody could possibly have suffered any harm

MR JACKSON:   Yes.

GLEESON CJ:   And the appropriate response was a find of $10,000.  The Court of Appeal had a look at the matter afresh, and said here is deliberate dishonesty, fraud, typical of an attitude towards his professional responsibilities that demonstrates that he is not fit to be a solicitor.

MR JACKSON:   What we would seek to submit is that of those, the former view was the correct one.  Where the Tribunal, itself, was in error, was in taking the view that on those assumptions it was appropriate for there to be a finding that he was not of good fame and character.

KIRBY J:   Assuming, if one approaches the matter upon the basis of your acceptance that certain matters have been established in what you call category one, the unassailable facts, you have a finding of the Tribunal, and you have a confirmation by the Court of Appeal, that your client is not a person of good fame and character.  Now the question is does that, apart from your statutory argument which you are presumably going to come to, does that measure against the statute when one looks at the unassailable facts?  Just taking it on your case, and the difficulty that one might have is that even on your own case that that could justify a conclusion that your client’s conduct of using a power of attorney and deceiving a building society and so on is not the sort of behaviour that a solicitor should do, and that therefore he is not a person of good fame and character, and if so, it is very hard to leave him on the roll, at least for a time.

MR JACKSON:   Could I say in relation to that, that what your Honour put to me involves a number of steps in arriving at it.  One sees that the Tribunal – if I could go back to it for a moment – obviously took the view that it was possible to draw a distinction between those events on the one hand, and his fitness to remain on the role.  That being because they obviously took the view that it was something that was an aberration.  The Tribunal seems to have taken the view that doing those things was something that would treat him as being a person who, at a particular point, or perhaps points in time, was not a person of good fame and character.

But, your Honour, it really seems, if one reads what the Tribunal said, to have regarded themselves as somewhat forced into doing that because otherwise the conduct that was the subject of the first complaint would not have been conduct which fell within the definition of professional conduct at all, because he was acting on his own behalf.  He was not acting as a solicitor in relation to the matter.

KIRBY J:   It is “in connection with” is it not, the statute?  Very broad words of connection, as I remember it.

MR JACKSON:   Subsection (1)(b) speaks of:

conduct…..occurring otherwise than in connection with the practice of law –

That was the provision that was made applicable to him.  Of course, he was not acting as a solicitor, he was simply one of two persons.

GLEESON CJ:   But unsatisfactory professional conduct is a concept that focuses on his competence or diligence.

MR JACKSON:   Yes, your Honour.

GLEESON CJ:   There was here no complaint of a lack of competence or diligence, was there?

MR JACKSON:   In relation to the fourth and fifth complaints, that was the only complaint.

GLEESON CJ:   In relation to the use of the power of attorney.  It was not being suggested that that involved a lack of competence or diligence, was it?

MR JACKSON:   I am sorry, your Honour, it was put in the alternative.  Yes, it is page 1:

The Solicitor was guilty of professional misconduct or in the alternative unsatisfactory professional conduct ‑ ‑ ‑

GLEESON CJ:   I am just trying to understand why you say that they were forced almost into this finding that he was not of good fame or character, because they had to approach the matter on the basis that it occurred otherwise than in connection with the practice of the law.  You pointed out earlier, and correctly, that this is an inclusive definition.  Presumably the most obvious form of professional misconduct is conduct that would be regarded by a right‑thinking member of the profession as disgraceful or dishonourable in nature.  That is, as I understand it, the traditional definition of professional misconduct.  Why could they not have found that without making any reference to fame and character?

MR JACKSON:   Well, your Honour, by taking the view that he was not acting as a solicitor in relation to the first complaint, the view that they appeared to arrive at was that that could not be in the circumstances professional misconduct under the general law, maybe because they did not regard it as having the degree of seriousness that was involved for it to be professional misconduct under the general law.  That being so, it would then be professional misconduct relevantly only if it was something that fell within 127(1)(b) which deems conduct other than in the conduct of a practice to be professional misconduct.

GLEESON CJ:   You get the feeling that the Court of Appeal would not have hesitated to find that this was professional misconduct at general law. 

MR JACKSON:   Oh yes, your Honour.  It is not precisely clear what the Court of Appeal actually decided but that seems to have been the view, we will accept that.

KIRBY J:   But if you are seeking from us that we, as it were, re-exercise the jurisdiction of the Court of Appeal, something which I would regard as quite exceptional, but assuming one did that, assuming you have made good your attack on level two of the facts and have knocked out some the prejudicial and unfair findings which you complain of – speaking for myself, it would be helpful for me to have a list of those matters which, within the complaints and the matters that have been litigated, you accept are the findings of the Tribunal, and of the Court of Appeal if any are there unassailable, on the basis of which you say, notwithstanding those findings, that it was not open to the Court of Appeal to confirm or to the Tribunal to find that your client was not a person of good fame and character.

MR JACKSON:   Well, your Honour, I think we would with one, perhaps two exceptions, accept the findings of fact that were made by the Tribunal.  May I give your Honours a list of the exceptions after lunch.

KIRBY J:   Yes, thank you.

MR JACKSON:   But there are only one or two, I think.  And, in fact, most of the facts were admitted facts, of course.

KIRBY J:   Because on one view – and tell me if this is the wrong approach – if one takes the view that at the end of the journey one gets to a point that even on your facts that it is inevitable that the finding that your client is not a person of good fame and character is sustained, and that that in this sort of case does not justify the very exceptional discretionary decision nonetheless to keep him on the roll, then in a sense all of the procedural debates are on the journey, but they do not avoid journey’s end.

MR JACKSON:   Your Honour, I accept that, but if I could say in relation to that, that at the end of the day, though, the basic material is really what was found by the Tribunal.  There are, I think, two shades that were adopted by the Tribunal with which we cavil, but apart from that, that is it, and if one takes those basic facts, in our submission, one sees that the Tribunal was, in the penalty which it imposed, in the range of possible penalties for conduct of that kind.  It was not something where it was appropriate for there to be something more serious that was done and, your Honours, we would rely, albeit in a slightly different context, of the matters to which we have referred in paragraph 35 of our submissions and in this regard also.

KIRBY J:   Your client has been off the roll since the order?  No suspension was made or was a stay granted?

MR JACKSON:   A stay was granted, your Honour.

KIRBY J:   So he has remained dealing with the public all this time and has been trusted by the courts to do so.

MR JACKSON:   Yes.

KIRBY J:   I mean, if one were back in the Court of Appeal there would be various possibilities that I for one, on my part, would think of rather than remove your client from the roll.  As I understand it, your argument is that it is either the fine which was imposed by the Tribunal or the strike off of the Court of Appeal – there are lots of things that could be done in between those two.  I do not know that that is the roll of this Court.

MR JACKSON:   No, your Honour, I was not meaning to close off possibilities.  What I am saying is that what was done by the Tribunal was an appropriate penalty – it was in the range and really no more than that.

Your Honours, could I just take your Honours to paragraph 38 and following of our submissions.  Your Honours will see that this deals with the fifth complaint and the fifth complaint was that he had sworn the false affidavit.  I have dealt with that in part already, but may I just take your Honours to what we have in paragraph 41 of our submissions, and this is one of the matters with which we would cavil, so far as the Tribunal’s observations are concerned, that the Tribunal had said that any agreement the solicitor had with his sisters was subject to “agreed valuations”, is clear from the evidence that no such agreement as to the valuation was ever made.  Well, your Honours, where that seems to come from, if anywhere, is the statutory declaration by his sister, which is at page 241 at paragraphs 5 and 6, and in particular paragraph 6 at the bottom of page 241:

As part of the discussions leading to the advance to me we had discussed my brother purchasing my mother’s property at Stuart Street, Blakehurst and my sister, the farm at Hillville.  In the course of these discussions I said to my brother words to the effect, “I am happy for you to buy Stuart Street provided it is at its market value.”

And then, your Honours will see what goes on through the remainder of that paragraph.

The view that the agreement was subject to “agreed valuations” does not, with respect, seem quite to represent what the evidence was, provided it was at market value.  Now, your Honours, in the event it may be something that is of no great moment, but what we would seek to say is that to treat that as saying it is at “agreed valuations”, is really to treat the agreement as being that an agreed valuation is really to go quite some distance from the material.

Now, your Honours, the second thing we would seek to say is what we have in paragraph 42 and that is that it was never put to the appellant that he swore the affidavit for some ulterior purpose, nor was there anything that would suggest in what way the form of the affidavit could help him establish the entitlement to the Stuart Street property for the purchase price of $300,000.  Your Honours, in relation to the filing of that affidavit, what we would seek to say, then, is what we have in paragraphs 44 and 45, that the appellant, in filing the affidavit, was one of the named executors.  He certainly was not acting on behalf of his sister, at the time, and he was entitled to make an application for probate himself and that is what he was doing.

GLEESON CJ:   But solicitors are commonly appointed executors of wills.  If a solicitor is appointed as an executor of a will and applies for probate of the will he is acting in connection with his practice, is he not?

MR JACKSON:   Well, it depends, your Honour.  This was a case where you have two executors.  You have one son who happens to be a solicitor who is one of them, a sister with whom he is in dispute who is the other.  He makes an application for a grant of probate to himself, not to her.  All I am seeking to say is that he is acting entirely on his own behalf in relation to the matter and ‑ ‑ ‑

KIRBY J:   Was it shown that the application was made on his letterhead or that it was made on a form which had his name as a solicitor?  Did he charge the estate for the costs?

MR JACKSON:   Your Honour, it had the name of his firm on it.

KIRBY J:   How can you say it is not in connection with the practice of the law?

MR JACKSON:   Well, your Honour, what is he practising at the time?  I mean, all he is doing is making an application on his own behalf.  He has no client.

McHUGH J:   No, but surely it opens the inference that one of the reasons that he was appointed as an executor was because he was a solicitor.

MR JACKSON:   And a son.  He was appointed an executor because he was a son.

McHUGH J:   I know.

KIRBY J:   You have left your best wine to last, have you, Mr Jackson?

MR JACKSON:   Your Honours, I was going to move on then to what we have in paragraphs 48 and following dealing with complaint numbers 3 and 4.  Some of those aspects we have dealt with already and, your Honours, may we simply seek to add the matters that we have in paragraphs 49 and 50 and through to paragraph 53.  Your Honours, those are the oral submissions I wish to make subject to dealing with the matters that your Honours raised with me before.

GLEESON CJ:   Well, you have to add something after lunch so this might be a convenient time.  Very well then, we will adjourn until 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

GLEESON CJ:   Mr Jackson, Mr Basten, we are pleased to have with us this afternoon his Honour the Honourable Justice Zulman of the Supreme Court of Appeal of the Republic of South Africa.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, when the Court adjourned there was some matters with which I had yet to deal.  Your Honour Justice Gummow asked me what are the other places in the Act where one finds references to professional misconduct.  They are, perhaps, as one might expect to see, mostly concerned with circumstances of audits of solicitors’ accounts and things of that kind, but they perhaps go a little beyond that.            Could I give your Honours a number of references without attempting to be exhaustive?

GUMMOW J:   Yes, thank you.

MR JACKSON:   Sections 55(6), 57D, 62(4), 63(5) and 64(5).

The second matter concerned the coming into operation, or the coming into operation of the provision which amended the procedure on appeal.  It does seem to be the case that the Courts Legislation Further Amendment Act 1995 came into operation on 8 March 1996, which was the day on which the information was filed, so that the proceedings, notwithstanding what was said by the Court of Appeal at page 408, were not ones to which subsection (4) was applicable.

I referred your Honours to page 408 in volume 2, and commencing about line 12 there was a reference to section 171F(4) of the Legal Profession Act.  So the position which seems to obtain is, contrary to what we were putting earlier, that subsection (4) did not exist and the appeal was an appeal of, to put it shortly, the ordinary kind.

GLEESON CJ:   Conventional.

MR JACKSON:   Conventional, your Honour.  I will come to that in a moment, too.

GUMMOW J:   Does that mean your ground of appeal on page 440, (2)(a)(iii) needs adjustment in some way?

MR JACKSON:   Well it needs the removal, your Honour, of the clause, I think, commencing with the word “although”, “although a hearing de novo”.  Your Honour, perhaps some of the other words are supererogation but they convey the sense, with respect.

Your Honours, section 167A came into force on 1 April 1997.  That, of course, was after the decision of the Tribunal which was 12 September 1996 and after the filing of the notices of appeal to the Court of Appeal.

McHUGH J:   What do you say about its effect?  Does it operate on the appeal?

MR JACKSON:   Well, your Honour, in terms, section 167A refers only to the Tribunal.  But, your Honour, if the position had been that 167A was in being for the Tribunal at the time when the proceedings were before the Tribunal, then one would expect the Court of Appeal to have been able to exercise a similar power.  However, there does not seem to have been such a power relevant.

McHUGH J:   The removal of subsection (4) from 171F means that the question for the Court of Appeal was whether the decision of the Tribunal was correct on the materials before it.

MR JACKSON:   Yes, your Honour. No doubt section 75A of the Supreme Court Act would be picked up because of the ‑ ‑ ‑

KIRBY J:   You say it would be or would not be?

MR JACKSON:   Would be, your Honour.  It would be picked up and that contains a power to allow further evidence to be adduced, but that is in different circumstances from those presently in question.

GUMMOW J:   But the governing section is 75A(5), is it not?

MR JACKSON:   Yes, your Honour.

KIRBY J:   As I remember it, that imposes a duty to reach their own conclusions on the facts, though within an appeal context.

MR JACKSON:   Yes, the appeal is by way of rehearing but it is a rehearing on the material below, but that carries with it, of course, the ordinary restrictions to the extent to which they exist so far as setting aside findings of fact to the extent to which they are based on findings of credibility.

KIRBY J:   Does this not really indicate, subject to what Mr Basten says, that the process did not go ahead as the law required?  That is was not dealt with by anybody as an appeal in the ordinary sense.  It seems to have been agreed by Mr Wales that that was how it would be dealt with, but there was a misconception about the nature of the process, was there not?  It may not have affected anything and given the fact that Mr Wales conceded that that was how it was to be dealt with.

MR JACKSON:   Your Honour, what he said was that it was agreed that was how it was to be dealt with.  Now underlying that perhaps is one of two things:  one is a correct belief as to the true situation.  The other possibility is that there was a belief as to the existence of subsection (4) which was not correct, but an application of it in the particular circumstances which was.

KIRBY J:   Did Justice Powell at that point where he reaches what he calls “the ultimate question” rely on the fact that the Court of Appeal had the duty to deal with the matter as of a fresh hearing?

MR JACKSON:   Your Honour, he prefaces what he says – what he says is at page 408 first of all where he – perhaps I should go to the bottom of page 407 because what your Honours will see is that, commencing at about line 52, he adverts to the fact that he was:

at first, concerned that, if this Court were to depart from the manner in which the complaints contained in the Information had been formulated, and the manner in which the Appellant conducted its case before the Tribunal –

there might be a claim of procedural unfairness and he then went on to say, at the top of the next page, 408:

given the nature of an appeal to this Court from the Determination and Orders of the Tribunal, that would not be so.

Immediately after that is when he refers, your Honours, to section 171F(4) and it would seem likely, in our submission, when one goes through and your Honours will see the discussion of Law Society of New South Wales v Bannister which was based on the old provision which goes over for a couple of pages, when one comes then to his Honour’s text again at page 411, it seems he is relying upon the broader nature of the appeal notwithstanding the approach that had been taken by the parties before him.

McHUGH J:   He sets out a subsection that is repealed and he refers to the principles expressed in the decision which was based on a subsection which was repealed.

MR JACKSON:   Yes.

KIRBY J:   And does that not really steer the ship towards a complete rehearing given that there was a misconception?

MR JACKSON:   I am sorry – towards a - I did not catch one word, your Honour.

KIRBY J:   To another hearing in the Court of Appeal because there has been a misconception and it is not entirely the Court of Appeal’s fault.  I mean, but for Justice Gummow’s question, it probably would not have been picked up here.

MR JACKSON:   It would not.  Your Honour, certainly not by us, I have to say.

KIRBY J:   But it does go to the nature of the appeal hearing, at least as it was conceived of by the judges of appeal.

MR JACKSON:   Your Honour, I accept that.  It is a question, however, that being so, whether the appropriate course would be for this Court to dispose of the matter finally or for it to go back to the Court of Appeal, if that is the view the Court takes, but, your Honour, I do accept the broader proposition that demonstrates that the appeal submission miscarried. 

Your Honour Justice Kirby asked me what our position was in relation to acceptance or non‑acceptance of basic facts.  Could I say that we accept the facts as found by the Tribunal except for two things.  I will give your Honours the two pages that indicate what they are.  At page 335, volume two, is the first and the second is at page 336.  The one at page 335 is that to which I adverted in passing.  It is at the top of the page and that is the reference to “agreed valuations”.  I have mentioned that this morning, your Honours.

The second is at page 336 where your Honours will see at about line 19 for the next three lines concerning the motive of the solicitor.  Your Honours, I should perhaps add one caveat and that relates to the previous two sentences on page 336 where the views of the Tribunal appear to be based really on a question of law rather than on a question of fact.

Your Honours, there were two further amendments to which I should make reference and they are these:  section 168 to which, I think, your Honour Justice Callinan adverted before lunch, has now been changed, but not in respect as presently relevant because it is brought about because of the coming into existence of the Administrative Decisions Tribunal.    

The other provision is this, that prior to 1 April 1997 the terms of section 167(2) were slightly different from those presently used, and they were these, “The Tribunal is to conduct a hearing into each such complaint”, “the such complaint” referring back to section 167(1).  Could I say, we will endeavour to get to the Court a document which sets out what the position was in relation to the Act at the several times that are possibly material.  In other words, a mock‑up setting out the Act at those times.  We refer to various other matters in our written submissions, but those are the only matters I wish to mention specifically, orally.

GLEESON CJ:   Thank you, Mr Jackson.  Yes, Mr Basten.

MR BASTEN:   Your Honours, before coming to the substantive issues, might I deal with a comment from your Honour the Chief Justice in relation to the role that the respondent has played over the history of this matter.  Secondly, may I say something about the role of the Court of Appeal within the relevant statutory context.

MR JACKSON:   I am sorry to interrupt my learned friend.  I do apologise.  I meant to give the Court copies of the transcript of proceedings in the Court of Appeal.  They have been given to your Honours.  Could I mention, for the purposes of the record, the pages at which matters material to what your Honours have raised seem to be?  They are pages 15 to 18, 20, 21, 22, 25 to 28, 35, 40, 51 and 52.

GLEESON CJ:   Thank you.

MR BASTEN:   I was going to say, your Honours, the Society’s position has not evolved in the sense that there has been a changing view of the conduct concerned, at least since the information was lodged.  The Society pressed particulars of misconduct before the Tribunal which it did not at that stage argue required removal of the appellant’s name from the roll.  However, when the Tribunal found that the practitioner was a person who was not of good fame and character, then it lodged the appeal on the basis that in its view it would not be appropriate that a man who had been found not to be of good fame and character remain on the roll, consistently with the provisions of the Charter of Justice, making that a disqualification for ‑ ‑ ‑

GLEESON CJ:   Does it remain the Society’s view that what is involved is an isolated incident in a hitherto unblemished career?

MR BASTEN:   It is the Society’s view that there has been no other disciplinary matter.  In that sense the career is unblemished.  It does not take the view that one can simply look at one particular occasion now, given the evidence that has been given, and say that the matter should be viewed in isolation.

KIRBY J:   I do not understand that.  There was a mention somewhere of some previous incident, but it would seem quite unfair to the appellant to take that into account, unless it was the subject of a charge or complaint.

MR BASTEN:   Well, I do not think that is the Society’s view, your Honour.  If there are matters which come up in the course of the evidence and hearing before the Tribunal either by way of evidence from the respondent, concession by the respondent or otherwise, which become the subject of findings of fact which are relevant to the questions before the Tribunal, then those matters should be taken into account.  The context in which they are taken into account is the complaint as particularised in the information and I put it that way, your Honours, because section 167 does not require the Tribunal to conduct an inquiry or a hearing into the information, but rather into the complaint, and this may not be a matter of great consequence because, of course, one finds in the information particulars of the complaint, but the complaint is a defined term.  It is defined in section 126 for the purpose of this Part and it is the complaint which is made by one of the relevant people.

Now, that complaint in the present case may constitute both the document sent by Mrs Brain in 1990 and it may be that, to the extent there is a further matter raised in the information, the information itself may constitute a complaint because it constitutes a matter raised under Division 3.  But it is technically, I think, correct to say that what the Tribunal inquires into is the complaint or the complaints before it.

GLEESON CJ:   There may be a problem about the print that we have, but section 167(2), which is slightly curiously worded, says:

The Tribunal is to conduct a hearing into each allegation particularised in the information.

MR BASTEN:   I think that may be ‑ ‑ ‑

McHUGH J:   That is the present situation.

MR BASTEN:   The present situation.

McHUGH J:   Prior to 1 April 1997 it was to inquire into the complaint, was it not?

MR BASTEN:   To conduct a hearing into each such complaint, that was the version that my friend just read.  I apologise, we probably should have made sure the various provisions in their relevant form were before the Court but  ‑ ‑ ‑

GUMMOW J:   Should have been before the Court of Appeal.

GLEESON CJ:   What do you say about the submission that what appears on the bottom of 407 and the top of 408 represents a misapprehension as to the relevant legislation?

MR BASTEN:   Your Honour, I think, in short answer to your Honour’s question that would appear to be so.  May I come to that.  That point relates directly to the role of the Court of Appeal which I want to say a few words about specifically.  May I just before coming to that ‑ ‑ ‑

McHUGH J:   When you deal with a role of the Court of Appeal, can I have your submission on what Justice Powell said about that at page 410 as to whether you would support that?

MR BASTEN:   Yes, certainly, your Honour.  I just wanted to say two other things in relation to the role of the respondent, again, in partial answer to your Honour the Chief Justice’s comment.  When the matter came before the Court of Appeal Justice Powell noted that the respondent had put its appeal in a slightly curious - he said “paradoxical” - way.  That was because there had been no change in the position taken by the Society.

The Society’s position in relation to the use of the power of attorney was and still is that it was basically undertaken in connection with the practice of law and therefore there was no need for the Tribunal to look for a different basis on which to define professional misconduct.  The Tribunal’s finding of good fame and character being lacking remaining, however, it was also the view that the practitioner’s name should not remain on the record.  If the former view were taken, namely that this was a matter which was in the context that the practice of law, the Society did not, on that basis, seek any variation in the penalty imposed by the Tribunal and we said that to the Court of Appeal.  Now, no one, including the appellant, the Tribunal or the Court of Appeal, would take the Society’s views on penalty as limiting what might be done by way of a determination. 

Secondly, and I might say in that context that the Society does not always express a view as to what the appropriate determination should be and secondly, I should note in that context, I think, that the Court of Appeal was critical of cases that had been decided by the Tribunal which indicated a range of penalty where finds were appropriate and it may well be that those criticisms should now be treated as having substance so that if the matter ‑ ‑ ‑

KIRBY J:   You say of cases.  I only remember criticism of one case.  Did they ‑ ‑ ‑

MR BASTEN:   I think there was a case of Pitsakis which was named in a case of Yee from memory towards the end of Justice Powell’s judgment and it was really that those cases had set a range which was the basis for the Tribunal’s decision and the view of the Law Society that the Tribunal’s determination was within range.  Now, if those cases are no longer good law, then that matter would be open for reconsideration and we would accept that.

KIRBY J:   No longer good law because the Court of Appeal in obiter referred to it.

MR BASTEN:   Yes, has been critical.  I cannot tell your Honour whether there have been further cases since then which have reconsidered that matter.  This has a bearing on what happens to this matter and I will come back to that if I may.

KIRBY J:   Fines were new to this Act, were they not?

MR BASTEN:   I do not think so, your Honour, no.

KIRBY J:   Fines on solicitors – they went back before the Legal Profession Act, did they?

MR BASTEN:   I must confess, that is my recollection.

McHUGH J:   It was power to suspend and power to find, was it not?

MR BASTEN:   Yes, I think there was a power to find in the 1898 Legal Practitioners Act.  That is the recollection of my instructing solicitor too, your Honour.  We may be in error on that   Might I then, having said that in relation to the Society’s position, turn to the role of the Court of Appeal?  Firstly, we accept the proposition that his Honour Justice Powell was in error in noting and clearly relying upon the provision in 171F(4) which his Honour sets out at 408.

GLEESON CJ:   Well, it looks as though he saw this problem himself and he was very concerned about it.

MR BASTEN:   Yes.

GLEESON CJ:   And then, somehow, came to the view or was taken to the view that section 171F(4) still applied.

MR BASTEN:   Yes.

GLEESON CJ:   Do we see that in the transcript that Mr Jackson handed up?

MR BASTEN:   I really could not tell your Honour that.  I had it a few minutes before your Honours did and I have not even referred – I do not know.  Mr Jackson thinks the answer is “no”.

KIRBY J:   It might have been in the written submissions.

MR BASTEN:   I have had a look at the written submissions for the respondent, your Honour, and I do not think it was.

KIRBY J:   But, anyway, would it not be the duty of the Society to try and assist the Court of Appeal in a matter like this because these are slips that anyone can make.

MR BASTEN:   Undoubtedly, your Honour.

KIRBY J:   And, really, I would have made it today, except for Justice Gummow’s question.

MR BASTEN:   Yes.  Well, may I say two things to that, your Honour?  Firstly, I invite your Honours to read the way that the Society put the case before the Court of Appeal, but basically it was an acceptance, as Mr Wales acknowledged, that this was being dealt with “as a conventional appeal”.

GLEESON CJ:   Well, the instant before he said that, he said, “This is, of course, a hearing de novo”.

MR BASTEN:   Yes.

GLEESON CJ:   That was the sentence immediately preceding the statement that this is “a conventional appeal” – at the bottom of page 20.

MR BASTEN:   Yes, I see that.  I am not sure what – well, that is so and I do not think I can say whether there is anything else relevant to that point, your Honour.  The point I am really making is that perhaps I should have made express submissions on the question of the nature of the appeal to the court but the basis on which it was put was not that this was a new hearing and no invitation, as Mr Wales noted, was made to the court to have further evidence called which would normally have happened by way of the matter being remitted to a single judge.  There was no further cross-examination.

KIRBY J:   Is there not just a little element of double jeopardy here?  You take - the man goes to the Tribunal, you indicate what you are concerned to secure, a fine, that indicates the level at which you are prosecuting the complaint, and then he goes up to the Court of Appeal and his name is removed from the roll.

MR BASTEN:   Your Honour, there are two aspects to that, I think, with respect.  One is the question of the power and the statutory context in which the court was operating.  The second is whether there is a question of procedural unfairness.  In order to answer the second, I think it is necessary to go back to the transcript both in the Court of Appeal probably, and in the Tribunal, to see what is said about that.  But my recollection is that there is a specific passage in the transcript before the Tribunal in which the Tribunal itself drew the attention of Mr Wales to the fact that it might take a different view – a more serious view about some aspects of the matter than had been put to it by the ‑ ‑ ‑

KIRBY J:   We were taken to that this morning.

MR BASTEN:   I think you may have been, your Honour, yes.

KIRBY J:   Yes, we were.  It is at page 26, I think, line 3.

MR BASTEN:   There is another passage at 84 too.  Yes, at the top of page 26 there is a passage, I think.  Might I just come back to the way that Justice Powell deals with the matter.  He refers to Bannister’s Case which dealt with a previous provision but in similar terms as it appears from the bottom of page 408.  He then cites the approach adopted by the Court of Appeal in that case.  It is a course which his Honour undoubtedly follows at the bottom of 410, so that one starts with the proposition that his Honour has relied upon in his assessment a decision on a section which is no longer operative and was not the basis of the jurisdiction of the court.  The question which follows from that ‑ ‑ ‑

KIRBY J:   Bannister was at a time when subsection (4) was in operation.

MR BASTEN:   Bannister actually arose under the previous provision.  It is 164(4) which is referred to at the bottom of 408 which I suspect was the form before the 1993 reformat.

KIRBY J:   I see.  But it uses the word “new hearing”.

MR BASTEN:   Yes, his Honour Justice Sheller seems to have summarised the section in that manner.  So that we would say, and I think this is in answer to your Honour Justice McHugh, that the question becomes:  was the approach that his Honour took because of this error sufficient to result in the decision needing to be set aside?  Now, in relation to that might I just provide the Court with copies of the decision in Hodgekiss’s Case (1962) SR(NSW) 340 - I will hand up copies if I may – which is referred to by Justice Sheller in the middle of that passage at the top of 409 as indicating the basis upon which matters were dealt with prior to the reformat.

Firstly, can I take your Honours to page 343 in the judgment of Mr Justice Owen.  His Honour refers in the first paragraph to the fact that the:

appeal shall be “in the nature of a rehearing”.

Then, in the middle of the page there is a passage prior to the references to the two In re Solicitor Cases, about six lines above:

While an appeal from its decision to the Court is in the nature of a rehearing, the Court should give great weight to and be slow to differ from the Committee’s opinion that particular acts or omissions…..do or do not amount to professional misconduct, and the Court should attach the same weight to a decision of the Committee as to the appropriate order to be made –

Then, towards the end of that paragraph:

But it is for the court to make up its own mind what facts are proved by the evidence and what inferences should be drawn from those facts, and it would not, in my opinion, be proper for it merely to satisfy itself that there is evidence which could justify the findings against which the appeal is brought.  It must make up its own mind what the facts are.  To do otherwise would be to disregard the legislative direction that the appeal shall be in the nature of a rehearing.

That approach appears to have been accepted, firstly by his Honour Justice Maguire, who concurred at 350, and then in a passage in Mr Justice Hardie’s judgment at page 355 at about point 6.  His Honour says:

For the reasons indicated above I am of opinion that, in the circumstances of this case, there is no onus upon the appellant to show that the decision below was wrong.  On the contrary it is, in my opinion, the duty of the Court to look carefully at the facts, that is to say, both the oral and documentary evidence, and direct its mind to the question as to whether it is comfortably satisfied that the solicitor wilfully breached the provisions –

So, your Honours, the substantive questions then become whether the passage at the bottom of page 411 in Justice Powell’s judgment accurately describes what follows and what has come before, because at lines 50 to 60 his Honour says:

although some of the matters to which I will shortly refer are not the subject of the complaints as formulated or particularised, they are matters which have been put forward by the Respondent as justifying his conduct in relation to the matters the subject of the complaints as formulated and particularised –

There are two questions, I suppose.  Firstly, is that a correct statement of what follows?  Secondly, if it is, is it open to the court to take into account those matters in considering what the appropriate findings and orders are?  I suppose there is then a third question because if it be found that his Honour was in error in either of those respects, then the question is:  what should be the fate of the appeal in this Court?

GLEESON CJ:   In relation to the finding of Justice Beazley on page 430 at lines 45 to 50, it is clear enough, is it not, that there was never any complaint of dishonest conduct for personal gain in relation to that second affidavit?

MR BASTEN:   Yes, that is so, your Honour.

GLEESON CJ:   And nor was that put to him in cross-examination in the Tribunal. 

MR BASTEN:   In substance, I will suggest that it was put, your Honour.

GLEESON CJ:   That provides a fairly useful test, does it not, of the principle that you are now addressing?

MR BASTEN:   It may well do, your Honour, although I suppose it might also be said that if her Honour were in error on that point there is still a majority of the Court, regardless of her Honour’s views on that specific matter.  That is not the terminology used by Justice Powell.  Justice Clarke agrees with Justice Powell in substance.  It may or it may not be.  Actually, I am sorry, perhaps I should – no, I rephrase that – yes, I accept what your Honour puts, because at page 435, at line 50, Justice Clarke agrees with both of their Honours.  I suppose that one should look at it in that way.

May I come to that very briefly, your Honour.  What I wanted to say before coming to that was that when one gets to the substantive issues, in my submission, they fall into three categories, these being the matters raised by the appellant on this appeal.  Firstly, there are allegations that the Court of Appeal made findings of fact differing from those made by the Tribunal and on an assessment of the credibility of the appellant.  Now, that complaint no doubt concerns complaints 3 and 4 before the Tribunal where the Law Society appealed against the conclusions reached by the Tribunal.  Undoubtedly, to an extent, that did lead to the Court of Appeal coming to different conclusions.  However, for the appellant to succeed on these issues he must show that the Court of Appeal, in my submission, would not otherwise have upheld those aspects of the appeal, that is to succeed before this Court.

The second category challenges the failure of the Court of Appeal to uphold the appellant’s cross-appeal in respect of complaints 1 to 5, and that would have to mean this Court rejecting findings made by the Tribunal.  On its face, these errors appear to be posited on a basis which is inconsistent with the first approach.

And thirdly, there are challenges to conclusions of the Court of Appeal in so far as they are relevant to penalty.  Firstly, whether a finding of lack of good fame and character properly led to the strike-off order; and secondly, and perhaps but faintly put, that the Court of Appeal failed to overturn the Tribunal’s finding that there was no contrition shown.

With respect, it is necessary to keep these matters apart, because to the extent that there are challenges to the findings of the Tribunal, they have been unsuccessful so far and this Court is being asked to intervene on important aspects of the case which have been the subject of unanimous findings of fact by the Tribunal and inferences drawn in the Court of Appeal.  One would have thought that for that reason at least part of the case would need to go back to the Court of Appeal if it is otherwise attended by error.

Now, when one comes to the matters of substance, it may well be that it will be necessary for me to go through each of the complaints as to some extent, but only to some extent has been done in the written submissions, in order to indicate what the position of the respondent is in relation to each of the matters raised both on the appeal and the cross‑appeal.

Perhaps it is convenient first to deal with the matter to which your Honour the Chief Justice referred if only by way of illustration, namely the question of how the affidavit of assets and liabilities was dealt with before the Tribunal and perhaps I can come to that first.  Might I say in dealing with this that the various aspects of it are referred to in Part 5 of my written submissions and I note that it deals with a fifth complaint and it is a finding, as it were, which goes further than the finding of the Tribunal but to set aside this finding would not necessarily lead to the success of the cross‑appeal, as I would understand it.

KIRBY J:   Have you said everything you are going to say about the misconception about subsection (4) because, on one view, we do not have to get into all the other matters here if the conclusion is reached that unless you can defend it in some other way, that the matter did not proceed as an appeal on this footing or on other footings as the Act required?

MR BASTEN:   Yes, I accept that, your Honour.

KIRBY J:   All we have to do then is to make that clear, send it back in the sure hope that on the next occasion there would not be findings adverse to the appellant on bases on which he was not on proper notice.

MR BASTEN:   Yes.

KIRBY J:   And then it is a very simple case.

MR BASTEN:   That is so and I am not sure that if – perhaps I should say this in response, your Honour.  The purpose of putting to your Honour the test in Hodgekiss’s Case and referring to the material in Justice Powell’s judgment where he says merely that he is relying upon facts put forward by the respondent or otherwise, as it were, facts which are not the subject of credibility findings ‑ ‑ ‑

KIRBY J:   But that was long before the scheme of this Act with its higher particularisation and specificity was enacted.  There is now a new Act which has a high measure of parliamentary purpose to have very great specificity out of fairness to the practitioner and that is a matter that one would not read down.

MR BASTEN:   No, one would not, your Honour, but we would say in relation to that that once one has a concession by the respondent, to take an example, that he had advised people in the past in urgent circumstances that they could use powers of attorney in this way ‑ ‑ ‑

KIRBY J:   Really, Mr Basten, that has to be read in the context where he is being cross‑examined and he says, “I have to say I have done that.  Now, we don’t in other circumstances.”  Now, that is a sort of very candid statement.

MR BASTEN:   It is.  I accept that.

KIRBY J:   We do not know what the circumstances are.  We do not know when it was done or to whom it was done or who were the people and really, if you are going to rely on that it ought to have been a particular.  It ought to have been an application to amend and to make a complaint on that footing.  It just seems to me quite wrong to proceed, with an Act with such specificity, to give much weight at all to that issue.

McHUGH J:   For my part I would like to hear your submissions as to whether or not, having regard to the Act as it stood at the relevant time and the form of the complaint, any of these matters that you now rely on can be raised at all because the 167A amendment would appear not to apply to this complaint.  So this was a complaint made by the council?

MR BASTEN:   The information was laid by the council.

McHUGH J:   Section 135 says:

A Council may initiate a complaint against any legal practitioner.

MR BASTEN:   Yes.

McHUGH J:   Now, what is the relevant complaint that we are dealing with?

GUMMOW J:   It is the complaint at page 1, it says:

The Council…..informs the Legal Services Tribunal of a complaint against…..(“the Solicitor”).

The complainant looks like the council in terms of the Act.

MR BASTEN:   What I was seeking to say in relation to 167 is that it distinguishes between a complaint which is a defined matter and an information.  The document at page 1 is an information laid ‑ ‑ ‑

GUMMOW J:   Yes, and it recites a complaint.

MR BASTEN:   Yes.

GUMMOW J:   As a prefatory averment.

McHUGH J:   It says, “The grounds on which the complaint is made are as follows”.  Now, under 167(2) as it stood, the Tribunal was to conduct a hearing into each such complaint and the complaints are particularised.

MR BASTEN:   Yes, that is so.

McHUGH J:   Take numbers 4 and 5, the fourth and fifth complaints, which deal not with dishonesty in any way but with falling short of standards of competence and diligence.  Now, how can you take into account issues of dishonesty in relation to those two complaints?  And that is what the Court of Appeal seems to have done.  What I want to hear your submissions on, having regard to this Act, whether it would be later be open to the Court of Appeal on a new hearing to allow this to be amended.  The Act does not seem to have any relevant power of amendment.  That is not to say that they cannot start fresh proceedings altogether, or proceed under the inherent jurisdiction.  I would like to hear your submission on that at some stage because it may have a lot to say as to how we dispose of this in this case.  It may be futile to send this case back to the Court of Appeal, given that there appears relevantly to have been no power of amendment of a complaint.

MR BASTEN:   Could I just accept for the moment and work on the assumption that that is right and that the Court of Appeal cannot otherwise deal with the matter.  The question then becomes what is to be done in this Court in relation to complaints 3 and 4 which were the subject of appeal to the Court of Appeal against the determination of the Tribunal and, secondly, what is to be done with the cross‑appeal, because one of the difficulties as I apprehended is that, although his Honour Justice Powell sets out at the beginning of the judgment, quite accurately, in my submission, the issues which need to be addressed, when he comes to his Honour’s conclusions he does not distinguish between what matters have been found relevantly to particular grounds of complaint or what is relevant merely to penalty.  It may be that whether stated too widely or not, that is the real difficulty which arises from the passage in the middle of page 411, because one simply does not know what is to be done.

McHUGH J:   The way I read 411 is that his Honour seemed to take the view that there was an ultimate question for the Tribunal as to whether a person was of good fame and character, and in determining that you could take into consideration evidence, even though it was not directly related to the complaints as formulated and particularised.  In other words, he seemed to have thought it was at large; as though he was sitting in the inherent jurisdiction of the court.

MR BASTEN:   I was not going to put it as broadly as that, your Honour.  I was going to say that if one had found a particular complaint to be established on the particulars, then one could look to surrounding circumstances, as one inevitably would, to see how seriously one took the nature of the misconduct as particularised.

McHUGH J:   Yes.

GLEESON CJ:   The formula used by Justice Powell at one stage in his reasoning, I think, was that these matters, although they were not matters that were particularised, or the subject of any complaint, were matters that emerged from what was advanced by the solicitor ‑ ‑ ‑

MR BASTEN:   By the respondent.  This is the passage at the bottom of 411, I think, your Honour.  I am so sorry.  The practitioner, yes, of course, I am so sorry.

GLEESON CJ:   The practitioner, in explanation or justification of his conduct.  As though, for example, a solicitor was charged with making a false entry in a record of his practice, and when he came to explain how he made the false entry he said, “In truth, I made the false entry to cover up another offence that I had committed”, and Justice Powell would say we do not have to ignore that explanation.  As I said earlier, he has got himself out of the frying pan into the fire.  But, it is not quite right, is it, to say that all of these matters that the Court of Appeal held against the solicitor in the present case were merely matters that he advanced by way of justification or explanation of his conduct, and the supposedly dishonest affidavit is an example of it, is it not?

MR BASTEN:   I suppose that requires one to go through each of the matters referred to at page 411 through to 415.

GLEESON CJ:   We will go to 430, which is a good test.

MR BASTEN:   I am happy to do that, your Honour.  I was about to do that.  Perhaps I can do it in this way:  it may be that it has both aspects of what your Honour has been putting to me.  At page 97 of the first volume of the appeal books there is an affidavit sworn by the appellant in the Equity proceedings.  At the bottom of page 97 he notes that:

On or about 20th July, 1988 the Plaintiff attended at my office at Hurstville to sign documents in support of our joint application…..When the Plaintiff had perused the documents she said “I’m not signing that, those valuations are not right”.  A conversation ensued –

and so on.  At line 30 on 98:

The Plaintiff indicated in the course of the conversation her belief that I was trying to cheat her as the values placed upon the properties were in her view too high.  I became most concerned that monies had been made available to the Plaintiff by my sister…..and myself pursuant to an agreement reached…..which it seemed the Plaintiff was not now prepared to honour.  I therefore made application for a Grant of Probate –

Then at page 99 he refers at the top of the page to an oral agreement made on 2 July 1988.  He says:

before the oral agreement hereinafter referred to could be put into effect and it appeared to me that notwithstanding the oral agreement a considerable saving in stamp duty could be achieved if the property…..which were still in my late mother’s name were disclosed as assets in my late mother’s Estate and subsequently transferred in specie.

Then at line 40, he says:

As a result of the Plaintiff’s attitude and in the belief that the oral agreement was enforceable I showed only the balance of the purchase moneys.

Now, he has given two statements of his position.  One is that at first, despite the oral agreement, in his July version of the affidavit, he was prepared to treat the assets as within the estate, that is to say, of stamp duty, and then when he thought the oral agreement might not be kept by his sister he then restates the liabilities as liabilities for debts rather than properties which are assets of the estate.  Now, those two inconsistent approaches were obviously the subject of cross-examination and I can, I think, pick up the cross-examination at page 59.  I might say that there was quite extensive cross-examination on this topic, most of which is set out by Justice Powell, but perhaps I should go to the transcript.  In the middle of 59 he is asked, at line 30 to 35, in the appeal book version:

You have conceded that the agreement was not an enforceable one?
A.  Yes, because it complied –

it must mean “not complied”:

with the statute of frauds and I was stupid enough to trust my sister.

Q.  But, you knew when you prepared the second affidavit that whatever agreement you had, she was not going to adhere to it?
A.  At that time it was my belief that there was sufficient part performance of the agreement on the part of myself and my younger sister in order to enforce the agreement;  that it was not in writing.

Q.  Mr Walsh, if that is the case, why didn’t you set that out in the first affidavit of September?
A.  If the document, or if the agreement, had been in writing, it would have been liable for stamp duty.  In view of my mother’s death, there would have been no stamp duty payable and the properties could have been transferred without any stamp duty, or any agreement in writing, and that was the basis.  It was because of the fact that no duty would have been payable by adopting that particular view towards it, that I prepared that first draft.

Then over the page:

it differently describes the position of the estate, doesn’t it?
A.  The position is different, yes;  the overall assets remain the same.

Q.  The total value remains the same?
A.  Yes.

Q.  They can’t both be right, can they?
A.  No, the second one is correct.

Q.  They can’t both be right, can they?
A.  No.

And then halfway down the page:

And are you suggesting that that affidavit of assets and liabilities was in the same form as the affidavit that you swore in November 1988?
A.  No.

Q.  It was different again, wasn’t it?
A.  It was necessary to reach a compromise in the Equity proceedings.  I was advised to adopt that attitude and to accept that arrangement as being the appropriate view to be taken of the assets and liabilities of the estate, simply because it was not possible to prove otherwise.

Q.  Put shortly, after further examination of the position the proper description of the assets and liabilities of the estate, it was not as you set out in  your affidavit in November 1988, was it?
A.  Put simply because of the dishonesty of my sister the assets as ultimately described in the joint application were not that as set out in my application.

Q.       The form which you ultimately proceeded on to obtain the joint grant, was different to that in the affidavit which you prepared in support of your own affidavit?
A.       It was.  I was advised to accept that.

Q.       And you accepted the advice as being accurate?

A.       I accepted the advice as being appropriate, not accurate.

Q.       Well, you were not going to swear a false affidavit, were you?
A.       No.

And then in the middle of that page at line 30:

Q.       You proceeded with the application on your own account because your sister wouldn’t agree with the affidavit of assets and liabilities that you produced to her in September?

I think it should be July.

A.       I proceeded with my own application, because she simply stormed out of the office –

Q.       Well, it was clear that there was some form of dispute –

No question of that

Now, it is being put to him, as I understand it, that he has prepared one affidavit on the basis that there are no assets out of the estate.  That is suitable for stamp duty purposes when he thinks the agreement is going to be reneged upon.  He then changes the position and then ultimately he comes back to the first position when it is necessary to compromise a claim.

GLEESON CJ:   That is put to him in a context of a charge of incompetence. 

MR BASTEN:   That is so.

GLEESON CJ:   Is it put to him anywhere that his conduct was dishonest?

MR BASTEN:   It was not put expressly that his conduct was dishonest, no.

CALLINAN J:   And there is no reference to dishonesty anywhere in the grounds of appeal, is that not correct?

MR BASTEN:   I do not think there is in the grounds, no, your Honour.

CALLINAN J:   And the grounds are fairly particular, I think it is right to say, Mr Basten, do you not?

MR BASTEN:   Yes, though the grounds of appeal – leave aside the first complaint which deals with good fame and character or otherwise – the grounds relate to the third complaint which was the statement to the Law Society, and in relation to that it was alleged that the reply was erroneous and known to be so, but that had been the subject of a finding.  And the fourth complaint, as your Honour notes, never involved any question of dishonesty.  So I think what your Honour says is correct as you put it, yes.

I mean, I should perhaps emphasise the point that it simply was not the Society’s case at any stage that this appellant should have been struck off until the finding of lack of good fame and character was made, and then the Society took the view that it was simply inconsistent with its public duties to allow such a person’s name to remain.  And there may be, of course, a question as to whether that approach is right or not, and it may be a question as to whether or not, even if the findings made by the Court of Appeal were not made, it would still be appropriate that his name be removed for the reason that he remains a person not of good fame and character.  And really I think one, from the respondent’s perspective, unless the cross-appeal were successful on that basis, then the argument in favour of removal would remain, always ‑ ‑ ‑

KIRBY J:   Has the Society opposed the stay orders that were made?

MR BASTEN:   The Society did not oppose the stay orders, your Honour.

KIRBY J:   That is pretty hard to reconcile with the position you are adopting, is it not?  If your view or if the Society’s submission is that he is not of good fame and character and ought not to be at liberty to deal with members of the public, then that was so from the moment that order was made.

MR BASTEN:   Yes, I think the Society took the view that in Foreman’s Case, your Honour, it had given a stay in any event and that it was not necessarily appropriate for it to be seen to oppose it, but whether that was right or not is another question.  And I should say, of course, that the Society did not oppose the special leave application to this Court either, on the basis that there might be a serious question as to what does happen to people who are the finding of a lack of good fame and character and whether the appropriate order should be that which was made in the Court of Appeal.

GUMMOW J:   Well, that is a question of – they did not turn up, did they?

MR BASTEN:   They did not appear.

KIRBY J:   But if the jurisdiction is protective and if you are, in a sense, the party with the charge under the Act to make sure that protection is accorded, it seems as though there has been some very odd conduct here.

MR BASTEN:   I suppose there are two points, your Honour.  One is that ‑ ‑ ‑

KIRBY J:   It is just that I feel a little disquiet about dealing with this matter which is so far in the past now, when he has been practising for years since then.

MR BASTEN:   Yes.  Well, I understand that concern and, of course, it can arise in any of these matters.  The stay was granted on the basis that he seek special leave with expedition and pursue the appeal, I think, with expedition but, subject to that, that is the circumstance which has arisen.

KIRBY J:   It just seems a little artificial, however.

MR BASTEN:   Your Honour, the artificiality can be conceded.  The question is what flows from that and if it is that this Court or the court that is dealing with the merit of the issue would now deal differently with the question of whether there was a current lack of good fame and character, in my submission that may be a reason for sending it back rather than have this Court examine each aspect of the appeal and cross‑appeal separately. 

What I said in the written submissions was that the appeal in its present form in this Court does not extend to challenging some aspects of the matter which are sought to be challenged and my friend’s submissions indicate that, as a matter of formality, it may be necessary – I think at paragraph 56 from recollection – to seek to amend the notice of appeal to make a claim in relation to five grounds of the cross‑appeal.  Those were not matters of consideration on the special leave application and we, with respect, would oppose the amendment being made at this stage for that purpose.

We have two complaints which have been upheld by the Tribunal, upheld by the Court of Appeal and in relation to which there is nothing in the judgment of the Court of Appeal which would necessarily indicate that they should not still be upheld.

CALLINAN J:   Mr Basten, is not the problem about that that if this Court were to form the view that the proceedings in the Court of Appeal miscarried because of the wrong assumption, as it turned out, about the statute, then it is rather difficult, is it not, to have any confidence in any part of the decision of the Court of Appeal.

MR BASTEN:   Yes.

CALLINAN J:   That is my tentative view if I were to form the opinion that the appeals would be upheld.

MR BASTEN:   I take your Honour’s point but, in that case, is not the appropriate course to allow the Court of Appeal to reconsider the issues raised on the cross‑appeal which have ‑ ‑ ‑

CALLINAN J:   It may well be, Mr Basten, yes.

MR BASTEN:   Because the alternative is that I need to go through each of the grounds of cross‑appeal which I have not done fully in writing and which I have a difficulty with completing this afternoon, I suspect, if that were necessary.

CALLINAN J:   Yes.

MR BASTEN:   But the cross‑appeal is a challenge to two findings which have been made by the Tribunal and one needs to look very closely at why they are said to be wrong. 

KIRBY J:   I did not hear Mr Jackson make a formal application.

MR BASTEN:   He did not.

KIRBY J:   Is that because the cross‑appeal is going to be argued after the argument of the appeal or is special leave necessary to cross‑appeal.

MR BASTEN:   There is no cross‑appeal in this Court.  It is a matter of amending his notice of appeal to raise the grounds which were the subject of a cross‑appeal to the Court of Appeal by his client.

KIRBY J:   Well, no application was made ‑ ‑ ‑

MR BASTEN:   No.

KIRBY J:    ‑ ‑ ‑so it is not before us.

MR BASTEN:   In a sense, it is not, your Honours, but when you look at the orders which are sought by the appellant, they are, in effect, that everything found against him be set aside, whether it was a finding of the Court of Appeal or the Tribunal and, with respect, that is an approach which should not be accepted without careful consideration of what is involved.  That is why I come back to this question about how one considers his cross‑appeal if, in fact, it has not been appropriately considered in the Court of Appeal.

KIRBY J:   The mind, like mercury, searches for the straightforward solution to the case, and, one, is to say that proceedings in the Court of Appeal were misconceived.  They went ahead on a particular basis which in law was wrong.  Certain things were said which also raised questions, do it again.  The other is to say on the concessions made, including before this Court, of the appellant as to the findings which he accepts, that if at the end of all the process the findings will stand, and those findings sustain the order of the Tribunal and of the Court of Appeal confirming the Tribunal, then the appeal should be dismissed and the agony should be ended and that should be the way the matter is resolved.

MR BASTEN:   Your Honour, there are two problems with that approach, and I do not like to raise problems with that approach, but, firstly, the concessions, as I understood them, went to factual matters not matters which were thought to be findings, inferences or questions of law.  So that I do not apprehend his conceding, perhaps, as much as might at first sight sound by simply referring to only two challenged findings.

The second problem is this, that there is a serious issue from the respondent’s point of view in relation to complaints 3 and 4 and, in particular, the question of the letter to the Law Society which was inaccurate.  The Tribunal said that it was an honest mistake.  He had forgotten at the time that he had used this power of attorney, and that it dismissed the complaint on that basis.

What we say in the written submissions is that that is a considerable watering down of the obligation which has otherwise attended the requirements placed on solicitors to respond fully and appropriately to questions from the Society, and if that is not to involve misconduct, then that is a serious matter.  That matter actually was not dealt with in the terms in which it was put by the judgment of the Court of Appeal, but we would be concerned if this matter were dismissed on the basis that there were no issue about that.  In other words, the Society’s appeal in relation to the third complaint, appeal to the Court of Appeal, is a matter of concern.

Again, perhaps without taking the Court to the detail of it, when one goes through the various stages of the request for information which was not a question, “Did you do this?”, but a statement, “You did”, which he categorically denied, and then go through the means by which that denial was questioned and challenged and ultimately withdrawn, there is a serious issue with respect as to whether he has complied with his obligation as a solicitor.  Perhaps we have set out the material sufficiently, completely at section 3 of the written submissions but it is a matter on which I would wish to address the Court, before it were simply said that the appeal to the Court of Appeal should be dismissed.  That is the request which is made by appellant in this Court.

KIRBY J:   Is that by way of notice of contention?  Are you seeking, in effect, to uphold the order of the Court of Appeal even if you lose other points on that basis?

MR BASTEN:   No, your Honour, because we had not appreciated that the findings that the Court of Appeal made in relation to various matters such as the dishonesty questions would affect the conclusion that was reached in relation to the appeals which were upheld.  Justice Callinan puts the point that maybe everything is infected, but our response to that is that if that is so, then it should go back to be reheard according to law, or else this Court has to consider the merits of the matter.

KIRBY J:   What is your submission that the Court should do?  Not the view of the Society – your submission.

MR BASTEN:   My submission is that it should be accepted that the Court of Appeal dealt with the matter – may I put it in two stages?  The primary submission is that it must be accepted that the Court of Appeal dealt with the matter upon the wrong statutory basis, but that the findings which his Honour made were not infected by that error.  Secondly, if the findings were infected, or if there were some doubt about it ‑ ‑ ‑

GUMMOW J:   Not just that error; 167A as well, the point Justice McHugh was agitating with you.

MR BASTEN:   I was not sure that his Honour relied upon that as a basis for the approach he took.  I may be wrong about that.

GUMMOW J:   I know, but that is an element in the Court of Appeal’s thinking, too.  It seems to me they took no exercise in inherent jurisdiction, that is what it comes down to.

MR BASTEN:   I am sorry, but they did not suggest that there should be an amendment.  This is my point, in substance ‑ ‑ ‑

GUMMOW J:   They thought no amendment was necessary.

MR BASTEN:   That is right.

GUMMOW J:   They thought it was at large.

MR BASTEN:   That may be right, but 167’s applicability or otherwise does not seem to ultimately affect ‑ ‑ ‑

GUMMOW J:   The real point is they thought it was at large.

MR BASTEN:   Yes.

GUMMOW J:   How do you cope with that?  It is not just a question of 171F(4); there is appendant to that, and perhaps independent of it, a question of the broader view they took of their entire function, which may taint everything.

MR BASTEN:   Yes.  The answer becomes, as it were, more complicated because if that is right then the question remains, “How does one deal in this Court with the effect of that?”.  If it be correct that the Court of Appeal’s whole judgment should be set aside, then, with respect, I would submit that there is nothing for it but to remit it so that the grounds of appeal which were agitated by the Law Society within a limited context, and the grounds of cross‑appeal which were raised by the appellant be considered according to law.

KIRBY J:   Just assume that that was the outcome, what order would one make as to costs in those circumstances, given that both sides to raise the point before the Court of Appeal?

MR BASTEN:   I may need to get some instructions on that, your Honour.

KIRBY J:   No order for costs was made in the Court of Appeal.  That is unusual.  Was that as a result of some submission that was specifically put?

MR BASTEN:   I think not.

KIRBY J:   Because normally, whatever happens, the solicitor, unless absolutely blameless, pays the Society’s costs, as I remember it.

MR BASTEN:   As I understand the approach adopted in the Court of Appeal, it was really a plague on both your houses, and that the Law Society had never appreciated the seriousness of the conduct and had therefore not pursued the serious conduct because it had not understood why it was serious, and that similarly the appellant had not acknowledged the seriousness of the conduct.

GUMMOW J:   Justice Powell deals with it at 419, in a way, when he proposes the orders.  It was quite consciously done that there was to be no order as to cost.

MR BASTEN:   Yes.  No, I agree with that.

KIRBY J:   That is very unusual, in my understanding.  My recollection is the Society always gets its costs.

MR BASTEN:   If successful.  I think what his Honour is saying, though, is that the Society was successful but on a basis which it had not pursued.  In other words, the way in which the appeal proceedings were dealt with in the Court of Appeal was not the basis put by the Society.  The Society was accused of being ambivalent about this matter and on the approach his Honour took, of course that was true, we did not necessarily support it, but I do not know that the Society should be – if your Honour is coming around to the question of whether we should pay the costs, I do not know that we are responsible for the approach taken in the Court of Appeal and I ‑ ‑ ‑

KIRBY J:   The normal principle would be in this Court, would it not, that if the appellant wins in establishing error in the Court of Appeal, the appellant will get his costs?  One could reinforce that conclusion by saying that the Society or the Council has particular responsibilities under the Act and one could expect that that would include bringing to the notice of the Court of Appeal as the repeat player in these dramas, the provisions of the Act which apply to the case in hand, and yet that was not done.

MR BASTEN:   Well, I agree it was not done although Mr Wales said, and we did not demur, that this was treated as a conventional appeal and I believe everything from the notice of appeal to the transcript before the Court of Appeal and the written submissions in the Court of Appeal would confirm that the Society so treated it.

GLEESON CJ:   Mr Wales, for the solicitor, actually submitted on page 21 of the transcript:

that this was a hearing de novo

and that the Court of Appeal was:

not looking at the matter necessarily as a matter of alteration of the exercise of a discretion -

but that its duty was to make up its “own mind”.

MR BASTEN:   But as, and my friend emphasises this, as a conventional appeal.  Now, I take that to be a reference to the Hodgekiss principles which I adverted to.  I mean, the Court has a reasonably broad discretion.  My friend attacks not the primary findings of fact but the inferences to be drawn.  Now, on Hodgekiss, the inferences which are available from the primary findings are readily matters which the Court of Appeal can identify and consider.

KIRBY J:   But do you accept the two-stream theory of the Act, that is to say, that once you are in the realm of complaint, the hearing before the Tribunal and appeal to the Court of Appeal, that it has to be dealt with with that specificity which the Act lays down and that if you want to proceed under the inherent jurisdiction of the Supreme Court, that has to be the subject of different proceedings, perhaps initiated by the prothonotary or else-wise brought to the Court of Appeal and that you cannot mix the two up?

MR BASTEN:   I accept that that was the way it was put in the Court of Appeal.

KIRBY J:   And do you accept that construction of the Act?

MR BASTEN:   In the abstract, at the present time I would have to reconsider that, your Honour.  I mean, for the purposes of this appeal, I accept ‑ ‑ ‑

KIRBY J:   It is not unimportant to me because if that is the approach to the Act then, on one view, the earlier authorities do not apply.  You are in the realm of a complaint appeal which has high specificity, particularity and it has to be dealt with on that footing.

MR BASTEN:   Your Honour is now referring to the Act as it was in effect in 1996.  I am sorry, the Act has changed because the court no longer gets the appeals but I do not necessarily ‑ ‑ ‑

GUMMOW J:   The Act has changed?

MR BASTEN:   The Act has changed.  The appeals from the initial hearing before the Tribunal go to ‑ ‑ ‑

GUMMOW J:   They go to the AAT, do they?

MR BASTEN:    ‑ ‑ ‑an appeal panel of the Administrative Decisions Tribunal and thence, I think, on a question of law to the Supreme Court.

GUMMOW J:   To one judge of the Supreme Court?

MR BASTEN:   No, I think to the Court of Appeal, your Honour, because the appeal panel is presided over by a District Court judge or someone of that status.

GUMMOW J:   So if this matter went back, the Court of Appeal, though, would be ‑ ‑ ‑

MR BASTEN:   It would be vested with jurisdiction on the basis of the earlier appeal.

GUMMOW J:   Yes, yes.

MR BASTEN:   But what your Honour is putting to me, though, is that there has been a change from the Hodgekiss days to the procedure which is now adopted and, your Honour, I am not sure that I accept that conclusion.  Johns v The Law Society (1982) 2 NSWLR was a decision in which the Court of Appeal considered the manner in which these matters were to be dealt with.  This is prior, of course, to the amendments to the Legal Practitioners Act or should I say, prior to the repeal of the old Legal Practitioners Act and in a passage at page 6, from letters C to F in the President’s judgment, his Honour deals with this question of the need for precise particularity of the complaints which are made and ‑ ‑ ‑

KIRBY J:   But that was particularity at common law out of the sense of procedural fairness.  I am talking about the new Act.

MR BASTEN:   Yes.

KIRBY J:   That bifurcation of the jurisdiction of the Supreme Court the old inherent jurisdiction remains but that was not invoked here.  There is an appellate jurisdiction which has high particularity and specificity.  That was invoked and you are stuck with it.

MR BASTEN:   What I think I am saying though is that the two – the statutory process and the inherent jurisdiction existed under the old 1898 Act and that, at least, by 1982 the need for particularity of a complaint had been ‑ ‑ ‑

KIRBY J:   By common law, not by the Parliament, not by the statute.

MR BASTEN:   Well, it was perhaps a common law intrusion on the terms of the 1898 Act.  I accept that, but what I am putting to your Honour is that there is no difference in substance between what is now required and what was then required in this regard and my recollection is that there was a separate statutory provision preserving the inherent jurisdiction of the Supreme Court under the old Act too.  I think that was what Weaver dealt with.

KIRBY J:   That might be so, but if you are sitting there cloaked with the inherent power unlimited, and with the long traditions of using that to protect the community and the profession, then that is a different thing than sitting there hearing appeals.

McHUGH J:   Can I just raise this point, because there are references in this case about a solicitor’s duty to assist?  Now, that dictum arose in a particular context.  Under the old statutory committee jurisdiction, you had the section which said that the Council might refer – I forget, the complaint or matter or whatever it was, or any question - to the committee for further investigation.  It was in that context that it was said that there was this duty to ‑ ‑ ‑

MR BASTEN:   One aspect of the context, your Honour, in NSW Bar Association v Thomas  ‑ ‑ ‑

GUMMOW J:   Is not what Justice McHugh said to you just borne out by Justice Moffitt’s judgment at page 6?

MR BASTEN:   Yes.

GUMMOW J:   When he talks about the old section 76.

MR BASTEN:   He speaks about the specific context, yes, precisely.

GUMMOW J:   The obligation to assist.

MR BASTEN:   No.  Sorry, I was not disputing that aspect of it.  I was going to say that in Thomas’s Case 18 NSWLR at page 204 the duty is discussed in the context of a barrister who was not being dealt with under that statutory procedure.

McHUGH J:   No, but see, he is being dealt with under the inherent jurisdiction of the court, was he not, in Thomas’s Case?

MR BASTEN:   Yes.

McHUGH J:   It is one thing to say that there is a duty to assist under the inherent jurisdiction, because you are dealing with it as an officer of the court, it is another thing to say you are under a duty to assist because of the old provision in the statutory committee.  It does not seem to me to necessarily follow from the structure of this Act that the solicitor is under some duty to assist the Council.

MR BASTEN:   A duty of candour ‑ ‑ ‑

McHUGH J:   It rather looks like it is adversarial litigation almost from the very beginning.

MR BASTEN:   Your Honour, that is no the way the case has been put against us so far but that obviously raises a matter of very broad importance.

McHUGH J:   I know it does.

MR BASTEN:   I am not sure that I am in a position really to respond to that in this context.  We would certainly wish to say, though, that there was a duty of candour.  There is a swathe of disciplinary cases, not only in relation to solicitors but barristers, medical practitioners, all of which affirm a duty of candour to the disciplinary body, both the prosecutorial ‑ ‑ ‑

McHUGH J:   Yes, but I put it to you, I am not sure there just has not been an unthinking application of a statement made in a particular statutory context into other contexts which lack that basis.  It is not under the inherent jurisdiction and it is not under a particularly statutory context as you had under the old statutory committee regime.  It rather looks like it is adversarial litigation and he may be right and the duty may exist, but we are dealing with a statutory scheme.

MR BASTEN:   It was not one of the grounds of appeal that this complaint was simply misconceived, and it should have been, if your Honour was right, and it has not been argued here that this complaint was simply misconceived in its formulation.

GLEESON CJ:   Mr Basten, what was the date of the hearing of Foreman’s Case, do you know?

MR BASTEN:   No, I do not, your Honour. 

GLEESON CJ:   I just wondered how it stood in time in relation to the 1985 amendments.

MR BASTEN:   Yes.  I do not know the answer.

GLEESON CJ:   I think I had some part in the 1985 amendments, and I think I have a recollection of what their purpose was.

MR BASTEN:   Well, there was a ‑ ‑ ‑

GLEESON CJ:   Which was not unrelated, as I recollect it, to the time of the Court of Appeal that was being occupied, and the unsatisfactory consequences that were flowing from having a Bench of three decide issues of fact, often issues of fact that had only emerged for the first time before that Bench of three.

MR BASTEN:   Yes.  Well, I know there has been a practice in some cases where the question of evidence has been raised before the hearing that the matter is remitted to a single judge to deal with the evidence, and my instructing solicitor has been involved with such matters, but ‑ ‑ ‑

GLEESON CJ:   My recollection is we had a very similar problem in relation to appeals from the Land and Environment Court.

MR BASTEN:   Yes.  Well, your Honour may well be correct.  The note which is actually contained in the amending statute indicates at least that the purpose is to revert to the 75A procedure which is the Sperway and, we would say, Hodgekiss-type approach. 

Your Honours, there is an exercise which can be undertaken of seeking to deal with the various matters summarised by Justice Powell at pages 412 and subsequently in terms of either admissions which are found in the evidence or otherwise, and I suppose in a sense I need to do that because if the Court is considering dealing with the substance of this matter itself, then I need to indicate at least where this material is to be found.  If it were to go to ‑ ‑ ‑

GUMMOW J:   What material will this be?

MR BASTEN:   His Honour makes some findings at pages 412 through to 415 in a series of numbered paragraphs  ‑ ‑ ‑

GUMMOW J:   Yes.

MR BASTEN:    ‑ ‑ ‑ some of which are related to specific complaints, some of which are not.  In relation to the first one, there is the complaint that the respondent either had not the slightest comprehension of the fiduciary duties of an attorney or the slightest compunction in disregarding those duties.  There is no material which would, as it were, justify that finding in its terms beyond what his Honour deals with at page 361 where his Honour sets out in slightly more detail the concerns in relation to the power of attorney in two numbered paragraphs where he notes the admission that the appellant in this Court:

appreciated only too well that, upon the death of the deceased, the Power of Attorney ceased to be of effect –

and secondly, that:

he had no title to deal with any assets in the deceased’s estate until after a grant of Probate had been obtained.

Then at the top of the next page his Honour refers to the falling out between the appellant and Mrs Brain, and notes that the affidavit of assets and liabilities which was presented to her at the end of July at the meeting on 20 July was not proceeded with.  Then at the top of page 363 in paragraph 4, his Honour notes that on the next day, 21 July, the day after the disagreement, the respondent executed the change of account ownership forms and requested that the balance of the funds be transferred into his own name, but only one of those accounts bore the notation,  “ITF M.M. Walsh”, and that thereafter he drew sums of moneys from one of the other accounts.

That is the substantive material which is complained of in relation to the use of the power of attorney in the context in which it is used and, of course, his Honour seeks to derive two inferences from that.  One is that he knew that he was not entitled to use the power at the time he used it, and secondly, he used it immediately a dispute had arisen, and it may be that that is the material which he is dealing with in paragraph 1.  However, he does deal with that material more specifically in paragraph 2 which is entirely based upon admissions which are, to an extent, dealt with by the Tribunal.  For example, the fact that he was only too aware that the power had lapsed upon the deceased’s death - the top of 413 - is expressly a finding of the Tribunal, at page 321 at line 35.

The third paragraph is an inference which has been drawn since he only had one of two methods of accessing the accounts, that if he had informed the Law Society of the death of the deceased he would have been unable to deal with the account.  That seems uncontroversial.

Paragraph 4 deals with the second complaint and talks of the real burden of the second complaint.  The appellant, himself, says in his written submissions at paragraph 17 that this is really the same burden which is dealt with by the first complaint.  That may be beside the point.

Paragraph 5:  the admission that he had advised clients to practise similar deceptions in the past, is based upon an admission which we have already been taken to.

Paragraph 6, his Honour says:

just as the agreement which is said to have led to the carrying out of maintenance and repairs to the deceased’s properties indicated that the Respondent and his sisters were prepared so to act as to obtain an improper advantage –

and were -

not averse to ignoring what he understood to be the true legal position –

That is material that I have referred to before.  Your Honours have been taken to the statutory declaration in which he explains the reason for his change in attitude, and I took your Honours to the cross‑examination in relation to that.  We would respectfully say that that is an inference which his Honour would be entitled to draw from that material.

The final one on this point – paragraph 7 - his Honour says:

even if – which, in this respect, the Tribunal was not disposed to do – one were to accept the various assertions…..as to his understanding of the legal effect of the agreement…..those explanations –

that he gave -

would indicate that the Respondent’s knowledge of –

various laws -

was rather less than it should have been -

I am not quite sure that that has any direct bearing on the findings which are ultimately made.  Paragraph 8 relates to the fourth complaint.  His Honour says that:

the real bite…..was, in all the circumstances, not so much that the Respondent’s failure to serve on Mrs Brain a Notice…..or a negligent performance of the duties of a solicitor making an application…..but that, because of the disputes that existed between himself and Mrs. Brain, the Respondent was prepared to ignore –

her rights.  That, he says:

was, at the least, devious, and conduct in which a solicitor should not indulge –

Now there is underlying that a question as to whether that is an acceptance that there is a negligent performance of the duties albeit that there is no third party in the form of a client who was to suffer but rather the solicitor himself who was to benefit if anything.

GUMMOW J:   But the fourth complaint was unsatisfactory professional conduct, was it not?

MR BASTEN:   Yes, yes.  This relates to the failure to serve upon the co‑executor.

GUMMOW J:   Is that what the judge is talking about under ‑ ‑ ‑

MR BASTEN:   Yes, I think it is, your Honour.  It is the making of the application without ‑ ‑ ‑

GUMMOW J:   Is not he saying this man is a rogue?

MR BASTEN:   Well, he is saying it is “at least, devious” not to serve the application on the co‑executor.

GLEESON CJ:   Deviousness is sometimes regarded as an aspect of professional competence.  This was in the context of a charge of incompetence.

MR BASTEN:   Yes.  Failure to comply with the rules, I would have thought, could hardly be considered to be professional competence but he was cross‑examined in relation to the fact that the rules aside, this was a person with an interest in the proceedings and she should have been served.

McHUGH J:   But Mr Basten, his Honour erroneously characterises the nature of the complaint.

MR BASTEN:   I agree with that, your Honour.  I agree with that.  The question though is whether properly considered, the complaint should not have been upheld.  He upholds it on a more serious basis.  What I am seeking to show is that perhaps the Law Society’s appeal could have been upheld on a proper basis and that is a matter which, in a sense, has not been dealt with and if one simply dismisses the erroneous basis because it goes too far, one does not know what the answer would have been otherwise.

GLEESON CJ:   No, that is the problem.

MR BASTEN:   That is the problem.

GLEESON CJ:   I mean, theoretically, you could make a submission to us that said if you set aside all the findings of the Court of Appeal and simply leave standing the findings of the Tribunal, they required an order removing the solicitor’s name from the roll of solicitors. 

MR BASTEN:   Yes.

GLEESON CJ:   The problem, however, with that as it appears to me at the moment, is that in a sense the primary issue as it was presented originally to the Court of Appeal was whether or not the findings of the Tribunal as they stood demanded a removal from the roll of solicitors and the Court of Appeal never addressed that discrete issue because they thought they had a duty, in fact, to go on and make their own findings.

MR BASTEN:   Yes, that is so.  Well, so far as what your Honour puts to me goes, I accept that.  In this particular instance they made a finding in favour of the Law Society’s appeal on the fourth complaint which went further than was sought.  Now, what does one do with that?  Does one say that the fourth complaint could have been upheld on the basis on which it was put and your Honours can see the bases on which it was put from the argument in the transcript.  The only thing I am saying that one should not do is simply dismiss the Law Society’s appeal in relation to the fourth complaint simply because the Court of Appeal got it wrong. 

In any event, I think I perhaps indicated what I say about paragraph 8.  Paragraph 9 deals with the third complaint and in relation to this, what was really put by the appellant in this Court, at least in his written submissions, was that the equivocations as to the recollection and so on and the fact of utilising the power of attorney were not matters which the Court of Appeal was permitted to deal with in accordance with whatever principles applied.  Now, in the written submissions in section 3 I have gone through the various passages, and there are a number of passages which indicate equivocations which, with respect, the court was entitled to treat as such, but I can put that submission only again in the context in which there may be an underlying error which means that it does not assist me to say that at this stage.

Paragraph 10 is the admission point again.  Paragraph 11 is simply a restatement of a finding of the Tribunal that there was no recognition of regret or the need for regret or contrition.  Now, my friends challenge that, but it is not clear that that is any more than a request to this Court to deal with a factual matter in a way differently from the way it was dealt with in the Tribunal and simply accepted by the Court of Appeal.  So, in one sense one could say nothing the Court of Appeal did wrongly affects that finding.  That, at least, may be left to stand.  Now, your Honours, I think in the context of the discussion it really is not of benefit to the Court if I take the Court any further through those parts of the judgment which we say can be found to have some basis because if there is an underlying flaw, which we acknowledge, then something must be done about it.

GUMMOW J:   But what do you say about costs in this Court of this appeal?

MR BASTEN:   Your Honour, we would say that the same orders should be made as below, ultimately, because the Court of Appeal did not deal with this ‑ ‑ ‑

GUMMOW J:   Do not worry about the word “ultimately” – now.  Here.  What do we do?

MR BASTEN:   We would say that the absence of an order as to costs which the Court of Appeal made is the same order which should be made here simply because, as I think I have indicated, we did not oppose the special leave application, we do not seek to deny that there are flaws in the approach of the Court of Appeal and the Court of Appeal approached the matter on a basis which we did not seek.

KIRBY J:   Yes, but the consequence is very serious for the appellant.  he is entitled to challenge that.  He comes here on challenge.  He has special leave.  His appeal has been heard and if he wins he would normally get his costs.

MR BASTEN:   Yes.

KIRBY J:   You are the repeat performer in this Tribunal and in the Court of Appeal.  I think the Court of Appeal was entitled to look to you to tell them what the applicable law was.

MR BASTEN:   Well, I think I have answered that, in the sense that we did not demur from the proposition that it should be dealt with in a conventional sense but I cannot put it any further than that.

KIRBY J:   It may be that if you had drawn the notice – I am not being over critical because it is very easy to overlook small amendments – but if you had drawn to notice this provision, the amendment, then it may be that the Court of Appeal would have approached the matter in a perfectly proper way and not have made this slip.

MR BASTEN:   I am not sure whether, to be candid, that I was aware of the amendment but that was perhaps partly because neither Mr Wales nor I were dealing with it on any other basis than that which he describes.  That simply was not a matter in issue.  I mean, I come ‑ ‑ ‑

GLEESON CJ:   Well, you have only got to look at what Justice Powell said on page 407, line 52.  He said:

I have these worries but then I came to the view that the answer to them was section 171F(4).

GUMMOW J:   This statute is really ‑ ‑ ‑

MR BASTEN:   But, may I just say I am not sure that that was put to us in the course of the hearing at all, that that was the approach he was intending to adopt.  Now, I might be wrong about ‑ ‑ ‑

GLEESON CJ:   Let me suggest that it was put to both sides fairly and squarely on pages 21 to 22 of the transcript of 12 June 1997.

MR BASTEN:   It was rejected, as I would understand it.

GLEESON CJ:   Actually it was Mr Wales who directly persuaded Mr Justice Powell that this was a hearing de novo.  Up to that stage, over a series of pages, the judge had been expressing his concern about the form of the complaints.

MR BASTEN:   Yes.

McHUGH J:   So had Justice Clarke on page 19, he had said:

The real gravamen of the alleged misconduct had been missed completely by the Law Society.

MR BASTEN:   The first 20 pages, your Honour, are a series of fulminations against the way I was conducting the matter on behalf of the Law Society at that stage.  All I am saying is that I did not give in, as it were and say, “No, no, no, we agree with you.  This is a terrible case.  You should do something we have never asked you to do before”.  I am sorry, your Honour Justice Callinan had ‑ ‑ ‑

CALLINAN J:   I must say I did not see anywhere in my quick look at the transcript any suggestion that the Court of Appeal was going to act on 171F(4).

MR BASTEN:   No.

CALLINAN J:   I suppose you had no reason to suppose that the court would because you thought that you had satisfied the court that it was an ordinary hearing of an appeal on the record, as it were.

MR BASTEN:   Whatever may have been the statutory power of the court under the provision Mr Wales had referred to, it was dealt with, it was presented by both parties by consent as a conventional appeal.

CALLINAN J:   But I suppose against that, Mr Basten, this is really peculiarly your client’s statute in the sense all of the people for whom your client is responsible practise and are governed by this statute.

MR BASTEN:   I think that Justice Kirby’s point is that the Society is the repeat player here.  That, of course, is true.

GUMMOW J:   But the enactment of this statute must be big news in Law Society enforcement circles.

MR BASTEN:   Yes.

GUMMOW J:   The structure and involvement of the Court of Appeal has dramatically changed.

MR BASTEN:   I do not doubt that, your Honour.  The only point I am really making is that neither Mr Wales nor I thought that was a point of any relevance in this hearing and one simply does not chase rabbits down unnecessary burrows at expense to one’s clients.

GLEESON CJ:   You found yourself mounted on a tiger.  It is difficult to get off.

MR BASTEN:   As it turned out, your Honour.

GLEESON CJ:   Thank you, Mr Basten.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, first of all in relation to the amendments to the Act, the issue is of some slightly greater complication, I fear, in the sense that one sees that under section 166 of the Act, there is an ability to make rules for the Legal Services Tribunal. There were, in fact, the Legal Services Tribunal Rules 1995 which were in operation until 1 September 1997. That date falls uncomfortably in the matters being dealt with by the Court of Appeal. Your Honours, the provisions of the Legal Services Tribunal Rules - and I will include these with the material that we give your Honours – included the provision, for example, for amendment of the information although it referred to other documents as well. It included also provisions for there to be a form of information. That is form 4, the amendment provision was rule 12. So that, your Honours, what I ‑ ‑ ‑

KIRBY J:   Was that available in the Court of Appeal on appeal or is it only a rule relating to the procedures of the Tribunal?

MR JACKSON:   Well, it was in a form, your Honour, generally similar to section 167A, generally similar but not precisely the same, rather more ‑ ‑ ‑

GUMMOW J:   And therefore directed to the Tribunal.

MR JACKSON:   Yes.  As I said, it expired from 1 September 1997 and of course the ‑ ‑ ‑

GLEESON CJ:   Just before you pass on, is there some provision that says the Court of Appeal can exercise the powers of the Tribunal?

MR JACKSON:   Your Honour, I think there now is but I am not certain whether there was then.

GLEESON CJ:   You can deal with that when you show us this other document.

MR JACKSON:   Yes, I will, your Honour.  What I was going to say was that the hearing in the Court of Appeal took place before those rules ceased to have effect but the decision was not given until after they had ceased to have effect.  We will endeavour to make a submission about what the effect of all that is and give our learned friends a copy in the next day or two.

Your Honours, so far as our cross-appeal is concerned, your Honours will have seen from our written submissions that in the concluding paragraph of them we refer to seeking leave to amend, and I am sorry, I rather thought I had done so but in a compendious fashion, by saying we relied upon the matters in our written submissions.  Your Honours will see – that is in the last paragraph, I think, of them, paragraph 56, bottom of page 14 and the top of page 15 – however, that at all times in the notice of appeal, it is in the same form as the one which was the subject of the application for special leave, and I am referring to volume 2 at page 441.  If your Honours look at paragraph 3(c), one of the orders that was sought was an order that the notice of cross-appeal be allowed, so that at the time special leave was both applied for and granted, it was granted in relation to proceedings where one of the orders that would be sought by the proposed notice of appeal was that order.

It is in relation to that that your Honours will then see that in our written submissions we sought to clarify what was meant by that by saying which of the grounds referred to in the notice of cross‑appeal to the Court of Appeal should have been allowed.  Our written submissions, of course, in the text of them address those questions.

Your Honours, so far as our learned friend’s submissions are concerned, we have, in fact, in our written submissions, dealt in relation to complaints 3 and 4 with the correctness of the Tribunal’s view that there was not established any form of unprofessional conduct in the sense of something lacking in competence or something to indicate that more steps should have been taken.

In particular, your Honours, we would seek to say if it be the position in relation to the incorrect denial of the use of the power of attorney, then if the view was taken that there was an honest belief that there had not been such a use it would not seem a particularly unreasonable thing not to pursue documents which might show that honest belief was not correct.

KIRBY J:   Did you have anything to say about Hodgekiss and its continuing applicability in the Court of Appeal in the matter of an appeal of this kind?

MR JACKSON:   Your Honour, what we would seek to say is that an appeal of this kind is one which is governed by, in effect, the statutory procedures and one is dealing in the Court of Appeal with an appeal from the determination of the Tribunal.  It is not the wide-ranging test that would be applicable if one were looking at the matter in terms of proceedings that were instituted under the inherent jurisdiction.

KIRBY J:   That may be required by the terms and structure of the Act, but it does lead to a certain artificiality that here is the highest court in the State with the traditional responsibility for the legal profession with its inherent jurisdiction reserved and yet it can only deal with the matter before it.  It has to say, “Well, you have to go and do this somewhere else and start again”.  In the meantime there is the public to be protected.

MR JACKSON:   Your Honour, could I say in relation to that that, generally speaking, of course, that is what happens in relation to appeals, to appeals of any kind.  If it be that a structure for appeals is set up, that is more or less what one would usually expect.  I appreciate there is sometimes different kinds of appeal but ‑ ‑ ‑

KIRBY J:   Generally, appeals are disputes between parties as to their private rights except in the Court of Criminal Appeal, but here the essence of it is to protect the public.

MR JACKSON:   Well, your Honour, it also has, of course, the disciplinary aspect to it and that is why one has seen, no doubt, the institution of a system which involves much more particularity than dealing with the particular matters.  But what I am seeking to say, your Honour, is this, that, as I think your Honour Justice McHugh was putting to me earlier today, there is nothing to prevent, in appropriate cases, matters that emerge in the course of a hearing of an appeal from being the subject of a separate complaint.

KIRBY J:   Can the Court of Appeal amend the complaint and there and then nunc pro tunc, as it were, say, “Well, we are in a” – it depends, I suppose, on the process if it is a real appeal and shall do that.

MR JACKSON:   Well, your Honour, I think one of your Honours asked me, what was the power of the Court of Appeal, a moment ago ‑ ‑ ‑

GLEESON CJ:   Justice Gummow has just drawn attention to section 75A(6).

MR JACKSON:   That is what I was going to refer to, your Honour; that is the provision I was looking for, and section 75A(6) would seem to give whatever powers were germane.

GUMMOW J:   Including the powers of amendment?

MR JACKSON:   Yes, your Honour.

GLEESON CJ:   The same powers of amendment as the body from whom the appeal is brought.

MR JACKSON:   Yes, and, your Honour, that would have the result that the Court of Appeal has the power to do so.  Of course, whether the power should or should not be exercised in particular cases depends on circumstances.

GUMMOW J:   But it was not, as it were, at least consciously, engaged and exercised here?

MR JACKSON:   No, and indeed, your Honour, this may not be quite a Smith v New South Wales Bar Association Case, where the additional matter arose from statements he was said to have made while giving evidence in the Court of Appeal but, a similar general position would apply, in our submission, if one had issues arising in the Court of Appeal that were sufficiently disparate from those that had been raised in the first place to require, in the ordinary course of events, amendment, then it would be a question of whether it would be appropriate in the particular case for the amendment to be allowed or whether that aspect should be the subject of a new complaint, if there were to be one.

CALLINAN J:   Mr Jackson, can the Court do it of its own volition or does somebody have to ask for it?

MR JACKSON:   An amendment, your Honour?

CALLINAN J:   Yes.

MR JACKSON:   Well, your Honour, I suppose it may be that because of the nature of the subject matter, that the Court has power to make an amendment of its own motion, but there be considerations militating against it doing that:  one is structural; the other is the fact that the Court would be seen to be moving towards the position of party rather than adjudicator in the matter and it be ‑ ‑ ‑

CALLINAN J:   In other words, getting into the exercise of an inherent power.  Well, it will not.

MR JACKSON:   Yes, your Honour, but ‑ ‑ ‑

CALLINAN J:   That is not what you are saying, but it would be then doing, perhaps, what it might be able to do in exercising the inherent power.

MR JACKSON:   Yes.  The manner of exercise of the inherent power would usually be for the court to direct one of its officers or some other person to take, or consider taking, certain action.  If one took, for example, a slight analogy of the case where the papers are directed to be sent to the Attorney‑General or Director of Prosecutions, the usual formal order in that, one would expect, would be not to attempt to direct that office holder to take action, but to consider whether action should be taken.  Subject to the matters to which I referred, those are our submissions.

GLEESON CJ:   Yes, thank you, Mr Jackson.  Do you want to make any submission about costs?

MR JACKSON:   Your Honour, we would submit, if we are successful in this Court, it would be appropriate for us to have the costs.  I accept immediately, your Honour, that we did not recognise the issue concerning subsection (4), and the Court may think it appropriate in those circumstances to, perhaps, dock some of it from us, but if the Court took that view, we would submit it would not be appropriate to do that in relation to the lot.

CALLINAN J:   But what if you are entitled to proceed on other grounds, for example, absence of procedural fairness?

MR JACKSON:   Well, your Honour, I was assuming for the moment that if the case was decided in our favour only on the ground of subsection (4).  If it were on other grounds, then that supports the proposition we should have our costs.  The difference, in fact, would be ‑ ‑ ‑

CALLINAN J:   You do not resile from the other grounds simply because you think you might succeed or if you were to succeed on a ground that might not qualify you in the same way for an award of costs.

MR JACKSON:   I had not thought I had resiled from that.  I was simply offering in – if one reached the situation of being in extremis, then I was saying, “Don’t take the whole body but take only part of one leg”.

CALLINAN J:   You might have been overly generous.

MR JACKSON:   That would be unlikely for me, your Honour, but it is possible, yes.

CALLINAN J:   It would be, I agree, Mr Jackson.

GLEESON CJ:   Yes, thank you, Mr Jackson.  We will reserve our decision in this matter.

AT 4.12 PM THE MATTER WAS ADJOURNED