Wentworth v New South Wales Bar Association

[1992] HCATrans 64

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl63 of 1991

B e t w e e n -

KATHERINE WENTWORTH

Applicant

and

NEW SOUTH WALES BAR ASSOCIATION

Respondent

BRENNAN J
DEANE .Z

DAWSON J

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 6 MARCH 1992, AT 10.17 AM

Copyright in the High Court of Australia

Wentworth(3) 1 6/3/91,

MR J.J.J. GARNSEY, QC:  May it please the Court, I appear

with my learned friend, MS J.V. COOMBS, for the

appellant. (instructed by H.D. Kelly)

MR R.S. HULME, QC:  May it please the Court, I appear with

my learned friend, MR P.R. GARLING, on behalf of

the New South Wales Bar Association. (instructed

by Michael Rosser & Co)

MR K MASON, QC, Solicitor-General for New South Wales: May

it please the Court, I appear with my learned

friend, MR D. COWAN. We seek leave to intervene on

behalf of the Attorney-General for New South Wales;

alternatively to put submissions as amici curiae. (instructed by the Crown Solicitor for New South

Wales). I understand that application is opposed

by one of the parties.

BRENNAN J: 

Would it be convenient to outline the nature of

the submissions that you seek to make, the
subject-matter of them?

MR MASON: Yes. At this stage, or - - -

BRENNAN J: Yes.

MR MASON:  Your Honours, we have them in a written form, but

to outline the basis upon which the - - -

BRENNAN J:  We do not want you to develop submissions.

MR MASON:  No. The basis upon which the leave is sought is

that the appeal involves important questions as to

the administration of justice, including the role

of the supreme court in admitting barristers; the

standing of the Bar Association, its counsel and

others, including the Attorney, to put evidence in

argument before the court in relation to matters of

fitness; and the power of the supreme court to

permit intervention in matters of public interest.

Secondly, one of the appellant's arguments

contends that the only proper party to oppose the

admission of a barrister is the Attorney - that is

at page 103 of the appeal book; and, thirdly, the

Attorney has been a party in the sense of represented by counsel to assist the court in the

Court of Appeal below, see appeal book pages 85
and 103, and is presently before the judge who has

been deputed to hear the substantive matter,

Mr Justice Campbell, in the status as amicus and

His Honour has indicated that the Attorney is required to be available to give assistance to the

court and, naturally, the Attorney is quite happy

to do that.

"

Wentworth(3) 2 6/3/92

BRENNAN J: Yes. Those are the matters that you wish to

raise.

MR MASON:	Yes.
BRENNAN J: Well we will hear whether there is any objection	now to your application for leave to intervene.

MR MASON:  Yes, if Your Honour pleases.

BRENNAN J:  Mr Garnsey.

MR GARNSEY:  If Your Honour pleases, we do object to the

intervention of the Attorney-General or to his

appearances of amicus curiae should the Court be

binded to granting him leave.

BRENNAN J: What is your attitude, Mr Hulme?

MR HULME:  We have no objection, Your Honour; indeed we

would support the application, particularly given

the circumstance that the Attorney-General was

required to be notified from the outset of these

proceedings and has been, at the Court's request,

involved hitherto.

BRENNAN J:  Mr Garnsey, would you like to develop the

grounds of your objection.

MR GARNSEY:  Your Honour, first as to intervention, the

application to intervene, we submit with respect
that leave should not be granted to the

Attorney-General to intervene because there are no grounds shown on which his intervention is

permitted in a case such as this. In a decision of

the New South Wales Court of Appeal, Corporate

Affairs Commission v Bradley, the basis upon which

the Attorney-General could intervene was examined

at some length and there are only two bases found

by the court to permit his intervention: first,

where the prerogatives of the Crown were in

question and to safeguard those prerogatives and

secondly, where relations with a foreign power were

concerned. Other than that, the court found there

was no power in the New South Wales Supreme Court

to permit his intervention and we say there is

nothing raised in this case which would have given

the New South Wales Supreme Court power to permit

this intervention and consequently on appeal,

nothing.

When these proceedings started - and this is

the second matter - there was an issue whether the appellant should be exempted from the requirements of the admission rules relating to legal

qualifications. That is no longer an issue,

because the appellant has satisfied all

Wentworth(3) 3 6/3/92

requirements of those rules and has been issued

with a certificate by the Barristers Admission

Board certifying her eligibility for admission

subject to being found to be a person of good fame

and character by the supreme court.

The Attorney-General originally appeared in

relation to that matter as the matter which

concerned him - that is, compliance with the

admission rules - and he has not taken an active
part in the proceedings, whether indeed in relation

to that matter because it fell by the wayside in the light of subsequent events or in relation to the substantive matter, namely whether the

appellant is a person of good fame and character,

and whether the proper party is the New South Wales

Bar Association or the Bar Council.

Thirdly, if Your Honours please, the

Attorney-General is an ex officio member of the Bar

Council. That is an additional reason why any

matters which he desires to put will be put and can

be put. They almost certainly will be fully put by

the Bar Association. For those three reasons, if

Your Honours please, we oppose the intervention.	I
have not attempted to take Your Honours to
Bradley's case which has a rather long examination
of the authorities.

BRENNAN J:  Have you said everything you wish to say in

opposition to the application for leave to

intervene?

MR GARNSEY:  Your Honour, that relates to the application

for leave to intervene in these proceedings and

that presumably would make the Attorney-General a

party respondent with all the rights of a

respondent.

So far as the application is put in the

alternative -

DEANE J:	No, it would make him an intervener.
MR GARNSEY:	Yes, Your Honour.
DEANE J:	You might say he would be a party, but he would

not be a party respondent.

MR GARNSEY:	No.
DEANE J:	I mean, he could conceivably want to support you

on some things.

MR GARNSEY:  Yes, Your Honour. The word "respondent" was

ill-chosen, but he would have all the rights of a

party as opposed to being an amicus curiae.

Wentworth(3) 4 6/3/92

In relation to the alternative application

that the Attorney-General be heard as amicus
curiae, we submit, with respect, that counsel for

the Bar Association in the court below argued all

relevant matters. There is nothing to suppose that

all relevant matters would not be argued here,

especially as the Attorney-General is an ex officio

member of the Bar Council.

Finally, we submit that if the Court is minded

to permit the Attorney-General to be heard in some

way or other, it should only be as amicus curiae

until the matter is fully argued because the

decision that the Court would come to in relation
to Bradley's case, which is a matter of

considerable substance, would really determine

whether the Attorney-General should be permitted to

intervene or not.

DEANE J:  Does that circumstance not, in itself, indicate

that the Attorney has an interest of his own in

advancing the proposition that he should be allowed

to intervene?

MR GARNSEY:  He has sufficient interest to apply, yes,

Your Honour. Indeed, Your Honours might wish him

to - perhaps I should have submitted that he should

be heard as an applicant until the end of the

appeal. Your Honour, could I just refer

Your Honours briefly to the decision of this Court

in Australian Railways Union v The Victorian
Railways Commissioners and Others, (1930) 44 CLR

319, at page 331 where, on an application by two

State Attorneys-General for leave to intervene, the

Commonwealth Attorney-General already intervening,

the Court refused that application. The majority

of the Court, in particular Sir Owen Dixon,

expressed the view that although the Court has a
discretion to permit appearance by way of

intervention, it should be cautiously exercised.

Could I hand to the Court copies of that decision.

BRENNAN J: Nothing further, Mr Garnsey?
MR GARNSEY:	I have no further submissions, if Your Honours

please.

BRENNAN J: Mr Solicitor, your application will be

considered by the Court and a decision on the

application will be made after the luncheon

adjournment, assuming that we so far endure. If

not, it will be given at an earlier stage. Yes,

Mr Garnsey.

MR GARNSEY:  May it please the Court, this appeal raises a

number of questions of some importance in relation

to applications for admission to the Bar of New

Wentworth(3) 5 6/3/92

South Wales. The first is whether, under the Legal

Profession Act 1987, the Bar Association, a body corporate, is entitled to appear as a party opposing the admission of barristers or otherwise

appear which -

BRENNAN J: 

Do you have an outline of your submissions?

MR GARNSEY: 

I do, if Your Honour pleases. Could I hand to

the Court the copies for the Court and additional
copies as required.

May it please the Court, the first question

raised in the appeal is whether, under the Legal

Profession Act 1987, the New South Wales Bar

Association, a body corporate, is entitled to

appear as a party opposing the admission of

barristers or otherwise to appear, which raises the

question whether a special interest group, or a

group with private interests, should perform the

public interest functions entrusted to a.body

described in the Legal Profession Act as the Bar

Council in relation to the admission of barristers.

The second question is whether the Bar

Council, if it is the proper party, or the Bar Association, if it is the proper party - or, I should say, is the proper body - entitled to be

represented under section 51 of the Legal

Practitioners Act, is only entitled to appear and

be heard, or has further rights in relation to

applications for admission. That second question

raises questions of construction of the Act which

revocation of the Charter of Justice of 1823 by the

involve a consideration of the Act and Admission

Legal Profession Act 1987.

Previously there have been a number of decisions of this Court and of the Supreme Court of

New South Wales which have approached the test for

either striking off or readmission to the Bar as

being a question of whether a person is a fit and

proper person. That phrase, and indeed the

jurisdiction of the supreme court, stemmed from the

Charter of Justice 1823, which was expressly

revoked so far as it relates to the admission of

barristers by section 4 of the Legal Profession Act
of 1987, which merely entrusts to the court under

section 9 of that Act an issue of whether a person

is of good fame and character.

If I could mention some matters appearing from

the appeal book, which are not expressly set out in

the submissions, just by way of chronology, on

17 July 1991 the appellant applied for admission as

a barrister. That application was made to the

Wentworth(3) 6 6/3/92

supreme court in its common law division and was

made ex parte. The application, which was made by

summons, also sought orders that the appellant

should be declared to be entitled to be permitted

to undertake the Bar Council's reading programme

commencing on 5 August 1991 and that she be

permitted to undertake the reading programme.	The
summons appears at page 1 of the appeal book.

The appellant no longer pursues those orders,

the urgency of the matter having ceased in the
light of the time in which it has taken so far for

the matter to be dealt with. On 1 October 1991 the

appellant made a number of applications to the
supreme court, including one by notice of motion of

that date to strike out or remove the New South

Wales Bar Association as a party. That document

appears at page 50 of the appeal books. That

application was heard by the Court of Appeal of the

Supreme Court of New South Wales, not sitting as

the Court of Appeal but as three judges of appeal exercising the powers of a single judge under the

Supreme Court Act, and written submissions were

made to the court which is set out at pages 16 to

36 of the appeal book and there was also oral

argument, the transcript of which appears on pages

81 to 129 of the appeal book.

TOOHEY J:  Mr Garnsey, how much of the relief sought in the

original summons is no longer pursued?

MR GARNSEY: Orders 2 and 3, Your Honour.

TOOHEY J: 

Thank you.

BRENNAN J: 

Mr Garnsey, let me understand correctly, the

area of this appeal is the area specified in the
notice of appeal?

MR GARNSEY: 

Yes, Your Honour.

BRENNAN J:	So we are concerned simply with the question of the order made by the supreme court dismissing your
application to have the Bar Association removed as
a party to the proceedings?

MR GARNSEY:  Yes, Your Honour. I was really just making

these brief observations to indicate why there was

so much material in the appeal book, if

Your Honours please, not to indicate that it was

all relevant; indeed to indicate possibly the

opposite. The judgment of the Court of Appeal is

found in the judgment of Mr Justice Mahoney at

pages 131 to 139 of the appeal book. They are the

pages which are relevant to the matters raised in the notice of appeal. The judgment also proceeds

to deal with matters relating to disqualification

Wentworth(3) 6/3/92

which are not relevant to this appeal.	The joint
judgment of Mr Justice Clarke and

Mr Acting Justice Hope agreed, so far as matters relevant to this appeal are concerned, with the

judgment of Mr Justice Mahoney and dealt only with

the question of disqualification as a separate

matter.

The submissions made to the Court of Appeal

included all matters of substance, although not

necessarily every single authority referred to in

the outline of submissions. However, the Law

Reform Commission report referred to in the outline

of submissions were not put before the Court of

Appeal. Mr Justice Mahoney's judgment, so far as

it is relevant, after describing the application,

at page 130 of the appeal book, sets out at

page 131 line 20 the appellant's contention and, in

particular:

that applications for admission to the Bar are

now regulated by the Legal Profession Act;

that under that Act the only right in the Bar

to oppose applications is that granted bys 51

of the Act to the Bar Council; and that the

right so granted to the Bar Council is a right

merely to appear but not to adduce evidence in

opposition to an application.

His Honour then referred to the charter of

justice and a decision in Re Band to previous

decisions in which the New South Wales Bar

Association had appeared and a further two

decisions of the High Court of Australia, this

Court. At page 133, line 17, he said:

In my opinion, it accords with long

practice and practical necessity that the Bar in an application of the present kind and to

adduce evidence in opposition to such an

application.

We will be submitting that the practical necessity

is that the Bar Association as such does not appear

to ensure that the public functions now entrusted

under the much more elaborate procedure of the out by the members of the council independently of

their obligations as directors of the association.

His Honour then referred to section 4 of the

Legal Profession Act, and I propose to ask

Your Honours to look at the Act in greater detail,

so I will not read in detail that part of the

judgment unless Your Honours wish it at this stage.

Wentworth(3) 8 6/3/92

BRENNAN J:  You may take it that the Court has read the

judgment, if that is of any assistance, Mr Garnsey.

MR GARNSEY:  Thank you, Your Honour. His Honour's

conclusion as to whether the Bar Association should

appear or not appears to be found at page 137,

line 7, and His Honour then dealt with the question

of whether the Bar Council or the Bar Association
could adduce evidence and, at page 138, line 25,

said:

In my opinion, the Bar Association is a proper

party to appear and to adduce evidence in

accordance with objections properly taken. It

is therefore not necessary to substitute the

Bar Council for the purpose. However, if upon

order that the Bar Association cease to

the proper construction of s 51 the Bar would

be a party to the proceeding and that the Bar

Council be a party to oppose the present

application.

His Honour did not consider the arguments advanced

specifically based upon the revocation of the

Charter of Justice but, on one approach to the argument, they may be irrelevant to the conclusion

which can be reached.

If I might turn to the outline of submissions,

is Legal Profession Act entrusting functions to the Bar Council and to those two sections which refer to the Bar Association.

it necessary for my submissions to take sections of the

BRENNAN J:  Mr Garnsey, for my part I would be grateful to

understand how the system of admission works in New

South Wales now.

MR GARNSEY:  Your Honour, I would be happy - indeed it would be desirable, I think, for me to go through that

structure. It would presumably be of use for the

remainder of the argument and any other points

which might be raised from time to time.

Your Honour, the Legal Profession Act of 1987

repealed the Legal Practitioners Act of 1898, which

previously governed, as a matter of what might be

called mechanical requirements, the admission of

barristers and solicitors in New South Wales as

separate matters.

However, the origin of the supreme court's

power to admit was found in the Charter of Justice

of 1823. The Legal Profession Act 1987 was the

result of an extensive inquiry into the legal

Wentworth(3) 9 6/3/92

profession by the New South Wales Law Reform

Commission which led to two reports in 1982

numbered LRC 31 and LRC 32 respectively. I propose

to take Your Honours to some sections of those

reports. It is evident that not all the Law Reform

Commission's recommendations were implemented in
the legislation at that time, perhaps to the relief

of the profession.

In the Legal Profession Act 1987, in the

definitions in section 3, the "Bar Association" is

defined as meaning "the New South Wales

Bar Association" and in due course I would seek

leave to hand up to Your Honours the memorandum and

articles of the association. They were annexed to

an affidavit before the supreme court; it would

have been desirable that they be included in the

appeal book, but they were not. The New South

Wales Bar Association is a company limited by

guarantee. The "Bar Council" is separately defined

as meaning "the Council of the Bar Association" and

further down in section 3, the "Supreme Court

Charter" is defined specifically.

In section 4 it is provided that:

The Supreme Court may admit persons as

barristers, whether or not as provided by

subsection (2).

Section 4(2) provides that:

The Supreme Court shall, on any day appointed by the Supreme Court for the purpose, hear and

determine any application made on that day for

the admission as a barrister of a person

approved by the Barristers Admission Board as

a suitable candidate for admission.

Section 4(4) provides that:

The Supreme Court Charter is revoked in New

South Wales in so far as it relates to the admission of Barristers and Advocates.

The Barristers Board is then constituted and the

members of the Barristers Board includes in

section 6(2)(d):

2 are to be practicing barristers for the time

being nominated by the Bar Council.

That is the first function attributed to the

Bar Council, but it is true to say, and I will

submit beyond argument, if Your Honours pleases,

that there is no function entrusted to any body

Wentworth(3) 10 6/3/92

other than a body described as the Bar Council,

throughout the entirety of the Act.

Section 7 then empowers the Barristers

Admission Board to make rules with respect to:

the qualifications for registration, and

registration, as a student-at-law;

the qualifications for admission as a

barrister -

and:

the examination -

and relevant matters. Section 8 enables delegation

in relation to examination matters. Section 9

provides that:

A candidate, however qualified in other

respects, shall not be admitted as a barrister

unless the Supreme Court is satisfied that the

candidate is of good fame and character.

If I may continue with the Act before going to the

rules in relation to what an applicant for

admission has to show for the purpose of indicating

the references to the Bar Council. The next

reference to the Bar Council is found in Division 3

which provides for:

Consideration of character before admission -

and this enables a prospective applicant for

admission to obtain a declaration and seek pursuant

to an application under section 20(l)(b) as to

whether or not matters:

adversely affect an assessment by the

Admission Board of his or her good fame and

character.

A copy under subsection (3) is to be sent to:

the Bar Council and the Law Society Council -

with the determination of the Board, and

subsection (4) provides that:

The Bar Council and the Law Society Council

are each entitled to be represented, and to be

heard, or to make representations in writing,

in relation to an application made and

considered under this section.

Wentworth(3) 6/3/92

Those rights bear some similarity to the Bar

Council's right under section 51, the significant section for this appeal.

Section 23 provides that:

(1) If a declaration sought under section 20

or 21 is refused, the applicant may appeal to

the Supreme Court against refusal of the

declaration.

or, (2):

if a declaration ..... is made, a Council -

and that includes the Bar Council by definition -

may appeal to the Supreme Court against the

making of the declaration.

Subsection (3) provides that:

On an appeal under this section -

(a) by an applicant - the relevant Council;

or

(b) by a Council - the applicant and the

other Council,

is or are entitled to be represented and to be

heard.

BRENNAN J:  What is the effect of a declaration?

MR GARNSEY: That is section 22:

A declaration made under -

two preceding sections -

or ..... by the Supreme Court under section 23,

is binding on both Admission Boards unless the

applicant failed to make a full and fair

disclosure of all matters relevant to the

declaration sought on the application or

appeal.

BRENNAN J: But not on the supreme court?

MR GARNSEY:  Yes, it is binding on the supreme court,

Your Honour. It says:

A declaration made under section 20 or 21 -

that is the Admission Board declarations -

Wentworth{3) 12 6/3/92

or an order or declaration of the Supreme

Court under section 23 -

that is on appeal, from the boards

is binding on the -

court.

BRENNAN J: It does not bind the supreme court then, does

it, it binds the Admission Boards?

MR GARNSEY:  Yes, Your Honour. It does not bind the court

under section 9.

BRENNAN J:  What are the requirements - where does one find

requirements for admission, only in the regulations

made under section 7?

MR GARNSEY: Apart from section 9, yes, Your Honour.

BRENNAN J: Section 9 provides the "good fame and character"

requirement?

MR GARNSEY:	Yes, Your Honour.
DEANE J:	Mr Garnsey, did your client make an application

under section 20?

MR GARNSEY:  No, Your Honour, that is made in advance of

admission where someone thinks that there is - - -

DEANE J:  I follow that. What is it - I must have missed

something. What gets the Board going in the

ordinary case when somebody just wants to apply to

be admitted.

MR GARNSEY:  In the ordinary case, Your Honour, what gets the Board going is two things. The first is an

admission for registration as a student at law, and

this is found in the rules and I was going to take

the Court to it - - -

DEANE J: But nothing in the Act gets the Board going?
MR GARNSEY:	No. Well, except in so far as the Act provides

that the Barristers Admission Board may make rules

which then have to be satisfied.

BRENNAN J: But anybody can apply to the supreme court for

admission as a barrister, leaving the rules to one

side, can they not?

MR GARNSEY:	Yes, Your Honour, they can.
BRENNAN J:	And then the supreme court has what, got a

general discretion subject to section 9?

Wentworth(3) 13 6/3/92

MR GARNSEY:  Yes, and that is apparent from section 4. That

is why section 4(1) says:

The Supreme Court may admit persons as barristers, whether or not as provided by

subsection (2).

That is irrespective of the admission boards and

their requirements.

BRENNAN J:  Can we repeat, the Admission Board can be left

to one side. There can be obviously an ex parte

application made by an applicant to the supreme

court for admission, and the supreme court then has

to deal with the application.

MR GARNSEY:  Yes.

BRENNAN J: Is it your submission that the supreme court is

bound to deal with it ex parte?

MR GARNSEY:  Yes, Your Honour, subject to the rights of the

Bar Council under section 51, that is, I do not

concede that the Bar Council is a party in the full

sense.

BRENNAN J: Yes.

MR GARNSEY: Section Sl(b) provides that the Bar Council

may:

appear by counsel before, and be heard by, the

Supreme Court in the exercise of the functions

of the Supreme Court .....

(ii)in relation to candidates for admission as

a barrister.

BRENNAN J: There is no requirement for the Bar Council to

be notified by an applicant?

MR GARNSEY:  I think there probably is, Your Honour. I am

unable to point to specific rules at the moment but

I know the Bar Council is notified of all

applicants for admission. My friend refers to

rule 102. Perhaps in the light of Your Honour's

questions I should turn to the admission rules

which are entitled, "Barristers and Solicitors

Admission Rules 1989". I am not sure whether

Your Honours have a separate copy of that or not.
Your Honour the effect of these rules are
summarized at paragraph 4.2 of the outline. In the

definition of the rules ''Barrister" is defined as

meaning:

Wentworth(3) 14 6/3/92

a person admitted by the Court to the Bar of

New South Wales.

And:

"Board" with respect to Barristers means the

Barristers Admission Board.

Then Part II deals with administration of the

Board, Part III with the Legal Qualifications

Committee. Part IV deals with students-at-law and

when one comes to the requirements for admission

one will see that an application for admission must

have been registered as a student at law for a

particular period unless exempted.

DEANE J: Including a barrister?

MR GARNSEY:	No, by definition he is not a barrister yet.
DEANE J:	No, but I mean a barrister has to be a

student-at-law.

MR GARNSEY:	Yes, a barrister has to be a student-at-law.
BRENNAN J:	Can I just ask: are the rules which are made

under section 77(1) rules which are binding on the

supreme court in exercising its jurisdiction under

section 4(1)?

MR GARNSEY:  No, Your Honour. I do not think they are

because the significance of those rules is that
they are rules made by the Board of the Barristers

Admission Board, for the purpose of the barristers

an admission board approving a suitable candidate

for admission who is to be admitted by the supreme

court under section 4(2).

BRENNAN J: Well then, in this case, was the application

made under section 4(2)?

MR GARNSEY:  The application was made under either sections

4(1) or 4(2), Your Honour.

BRENNAN J: But as I understood it, Ms Wentworth did not

answer the requirements of the rules at the time

that the application was made.

MR GARNSEY:  Yes, she had not received the certificate of

eligibility from the board.

BRENNAN J: Then it must have been under subsection (1).

MR GARNSEY:  Yes, Your Honour, but subsection (1) is a power which extends to admission of an approved candidate

Wentworth(3) 15 6/3/92

under subsection (2) or, generally in the

discretion of the court, under subsection (1).

BRENNAN : Quite. So your application was made otherwise

than under subsection (2).

MR GARNSEY:  We do not apply under subsection (2), if

Your Honour pleases, at all. In my submission, on

the proper construction of section 4, one applies

to the supreme court under subsection (1), whe:her

one has gone through the board or one wants to

apply otherwise.

BRENNAN J: Yes, I understand that, but what I want to be

satisfied about is whether or not your application

was made in any sense under subsection (2), because

if not, then do we need to bother about the rules?

MR GARNSEY:  Your Honour, I do not want to ~oncede that it

is not made in a sense under subsection (2) in the

sense that now we have complied with all the
requirements and have obtained the approval of the

board.

BRENNAN J: But we are concerned with the situation as it

was before the supreme court on the application
that was then made, and the locus of the Bar

Association on that application.

MR GARNSEY:  Yes. Your Honour, the rules are only relevant

to this extent - and this was the only reason I was

referring to the Act as a whole under the rules.

It was to show that nowhere is any function placed

on the association or any right given to the

association. Everywhere there is reference made to

any function in connection with admission, whether

it is under the rules pursuant to section 4(2) and

section 7 or otherwise, the reference is to the Bar

Council.

So, Your Honours, to that extent it is

necessary for my submissions to go through the Act

and the rules, but I have endeavoured to do so as

quickly as possible in that summary in

paragraph 4.2. The only point I would seek to make

at the end of all this is that nowhere is the Bar

Association given any function, and nowhere is the

Bar Association obliged to perform any duty.

The other reason I was going to them was that

Your Honour said at the outset that Your Honour woul~ be assisted by an overview of the application

system, so I was endeavouring to do that, if

Your Honour pleases. A student of law must provide

certain references and, in particular under

rule 32(2):

Wentworth(3) 16 6/3/92

certificates as to fitness from two or more

qualified persons in or to the effect of Form

No 3 in the Schedule.

If I could anticipate an argument because the word

"fitness" applies, at various times in the rules

"fitness" is used as a requirement. It is our

submission at the end of the day that what used to

be the fit and proper person test stemming from the

Charter of Justice is now spelt out in complete

detail in the Act and the rules. There is no

general discretion to say what is or is not

fitness.

TOOHEY J:	I do not want to divert you unduly from the thread of your argument, Mr Garnsey, but if the
application is under section 4(1), not qualified by
subsection (2), is it enough for you to point to the absence of any reference to the Bar Association
in the Act?  Do you not then move into the area of
what the powers of the supreme court are in
admitting persons, and whether the court can itself decide from whom it will hear on various questions? I am not inviting you to answer that at the moment,
because it takes you away from the thread of your
argument, but eventually do you not have to meet
that sort of proposition?
MR GARNSEY:	I do indeed. That was Mr Justice Mahoney's

reasoning essentially, if Your Honour pleases. I

meet it by saying that the Act provides who can be

heard specifically in section 51. If one looks at

the other provisions of the Act, whether they are
directly applicable in this case or not in the
provisions of the rules, they are consistent with

the construction of section 51 for which I contend.

GAUDRON J:  What about rule 41?

MR GARNSEY:  Your Honour, that is per incuriam in the drafters of the rules. We did find that,

Your Honour, last night. So far as we know, that

is the only slip the draftsman made in referring to

the Bar Association or the Law Society instead of
council, and the rules cannot rise higher than

their source, we say, if Your Honours please. In a

way, it does not affect my submissions as to the

general effect of the construction of the Act,
because the section of the Act dealing with

declarations before admission says who can appeal,

and I took Your Honours to those sections and they

quite clearly refer to the Bar Council or the Law

Society Council, not to the associations.

Your Honours, in relation to student-at-law,

what is called the certificate as to fitness under

rule 32, when one looks at the form No 3, requires

Wentworth(3) 17 6/3/92

the maker of the certificate to state in his own

handwriting his opinion as to the applicant's fame

and character. One then in Part VI deals with

accredited law schools, in Part VII with

examination.

DEANE J:  Mr Garnsey, I am sorry to take you back, but did

your client apply to the board for admission as a

student-at-law?

MR GARNSEY:	Yes, Your Honour.
DEANE J:	Was she admitted as a student-at-law or not?
MR GARNSEY:	Yes, Your Honour, with the relevant

certificates.

DEANE J:  So the reason Justice Mahoney says that the

application must be the - or otherwise part of 4(1)

is that she did not have the examination

qualification at that time and she did not have the

approval of the board at that time?

MR GARNSEY:  Yes, that is so, Your Honour. She had passed

everything except succession and she subsequently,

after this application was made, passed succession.

DEANE J: Well, can we say that it is common ground that the

application was under the "or otherwise" part of

section 4(1)?	So far as you are concerned, we can,
can we?

MR GARNSEY:  When it was made, it was an application under

section 4(1) and the court would have had to have

exercised its power "or otherwise". Now, she has a

certificate of eligibility under the rules - - -

DEANE J: But that cannot concern us.

MR GARNSEY:  Yes, Your Honour, because the supreme court, if

it came to admit her now, would not be concerned

with admitting her "or otherwise".

DEANE J: But you are concerned with the ruling of the

supreme court of 25 October. Well, now, that was

either right or wrong at the time when it was made,

which was at the "or otherwise" stage, so it is

quite irrelevant - - -

MR GARNSEY:	Yes, Your Honour.
DEANE J:	- - - what has happened since.
MR GARNSEY:	Your Honour, my arguments do not really depend on any distinction because I am not seeking to say
that there is any difficulty in the power of the

Wentworth(3) 18 6/3/92

supreme court, whether it is "or otherwise" or

under subsection (2) -

DEANE J: That might be so, but the answer to the question

might be different if you have to rely on the

unrestricted power of the supreme court to admit

when it has not had the benefit of the Barristers Board approval as distinct from the case where it has had the benefit of the Barristers Board

approval; they would be quite different questions.

MR GARNSEY:  As a matter of theory, yes. As events have

turned out in this case, that is not a matter of

any practical significance.

DEANE J: Well, that may or may not be so, but we are

concerned with the theory here, are we not?

MR GARNSEY:  Not simply, if Your Honour pleases, because the

first submission we make is that as a matter of law

the Bar Association cannot apply, and that is a

matter of theory.

DEANE J: Yes, but what I am putting to you is this, that it

is one thing to say that when the supreme court is
dealing with an application that has passed through

the statutory procedure for obtaining approval, the

Bar Association cannot come along and reagitate

matters that can be dealt with by the Board. It is

quite another thing to say that where a candidate

has seen fit to ignore the statutory procedure and

approached the supreme court in its unrestricted jurisdiction, that the supreme court cannot then accept assistance from the Bar Association or the

Bar Council, whichever is appropriate.

MR GARNSEY:  Yes.

DEANE J:  You might be right on both footings. I am just

saying they are quite different questions.

MR GARNSEY:  Your Honour, they are different questions, with

respect, yes, but we say that under the Act the

assistance is gained, under whichever leg, from the

Bar Council, not the Bar Association. The reasons

which make it not the Bar Association apply in

either event equally.

TOOHEY J: Except that it depends how you put the argument,

I suppose. If you focus on to the right of the association to appear, it might take you down a

particular track to a particular conclusion, but to

say, for instance, that the association has no

right to appear does not answer the question: has

the supreme court the power to invite the

association to appear?

Wentworth(3) 19 6/3/92

The same would be true of the Bar Council, although you put the Bar Council in a different

position, but it may be one thing to say, "Has the

Bar Council the right to adduce evidence and cross- examine?" It may be a different question to say,

"Has the supreme court the power to invite the Bar

Council to adduce evidence or cross-examine?"

MR GARNSEY:  Yes, Your Honour, and we would accept that the

difference between the questions has a significance

in determining whether the body entitled to appear

and be heard should also adduce evidence or not.	I
would be making submissions that it could not, but
I accept what Your Honour says. In relation to the
first matter though, that is: is there any
additional reason why the supreme court should have
the power to permit the Bar Association to appear,
where there is an "or otherwise" application, as opposed to one going through the board, we make the
response that, in our respectful submission, the

Legal Profession Act prescribes equally in relation

to each of those events, that it is the Bar Council

which is there to exercise what rights it has under

section 51 in relation to admission, and that the

distinction between the "or otherwise" or

subsection (2) application may be a relevant matter

to determine the extent of those rights - although

we would submit there is no difference - but, in

our respectful submission, looking at the Act and the rules, it is quite clear that in neither case did the legislature contemplate that the Bar

Association should be entitled to appear.

TOOHEY J: Yes, but again, when you put it that way, you are

focusing all the time on the right of the body to
appear. I do not suggest that is an irrelevant

question, but there still lies behind the wider

question of the power of the supreme court, which

is not necessarily answered by looking at the

rights of individual bodies to appear.

MR GARNSEY:  No, Your Honour. I was going to say that our

argument would go, "And therefore the supreme court

either no longer has the power, it having been
removed by necessary implication by the Act, or the

supreme court ought not exercise that power in the

light of the provisions of the Act".

BRENNAN J:  What you say is that the only power that the

supreme court should exercise is one which is

consistent with the functions reposed in the Bar

Council by the Act?

MR GARNSEY:	Yes, Your Honour.
BRENNAN J:	Even in the case of an "or otherwise"

application?

Wentworth(3) 20 6/3/92

MR GARNSEY:	Yes, Your Honour.
BRENNAN J:	Which means, of course, that the Bar Council has

no knowledge of it. The supreme court might have

to act without any assistance at all.

MR GARNSEY:  Yes, Your Honour, but under Part XI rule 102,

concerning admission to the Bar:

Every applicant for admission as a barrister

shall at lease one month b@fore such

application serve written notice of intention

so to apply on the Registrar of the New South

Wales Bar Association.

BRENNAN J:	Why?
MR GARNSEY:	So the Council, as executive office of the

registrar is, can perform its functions under the

Act, Your Honour, or give consideration to whether

it should perform its functions.

DEANE J: They can come along to oppose, but they cannot

say, "He has just been convicted of murder and is

in Long Bay Gaol."

MR GARNSEY: Well, Your Honour, I have not got up to that

part of the submission yet, if Your Honour pleases,
but I would concede that is more - I view that

submission as requiring a greater effort to

convince the Court than the first one, if

Your Honour pleases.

BRENNAN J:  The first submission seems to me to have an air

of unreality about it. If there is a requirement

to serve the New South Wales Bar Association and
then the Bar Council is given a function, not
necessarily an exclusive function, but a function,
why is it that the Bar Association is excluded from

performing the same function, when the Bar Council

is the body controlling the Bar Association?

MR GARNSEY:  Because some of its functions are trade union

functions. Some of its functions are specifically directed to advancing the interests of its members

which may well, for instance, mean excluding

admissions to the Bar for 10 years, just to keep

the Bar commercially healthy, because if the

members chose to meet in general meeting and say to

the directors, "You will oppose this application

for admission, or readmission, or allow this

application for admission or readmission, otherwise

you will be sacked or removed", the directors would

have, at the very least, pressure put on them in

relation to performing the functions entrusted to
them under the Legal Profession Act and that was

exactly what the Law Reform Commission in its

Wentworth(3) 21 6/3/92

report considered to be undesirable and said should

not happen.

BRENNAN J:	How does your argument meet that situation?
MR GARNSEY:	Because the Act looks to the members of the Bar

Council as the parties who have to discharge their public functions and they should not - - -

BRENNAN J: But if the Bar Association has passed the

resolution~in such outrageous terms the problem

would still exist, would it not?

MR GARNSEY: Well, if the directors were removed that would

be a practical inconvenience. However, the Law Reform Commission, and we say the Act, looks at

matters falling short of that and says the members

of the Bar Council should be entitled to perform

directors of the Association and they are pointed

their functions not as directors of the

to, identified, by reference to their being members

of the Bar Council.

BRENNAN J: Is this so as to expose them to personal

liability for costs as against any right of

indemnity from the Association?

MR GARNSEY:  Subject to any right of indemnity of the Association, it may well, if Your Honour pleases.

BRENNAN J: Well, why would there be any right if your

argument is correct?

MR GARNSEY:  It is a matter for the directors to arrange

that right, as directors frequently do.

Your Honour, the Act was passed after an enquiry

which reflected a great diversity of opinion as to

how the profession should be regulated and how

admission to the profession should be regulated,

and it reflects a compromise.	The compromise
necessarily leads to some illogicalities if

reasoned right through, but the Law Reform

Commission reports, and in the light of - in the

Act, but we say, in any event, on the clear reading of the Act, the functions to be performed were

entrusted, not to the Bar Association, the

incorporated body, but to the Bar Council as

selected, and that is there in black and white.

Whatever the difficulties in the position of the
members of the Bar Council or, indeed, of the Bar

Association, that is what the legislature did and

it did that because it said, "Well, that at least

goes some way to ensuring, in relation to the

regulation of admission to the profession, that

there is protection for the rights of those

applying to be admitted and not yet members of the

Wentworth(3) 22 6/3/92

profession, as opposed to the vested and private
interests of members of the profession for which,
for the purposes of the advancement and protection

of which the Bar Association exists in part, as

part of its objects."

DEANE J:  Mr Garnsey, there was uncertainty, at least at one

stage, at the New South Wales Bar, whether a

general meeting of the Bar Association could
overrule a decision of the Council in terms of
supporting or opposing an application for admission

or readmission, which would be consistent with what

you are saying.

MR GARNSEY:  Yes. It has been said to me there may have

been contemplation of a meeting or indeed an actual meeting at some stage, Your Honour. I am perhaps a

little happy to say I do not go quite as far back

as that.

TOOHEY J:	The difficulty with that argument is that the Act does not itself purport to dictate how the Council
should be constituted or what its powers shall be
vis-a-vis the Association.  The Act accepts the
Association for what it is and accepts the Council
for what it is, does it not?
MR GARNSEY:	Yes, Your Honour, but it accepts the Council

for what it is in the sense of identifying who is

on the Bar Council.

TOOHEY J: Yes, but it does not say, for instance, that the

Council must act independently of the Association,

nor that the rules of the Association must ensure

that the opinion of the Council cannot be

overridden by the majority of members.

MR GARNSEY:  No, Your Honour.

TOOHEY J: It simply picks up the two bodies as they happen

to be at any given time.

MR GARNSEY:	Yes, Your Honour, but the question is, why are the two bodies picked up, and why is one only
mentioned when anything has to be done.

BRENNAN J: Well, one reason for it perhaps is to ensure

that the members of the council, whatever the view
of the general meeting may be, can perform the

function which is assigned to them.

MR GARNSEY:	Yes, Your Honour.
BRENNAN J:	Which does not go anywhere towards saying as to

what the association may do or may be permitted by

the court to do.

Wentworth(3) 23 6/3/92

MR GARNSEY: If the legislature is specifically looked to,

the Bar Council, being the directors of the

Bar Association, to perform certain functions,

fully knowing that the association is a body

corporate and can have rights conferred upon it

without any difficulty in the legislation or duties

imposed upon it, then we respectfully submit that

it is going quite in the face of the expressed

provisions of the legislation and the clearly

evidenced intent of the legislature to say that the

Bar Association can step in in addition to its own

directors, the Bar Council, whenever it feels like

it and do that same thing or something different,

especially in the light of the concerns expressed

in the Law Reform Commission Report which, if there

be any ambiguity, we submit clearly is of great

assistance to resolve it.

BRENNAN J: Well, I am not familiar with the terms of the

report. One thought that occurs to me as you speak

is that if there was any concern as to the trade

union function of the general meeting of the

Bar Association, then one could understand readily

why it would be desirable to vest a particular

function statutorily in the council of the

association, so that they can do what they think

right in the circumstances, irrespective of the

general meeting, which was the point that you were

earlier making, non constat that the general

meeting may not direct the association to take a

particular course.

MR GARNSEY:  No, that is so, Your Honour, and that is a

matter which, as Your Honours have said, the Act

does not attempt to re:;olve and any resolution

would be political. ::. ,deed, it may be taking place

at the moment in New South Wales but, if

Your Honour pleases, it is an unusual course for

legislation to select a board as such and to say,

the board of this known body corporate will do X,Y

and z.	Such a course is only deliberately adopted,
and even without the benefit of the Law Reform

Commission Reports may have been presumed to have

been deliberately adopted for good reason, and

there is not the slightest suggestion anywhere in

the Act that the association as such, the body
corporate, is entitled to or ought to perform any

of the functions specifically entrusted to the

Bar Council.

Your Honours, might I take Your Honours to the

Law Reform Commission material. It has been

photocopied, I have been informed, and Your Honours

have those portions of it referred to in

paragraph 1.3 of the submissions. The first report

in 1982, LRC 31, at pages 10 to 11, deals with the

powers of general regulatory bodies. These are the

Wentworth(3) 24 6/3/92

summary of the principal recommendations.	R6 deals
with the Law Society Council and R7 deals	with the
Bar Council. For relevant purposes, they	express

the same view. R6(1): Generally speaking, the Law Society Council

should retain its present statutory

powers .....

(2) The Council should continue to have

non-statutory powers, arising from the

Society's Memorandum and Articles of

Association, to make rules and rulings in

relation to practitioners who are members of

the Society.

(3) In exercising its statutory power, the

council should not be subject to direction or

restraint by a general meeting, or any other

organ, of the Law Society.

Then R7:

(1) The Bar Council should have some statutory

powers, including some powers to make

regulations with the approval of the Governor,

in relation to practitioners for whom it is

the general regulatory body. Mr Disney and

Judge Martin consider that the Council should

have powers of this kind in the area of

investigation of complaints, and perhaps in

certain other specific areas. Mr Conacher and

Mr Gressier consider that the powers should
include a general power, such as the Law

Society has at present, to make regulations

concerning "professional practice, conduct and

discipline".

(2) The Council should continue to have

non-statutory powers, under the Bar

Association's Memorandum and Articles of
Association, to make rules and rulings.	We

have recommended earlier that any practitioner

who elects to be governed by the Council

should have to undertake to comply with its

rules in relation to professional practice.

(3) In exercising its statutory powers, and in

making non-statutory rules in relation to

professional practice, the Council should not

be subject to direction or restraint by a

general meeting, or any other organ, of the

Bar Association.

Your Honours, on the list there was only a reference to chapter 3. Could I hand to

Your Honours a photocopy of chapter 2, and I

Wentworth(3) 25 6/3/92

apologize for that omission. I should say,

Your Honours, that chapter 2 was not expressly
notified to my friend, although there was a general
notification that we proposed to rely on the

reports, especially the parts set out in the

submissions.

Your Honour, in chapter 2.3 reference is made

to:

Regulation of barristers in New South

Wales is effected principally by the Council

of the New South Wales Bar the general regulatory body for barristers.

The Bar Council has no statutory powers to

regulate barristers. Its position as the

general regulatory body arises from the fact

that the great majority of barristers in

private practice are members of the Bar Association, and from the fact that the

Supreme Court, which has extensive inherent

powers over all barristers, pays great regard

to the views of the Bar Council and regards it

as the principal authority to commence

disciplinary proceedings before the Court in

relation to barristers, whether members of the

Association of otherwise. The Association's

Articles of Association give the Council

general power to make rules governing the
conduct of its members, subject to any
contrary rules made by a general meeting of

the Association. Strictly speaking, the

Council has no power over barristers who do

not belong to the Association, some of whom

are in private practice, some of whom are

employed as legal officers of the Federal or

State Government, or of corporations, and

others of whom are not undertaking work of a

legal nature.

Then, at 2.4 there is a reference:  In addition to the central roles played

by the Law Society Council and the Bar

Council, the Supreme Court and the Governor

have certain powers in relation to general

regulation. As the body responsible for

admission to the profession, the Court has

broad inherent powers of general regulation

over both barristers and solicitors. These

powers, however, are exercised rarely .....

2.5 A central feature of the present systems

for general regulation of barristers and
solicitors is that the Law Society Council and

the Bar Council are not only general

Wentworth(3) 26 6/3/92

regulatory bodies but also the governing
bodies of their respective professional
associations, the Law Society and the Bar

Association. In the former role they are

relied upon to protect the public interest,

but in the latter role they have

responsibilities, analogous to those of trade

unions, for advancing the interests of the

members of their association. The Law Society

Council is elected solely by members of the

Law Society. The Bar Council is elected

solely by members of the Bar Association, save

that the State Attorney General is a member ex

officio, as is the Federal Attorney General if

he or she is a barrister from this State. In

practice, Attorneys-General play no active

part as members of the Council.

Then in 2.6 it is provided there should be one

general regulatory body for the whole profession:

the general regulatory body should not also be
a professional association of lawyers having
the responsibility for advancing the interests
of its members;

there should be significant and effective

public participation in the regulation of the
profession, including some public membership

of the general regulatory body.

2.7 We suggested that these changes should be

implemented by creating a body called the

Legal Profession Council to carry out the

general regulatory functions presently

performed by the Law Society Council and the

Bar Council.

Then it says how it is to be elected.

Now, if Your Honours pleases, the

recommendations as to the precise structure were

not adopted in the Act but the concerns expressed,

in our submission, were partly adopted by a rather

complicated structure of tribunals and appeals to

the supreme court, in relation to which the Bar

Council and the Law Society Council performed

preliminary functions, but if one looks at what

happened in the Act one sees that the associations
as such in great detail in relation to dealing with

admitted practitioners and complaints against

admitted practitioners, were placed at the

beginning of a structure, indeed, were not mentions

at the beginning of the structure, but their councils were placed at the beginning of the structure to deal with complaints which were then

processed through independent tribunals created by

Wentworth(3) 27 6/3/92

the Act, some of the members of which were
nominated by the Bar Council, or the Law Society

Council, as the case may be, subject to rights of

appeal to the supreme court. So that, in that

respect, the Act moved right away from leaving with

the incorporated body, the Association, or the Law

Society, regulation of the profession.

In chapter 3 of Law Reform Commission 31 it is

stated:

It is generally agreed that regulation of the profession should be carried out in a

manner which is in the public interest.

At 3.14 is said, first referring to:

The Value of Professional Participation

and regulation. It is then said in 3.14:

On the other hand, legal practitioners

can have limitations as members of regulatory

authorities. They may lack sufficient

awareness and understanding of the impact of

particular regulatory measures upon clients,

would-be-clients and others outside the profession. They are at risk of giving excessive weight, whether consciously or not,

to their own interests, or those of other

lawyers, to the detriment of the broader

public interest. They may be too lenient

towards aberrant lawyers, thinking "there but

for the grace of God go I", or they may be too
harsh towards lawyers who do not conform to
the prevailing political or social values
within the profession. These limitations are
not merely hypothetical. Their effect can be

seen in the work of the Law Society Council

and the Bar Council as general regulatory

bodies.

Papers a number of aspects of regulation in We have described in our Discussion

which, in our view, these Councils have given

insufficient weight to the public interest.

They include, for example, their handling of

complaints and discipline (some weaknesses in

which have been remedied since our detailed

investigation of that area), their

restrictions on advertising, aspects of the

Law Society Council's regulation of trust

accounts and the Bar Council's rules against

acting without an instructing practitioner.

So, what the report was quite clear about, if

Your Honour pleases, is that the regulation of the

profession should be carried out by those involved

Wentworth(3) 28 6/3/92

in it, independently, not in furtherance, of the

private or particular interests of the profession.

Now, I have referred to the next report,

Law Reform Commission 32, but that is only to show that the recommendations as to the structure of disciplinary tribunals referred to the Council of the Bar Association or the Council of the

Law Society, not to the Association or the Law

Society as such, so I will not seek to take

Your Honours to that, if Your Honours please.

Your Honours, I had gone back in answer to

matters that fell from the Bench to paragraph 1.3
of the outline of submissions; I had not completed

going through the Act and the rules.

DEANE J:  Mr Garnsey, can I ask you this: I can follow the

relevance of Bar Council or Bar Association, in

terms of the right to call evidence. But

otherwise, what is the practical significance of

this, because the Bar Council is the body that in
this sort of thing will always act and decide for

the Bar Association. Indeed, it would be a very
serious question about whether a general meeting of
the Bar Association had the capacity to decide to

brief counsel, it must be through the Bar Council,

ought it not?

MR GARNSEY:  Your Honour, the practical significance of it

is this, that the members of the Bar Council, in

discharging the functions based on the Bar Council under the Legal Profession Act, have an individual

and personal responsibility in so doing. So that

it is of significance whether the Bar Council is

named as a party or the Bar Association. We say

the Bar Association, in relation to admission, is

not entitled to be a party, because it simply does

not have that locus in the light of the provisions

of the Act.

DEANE J: What you are saying is that there could be a

theoretical case in which the members of the Bar

Council, performing the statutory function, could

properly reach a different decision to the members
of the Bar Council performing their corporate

function?

MR GARNSEY:  Yes, Your Honour.

DEANE J:  I can see that is a theoretical answer. I do not

think it really answers my question as to what is

the practical significance.

MR GARNSEY:  Your Honour, from the point of view of the

members of the Bar Council, the practical

significance is that if the Bar Council is named as

Wentworth(3) 29 6/3/92

a party, there can be no argument, we submit, that

the members are entitled to direct them how to

carry out their functions.	If the Association is a
party - - -

DEANE J:  I would have thought there was the strongest

possible argument that a general meeting could not
direct the Bar Council on the question whether or

not they should oppose an admission or a

readmission. The general meeting could remove the

members of the Bar Council, but this says nothing

to that.

MR GARNSEY:  At the moment, the Bar Association being the

party to these proceedings, there is no Bar Council

there performing the functions ,,. ich the Act

entitles and requires it to per: ~m.

DEANE J:  I can see the theoretical point you make. I was

just wondering really whether there was any real

practical point apart from leading evidence.

MR GARNSEY:  Your Honour, the appellant regards the proper

constitution of the proceedings as a matter of

practical significance. One does not know, if it

is conceded the Association is properly a party,

what may or may not be properly raised, how the

matter may or may not be properly dealt with. We

can say - in fact, we do say about a lot of the
case - no one independently performing public

functions can particularize these matters in the

way in which they are.

That goes to a fundamental matter, a case

which says a non-practitioner acting as a litigant

in person in various respects can be said to have

acted improperly for the purpose of any of the
issues relating to admission. It may well be that

the Bar Association as such can raise that, but if

it remains as a party, it to some extent ties our

hands in criticizing the case in that respect.

BRENNAN J:  What do you mean by that? I do not follow what

you mean by that, Mr Garnsey.

MR GARNSEY:  Might I hand to Your Honours copies of the

Memorandum of Articles of the Association and

answer Your Honour by making that point directly in

relation to the objects.	I apologize that these
were not in the appeal book.	Your Honours, the

objects of the Association are found in clause 4 of
the memorandum and they vary from objects which

might be described rather loosely to be of general

public interest to purely private interests.	(a)
is:

to promote the administration of justice

Wentworth(3) 30 6/3/92

(b) to uphold the honour and dignity and

promote the interests of the Bar of New South

Wales.

Now, matters of honour and dignity, if Your Honour

pleases, especially in this day and age, are

matters upon which quite different views are held, and those applying for admission to the profession
may have quite a different view of honour and

dignity to those in the profession; perhaps more different as to dignity than as to honour. Then

(e), (f) and (g) are matters which seem to vary

between the public interest and the private

interest.	(g) involves in the middle of it co-
operation:

as to matters directly or indirectly affecting

the profession of the law, or which may affect
the Association or its members, or which may

affect the attainment of the objects of the

Association.

There are then the usual provisions about property

and commercial activities, and (q), which was

expressly referred to by the Law Reform Commission:

generally to do all such things as may in the

opinion of the Council be of benefit to the

Bar of New South Wales or the members thereof.

In the articles, article 46 sets out the membership of the Council and there are the Commonwealth and the State Attorneys-General ex officio, and then

elected representatives. Article 61 provides that:

The business of the Association shall be

managed by the elected members of the Council

who may from time to time make vary and repeal

by-laws -

et cetera.	Now, the Legal Profession Act, when it
refers to "the council", refers to the Council of

the Association, not the elected members of the

Council of the Association, and the functions of

the Council under the Legal Profession Act could

scarcely be described as the business of the

Association. Presumably the Council is the full

Council including the ex officio members which

reinforces the argument with respect that the Legal

Profession Act looks to the Bar Council to act

independently of the Association in the public

interest, performing the functions under the Legal

Profession Act.

BRENNAN J:	Now, Mr Garnsey, perhaps I diverted you from the course of your argument but, if I understand it
correctly, and correct me if I am wrong, the first

Wentworth(3) 31 6/3/92

part of your submissions, that is the section 1, is

concerned to demonstrate that where there is a

reference to the Bar Council, that should be

regarded as the exclusive function to be performed

by the Bar Council and it alone and you rely upon

the background of the Law Reform Commission Report

in order to indicate that that is the intention of

the legislature.

MR GARNSEY:  Yes, and the express provisions of the Act.

BRENNAN J: Yes, and you seek a construction of the Act

which is based largely on the exclusio expressio

unius basis.

MR GARNSEY: That is so, yes, Your Honour.

BRENNAN J:  Does that cover your Part l?

MR GARNSEY: Almost, Your Honour, but not quite, because in endeavouring to explain the admission requirements

and procedure, I had not, I think, got up to

sections 49 to 51 of the Act, which are -

DAWSON J:  Can I just interrupt you for a moment. No doubt

what I am going to put to you is much too

simplistic, but that particular problem would be

solved by merely substituting the New South Wales

Bar Council for the New South Wales Bar

Association.

MR GARNSEY:  Yes, Your Honour.

DAWSON J: Is there anyone who would object to that course

being taken?

MR GARNSEY: Evidently the Bar Association, Your Honour.

Assuming the Bar Association is not a proper party,

I understand that it has been intimated that the

Council would not object to being joined.

DAWSON J: But in light of the comment that Justice Deane

made that, practically speaking, there is no

difference, and probably so in this case, why would

it not be a wise course to take? That is not for

you to answer, but - - -

MR GARNSEY:  It is not, with respect, Your Honour. My

friend has said the association is properly a party

and insists on being a party.

DAWSON J:  On your part, you would have no objection to the

substitution of the Bar Council for the - - -

MR GARNSEY:  Your Honour, I would have to take instructions

before answering the Court in that respect, and I

prefer not to take them on my feet.

Wentworth(3)	32	6/3/92
DAWSON J: Yes, I understand. BRENNAN J: Section 49?

MR GARNSEY:  Yes, Your Honour, section 49 provides for

reports from the Bar Council and enables the

Attorney-General in subsection (3) to exempt the Council from operation of the section. Section 50 refers to the Bar Council's point of view of consultation regarding lay membership. Section 51

provides that:

In addition to its other functions, the Bar

Council may -

(a) take such steps as in the opinion of the

Bar Council may be necessary or proper for or

with respect to the conduct of a barrister or

conduct that is, or may be, a contravention of

a provision of Part 9; and

(b) appear by counsel before, and be heard by,

the Supreme Court in the exercise of the

functi~ns of the Supreme Court -

(i) under this Act or otherwise, in relation

to barristers; or

(ii) in relation to candidates for admission

as a barrister.

Part 9, if Your Honour pleases, refers to

unqualified practitioners, and there are offences

in relation to representations by unqualified

practitioners. (b) is quite specific as to two

things, first that the Bar Council may appear by

counsel before and be heard by the supreme court,

and secondly, that what it is able to do is to

appear by counsel before and be heard by the

supreme court.

There is no suggestion that the Association is

expressly entitled to appear by counsel before and

be heard by the supreme court, and we further

submit that in the light of all the provisions of
the Act which mention the Bar Council and the

structure of the Act and the intention of the Act,

it is quite clear that it was the intention of the

legislature not to have the Association appearing

in relation to the matters referred to in (i) and

(ii) in paragraph (b) of section 31.

BRENNAN J: If action is taken under Part 9 to prosecute an

unqualified practitioner, what are the functions of
the Bar Council with respect to the prosecution of

the complaint?

Wentworth(3) 33 6/3/92

MR GARNSEY:  Your Honour, probably to inform the

Attorney-General of the relevant prosecuting

authority.

BRENNAN J:  But not to take action itself?

MR GARNSEY: That would be reading a lot into section Sl(a),

Your Honour.

BRENNAN J:  I was just wondering if there is that power

under Sl(a), does it mean that under Sl(b) they
could not then tender evidence in support of the

complaint?

MR GARNSEY: Well, Your Honour, under Sl(a) it woulc ~e for

the Crown to tender evidence on the prosec~ _on. I

mean, in a prosecution which was commenced ~ecause,

for instance, of an information laid by the

Bar Council, it would be for the Crown to tender

evidence.

BRENNAN J:  Why?

MR GARNSEY: In (b) - this is really anticipating the second

part of the submissions, if Your Honour pleases -

we make this submissions that, though the Bar

Council may appear and be heard, some other party,

be it the prothonotary of the Supreme Court of New

South Wales or the Attorney-General, is the proper

part to adduce evidence to oppose an admission of

the person, an application for admission, because

first, section 51, on its proper construction, does

not entitle the Bar Council so to do; secondly, in

accordance with the earlier submissions I have

made, the Bar Asso:~ation is not properly a party;

and thirdly, because there is a good reason for

this, namely, that in the serious matter of

opposing admission, it is reasonable that the professional association be heard. It is not

necessarily reasonable, proper or desirable that

the professional association itself act as a

prosecutor to prevent someone being admitted.

TOOHEY J: But the first of those propositions simply begs

the question, does it not? It depends what you

mean by "be heard". Obviously it does not mean

literally "be heard". Is it not simply using the

word "heard" in a sense that it is used all the

time in relation to courts; "someone has a right to

be heard". It does not mean that they have got a

right to stand up and just say something.

MR GARNSEY:	With respect, Your Honour, there is a clear distinction between a right to join in litigation
as a party, whether that be as a necessary or
proper party in the originating process or as an

Wentworth(3) 34 6/3/92

intervener and the right to be heard as an

amicus curiae.

TOOHEY J: Well, it might depend on the context and clearly

enough a reference to a right to be heard might

mean no more than a right to be heard in regard to

those matters which affect the person who is

designated. But I am not clear what you are saying

the word means.

MR GARNSEY:  Your Honour, our submission is - and this

anticipates the submission that the right conferred

by paragraph (b) is a right to appear as an amicus

curiae, essentially to assist the court in relation

to material otherwise before the court.

TOOHEY J:  So it precludes the giving of any information to

the court that the court does not otherwise have,

does it?

MR GARNSEY: Directly by the Bar Council, yes. If the Bar

Council has information, then it is for the officer of the court or the Attorney-General, whichever is the party who is proceeding to oppose the

admission, to put that before the court if it

thinks it proper so to do.

TOOHEY J: But that is a pretty unreal sort of situation, is

it not, Mr Garnsey? For instance, if the Bar

Council had information that bore upon the fitness
of a person, which was apparently not otherwise
known to the court, and it briefed counsel in terms

of section 5l(b), you appear to be saying that

counsel can stand up and say, "Well, we have reason

to believe that the prospective admittee has a

criminal offence in the United States or the United

Kingdom, and we have some information about that",

but the court will say, "We don't want the

information from you; we must have it from another

source".

MR GARNSEY:  We respectfully submit that appears to be the

result of section 51, yes, Your Honour.

TOOHEY J:	I know you say that, but it depends on what meaning you give to the words "appear and be
heard".

MR GARNSEY: It does, Your Honour, and I must say I have

been unable to find any authority to assist either

way in relation to that particular phrase.

DEANE J: But what you are really saying goes so far as to

say the Bar Council can come along and say, "We

oppose the admission", and the court can say,

"Why?" and the Bar Council can say, "We can't tell

you".

Wentworth(3) 35 6/3/92

MR GARNSEY:  If that is all the Bar Council did, yes,

Your Honour. I am not saying the Bar Council

cannot otherwise take steps to have the matter put

before the court.

DEANE J: Then it could say, "We can't tell you because

no-one else will put the information before you".

MR GARNSEY:  Your Honour, first, we say there is a

distinction in relation to applications for

admission and disciplinary proceedings. In

relation to applications for admission, the

applicant is obliged, if one follows through the

admission rules, to put before the court a certain

amount of material. Some are certificates as to

good fame and character, some of that material;

other of the material is a declaration of matters

which might affect admission, for instance,

previous convictions. That duty is placed on the

applicant.

If the applicant does not discharge that duty

and someone is aware he has not, such as the Bar

Association, then the Bar Association, we say, informs the Attorney-General, who then decides whether it is a proper matter to put in opposition

to admission or not. Or it may be that the Bar

Association informs the prothonotary of the court

who appeared, as used to be the case, as a party.

TOOHEY J: But that gives the expression "right to be heard"

no operation at all. What can it mean?

MR GARNSEY:  No, once the material is before the cou=t, the

court can be fully assisted by the Bar Association

submissions in relation to that.

TOOHEY J: But it is a right to be heard by the court, not a

right to give information to someone else. I mean,

no doubt, it could do that without a statutory

power to do so.

MR GARNSEY:	Yes, Your Honour.
TOOHEY J:	I mean, obviously questions of relevance would

arise.	The court might say, "I do not want to hear
from the Bar Council on this matter.	We do not

think that it has got anything to do with the right

of the person to be admitted", but that is a

different question.

MR GARNSEY:  Your Honour, it is true that section 51 creates

difficulties, but we say those difficulties are

created by the compromise which is reflected in the

provisions of this Act, between excluding the Bar Association or the Law Society from regulation of

Wentworth(3) 36 6/3/92

the profession and permitting its participation in

regulation of the profession to an extent.

DEANE J: But it only creates difficulty if you take the

view that the right to be heard does not include

the right to inform the relevant tribunal in the

appropriate way of relevant facts. Well now, in a

natural justice context, that proposition is really

quite astounding.

MR GARNSEY: Yes. It has its difficulties, if Your Honours

pleases.

TOOHEY J: But it is almost a term of art, is it not, a

right to be heard. Are there not authorities or dictionaries, law dictionaries, that throw light

upon what the expression means?

MR GARNSEY:	Not that I have been able to find, Your Honour, and the distinction is usually adverted to in
relation to the distinction between an intervener and an amicus curiae, and that is the closest that
I have been able to get to that matter, if
Your Honour pleases.  Your Honour, might I revert
briefly to paragraph 2 of the submissions - - -

BRENNAN J: Before you leave this - - -

MR GARNSEY: Well, I have not really got to it, if

Your Honour pleases. - - -

BRENNAN J:  In your section 4 and in what you have said,

have you exhausted what is to be said with respect

to the right to be heard, in what you have written

and what you have said?

MR GARNSEY:  No, Your Honour.

BRENNAN J: Very well, then do not let me take you out of

the course of your argument.

MR GARNSEY:  I have not dealt with paragraph 4.4 on, but

might I go back to paragraph 2, if Your Honours

please.

It is submitted that if the Association is not

entitled to appear and be heard, in relation to the

admission of barristers by reason of the matters I

have previously submitted, then the Association

cannot otherwise intervene in the proceedings and

that is because there is no inherent power in the

supreme court to permit intervention.	Now this was
considered at some length by His Honour

Mr Justice Hutley, in His Honour's judgment in

Corporate Affairs Commission v Bradley, a judgment

in which Mr Justice Reynolds agreed and that

decision has been applied and then doubted in dicta

Wentworth(3) 37 6/3/92

into subsequent Court of Appeal decisions, but at

the moment stands as binding authority upon single

judges of the supreme court and other inferior

judges in New South Wales. Could I take Your

Honours to Bradley's case, (1974) NSWLR 391.

GAUDRON J:  The Bar Association has not in fact intervened,

has it? It is a party, at least so far as the

record stands?

MR GARNSEY:  Yes.

GAUDRON J: Yes, and it has not sought leave to intervene?

MR GARNSEY:  Your Honour, the Bar Association applied to be

jointed as a party; the proceedings started

ex parte. Might I answer Your Honour precisely by

reference to the transcript, because I hear my

friend muttering on the right. It will be the

quicker, if Your Honour pleases, if I do.

The relevant transcript is found at

pages 2 to 4 of the appeal book and this was the

transcript of the proceedings upon the return of a
subpoena issued by the appellant to the

Bar Association at a stage when the appellant had

filed the summons which appears on page 1. The

return date of the summons was some days after the

return date of the subpoena. At page 2 line 20
Mr Justice Badgery-Parker said:

Will you, in due course, be contending you should be a party or you are a party,

Mr Garling, or are you only here as a person

who has been subpoenaed?

GAUDRON J: Well I do not know that it is important to do

that; it is just that I do not understand how

Bradley's case and intervention becomes relevant in

these proceedings because presumably, if you are

right that it is the Bar Council and not the

Bar Association, the parties will be changed; the

one will be substituted for the other as a party

and if you are right about your expressio unius

construction, it deals with intervention quite

independently of Bradley's case.

MR GARNSEY:  As a matter of logic, yes, Your Honour.

However there are longstanding authorities which

have accepted the right of the Bar Association to

appear in cases such are these. Now in some of

those cases, the Bar Association has been a moving

party to strike someone off the roll. In other

than those cases, the Bar Association appears to

have been joined under circumstances which are not

precisely clear, but there are statements in

decisions of this Court and otherwise to the effect

Wentworth(3) 38 6/3/92

that the Bar Association is accepted as entitled to
appear before the court in relation to matters

involving the striking off or disciplining of

barristers.

The submission was made really in anticipation

of reliance on those cases and to exclude the

argument that there is, whatever the Act says, an inherent power in the court to allow intervention

whenever it likes. In a sense, the submission is

made to assist my earlier submission, and that is

that one must look only at the Act.	It is not only
an exclusio unius situation.

In any event, there is simply no power in the court to permit the Association to intervene. All

there is is whatever right is given by section 51

of the Act. So in that sense, it does arise as a

matter of logic, if Your Honour pleases.

GAUDRON J: Or it may arise.

MR GARNSEY:  It may arise. Mr Mason has gone to great

length to consider it on the basis it does,

Your Honour.	So it is on that basis that I seek to
make the submission.	I do not seek to take

Your Honours through any cases other than Bradley's

case, because Mr Justice Hutley in that case

considered all the relevant authority.

Your Honours, I propose to seek to take

Your Honours to the judgment of Mr Justice Hutley from page 397 through to page 406. The effect of His Honour's judgment is set out seriatim in the

very lengthy headnote in the numbered paragraphs

and, Your Honour, the use that I seek to make of it

is quite clear. I do not know if Your Honours

would wish me to read that entire passage.

BRENNAN J:  No, we can look at it. The purpose of this is

to show that there is no power to allow a party to

intervene, is that right?

MR GARNSEY: Unless the statute expressly provides or unless

in certain other specific instances that His Honour

Mr Justice Hutley refers to, of which these

proceedings are not one.

BRENNAN J:  Did His Honour refer to proceedings of this

kind?

MR GARNSEY:  No, Your Honour. I have referred to Shales v

Lieschke and Rushby v Roberts. In the first of

those cases, Sir Laurence Street expressed the view

that Corporate Affairs Commission v Bradley should

be reconsidered, and in the second of those cases,

Mr President Kirby expressed the view that he had

Wentworth(3) 39 6/3/92

some doubts about Corporate Affairs Commission v

Bradley - I am talking rather broadly - but the

instant case was distinguishable.

The last of the references there, Du Pont v

Commissioner of Patents, is a reference to a single

instance judgment of Mr Justice Hodgson in which

His Honour recognized Corporate Affairs Commission

v Bradley as good law, but doubted that it

distinguished it in relation to the case before

His Honour.

Your Honours, in paragraph 3 of the

submissions it is submitted that, in any event,

intervention by the Association should not be

permitted. 3.1 really refers back to the earlier matters of construction; 3.2 makes the submission

that the Association, as a special interest body,

should not be allowed to intervene 1 and there is a

reference to the case I handed up to Your Honours

at the commencement in relation to Mr Mason's

application; paragraphs 3.3 to 3.6 puts other

considerations as to why intervention should not be

permitted.

GAUDRON J: Are they not matters to be considered, if at

all, if an application for intervention is made?

They are not matters that concern this Court, are

they?

MR GARNSEY:  Your Honour, the Bar Association has put its

case on its entitlement to be a party in these

proceedings on the basis that it has always been

allowed to intervene in proceedings such as these,

and that is indeed what Mr Justice Mahoney in

effect says as part of His Honour's reasons for
judgment, and it is what the New South Wales Court

this Court.

of Appeal has said in some detail in one of the various decisions of

We have taken it as, in substance, that my

friend was saying he ought to be allowed to

intervene whatever the Act says.

BRENNAN J:  I am not quite sure what the meaning of

"intervene" is and what the meaning of "party" is, in the context of proceedings of this kind but, in substance, am I right in thinking that the Bar

Association goes to the court and says, "We are here to oppose", and the court gives them a locus

standi to do so?

MR GARNSEY:  Yes, Your Honour. It has changed from being a

party simpliciter in this case, because we no

longer seek orders against it. We do not seek

orders that we be admitted to the reading course.

Wentworth(3) 40 6/3/92

So it has no right or interest which is directly

affected, that is, of its own. It comes to the

court because it says - and this actually is not

made clear on the previous authorities but it

says - "I am here to assist the court, but not

merely as amicus curiae, because we have an

interest in seeing who is admitted to the Bar of

New South Wales".

BRENNAN J: Yes, and whether that is intervention or whether

it is party, that is the position that they took

and which the court allowed them to take.	Is that
what you are saying?

MR GARNSEY: 

Yes, and so we say they are no longer a party

in the strict sense because there are no orders
sought against them and we wish to get them off the

record; they have said, "No, we still wish to be

here, for the subsequent reason, that we are

entitled to be heard in relation to the admission of the appellant. That affects an interest which

we have".  The court, as then appears from time to

time, has treated the Association as an intervener;

that is, as a true party not merely as an arnicus

curiae.

BRENNAN J: 

Where would this argument lead you in the event

that you were successful in the sense of saying
that there was no relief sought against the Bar

Association so that they were, as I say, struck off the record? Would the supreme court then be left with no assistance by way of the information that the Bar Association wishes to place before the court?

MR GARNSEY:  No, one presumes the Bar Council would - - -

BRENNAN J: Well, one can presume what one likes but the Bar

Council has not so far done anything. In point of law, what would be the position of the court?

Could it do anything to acquire the information

which the Bar Association wished to place before

it?

MR GARNSEY:  At the moment there are extensive particulars

and some evidence filed.	The court is aware of
that.	The court presumably of its own motion could

consider that.

DAWSON J:	But that leads, really, to a question to which His Honour adverted: what is the nature of the
jurisdiction being exercised by the court here? It
is not simply deciding a dispute between parties,
it is ordering its own affairs, in effect.

MR GARNSEY:  Yes.

Wentworth(3) 41 6/3/92

DAWSON J:  So that it is an entirely different situation to

the sort of situation that Mr Justice Hutley had in

mind.

MR GARNSEY:  I am sorry, I did not catch that?

DAWSON J: In Bradley. It is a situation which is unique.

The court is -

MR GARNSEY: True, and that is why the court can direct the

prothonotary, or an appropriate officer of the

court, to become a party and to pursue the matter;
or the court can, of its own motion, require the

applicant to put before it other material.

DAWSON J: In other words, it can govern its own procedures

as it sees fit.

MR GARNSEY:  I am not going to - not as it sees fit,

Your Honour, in the light of the Legal Profession

Act and rules, if Your Honour pleases, and to the

extent of putting the Bar Association in as a

party, because - well, I have made those

submissions as to the Act, if Your Honour pleases.

DEANE J: Mr Garnsey, as I read Justice Mahoney's judgment,

His Honour said that Mr Hulme had indicated that he

maintained the Bar Association was entitled to be

heard or to intervene but if the court thought it

more appropriate, the Bar Council was ready,

willing and able to be substituted, and His Honour

said, if he had not have thought that the Bar

Association could be allowed to intervene, that was

the order he would have made.	Is that right or
wrong?

MR GARNSEY: That, I think, accurately represents what

Mr Hulme has said.

DEANE J:  And His Honour indicated quite clearly that the

real fight was about whether or not whoever was

there could lead evidence.

MR GARNSEY:  Not from our point of view, that is not the

real fight, Your Honour.

DEANE J: That is what His Honour thought it was, as I read

his judgment.

MR GARNSEY:  With respect, we do not concede the accuracy of

that. But, Your Honour, the importance from our

point of view of not having the Association,

really, is emphasized by the matters the subject of

submission in paragraph 3.3 and on. The

Association - I should say, the transcript I refer

to in 3.3 is not in the appeal book and I am in a

Wentworth(3) 42 6/3/92

position to hand copies of it to the Court.	The
affidavit of Mr Coombes referred to - - -

BRENNAN J:  Do we need to go into this matter otherwise than

to appreciate that the Bar Association wishes to

adduce evidence on the merits of the application

with reference to the question of fitness to

practice?

MR GARNSEY:  Yes, Your Honour, because we say the

particulars, when examined, do not show a case

of substance. The Bar Association having to date put forward that case, it should not be permitted

to intervene generally if the court has a power to

permit intervention.

BRENNAN J: But we are here to entertain the appeal against

the order that was made by the Court of Appeal, and
that held that the Bar Association had the relevant

locus. Are you seeking to overturn that decision

on the basis that that court exercised its

discretion wrongly?

MR GARNSEY:  I am seeking to meet what I understood to be

the position of the Association which is that

whatever the Legal Profession Act says, it is

entitled to be here by virtue of its long-standing

practice of being heard in cases such as these as

an intervener, even though if the court decides it

is not, then it has been intimated the Bar Council

will presumably apply to be a party.

BRENNAN J: Well, the first branch of your argument as I

understand it is that, as a matter of law, the

court would be wrong to hold that they can be heard

in opposition to the application. Is that right?

MR GARNSEY:  Yes, Your Honour.

BRENNAN J: Well now, assuming that you fail on that, the

next argument as I understood you to be putting

forward in this section, 3.3 onwards, is that the

court should not hear them because they are not

putting up a substantial case.

MR GARNSEY:  Yes, Your Honour.

BRENNAN J: Well, is that second point before us, and if it

is, should it remain here?

MR GARNSEY:  In the light of what I understand to be my

friend's position, indeed was stated by

Mr Justice Mahoney, I submit it is in substance

before the Court.

TOOHEY J: Is it covered by the grounds upon which special

leave was permitted, if you look at pages 192 to 193?

Wentworth(3) 43 6/3/92

MR GARNSEY:  Your Honour, I submit it is. The words "is

entitled to" refer to entitlement as a matter of law

under the Act, and as entitlement to appear as a

matter of discretion.

TOOHEY J:  But it was not envisaged, Mr Garnsey, that this

Court consider some sort of purpose of reviewing the nature of the material that could be of use.

BRENNAN J:  Mr Garnsey, the Court does not construe the

grant of special leave as extending to this matter.

MR GARNSEY:  If Your Honour pleases. The submissions I

would have sought to have made, I think, are clearly

there, if Your Honour pleases.

Your Honour, turning to submission 4 - I have

already dealt with paragraphs 4.1 to 4.3. I had not

finished going through each and every one of the
rules, but I think, if Your Honour pleases, the
purport of what I seek to make out of them is clearly

indicated there.

Your Honour, the submission that the role of the

Bar Council in opposing an omission is limited is assisted by, we submit, two things: one is the

structure under the Act of the applicant having to

put in quite extensive material in the application
for admission process, and that being dealt with by
the admission boards in almost every case.

The second matter we put in support of the construction of section 51 for which we contend in

relation to the adducing of evidence and such

matters lies in the limitation of the issues

relevant to admission by the removal from those

issues as an express issue to be considered by the

court of whether or not a person is a fit and

proper person for admission and the limitation of

the issue to whether under section 9 a person is of

good fame and character.

The basis for the exercise of the court's

jurisdiction to admit before the Legal Profession

Act 1987, is found in the Charter of Justice, which

is in Cockshott & Lamb's collection of the Statutes

of New South Wales Volume 0, prior to 1894 at

page 47, and Your Honours have a photocopy of that.

On page 51, in the course of clause 10 of the

charter, which commences:

And we do hereby authorize and empower

the said Supreme Court of New South Wales to

approve, admit, and enrol such and so many

persons, having been admitted -

et cetera, continues six lines down page 51:

Wentworth(3) 44 6/3/92

And we do declare, that no other person or

persons whatsoever shall be allowed to appear

and plead, or act in the said Supreme Court of

New South Wales for or on behalf of such

suitors, or any of them: Provided always, and

we ordain and declare, that in case there

shall not be a sufficient number of such

Barristers-at-Law -

et cetera -

competent and willing to appear and act for

the suitors of the said Court, then and in

that case the said Supreme Court of New South

Wales shall and is hereby authorized to admit

so many other fit and proper persons to appear

and act as Barristers, Advocates, Proctors,

Attorneys, and Solicitors as may be necessary,

according to such general rules and

qualifications as the said Court shall for
that purpose make and establish: Provided that

the said Court shall not admit any person to

act ..... who hath been, by due course of law,

convicted of any crime -

Now, the course of the legislation was set out

in the judgment of Mr Justice Moffitt in Re B,

(1981) 2 NSWLR 372 and the relevant history is set

out at pages 374 to 378. I do not know that I

should read all of that to Your Honours; I make the

reference for the sake of convenience,

Your Honours, as a convenient summary of the

history.

BRENNAN J:	Does anything turn on it?
MR GARNSEY:	Yes, Your Honour, this turns on it, that all

the cases before the Legal Profession Act 1987 was

enacted and were concerned with whether a person

was a fit and proper person to be admitted and "of

good fame and character, that being a subsequent

requirement under the Legal Practitioners Act 1898.

The basis of the jurisdiction of the supreme

court to admit was contested in litigation, in

particular in, I think, Ziems v The Prothonotary,

(1975) 97 CLR 279, and the Court held - and I think

I may have given Your Honours a reference to the

wrong case - it was Re Templeton that was

contested, and the Court held that the court could

strike someone off as not being a "fit and proper

person", that being a requirement from the Charter
of Justice in addition to what was said in the

Legal Practitioners Act, and that the basis of the

court's jurisdiction was found in the Charter of

Justice. So up to 1987 there was that composite

Wentworth(3) 45 6/3/92

test including a test as to whether a person is a

fit and proper person.

Since 1987, the Charter of Justice being

expressly revoked in relation to the admission of

barristers by section 4(4) of the Legal Profession

Act, the only matter with which the court is

concerned is whether a person is of good fame and

character and what is the meaning of that phrase.

We submit - - -

BRENNAN J:	Why do you say that is the exclusive subject of the court's concern?
MR GARNSEY:	Because the basis of the jurisdiction of the court is found in section 4 of the Legal Profession
Act.  The Legal Profession Act sets out the
requirements for admission, together with the
rules.

BRENNAN J: That is if it is not an "or otherwise" case.

MR GARNSEY:  Your Honour, we submit that if one looks at the

structure of the Act and the requirements of what a

person has to do in order to get admitted, the Act

has gone to great lengths to specify what is

eligible in relation to candidates who have applied

for admission through a certificate of eligibility

of the Barristers Admission Board. The court has

an additional jurisdiction to admit, but the only

legislative indication in relation to that

additional jurisdiction is in the case of

solicitors of more than five years' standing who are mentioned in a separate section, section 10.

BRENNAN J: Is it your submission, for example, that

somebody with no legal qualifications can make an

application under section 4(1) and say to the
court, "I am of good standing, I satisfy section 9,

therefore admit me"?

MR GARNSEY:	No, Your Honour.
BRENNAN J:	I would not have thought you did, but once you

say that, must it not appear that the court has got

a general jurisdiction?

MR GARNSEY:  Your Honour, we would submit not to inquire

into matters beyond what it is indicated by the Act

are proper for the court to inquire into.

BRENNAN J:  Do you mean by that any more than that the

court's power being at large, it must exercise its

discretion judicially?

MR GARNSEY:  Yes, according to relevant considerations.

What the legislature has, we submit, clearly

Wentworth(3) 46 6/3/92

indicated, by revoking the Charter of Justice and otherwise by inserting section 9 and otherwise by providing for the admission boards and all those

requirements, is that the test at large of "fit and

proper person" is no longer a relevant test as

such.

That does not mean, we say, that a person does

not have to be an appropriate person to be admitted

in the sense of qualifications and fame and

character, but what the legislature has done, we

submit, in this elaborate structure under the Act,

is to indicate that there are objective matters set

out in the Act as to qualification and fame and

character which are the requirements, and that a

subjective inquiry into disposition is no longer

relevant.

GAUDRON J:	Would your argument not also entail the conclusion that there was no power to strike off a
person who had ceased to be fit and proper?
MR GARNSEY:	As such, yes, Your Honour, but that is because

the test of whether a person has ceased to be fit

and proper is a test whether he has engaged in

conduct which warrants a striking out.

GAUDRON J: Not necessarily. That is one aspect, that may

be one aspect.

MR GARNSEY:  Your Honour, the Act provides a very extensive

machinery for complaints which may be instigated by

the Bar Council or a private person.

GAUDRON J:  The person's fame and character might be

undisturbed, unaffected by the matters that have

given rise to complaints and that have been

determined.

MR GARNSEY:  Yes, but he is struck off because he

contravenes specific rules of the profession,

whether express or necessarily implied, which are

tested against specific misconduct.

GAUDRON J:	And then he is not fit and proper.
MR GARNSEY:	Yes.
GAUDRON J:	But where does the court's power to deal with

fitness and propriety emerge in this piece of

legislation, according to your argument?

MR GARNSEY:  Your Honour refers to the Legal Profession Act?

GAUDRON J: Yes.

MR GARNSEY: It does not, as such.

Wentworth(3) 6/3/92

GAUDRON J: But it does somehow come into being on a strike

off application, does it?

MR GARNSEY:	If the matter is dealt with in accordance with the machinery of the Act, the procedures of the
Act, and professional offences are established. There is, with greatest respect, nothing
extraordinary about that.· A person should only be deprived of his professional standing and
livelihood in the most particular and strictest
circumstances.

GAUDRON J: But it does indicate, does it not, that the

court is entitled to have regard to something in

addition to fame and character at various stages -

and competence, let us say, and qualifications.

MR GARNSEY:  Yes, after admission.

GAUDRON J: Only after admission, you say.

MR GARNSEY:  Your Honour, in this sense, that before

admission fitness and propriety, we submit, is now

spelt out from the point of view of qualifications

and the requirement that a person be of good fame

and character.

GAUDRON J: Yes, I follow what you say.

MR GARNSEY:	And indeed, it is not a ground for striking off that a person has ceased to be of good fame and
character. That reputation may be entirely
undeserved.  One may be representing litigants from
whom a select portion of the legal profession do
not have a good opinion at all, and one may be
tainted with that sort of criticism, but
nevertheless, it is not a ground for striking off.
BRENNAN J:	You are distinguishing "good fame and character"

in section 9 from "fitness and propriety"?

MR GARNSEY:	Yes, Your Honour.
BRENNAN J:	The distinction being one of reputation as

against that on which the reputation is based?

MR GARNSEY:	Yes, Your Honour.
BRENNAN J:	So that the undetected criminal is entitled to

admission, but not otherwise, not once he is

convicted?

MR GARNSEY:  Yes, Your Honour. That is the hardest case

Your Honour has put against me - that can be put

against me and one has to weigh it against the vice

of a limited group of people making a subjective

Wentworth(3) 48 6/3/92

inquiry into applicants for admission to their

profession.

BRENNAN J:  I can understand that, but as Mr Justice Deane

points out to me, in respect of the word "good

fame", but not with respect to"character".

MR GARNSEY:  Your Honour, we put our position in two ways

with respect to the phrase "good frame and

character". The first is that "good fame and

character" relates to objectively ascertained
character and that is public reputation, either in

the sense in which character and evidence of
character - good or bad characters is permitted in

the criminal law, or in relation to evidence of

character, that is reputation where it may be

relevant in civil proceedings such as defamation.

In Attwood v Reg it was clearly stated by this

Court and is well-established law that in criminal

matters, character is the reputation a person
bears. It is not someone getting into the box and

saying, "I am a good and loving father" or

"mother". It is what is known as - whether he is

known for honesty or whatever and, in a way, that

answers the question of the undetected criminal

because - I perhaps agreed too readily with what

fell from Your Honour. There is a difference

between an unconvicted criminal and an undetected

criminal, if Your Honours please. One may thing -

a person may not be convicted, but one would expect

that if he were a serious undetected criminal of

any kind, that people would not say he has with me

a reputation of being an honest man, or a man who

can be trusted, so he is not of good fame and

character.

In defamation the sort of evidence, or the way

by which reputation is proven is quite clear.	One
must have people who get in the box and say, "I

know X and I know him to be" or "with me he has the
reputation, in relation to honesty, of such-and-

such". In an old case, Leader v Yell, to which was

made in 4.6 - Your Honours have not stopped me,

I - - -

BRENNAN J:  You proceed. We will sit until 1 o'clock,

Mr Garnsey.	Are you getting close to the end of
your argument?

MR GARNSEY: Yes, Your Honour. In Leader v Yell - I will

not ask Your Honours to look at it - but that was
the case where a prosecution was taken against a

person who had obtained a reference from his next

door neighbour that he was of good fame and
character on the grounds that he was not because he

had lived, without being married, with a woman at

that address for a number of years and it was said

Wentworth(3) 49 6/3/92

that he could not be of good fame and character,
having done such a thing, and the prosecution

failed on the basis that his good fame and

character depended upon his objective reputation

which was impeccable.

Now, beneath those cases I have listed a.

number of cases, if Your Honours please, that have

dealt with practitioners who have sought either

readmission or who have been the subject of

applications to have their names removed from the

roll. The exception, which is some of the dicta in

which probably the high watermark against me is is

Ex parte Tziniolis which is concerned with an

applicant for registration as a medical

practitioner.

In none of those cases has it been expressly

suggested - I leave apart Tziniolis - in none of

the other cases, particularly in the cases in this

Court, has it been expressly suggested or, we would

say, even implied, that a requirement of good fame

and character entitles one to look at the

disposition of a person and to try and establish

that disposition by matters other than what the

objective reputation of that person really is with

the world at large.

The cases have, however, considered the phrase

"fit and proper person'', but in all the cases - I

leave aside Tziniolis - there has been either a

criminal conviction or a striking off for specific

misbehaviour and application for readmission.

Your Honour, the closest case on the facts is possibly the case of Re B, which I will not take
Your Honours to, but at page 378 and following

there was an extensive consideration of the factors relevant. So far as an inquiry into disposition is referred to in that case, or remarks made to that

effect, the case is clearly based upon the original

requirement of the Charter of Justice; the earlier

part of the case before page 378 makes that clear.

BRENNAN J:  What is the relevance of this, Mr Garnsey, to

the propositions we have to determine?

MR GARNSEY:  Your Honour, only that if the argument be right

that the issues are now more precisely defined under

the Legal Profession Act and, in particular, good

fame and character depends on objective matters,

then that is consistent with the submission that

section 51 has the effect in relation to evidence

and the adducing of evidence. Your Honour, is it

probably a rather lengthy submission to - - -

BRENNAN J: That is the purpose of it?

Wentworth(3) 50 6/3/92

MR GARNSEY: That is the purpose of it, yes, Your Honour.

Your Honours, unless there are any other matters on

which I can assist the Court - there is one matter I should put to Your Honour in response to various questions from the Bench in relation to the "or

otherwise" application.

Your Honour, the power under the supreme court

to admit, we submit, is not confined to the state

of affairs existing at the date of application, and

this case is an example of that. The appellant has

obtained the issue of a certificate of eligibility,

conditional upon her being found by the supreme

court to be of good fame and character. I can

tender that if the Court requires it; I have copies

here.

BRENNAN J:  My question is what relevance that has to the

issue before us on the appeal.

MR GARNSEY:  Yes, Your Honour. I was corning to that. The

relevance is that the supreme court, when it

exercises powers to admit, exercises that power

under subsection (1). The fact that there are

alternative bases on which it can be exercised does

not alter the effect of the section and,
consequently, the Court should approach the matter,
with respect, in this case, on the basis that when

admitted the appellant will be applying or, rather,

will be admitted by an exercise by the court of its

power including an exercise of the power on an

application under subsection (2), the appellant now

having obtained a certificate of eligibility.

DEANE J: But for it to be under (2) she needs to have

approval as a suitable candidate.

MR GARNSEY:	By the Board?
DEANE J: Yes.
MR GARNSEY:	She has that.

DEANE J: That covers good fame and character, does it? I

thought you said she had a certificate that said,

"Subject to the court finding she was eligible".

MR GARNSEY:  Yes, Your Honour.

DEANE J: Subsection (2) requires approval as a suitable

candidate for admission. Has your client that?

MR GARNSEY: Well, we submit she has. Your Honour, this

certificate became available after the appeal book

had been settled.

Wentworth(3) 51 6/3/92

BRENNAN J:  And therefore, prima facie, is not admissible in

proceedings before this Court.

MR GARNSEY:  If Your Honour pleases, subject to the leave of

the Court.

BRENNAN J:  We can receive it de bene esse, if you wish us

to have it.

MR GARNSEY:	I would ask Your Honours to do that.
BRENNAN J:	We will let it in for what it is worth, to use

the phrase.

MR GARNSEY:  Your Honour, I only wish to let it in so that I

am not -

DEANE J:  I think what I was putting to you was wrong,

Mr Garnsey. Looking at section 9, the certificate

sounds as if it is simply designed to discover what

section 9 required in any event.

MR GARNSEY:  Yes. Your Honour, I just did not wish to

mislead Your Honours in saying what the Board had

done. That is why I seek to put the certificate

in. This is a certificate pursuant to rule 103 of

the Supreme Court Admission Rules.

BRENNAN J: Is that a convenient time?

MR GARNSEY: If Your Honour pleases.

BRENNAN J:  Mr Hulme, you might be good enough to hand to

the Court attendant your outline of submissions.

The Court will now adjourn until 2.15.

Mr Solicitor, you wished to say something?

MR MASON: 

Your Honours, without wanting to prolong the

proceedings, may I ask the Court that, in
considering my application, to note that we contend

that Bradley's case is wrongly decided. In one

sense it is all very circular, and that is part of

the burden of what we wish to put to the Court.

BRENNAN J: Yes. We will adjourn until 2.15 pm.

1.03 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

BRENNAN J:  Mr Solicitor, the Court at this stage will hear

you amicus curiae, and if it is necessary at any

later stage to upgrade your status, then the Court

will consider that matter.

Wentworth(3) 52 6/3/92

MR MASON: If the Court pleases.

BRENNAN J: Yes, Mr Hulme.

MR HULME:  Your Honours, we submit essentially that the matter is very simple. The supreme court has had

conferred on it as all such courts have had for

many hundreds of years, the power to admit

barristers or legal solicitors. In so doing, it

has the power to decide by what criterion they are

to be admitted and what procedure is to be

followed, absent any legislative restrictions in

that regard. And what we have is a situation

where, in our respectful submission, the Supreme

Court of New South Wales prior to the Legal

Profession Act, in the exercise of that power to

admit has said, "Well, we think it is a good idea

for it to be done this way for the Bar Association

to appear in cases where there is a contest as to

an individual's fitness, and in that way we are in

a position to make the appropriate judgment." And

that is all, we would submit, that has happened up

until the Legal Professional Act.

Now, there have been a significant number of cases over the years dealing with the question of

admission or misconduct of barristers which have

come before the supreme court. In none of those

cases since the Bar Association first appeared, has

there been the slightest suggestion that there was

anything untoward, anything wrong with the

practice, any unfortunate elements of the practice.

When the Law Reform Commission investigated

the matter, they also did not suggest there was

anything wrong with the practice theretofore

followed by the supreme court, and it is against

that background of no criticism or complaints

whatsoever that the Legal Profession Act was

enacted.

Now, if one looks at the admission section,

section 4, or any of that part of the Act, there is
nothing in there at all to suggest there is any

restriction on the powers of the supreme court as

to the manner in which applications are to be made,

the procedure to be followed or who are to be

parties. The only section which is sought to be

invoked in that area is a section 51 way removed

from the part of the Act which is dealing with

admissions, and a section which, in our respectful

submission, does no more than recognize that the

Bar Council, an unincorporated group of directors

of the Bar Association, having no juristic
existence of its own, ought to be permitted, given

the overall powers which it is given under the Act,

Wentworth(3) 53 6/3/92

ought to have expressly conferred on it the right

to appeal.

So that one did not run into the situation

where the Act talks of the Bar Council, are we

talking about the members today, and what if there

is an election between the institution of the

proceedings and their completion, has there been a

change in parties? What if, as has occurred in one

or two of the reported cases, there is a majority

and a minority view on the Council? Does the

Council, when it takes proceedings, take them in

the name of the majority or the totality, including those who do not want to institute the proceedings,

or resist the relief sought?

If the Bar Council was to be given the right to appear, as it has been given in a number of

places expressly, it was appropriate for the Act

to, as it were, indicate clearly that the Bar

Council was, for the purposes of the Act, a

separate entity, separate from the Bar Association,

separate from the individual members of the Bar

Council. That is the sole limited purpose of

section 51.

We submit, with respect, that when one looks

at the history up till the passing of the Act,
recognizes no criticisms of that system, recognizes

the nature of the proceedings and then looks at

section 51 against that background, there is

nothing in section 51 which argues against the
power of the supreme court to direct or request, as

the case might be, the Bar Association to be joined

as a party.

Nor is there anything in there which restricts

the power or the right of the Bar Council or Bar

Association, as the case might be, to adduce evidence. One

sees indeed in one of the rules which has been made by the

supreme court, in Part 65A, a rule that says on an

application for readmission, an applicant is required to

join the Bar Association as a party.

That is just an incident of what we submit is

the power of the supreme court to control its own

practice. Part 65A of the Supreme Court Rules,

rule 4:

An application to the Court by a person whose

name has been removed from the Roll of

Barristers or the Roll of Solicitors for

admission as barrister or as solicitor shall

be made by summons joining as defendant -

Wentworth(3) 54 6/3/92

(a) on an application for admission as

barrister - the New South Wales Bar

Association.

That is just but an illustration, we would submit

with respect, of the court regulating its own

practice as it has power to do.

DEANE J: When was that rule introduced, Mr Hulme; before

or after the Legal Practitioners Act?

MR HULME:  I think it was after, Your Honour. May I just

have that checked? Yes, 1989, Your Honour. What

has happened in this case, with respect, if I might

just go on generally for a moment before I come

back to the detail, is that on the application of

Ms Wentworth, as is apparent from page 3 of the

appeal book, the Bar Association was joined as a

defendant. That is page 3, at about line 20:

GARNSEY:  We do seek to make that request.

His Honour had earlier said:

If you want me to I will make the Bar

Association a party and waive service upon

them because they are already adequately

notified.

Mr Garling having said at page 2, about line 20:

Presently I am only here as a person who has

been subpoenaed.

He raises a question about whether:

the summons, in its present form, is

inappropriately framed -

Then, when one goes to page 8, there is a

reference, line 20, to "counsel addressed" and

following upon that address, which was fairly

clearly a request for particulars, His Honour - I

am sorry -

I make application that the Bar

Association be ordered to file and serve a statement giving full particulars of all facts

and matters relied upon.

Well, the Bar Association did that and then,

Ms Wentworth, not liking the nature of the

particulars which were supplied, a motion was taken out, seeking to have the Bar Association removed as

a party.	And that motion is at page 15 of the
appeal book.	Now, the rationale, as it were, for

the application is that which is referred to at

Wentworth(3) 55 6/3/92

page 135 of the appeal book in the judgment of the

Court of Appeal. Again, one sees a reference to section 51 at the top of the page, and then

Mr Garnsey's submission has been that that section

does two things. By granting a right of appearance

to the Bar Council it proscribes the appearance of

the Bar Association as a party in proceedings of

this kind, and it limits what the Bar Council may

do to appearing to make submissions upon evidence

otherwise before the court.

So that what was sought to be achieved was

eliminate the Bar Association which, as the

reported cases show, has called evidence, has

cross-examined applicants for admission or

readmission, then concede that the Bar Council is

entitled to be there, but take a point it can call

no evidence and, indeed, my friend's submissions

before the Court of Appeal, page 103, went so far

in the first instance to suggest that the court had

no power to allow anyone to intervene, that is

page 103 line 20.

Now, under cross-examination my learned friend

conceded that it may well be the Attorney-General

was an exception, but the prothonotary was not. So

that, carried to its logical conclusion, my

friend's argument amounts to this, that no one but

Ms Wentworth can place before the court on an

application for admission any evidence whatsoever.

Now, that flies in the teeth of, we would suggest,

common sense. It makes it practically impossible

for the court, if no one can put evidence before it

other than the applicant, to really have a look at

the situation of an applicant for admission as to

whether they are of good fame and character. How

can section 9 be satisfied if no one can put

evidence before the court?

DEANE J:  Mr Hulme, you have explained how it happened by

what you have taken us to, but what would you say

to the suggestion that, looking at the Act, and at

the Law Reform Commission Report and at the

background, that the result is that the Bar Council

is the appropriate party to primarily appear and

that, while circumstances could conceivably arise

in which, perhaps, the court would want to add the

Bar Association as well, that that would be very exceptional? As I say, I can see the way things

have come about, but it seems to me that the wrong

entity is there.

MR HULME:  Could I answer it this way, Your Honour. Up

until the Legal Profession Act we had an existing

system about which no criticism was made.

Wentworth(3) 56 6/3/92

DEANE J: Except I notice that Mr Teece who would I think

have been thought of as the most knowledgeable of

New South Wales barristers in this area, always

carefully said he appeared for the Bar Council.

MR HULME: Well, I would answer that this way, Your Honour:

for whom was he appearing in that situation? The individual members of the Council or the majority

view and when the court ordered costs in favour, or

I think on one occasion, against the
Bar Association, it was ordering them against the

Association, not the Council.

DEANE J:  When did the Bar Association become incorporated,

do you know what date?

MR HULME:  1936, Your Honour.

DEANE J: So, it was after incorporation that

MR HULME:  Does Your Honour have the table of the summary of cases which I handed up?

DEANE J: Yes, that is what I was looking at.

MR HULME:	Your Honour, as is referred to in our written submissions, essentially what happened was that
Sir Frederick Jordan, thinking it inappropriate that the supreme court through the prothonotary should be a contestant in these sorts of
proceedings, a view which perhaps is echoed in due
course by this Court's approach when the Australian Broadcasting Tribunal sought to make submissions to
this Court, in proceedings where its conduct was
challenged, said, "Well someone is needed; do not think it is appropriate for prothonotary; in effect
invite the Bar Association to do so."

DEANE J: But now that section 51 is there and forgetting

the problem that the Association was joined as

defendant, is it more appropriate that the

Bar Council, with its functions and its more

responsible way of doing things, as compared to

being overruled by a general meeting or something,

is the appropriate - - -

MR HULME:  Your Honour, it would be very questionable

whether the general meeting had power to overrule

the Council and the better view is probably that it

does not; all it could do would be to remove the

Council and have the new Council revoke the

decisions of the earlier Council. But Your Honour

is, we would submit with respect, reading too much

into the passages from the Law Reform Commission

Report to which you were taken this morning and too

much into section 51. Now, the first and perhaps

the strongest point which is made in the Law Reform

Wentworth(3) 57 6/3/92

Commission Report, to which my friend directed

attention, was in - - -

DAWSON J:  Mr Hulme, can I just interrupt you; you maintain

your previous attitude, do you not? It really is

of no practical significance in this case.

MR HULME:  Yes, Your Honour, the only practical significance

it may have - and perhaps I am better off here for

the Bar Council rather than the Bar

Association - is that if an order for costs is

made, or if the question comes as to whether an

order for costs ought to be made in favour of a
successful applicant over the opposition of the Bar

Council, a serious question would arise as to whether such an order could be made given one of

the later sections of the Act; and secondly, in

any event, what use it would be because the Bar

Council, there is nothing to suggest it has any

funds whatsoever. I am not talking about any

directors managing to procure an indemnity for

themselves, but the Bar Council as the entity to

which section 51 refers.

Putting aside that possible difficulty,

Your Honour, we do not see it makes any practical

difference unless there is some restriction which

has not been apparent in any case hitherto as to

the manner in which the proceedings may be

conducted.

TOOHEY J:  The protection from liability provision may be

the c~e you had in mind, 211, it does not

disti~guish between associations and council. In other words, it extends its protection to the Bar

Council, the Bar Association or their committees.

MR HULME: 

Your Honour, then the question would arise, of

course, as to whether opposition to someone's
admission by the Council or the Association fulfils

the last few lines.

TOOHEY J: Whether an order for costs gave rise to a

liability in terms of the section.

MR HULME:  Yes. There is another section that I will direct

Your Honour's attention to, and that is 172 on a

similar vein, though it is dealing with Part 10

only of the Act which is the disciplinary part.

BRENNAN J: Could I just take you back to 211 for a moment.

There seems to be no doubt but that the appearance

of the Bar Council in opposition to an application

for admission would be a function under this Act.

Would the appearance of a Bar Association in

response to an application be a function under this

Act?

Wentworth(3) 58 6/3/92

MR HULME: Probably not, Your Honour.

BRENNAN J:  So that if the Bar Association is the opposing

party, then there is a contingent liability for

costs, but not if it is the Bar Council.

MR HULME: That would seem to be the situation, yes,

Your Honour.

TOOHEY J:  What about the words ''purported exercise"?

MR HULME: Well, Your Honour, as Mr Garnsey pointed out,

nowhere does one find in the Act, as it were, an

obligation imposed upon the Bar Association to do

things. One finds it imposed on the Bar Council,

for example, to institute disciplinary proceedings

under Part 10.

TOOHEY J: It may not be necessary to find an obligation,

Mr Hulme, in order to identify a function.

MR HULME:  No, I appreciate that, Your Honour, but the Bar

Association does receive little mention within the

Act. The references to it are sections 31, 32, the

title to Division 1, sections 49, 50 and 211, and

then in the admission rules - if I can just give

these references now for convenience - 39, 40, 41

and 102. I am sorry, I was a little bit diverted,

I think, from answering Mr Justice Deane's

question.

DEANE J: Well, I would make another, Mr Hulme, and that is

that I would suggest section 211 would grant no

protection at all in relation to an order for

costs. That is just the ordinary section that

protects somebody from incurring liability by doing

something in his official capacity. That was not

what I was going to ask you. What I was going to

suggest was that, true it is it has happened but is

it not wrong, as a matter of procedure, for the Bar

Association to be added as a defendant? Is not the

appropriate procedure, in the ordinary case, for
the Bar Council to intervene?	I know Bradley says

that that means as a party, whatever that means,

but to intervene, either to support or to oppose.

MR HULME:  Your Honour, I would suggest that one really has

to go back and look at the nature of the

application and I am not sure whether the Court has

had a chance to look at any of the cases to which I

referred, particularly Attorney-General v N'Jie

(1961) AC, but they make it clear - and perhaps, if

I can say this before I go to the case, they make

it clear that what is happening is that someone is

making an application to the court. Now, absent

any statutory procedure, the court can decide how

it is going to deal with that application.

Wentworth(3) 59 6/3/92

The court could, as it has done for

readmission applications, say, "You shall Join the

Bar Association as a party". It could say, "You

must take a half page advertisement in The Herald,

notify the world that this is what you propose to

do, and anyone who adduces prima facie evidence

that you are not of good fame and character shall
be entitled to be a party to the proceedings,

adduce evidence, cross-examine and challenge and

object to your application".

It would be within the power of the supreme

court to take that step, we would submit, when the

applicant is coming along to the court and saying,

"Please, I wish to achieve a status within your

court system and in the course of doing so I seek

to satisfy you of my good fame and character". In

other words, notification co the world, with the

right of the world to come in and say, "We oppose".

And it would be permissible, we would submit, for

the court to say, "We will listen to those people".

DEANE J: Looking at the application, you do answer me in

that it asks for orders against the Bar Council, in

an adverse sense.

MR HULME:  That is in prayers 2 and 3. Your Honour, my

friend has indicated that those prayers are no

longer being pursued.	But they were, at that
stage.

DEANE J: If they disappear, I cannot see why the Bar

Council or the Bar Association should be a

defendant.

MR HULME:  Your Honour, might I put it this way? Is it not

a matter for the supreme court to say, when someone

comes along and says, "Please admit me", "This is

the procedure we are going to follow, and we

require you to notify A, B, C or D, or to join A,

B, C, Das a defendant, and they can take such part

as they see fit in the proceedings". Now, in this

case, the supreme court, we would submit, exercised

its undoubted jurisdiction to direct the practice

and procedure. That it has power to do so, we

would submit, is clear. Part 1, rule 13 is one

example, where such power is to be found.

Alternatively, section 23 or, alternatively, the

implied power in the court, where there is no

statutory provision saying how things should be

done, to decide its own procedure. It could, if it

saw fit, indeed as Mr Justice Badgery-Parker did,

require notice to be given to the Attorney-General

in case the Attorney-General wished to intervene,

either on behalf of Ms Wentworth or taking a

similar stance to us.

Wentworth(3) 60 6/3/92

Your Honour, subject to any restriction

imposed by the Legal Profession Act, we would

submit, with respect, it is nothing more than the

supreme court, in the exercise of its power to

dictate its own procedure, to require Ms Wentworth

to join the Bar Association. So it has a contra

dicta. Pre-1939 one can guess that it would have

been the prothonotary that was joined, but that is

really all that the situation is - absent, as I

say, a provision in the Legal Profession Act which

says it shall be this party and no other.

Can I come back again and attempt to seek to

answer Mr Justice Deane's question. Given the

practice which applied before the Legal Profession
Act, it is a peculiar way of telling the court,

"You shall no longer permit or have or direct the

Bar Association to be a party, notwithstanding the

practice that has occurred before". It is a
peculiar way to do that by enacting section 51.

One would have expected that an existing practice, if it is to be stopped, particularly a

practice which had the approval of this Court and

the Supreme Court of New South Wales on numerous occasion, to say nothing expressly about it, but

merely empower a different organization to do

something similar, and then to infer from that

that, as it were, it is the only body that can do

it, is, we would submit with respect, contrary to

the ordinary rules of statutory interpretation.

Could I perhaps then go to the outline of

submissions in the way in which we have sought to

put it. The power of a court such as the supreme

court to admit is, absent any statutory provision,

part of the common law, an inherent power in such a

court. It is appropriate, I think, to take the

Court to Attorney-General of Gambia v N'Jie, (1961)

AC 617 at 630.

This was a case where a deputy judge in Gambia

had purported to strike a legal practitioner off

the roll and he made application to the Privy

Council to have that decision reversed on a number

of grounds. If I can go then to page 630, at about

point 6 on the page:

By the common law of England the judges

have the right to determine who shall be

admitted to practise as barristers and

solicitors: and, as incidental thereto, the

judges have the right to suspend or prohibit

from practice. In England this power has for

a very long time been delegated ..... to the

Inns of Court -

Wentworth(3) 61 6/3/92

Reference to Justices of Antigua, and then over the

page at 631, about point 5:

Their Lordships notice that a majority of the

West African Court of Appeal ..... thought that

Order IX, r.7, -

as set out above -

"the Judge shall have power, for reasonable

cause, to suspend ..... -

was ultra vires. But it seems to

their Lordships that it is simply a

restatement of the inherent power of the judge

at common law .....

When the judges exercise this power to suspend or expel, they do not decide a suit

between parties.

This is a very relevant passage when one comes to

any question of fntervention in Bradley's case.

There is no prosecutor as in a criminal case,

nor any plaintiff as in a civil suit. The

judges usually act on their own initiative,

ex mero motu, on information which has come to

their notice, or to the notice of one or other

of them -

soetimes they have acted on a complaint to the person.

Whoever makes the complaint, the judges are,

of course, under a duty to act judicially.

When a legal practitioner is suspended or

struck off ..... he has always been at liberty

to petition Her Majesty in Council to restore

him. But he should give notice of his

application to the judges so as to enable them

to justify their order ..... and in all the

cases since 1848 the judges themselves have

been made respondents to the appeal ..... though

in one of the cases the Attorney-General was

also made a respondent.

This fact - that the judges are

themselves always made respondents to the

petition to Her Majesty - is an implicit

recognition that, when exercising this

jurisdiction, they do not sit as a court of

law but as a disciplinary authority.

Wentworth(3) 62 6/3/92

BRENNAN J:  The dichotomy may not be quite as stark as it is

there stated.

MR HULME:  It may not be, Your Honour, but that it is in a

different category from ordinary litigation inter

partes is perhaps recognized by Mr Justice Mason,

as he then was, in Weaver v Law Society, 142 CLR

pages 201, at 207. A short passage:

Disciplinary proceedings under the Legal

Practitioners Act and in the exercise of the Supreme Court's inherent jurisdiction are not criminal proceedings, they are proceedings sui generis.

And then His Honour goes on to deal with some of

the consequences of the nature of the proceedings.

That is what we have, we submit with respect,

not in any sense proceedings to exercise a right

which the applicant has, but an application to the

Court to be admitted as one of its officers, as

barristers now are under the Legal Profession Act.

That is what the application is. Absent any

statutory provision, we submit with respect, it is

a matter for the discretion of the supreme court as

to how the proceedings are to be conducted. It is

also important to recognize the limited change,

indeed we would submit no significant change, which

the Legal Profession Act made to the question of

admission.

The Court was taken this morning to the

Charter of Justice and one sees in that charter a general discretion given to the supreme court to

admit practitioners, subject to perhaps what is

certainly now and became an irrelevant criterion in

case there are not enough barristers, in effect,

from England or otherwise qualified, the power - I

am reading from over the page - to admit additional

barristers advocates, proctors et cetera.

It was a general discretion given to the Court

to admit. Your Honours, those are the similar

terms in which section 4(1) is couched;

The Supreme Court may admit persons as

barristers, whether or not it is provided by

subsection (2).

The same general discretion;	no change in that
regard.

Now, the 1897 Legal Practitioners Act did contain some provisions relevant to the situation,

and it may be just convenient to take the Court to

those. Part 2, commencing section 4 is entitled

Wentworth(3) 63 6/3/92

"Barristers''. It makes provision in 4, 5 and 6 for

the Barristers Admission Board. Similarly 7 and 8

contain some educational requirements; 9 is in

somewhat similar terms to section 9 of our existing

Act, namely the requirement of "good fame and

character", and then section 10, every candidate

whom the Board shall approve shall be admitted.
And then it deals with other things.

Your Honour, the pattern when one combines the Charter of Justice and this Act, because both

operate together is, so far as admission is
concerned, similar to that which is contained in

the admission section of the Legal Profession Act.

Now, it is of significance, if I might go to the

Legal Profession Act for a moment, to look in the

part of the Act where admission is dealt with, and

look to see to what extent it seeks to limit in any

way the powers of the supreme court, because if

there is a limitation that is the natural place

that one would expect to see it.

Section 4(1) is general. Section 4(2) very

similar to the terms of section 10 of the 1897 Act.

And then one sees in somewhat opposite order the

references to the Barristers Admission Board. May

I direct the Court's attention to section 7(3), which ma'kes it clear that rules of the Barristers

Admission Board:

do not limit the powers of the Supreme Court

to admit any person as a barrister.

So that what we have, we would submit with respect,

in that part of the Act, is a general discretion given to the supreme court in, for all practical

purposes, the same form as the discretion which it

exercised since 1823 until this Act came in and one

does not find where one would expect to find it any

restriction whatsoever on the way in which the

court is to exercise that discretion, subject to

the good fame and character requirements and no

doubt subject to any principles which had arisen.

Your Honours, before I come to section 51, may

I take the Court to Part 10 of the Act. It

commences at page 74 with section 123, the

definitions section. Arising out of a question

Your Honour Justice Gaudron raised this morning,

may I direct your attention to the definition of

"professional misconduct" and particularly

paragraph (b) where one sees a reference to "good

fame and character" and "fit and proper person".

The interrelationships of those two I do not think

we need debate at the moment, but the "fit and

proper person" terminology is not one which is used

Wentworth(3) 64 6/3/92

in the admissions section as opposed to the

misconduct section.

The Act then goes on to establish two

tribunals: a Professional Standards Board, and that

is section 127 and a Disciplinary Tribunal,

section 128. In essence, the lesser offences are

brought within the jurisdiction of the board; the

more serious to the tribunal, with an appeal from

the board to the tribunal in the lesser matters and

an appeal from the tribunal to the court in the

more serious matters.

Now, the Bar Council is given power to appear

in these proceedings: section 144, which is dealing

with unsatisfactory professional conduct, as

appears at the top of page 83, Proceedings before

the Board, and by section 144(6):

Any person who appears ..... is deemed to be a

party to the hearing.

And then if one goes to section 150, one sees that:

Any party to a hearing -

which would include the Council -

may apply to the Tribunal -

Now, a similar situation applies in relation to

tribunal proceedings. Section 158(l)(b), the

Council may appear. Section 158(6):

Any person who appears at a hearing ..... shall

be deemed to be a party to the inquiry.

And then there is power to appeal, section 164. In one sense, the relevance of these references at the

moment is more to my friend's second argument about

the limitation on what evidence may be adduced in

applications for admission, but it seems

appropriate if I may just take the Court to see

what the situation is.

Now, it is the appropriate Council which has

the power to appear in those proceedings before the tribunal or before the board and may I, just before I leave section 164, draw attention to the express

reference to, fresh evidence may be adduced, as

indeed it may be in the board and in the tribunal.

Could I then direct the Court's attention to section 125, which preserves the jurisdiction of

the supreme court with respect to the discipline of

barristers and solicitors. May I take the Court

then to section 149(6)(a), which in

Wentworth(3) 65 6/3/92

contradistinction to the section which empowers the
board to order the barrister to pay costs, says

that in special circumstances the board may order

payment, not from the Bar Council, but -

from the Statutory Interest Account to the

practitioner -

A similar subsection is to be found in section 163,

Proceedings before the Tribunal. Again it would

seem that costs cannot be ordered against the

Bar Council, but only out of the Statutory Interest

Account.

Now, that is the pattern in relation to.the

disciplinary proceedings. One other matter may I

mention. My friend did take the Court to a section

of the Law Reform Commission Report to the effect

that the Law Reform Commission was of the view that

the Council should not be controlled in its

statutory functions by the Bar Association. That
reference is to be found in regulation 7 on page 11
of the first report, in particular
subregulation (3). It is noteworthy that the Act

contains no such provision. It may be that the

situation is as in accordance with the general law,

the general meeting cannot control the directors in

the exercise of their function. But in so far as

the Law Reform Commission thought that was a

desirable recommendation, it would seem from the

terms of the Legal Profession Act that Parliament

has not seen fit to enact it.

Now, against that background, may we come then

to look at section 51. It is in a part headed, Bar

Association and Law Society, not if it is to control in some way the procedure of the supreme

court on admission, the part of the Act which is

dealing with admission. If one looks at section 49

there is a direction that the Bar Council shall

report to the Attorney-General -

on the committees of the Bar Association and

the Bar Council.

It deals in section 50 with lay representation on the committees. Then it deals in section 51 with functions of the Bar Council:

In addition to its other functions, the Bar

Council may -

do the things which are there set out. We would

submit, with respect, to construe that section as

directing the supreme court to depart from its

pre-existing practice on the admission of

barristers or in disciplinary proceedings

Wentworth(3) 66 6/3/92

associated with barristers is to adopt a process of

statutory construction which is just unprecedented.

All that section did, in our respectful submission,

is to make it clear that the Bar Council - as I

said, a board of directors having no legal

existence separate from its members - gave it
certain powers, and that is as far as section 51

goes, in our respectful submission.

It does not in any sense, we would suggest,

direct attention to the procedure to be followed by
the supreme court, to the question of the persons

who the supreme court can listen to on applications

involving admission or misconduct, and it is not

directed in any sense at all to the evidence which

the supreme court can receive, be it evidence

in-chief or cross-examination; and neither in its

terms nor in its placing in the Act, nor if one

looks at the history of the Law Reform Commission

Report or previous proceedings does one see any

justification for reading into section 51 either of

the consequences which my learned friend seeks to

attribute to it.

Your Honours, we have in the written

submissions referred the Court to a number of cases

where the advantages of the system as it existed
prior to the Legal Profession Act have been

adverted to and may I take the Court just to

paragraph 6 of the written submission. Just while

the reference to Bennett, The History of the Bar
and Evatt, referred to in section 6 is being
obtained, could I take the Court to Clyne v The Bar

Association, 104 CLR.

BRENNAN J: For what purpose, Mr Hulme?

MR HULME:  Just to perhaps point out how strong was the

approval of the existing practice.

BRENNAN J:  We can read that for ourselves.

MR HULME:  If Your Honours please. May I then hand up

extracts from Bennett, The History of the New South

Wales Bar, and some copies of Evatt v The Bar

Association also referred to there. I am handing

up one complete copy and a number of incomplete

copies of Evatt v The New South Wales Bar

Association. The reason for that is there are only

about three pages in a 55 page judgment which have

any relevance to these proceedings. There is a

full copy there if Your Honours wished to look at

it.

BRENNAN J:  Mr Garnsey is familiar with the pages you are

relying on, is he?

Wentworth(3) 67 6/3/92

MR HULME:  They are the same reliance as on the special

leave, yes, Your Honour.

BRENNAN J:  What part of this judgment do you wish to rely

on, Mr Hulme?

MR HULME:  Your Honour, it is probably easier to follow in

the shortened version of the judgment, if the Chief Justice, at the top of the second

reproduced page, there is a quote and then a
paragraph commencing:

The Court has been assisted on the hearing of the present application -

the next eight lines. In the judgment then of the President, Mr Justice Moffitt, if I could take the

Court to the second reproduced page of his judgment, the paragraph at the bottom of the page

commencing:

It is appropriate to observe -

and -

The Court could not have properly dealt with this application ..... if the Court had not had the assistance of an opponent -

and so forth. Then, if one goes to the judgment of

Mr Justice Hope, again it is the second page to

which we would refer, tr.·:: bottom half of that page,

commencing, "There is las-cly".

Your Honours, we submit that, as I indicated,

all we have is really a matter of practice and

procedure in the supreme court as to who is the

appropriate party, be it Bar Council or Bar

Association or Attorney-General or prothonotary or

someone else entirely. In that situation, we would

submit, with respect, that this Court, it being a

matter of practice and procedure, particularly one

concerning the admission of the supreme court's own

practitioners, would not interfere.

I of course assume for the purpose of this

submission that the Court does not conclude that

section 51 proscribes the conduct or the course

which the supreme court has followed. The

authorities on which I rely in that regard are

contained in the written submissions.

Your Honours, in paragraph 10 of our written

submissions, we have directed attention to the

principle of statutory construction which we submit

should be adopted, and have given a reference to

Wentworth(3) 68 6/3/92

Shiloh Spinners v Harding. Could I add two further

references: Potter v Minahan, (1908) 7 CLR 277 at

Hocking and Others v The Western perhaps one insufficient copy of these if I am to give Mr Garnsey one. May I perhaps be excused on

304, and

this occasion. It fits the principle which is set

out in the submissions. This is just additional

authority for it. May I hand up sufficient copies.

Your Honours, may I then go to an alternate

submission, and that is that in accordance with

ordinary legal principles, the Bar Association is

entitled as of right to be a party to these

proceedings. That is because it is directly

affected by Ms Wentworth's success, by any success

she may have, in her application. May I take the

Court then to section 31 of the Legal Profession

Act:

A barrister who holds a current practising

certificate is entitled to be a member of the

Bar Association without being required to pay

any amount additional -

Your Honour, we ought, with respect, as a matter of

ordinary principle, to be entitled to oppose the
application of someone who, if admitted, we are

stuck with as a member.

TOOHEY J:  I suppose you are, Mr Hulme, but it struck me as being a somewhat ambiguous provision. On one view

it is an entitlement to membership, on the other

view it is a provision that relieves the person

from having to pay any additional membership fee.

But you may well be right in the view that you take

of it. If so, then it overrides that provision in
the Articles of Association that purports to give

the Association an absolute discretion as to

membership.

MR HULME:  Your Honour, it is hard to give the words "is

entitled to be a member" any limited operation.

TOOHEY J: It probably does not matter a great deal.

MR HULME:  Then if one goes to section 32 one sees the

circumstances in which a person admitted is

entitled to a practising certificate. It is either

unqualified in cases of - the simplest cases are

those who have been members practising for a

significant period; it is qualified to the extent

that they have to go for a period of pupillage for

those people who are applying now.

So that even if all other submissions fail, we

would submit, with respect, that we are entitled,

Wentworth(3) 69 6/3/92

before Ms Wentworth is, if I could use the term
foisted upon us, by reason of her admission to the

supreme court, entitled to say to the court, the

court should not admit her.

BRENNAN J:  I suppose it is a case of foisting, is it? I am

looking at section 25, which places it in the hands

of the Bar Council to issuing practising

certificates.

MR HULME:  Yes, Your Honour, but if you then go to section 32, one sees that:

A barrister -

(a) who was admitted as a barrister before I

July 1988;

(b) who was practising as a barrister

immediately before that date and

(c) who -

et cetera -

is entitled to an unrestricted practising

certificate.

(2) A barrister -

(a) who is admitted as a barrister on or after

1 July 1988; and

(b) who has s~tisfactorily completed an

appropriate feriod as a pupil, is entitled to

an unrestricted practising certificate.

And (3) goes on dealing with restricted practising

certificates and the educational requirements and

period as a pupillage.

Your Honour, may I for the moment skip over

paragraph 12 of our submissions and go to 13 and
14. This deals with Mr Garnsey's second

proposition, namely that section 51 precludes the

Bar Council from adducing or limits the way in which evidence can be put to the court.

GAUDRON J:  Mr Hulme, there does not seem to be any order in

the notice of appeal directed to this.	Am I wrong
about that?

MR HULME:  On a beneficial construction of the notice of

appeal I think Your Honour is wrong, though far be

it from me to argue in favour of such a

construction.

Wentworth(3) 70 6/3/92

GAUDRON J:	No.
MR HULME:	Page 196, paragraph 1.3.4. If one looks at the

paragraph that I would see as going to it,

Your Honour - 1.3, Mr Garnsey informs me.

GAUDRON J: Yes, I was just looking at the orders at

pages 198 to 199 and I suppose - and again it would

seem to be right if the Bar Association is to be

struck out of the proceedings, that is all that can

be done. There is nobody here, it would seem, to put argument as to what should happen thereafter.

MR HULME:  Yes, Your Honour.

GAUDRON J: Unless, of course, the Solicitor General is

going to do that.

MR HULME:  Your Honour, I think I should direct

Your Honour's attention to the bottom of 189 and

the bottom of 191.

GAUDRON J: Well, should we read the orders sought as

seeking a declaration with respect - as an alternative to 2 perhaps - to what the Bar Association may do if it is entitled to be there?

I do not know.

MR HULME:  Your Honour, that is really a matter for my

learned friend rather than me, but the way in which the matter was put at the special leave application

and particularly in the passages that I have just

directed Your Honours' attention to, we came here
expecting to argue against the proposition that

section 51 restricted the evidence.

TOOHEY J: Well, the grant of special leave makes that

clear, does it not? The third matter permitted to

be argued by the grant specifically refers to this

question, page 193.

MR HULME:	Page 193, yes, Your Honour.
GAUDRON J:	Do we take it that you speak for the Bar Council

on that issue, as well as for the Bar Association?

MR HULME: 

I indicated to the supreme court that in the

event the Bar Association was excluded I would seek
leave to be joined on behalf of the Bar Council.

BRENNAN J: 

It is difficult to see how the relief can be

granted having regard to the order in the court

below, but no doubt Mr Garnsey will be able to

inform us about that.

MR HULME:  I am not seeking to assist him in any way, but

nor am I seeking to throw up silly difficulties,

Wentworth(3) 71 6/3/92

Your Honour. Now, if my learned friend's

interpretation of section 51, or perhaps the

interpretation he has urged on the Court so far as

evidence is concerned, is correct, one has this

situation, that the Bar Association may adduce no
evidence on the application for admission, the
absence of anything to the contrary that the court
is likely to admit an applicant who puts before the

court prima facie evidence that she is of good fame

and character. However, the Bar Council may then

apply to the court under section 125 or to the

tribunal, for the disbarment of the applicant for

professional misconduct; looking at the

definition, 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.

Take Davis' case, where Mr Davis had been

convicted of stealing some years before he was

admitted to the Bar. He did not disclose in his

application for admission that he had been

convicted of stealing and in due course application

was made to have him disbarred on the basis of two

things; firstly, the conviction occurring many

years before he was admitted and, secondly, on the

basis of his failure to disclose to the court at

the time of his admission. Exactly that factual

situation would be one where, if Mr Garnsey's

submissions are right, the court would not find out

about it because, even if the Bar Council knew it

could not tell the court about it in any admissible

way; Mr Davis would be admitted, the Bar Council would come along next day and say, "Look at this

evidence, please disbar Mr Davis". Now,

Your Honour, such a result is absurd and is enough,

in our respectful submission, to indicate quite

present purposes - the Bar Council can adduce

clearly that if the Bar Council, the Bar

evidence on a disbarment application, it is absurd

to suggest in some way it cannot do so on an

application for admission.

If it please the Court, that then brings me to

paragraph 12 of the submissions and Bradley's case.

Now, the first submission we would make is that

Bradley's case and all the cases which suggest that the Court cannot, will not, should not, admit interveners, have nothing to do with this case,

because of the nature of the application, namely to

the court seeking to be admitted acquire a status

within the court system and, for that reason,

whatever those other cases say, they do not apply

to this type of procedure.

Wentworth(3) 72 6/3/92

Now, Your Honours, that is our first

submission, however, looked at a little more widely

we would submit this, that if one looks at the

generality of section 23 of the Supreme Court Act,

which gives the court whatever jurisdiction is

necessary in the interests of justice, in a

situation where there was no contra dicta, it is

proper for the court, whether you call it

intervention or whether you call it making someone

a party, to permit that person to intervene or

require the applicant, who would otherwise be

making an ex parte application to join someone as a

defendant, so that court can be - - -

GAUDRON J:  Does that arise in this case, Mr Hulme? I have just noted that you said in a situation I mean,

where there is no contra dicta - I suppose one

should say, no other contra dicta; it has got to be

judged in the light of, has it not, the statutory

right of the Bar Council, to contradict, however

limited that be and in your statement below, that you would be happy, in certain circumstances, for the Council to be substituted to the Association.

MR HULME:  Yes, I think Your Honour is right, but if I might

just take it back a little bit in terms of

principle: Miss Wentworth made application to the

court ex parte in the first instance; she, except

by order of the court, would not have to join the

Bar Council; the Bar Council would not have to

appear; it may well be a situation where it was the

court that said, "We insist on having someone

here."

GAUDRON J: Yes, but its insistence would in any event have

to be made in a context where it knew of the

statutory conferral of a right of audience, to use

a neutral expression, in section 51.

MR HULME:  Not completely, Your Honour, because if, for

example, the Bar Council went along and said, "Well

look, in the circumstances our members are

divided - - -

GAUDRON J: Yes, if that happened; that is to say, it is a

relevant consideration that the Council could be
there, and it is then relevant to ask why it is not

there.

MR HULME:  Yes.

GAUDRON J: And, for example, it would be quite

extraordinary, would it not, if the Council came

along and said to the court, "Well, we are not here

because we do not oppose it", and for the court to

then say, "Well, we want the Bar Association to

Wentworth(3) 73 6/3/92

come along and oppose it", would it not? That is

not what - - -

MR HULME:  Yes, I do not think the court could insist on the

Bar Council opposing it -

GAUDRON J:  No, but if the Bar Council said it was not

opposing it, it could not then insist on, one would

hardly think, on the Bar Association coming along

separately from the Bar Council to oppose it.

MR HULME:  No, the court could require that the applicant

join the Bar Association or the Attorney-General as
the case might be. There is at least one of the

cases in that list that I gave the Court where

counsel, being barristers, appeared to inform the

court of the majority view of the Council.

BRENNAN J: This is only another aspect of your earlier

argument as to the nature of the jurisdiction

exercised by the court, is it not?

MR HULME:  Yes, Your Honour, another aspect of that same

argument.

BRENNAN J: In other words, the court is at large as to the

most appropriate procedure for the purpose of

assisting it in discharging its function.

MR HULME:  Not necessarily the most appropriate. A

procedure which the court reasonably thinks is

appropriate is the way I put it, Your Honour.

There is one further matter which I direct

attention to. Mr Justice Deane referred me to an

appearance of Mr Teece earlier in - - -

DEANE J: Well, of course, Teece, Stuckey and Henchman which

was a quite extraordinary combination.

MR HULME:  Your Honour, if one goes to 66 CLR 672, the notes

at the back, one sees	that the parties are Korten v
The Bar Association.	That was an appeal to this

Court. I do not have the reference on my list of

authorities.

DEANE J:  The case I was looking at was Ex Parte Rofe,

39 State Reports.

MR HULME:  Your Honour, may I suggest - - -

DEANE J: That was Mr Teece and Mr Else-Mitchell, the one

you have referred to.

MR HULME:  Your Honour, no doubt in the passage of time from

1939 until 1942 Mr Teece realized the error of his

ways. Unless there is any other matter in which

Wentworth(3) 6/3/92

the Court thinks I can assist, those are our

submissions.

BRENNAN J:  Thank you, Mr Hulme. Mr Solicitor, you have

heard the issues that have been joined. We do not

necessarily wish to hear you, even amicus, on

issues which have not been joined.

MR MASON:  I certainly would propose to be very brief and

will endeavour just to point to one or two odd

additional aspects of the matter. May I hand up

an outline, Your Honours, which, of course, was

prepared before we knew the extent to which joinder had occurred, indeed before we had seen the written

submissions of the other parties.

BRENNAN J: 

Mr Solicitor, the matters to which your notice

of argument in paragraphs 9, 10 and 11 are directed
are matters which do not seem to have necessarily
arisen for decision in this case.

MR MASON: 

Then if Your Honour is saying that you do not

wish me to, or permit me to develop them, I will

say nothing further about them. That makes me very

brief. Your Honours, I do not think - - -

DAWSON J: It does leave paragraph 12.

MR MASON:  Yes. Section 7(3) of the Act - I may be wrong, I

do not think the Court's attention has been

directed to it - just re-emphasizes the breadth of

the Court's discretion and power. Your Honour

Justice Toohey made reference in the course of some

discussion about section 211 when there was mention

made about the functions, and Your Honour said,

"The function is not necessarily confined to

something to be found as a duty in the Act". That

struck a bell, certainly in my own understanding

with Herscue's case that this Court decided last

year, 103 ALR 1, functions was held to go beyond

those which were duties.

In paragraph 6 of the outline we are given

some examples of areas where the Court might wish

to receive or have appropriate need to receive

assistance even within the narrow confines which

the appellant's case would run. If the Court is

unable to permit intervention or joinder, then

presumably any communication to the Court by a non-
party is technically a contempt and therefore we

would submit that if the Court is to be permitted

to receive material, it must follow that it has got

permission and power to allow a person to be joined

in some appropriate way to convey that.

We would respectfully resist any

interpretation of the Act that would say that

Wentworth(3) 75 6/3/92

section 51 creates any implied exclusion of parties

other than the Council of the Bar Association. For

one thing, whilst the Attorney's position is that

it supports the power of the Council or the

Association to put submissions to the Court, it

would not wish to be seen to be doing so to the

exclusion of the power of the Attorney to intervene

in proceedings. Having said that, I would ask the

Court - certainly that the Attorney has no position

in relation to the substantive merits of this
particular application.

Your Honours, I will therefore pass over paragraph 9 and following, and that just leaves

paragraph 12, which is a point that I think has

already been made by my learned friend, Mr Hulme.

The Shales v Lieschke case went to the High Court,

but I do not understand that any discussion in the

High Court addressed this matter. Your Honours

will recall that was the case involving the mother

who wished to intervene in proceedings under the

Child Welfare Act concerning a child being declared

an uncontrollable child, and in the court below the
argument was raised that Bradley's case prevented

the court giving her leave to intervene.

In the passages that have been referred to at

the bottom of page 8 and the top of page 9, the

Court of Appeal said that Bradley's case had

nothing to do with this sort of litigation, which
was not to be seen as litigation inter partes. In

our submission, as the principles in Weaver's case,

which have already been referred to, make plain,

that is a correct andapposite interpretation of the

printed form of the Court's jurisdiction in cases

such as the present. I think I have used up my

time. If Your Honours please.

BRENNAN J: Thank you, Mr Solicitor. Mr Garnsey.

MR GARNSEY: If Your Honour pleases. First, in relation to

the practices of Mr Teece, the court in this case

is reported in the Full Court in 59 WN 29 and at

page 31 at the end of the report the solicitors are
described as solicitors for the Council of the Bar

Association. How that is reconciled with the note

at the back of 66 CLR, referred to by Mr Hulme, I

am unsure, Your Honour, but at any rate, before the

Full Court Mr Teece evidently appeared for the Bar

Council.

Your Honours, in relation to my friend

Mr Hulme's submissions that there is a common law

inherent power in the supreme court in relation to

admission, the power stems from the Charter of

Justice, which is a statutory power, a royal charter promulgated pursuant to a statute of the

Wentworth(3) 76 6/3/92

Parliament of the United Kingdom, and when the
matter has been discussed by the Full Court or the
Court of Appeal of the Supreme Court of

New South Wales in Re Templeton, (1981) NSWLR 1, it is seen from the references in the single judgment

of the court at pages 3F, pages 4B to SD, that the

power is treated as a statutory power stemming from

the Charter of Justice. The question raised in

that case, and subsequently in Re B, was how far
that power had been affected by the provisions of

the Legal Practitioners Act 1898 and its

predecessor enact in the 1840's.

Templeton's case and that particular matter

was also considered in Re B, (1981) 2 NSWLR 373, at
pages 374 to 378 in some detail. Accordingly, the

Legal Profession Act having, in section 4(4), revoked the Charter of Justice in relation to the

admission of barristers, the source is statutory,

to be found in the Legal Profession Act. And that

is the source of the power, in our respectful

submission.

That also affects the power of the court to

permit intervention, in our respectful submission. power under the common law and, accordingly, if the

Legal Profession Act indicates that there is to be a right to appear and be heard of the Bar Council,

that is what the source of the court's power

provides and, in our respectful submission, one

cannot look outside the Act for any other source of

power.

Finally, on a peripheral matter, in response

to a question of Your Honour Justice Gaudron as to

whether the court could consider that a person was

a fit and proper person after admission but not

before, I think I may have answered Your Honour a

little widely in the light of section 123 of the Legal Profession Act, which defines professional

misconduct in paragraph (b) of the definition of that section as including:

conduct (whether consisting of an act or
omission) occurring otherwise than in

connection with the practice of law which, if

established, would justify a finding that a

legal practitioner is not of good fame and

character or is not a fit and proper person to

remain on the roll of barristers or the roll
of solicitors.

In relation to the submission that the Charter of Justice and the test of fit and proper person has

been revoked by the Legal Profession Act, that

section on one argument assists me in that the

Wentworth(3) 77 6/3/92

legislature did not, in section 9 of the Act,

prohibit the admission of a person who was not in

terms a fit and proper person but merely required

the court not to admit a person who was not of good

fame and character.

Secondly, the two phrases are opposed and

that, in my respectful submission, supports the

submission that good fame and character relates to an objective test. Thirdly, the inclusion at that

stage in the Act in relation to professional

misconduct shows, in my submission, that the

legislature recognized that a test of that width

could only be applied to an admitted practitioner

in concrete circumstances. That is, it is very

difficult to say that a person is not fit and

proper to be a practitioner in the absence of that

person not having practised as such.	May it please
the Court.

DAWSON J:  Mr Garnsey, you were going to get instructions as

to whether your client opposed the substitution of

the Bar Council as a party.

MR GARNSEY:  I am indebted to Your Honour. Your Honours,

our attitude is this:  we neither consent nor

oppose. It is a matter for my friend to apply to

be a defendant. That should be done in the supreme

court. One would imagine in the light of the Act

on grounds of substance, the application could not

be opposed, but there may well be protective orders

we would seek as to costs, which we are not in a

position to make submissions on here and which the submissions on here.

That would involve putting before the Court

other material which simply is not here. If the

Bar Association is not a party, we do seek the

costs of the appeal and other costs as this Court

may dispose of, and we seek them, I am instructed,

on a solicitor and client basis, on an indemnity

basis, the Bar Association having pressed its right

to remain as a party.

Your Honour Justice Brennan raised the question of how the courts could deal with the last

question as to the construction of section 51 in relation to the adducing of evidence and similar

matters.	I am afraid to say, Your Honour, that is
the hardest question on the appeal.	We would

submit that the order of the Court of Appeal, found

at page 159 of the appeal book, which dismissed the

applicant's motion seeking dismissal of the New

South Wales Bar Association from the proceedings -

Wentworth(3) 78 6/3/92

GAUDRON J:  Your summons also sought directions as to the

further conduct of the matter.

MR GARNSEY:  Yes, it did, and if one looks at

Mr Justice Mahoney's reasoning, His Honour

effectively found that the Bar Association, when it

remained, was entitled to all the rights of a

party, including the adducing of evidence. So,

with respect, we submit that - or apply to amend

the notice of appeal to claim a declaration in accordance with the third matter in respect of which special leave to appeal was granted.

GAUDRON J: That declaration is simply, what, that it is not

entitled to call evidence and cross-examine or

what?

MR GARNSEY: That it is - - -

GAUDRON J: That the Bar Association - it has to be the Bar

Association, of course, on your argument.

MR GARNSEY:  Yes, Your Honour. That the Bar Association is

only entitled to appear and be heard by counsel,

but not to adduce evidence or otherwise take part

in the proceedings.

GAUDRON J: But I do not understand what that means. I can

understand not to adduce evidence or otherwise take

part in the proceedings. Can they cross-examine if

somebody else calls evidence? Can they ask a

deponent to attend for cross-examination?

MR GARNSEY: Well, we submit not, Your Honour.

GAUDRON J:	They can merely put submissions?
MR GARNSEY:	They can exercise the rights of an amicus

curiae, yes.

GAUDRON J: But what an amicus curiae can do may well vary

in the particular case.

MR GARNSEY:  Your Honour, accepting the analysis of

Mr Justice Hutley in Bradley's case, if Your Honour

pleases, an amicus curiae is only entitled to

assist the court by making submissions and the extent of those submissions may be controlled.

GAUDRON J:  I understand that. So they cannot call evidence

or cross-examine any witnesses?

MR GARNSEY:  That is so. They would have to be a party, we

would submit, to do either of those things.

GAUDRON J:  Thank you, yes.

Wentworth(3) 79 6/3/92

MR GARNSEY:  Your Honour, the declaration we seek in

relation to the Bar Association is in the

alternative and only on the basis that our first
submission as to parties were rejected, otherwise

the declaration we would seek would not refer to only the Bar Association but to the Bar Council.

BRENNAN J:  So you want a declaration by this Court against

a party who is not present in relation to a matter

that was not raised in the court below?

MR GARNSEY: Well, as to the last, if Your Honour pleases, I

would respectfully submit it was raised in the

court below. As to the second, if Your Honour

pleases, Mr Hulme is very material and has in

substance said that he is prepared to appear for
the Bar Council, depending upon what the Court

decides. That has been one of the difficulties

that we have had to face.

BRENNAN J:  Was your declaration ever formulated in earlier

time?

MR GARNSEY:  No, Your Honour; it was the subject of the

written submissions before the Court of Appeal, the

oral submissions and remarks of Mr Justice Mahoney, to which reference has been made in the transcript,

and was the subject of the grant of special leave.

TOOHEY J: But a declaration that related to the Bar Council

and declared that the Council was entitled to

appear and be heard would do nothing, because that

is already in the Act.

MR GARNSEY:	Yes.
TOOHEY J:	And without some elaboration as to what is meant

by appearing and being heard -

MR GARNSEY:  Yes; that is why, with respect, Your Honour, we

respectfully seek a declaration in the terms

indicated to Justice Gaudron.

GAUDRON J: But, the foundation for that being that, in your submissions, if the Association can appear, it none

the less has no greater rights in relation to the

proceeding than the Bar Council would under section

51.

MR GARNSEY:  Yes, Your Honour. I am afraid I cannot assist

any further in relation to the declaration as to

that matter.

There is one matter if it be material,

Your Honour; we did carry out a company search of

the New South Wales Bar Association and I can hand

up de bene esse, if that is appropriate, copies of

Wentworth(3) 80 6/3/92

it, but it does show the Association was

incorporated and registered on 22 October 1936.	As
a matter of interest, it does not show either of the Attorneys-General amongst the list of
directors.

BRENNAN J: Yes, Mr Garnsey.

MR GARNSEY: If Your Honours pleases.

BRENNAN J: Yes, Mr Hulme.

MR HULME:  Your Honours, could I mention two matters.

Firstly, given the liking of some members of this

Court for historical research, could I give a

reference to Res, (1971) QB 160, at 168 which

deals a little bit with the history of admission to

the Bar going back to 1292 and the court's powers

or practice. The second thing is on the question
of costs, the order sought seems to be an order for
costs of the whole of the proceedings to date.

There is no justification for this Court making that sort of order. In the event the applicant is

successful, it may be proper for this Court to deal with the question of costs of this appeal, but that

would be all, in our respectful submission.

GAUDRON J:  And of the proceedings in the Full Court on the

motion? The motion seems to be - - -

MR HULME:	The motion dealt with a number of things, Your Honour. It was before the court which
comprised of three judges who the Court of Appeal decided were going to hear the final application,
and dealt with quite a number of matters.
GAUDRON J:	I am looking, however, at orders 1, 2 and, I

suppose 3, so far as it involves the right to

appear and be heard point, and you say there were

other matters on this motion.

MR HULME:  Could I ask what page Your Honour is looking at?

GAUDRON J: Appeal book, page 15.

MR HULME:	Your Honours, may I answer Your Honour this way. Mr Garnsey's submissions commence at page 16.
Those which were, in fact, argued on the date
concerned whether the three judges should
disqualify themselves, whether the Bar Association
should remain as a party to the proceedings, and
this question of whether evidence might be adduced
by the Council or the Bar Association. As I recall
it, apart from possibly some subpoenas that was all
that was - - -
GAUDRON J:	They were successful on the third point below.

Wentworth(3) 81 6/3/92

MR HULME: With our assistance, yes, Your Honour. Other

questions which arose were stood over.

BRENNAN J:  Mr Hulme, do you have anything to say about

declarations?

MR HULME:  If Your Honours were disposed to agree with my

friend's submissions on the construction of

section 51 so far as the evidence question is

concerned, then if this debate is to be effectively

useful, it is probably sensible that the Court make

a declaration along the lines that the - and I

think this is what my friend is seeking - Bar

Council or Bar Association, ·as the case may be, may

make submissions but may not adduce evidence or

cross-examine. I think that is the issue.

BRENNAN J:  Thank you. You have nothing arising out of

that, Mr Garnsey?

MR GARNSEY:	No, Your Honour.
BRENNAN J:	The Court will consider its decision in this

matter.

AT 4.03 PM THE MATTER WAS ADJOURNED SINE DIE

Wentworth(3) 82 6/3/92