Wentworth v New South Wales Bar Association

[1991] HCATrans 346

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl41 of 1991

B e t w e e n -

KATHERINE WENTWORTH

Applicant

and

NEW SOUTH WALES BAR ASSOCIATION

Respondent

Application for special leave

to appeal

DEANE J

DAWSON J

TOOHEY J

Wentworth(2) 1 5/12/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 DECEMBER 1991, AT 12.18 PM

Copyright in the High Court of Australia

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

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

applicant. (instructed by H.D. Kelly)

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

my learned friend, MR E.A. DAY, on behalf of the

Bar Association.	(instructed by Michael Rosser and
Co)

DEANE J:  Mr Garnsey, I would mention first that we are

informed by the Registrar that he has been advised

by the State Crown Solicitor's Office for New South Wales that the Attorney-General who appeared in the

Supreme Court of New South Wales' proceedings as

amicus curiae does not wish to put submissions to

this Court on the hearing of a special leave

application, but may seek leave to put submissions

in the event that special leave to appeal is

granted.

MR GARNSEY:  Thank you, Your Honour. Your Honour, we have

prepared a short outline of submissions. If I

could hand to the Court three copies for the Bench

and a further three copies.

DEANE J: Thank you. Mr Garnsey, you can assume that all

members of the Court have read the papers.

MR GARNSEY:  Thank you, Your Honour. If Your Honour

pleases, the applicant would seek to put before the

Court evidence that the Barristers' Admission Board

is presently refusing to issue her a certificate of

eligibility, although she has now passed all the

relevant education requirements and all the other

requirements as to certificates, whether of good

fame and character or otherwise. A letter was

received from the Board dated 4 December 1991 and

that is why it has not been possible to put that

before the Court previously.	A copy is annexed to
an affidavit of Mr Salvatore Russo sworn
5 December 1991.	I would seek the leave of the

Court to file that in Court and to rely upon it.

DEANE J:	Have you any objections, Mr Hulme?
MR HULME:	We submit it is irrelevant, Your Honour.
DEANE J:	We are on a leave application, which means I do

not think we will really get involved in relevance of particular matters and so on, so we will accept

it.

MR GARNSEY:	Thank you, Your Honour.
DEANE J: Yes.

Wentworth(2) 2 5/12/91

MR GARNSEY:  Your Honours, this is an application for

special leave to appeal from the decision of the

New South Wales Court of Appeal -

DEANE J: It is encouraging, Mr Garnsey, to see in the

written submissions that somebody thinks corning

here is going to hurry things up. That is the

first time I have seen that suggested for quite a

long time.

MR GARNSEY:  I did not think I put anything quite as baldly

as that, if Your Honour pleases, in the outline.

Your Honour, one of the reasons for corning here is

that the Court of Appeal cannot really determine

any matters arising in this application as it

proceeds any further as a result of the

disqualification of the - - -

DEANE J:  The Court of Appeal has determined the questions

which would arise if leave were granted, has it

not?

MR GARNSEY:	Yes, Your Honour.
DEANE J:	And, am I correct, the only relevance of the fact that the court thought it appropriate to deal with
parties before dealing with ostensible bias is in
terms of whether, in view of the court's decision
on ostensible bias, leave should be granted?
MR GARNSEY:	I am unsure whether that was the reason why the

Court of Appeal proceeded to determine the matter

of parties, Your Honour.

DEANE J:  One can readily understand the approach that you

determine who the parties are before you pass on to

consider a matter in which those who are parties

might be interested.

MR GARNSEY:	Yes, Your Honour.
DEANE J: But am I correct that the relevance of the court's

conclusion about ostensible bias is to the question

whether or not leave should be granted, in that if

leave were granted, you would be asking us to

determine whether the conclusion the court reached

was the correct one?

MR GARNSEY:  Yes, Your Honour.

DEANE J: That being so, the question of ostensible bias

would disappear.

MR GARNSEY:  That is so. We do not challenge, naturally

enough - - -

Wentworth(2) 3 5/12/91

DAWSON J:  What would you be asking us to do with the matter

after we have determined that question?

MR GARNSEY:  Your Honour, that would depend upon the state

of the matter in the Supreme Court of New South

Wales.

DEANE J: But as it stands at present, it would go back to a

judge of the Common Law Division.

MR GARNSEY:  Yes. The balance of the matters which were

before the Court of Appeal and on which the Court of Appeal made no decision are listed for hearing

on Wednesday next before Mr Justice Campbell of the

Supreme Court of New South Wales. That is not the

final hearing, if Your Honour pleases; it is the

balance of the matters raised by the notices of

motion which were before the Court of Appeal.

DEANE J: Very well. Mr Garnsey, I think at this stage, and

you should not take any undue encouragement from

this, but at this stage I think we would like to

hear what Mr Hulme has to say.

MR GARNSEY: If Your Honour pleases.

MR DEANE:  Mr Hulme, can I direct your attention,

immediately, to one aspect of the matter - - -

MR HULME:	Yes, Your Honour.
MR DEANE:	- - - that seems to be relevant, and that is

because of the order in which the Court of Appeal

dealt with matters and, as I said to Mr Garnsey,

one can understand the approach that you should

decide who are the parties before you go on to

decide other matters, but one has a situation where

a court which has itself decided a question which

it has said is of some substance, has then gone on

to hold that it should not determine the matter,

because of, not bias, of course, but because of the

risk of an appearance of bias by reason of the

previous matters. Now, that does raise a

particular problem, in terms of the interests of

the administration of justice, regardless of

whether we think the point involved in the matter,

viewed in isolation, would be an appropriate one to

attract the grant of special leave. What I have

said to you, I am only speaking for myself, but it

may help you focus on the matter that I would like

some assistance on.

MR HULME:  Yes, Your Honour. Your Honour, the particular

grounds upon which the court regarded itself as

disqualified and the extent of that

disqualification needs attention, to start off

with, because the way in which we put it to the

Wentworth(2) 4 5/12/91

court in our acquiesence in my friend's requests

for the court to disqualify itself, is perhaps best

referred to as prejudgment or an appearance of prejudgment rather than an appearance of bias.

DEANE J: Yes, I should not have said "bias", I should have

said "appearance of prejudgment".

MR HULME:  Your Honour, the term "bias", I think, was used,

certainly in my submissions, at times, but, more
accurately, we did define it as prejudgment. That

went to and only to the judges' participation in

the final hearing. The reason for that - perhaps I

might go back a little.

A number of the matters upon which the Bar

Association relies in support of its opposition to

Ms Wentworth's admission concerned matters which

the Court of Appeal has already ruled upon in

proceedings involving Ms Wentworth and other

parties.

In the course of delivering judgment in those

proceedings, various members of the court have described her proceedings or her conduct as an

abuse of process or otherwise been critical of it.

Our case in part relies on that conduct, as

occurred sufficiently often, to say it is not
appropriate that the Court admit her. It would

seem, though the issues are not clearly defined,

but from statements which have been made, that

whether her conduct should be so characterized is a

matter which is in issue in these proceedings. She

is not prepared to accept the accuracy of what the

judges have found in the past, and it would seem

that we will probably have to, as it were,

relitigate those issues.

The three judges who constituted the Court of

Appeal in this directions hearing, and had

indicated they proposed to sit on the final

hearing, are three judges who, in particular, have

made findings and comments adverse to Ms Wentworth.

So it looked as if, ·:>n the final hearing, we were

going to be relitigating before those judges

matters which they had already determined, in prior

proceedings, against Ms Wentworth. That was the

basis upon which we said there is or is likely to
be an appearance of prejudgment. So it was not, as it were, bias against Ms Wentworth as a litigant so

that no decision involving her interests at all

could be decided by those judges, but rather that

they should not decide again, between Ms Wentworth

and the Bar Association, issues which they had

decided between Ms Wentworth and third parties.

Wentworth(2) 5 5/12/91

DAWSON J:  Can you divide bias or prejudgment up in that

way?

MR HULME:	We would submit so, Your Honour.
TOOHEY J:	You appear to be treating the hearing almost as

if it were an interlocutory hearing or a step along

the way to the final hearing which can, in terms of

prejudgment, be isolated from the issues that were

going to arise on the substantive hearing.	Is that
an accurate way of putting it?

MR HULME:  Yes, Your Honour. Though I think it was in

practical terms a directions hearing that has led

to this application here, it was a directions

hearing or an interlocutory hearing on a motion by
Ms Wentworth for the court to remove the Bar

Association as a party on the basis it was not a proper party to the proceedings, and also seeking

to strike out our particulars and seeking a

decision that, as a matter of law, certain evidence

we could not adduce - strike out the Bar

Association as a party, if the Bar Council was then

joined as a party instead - and it was conceded

they could be a proper party - seeking a decision

of the court as to the extent of the evidence which

the Bar Council could adduce.

DEANE J:  Or as to whether the Bar Council could adduce any

evidence really, was it not?

MR HULME:	Or any evidence, yes.
DEANE J:	Or was restricted simply to a sort of amicus

curiae who could make submissions but otherwise not

participate.

MR HULME:  Yes. So the first basis upon which we would say

that the decision of the Court of Appeal to

disqualify themselves has no present relevance is

that it related to, and only to, prejudgment of

issues which it was likely to have to decide in the

final hearing. It just seemed not appropriate that

those factual issues be determined again by the

court.

DAWSON J: But we are in the area of apparent prejudice

here, not actual prejudice, and it is difficult to

say that if there is an apparent prejudice it

affects only this issue and is not apparent in

relation to others.

MR HULME:  We would respectfully submit not, Your Honour.

When it is put on the basis of the court saying,

"Well, I have decided that Ms Wentworth's conduct

in proceedings X was an abuse of process", one can

isolate that, we submit, from a situation about

Wentworth(2) 6 5/12/91

whether the court has a bias against the litigant

as opposed to a bias or prejudgment in respect of

an issue.

DEANE J:	You have got to add appearance, each time.
MR HULME:	I accept that - - -
DEANE J:	Nobody has suggested in this case, as I read the

submissions - and it was unnecessary to suggest -

that there was the actuality of prejudgment or

bias. It has been dealt with on the basis of

appearance.

MR HULME:  Your Honour, accepting it is the appearance

situation, when one is - perhaps that makes it even

easier from my point of view.

DAWSON J:  I would have thought it made it harder, but

still.

MR HULME:  Because the fact that a court has made a decision

against a party on a particular issue could not

lead someone reasonably to the view that therefore

the court has any appearance of bias against that

party as a general proposition.

DAWSON J: It depends rather upon the issue. Where the

issue is one at least relating to character, that

is hard to maintain, is it not?

MR HULME:	No, Your Honour, with this qualification, and I am not - - -
DAWSON J:	I mean, if it were a discrete factual issue that

can be completely isolated, then what you said may

be correct, but not here.

MR HULME:  Your Honour, here the issues which were posed for

the court, in this case, were matters of law: what is the operation or a proper interpretation of the Legal Practitioner's Act? Now, the appearance or

any appearance of prejudgment arises from a factual

issue, if I can put it that way, in the past, a

factual issue or a number of issues which

cumulatively may go to the question of character.

But because a court says, "Well, I think that

person has been guilty of an abuse of process on

this occasion or on two or three occasions, or

because I think this person in evidence before me

has been proved to be a liar", does not justify the

conclusion that thereafter that court should never

make a decision involving that party, even a purely

legal decision.

TOOHEY J: But it is not clear that the court directed its

attention to that distinction, is it, Mr Hulme? I

Wentworth(2) 7 5/12/91

understand what you are saying in the sense that

Mr Justice Mahoney said, at page 93, on that basis

having discussed these matters:

I shall not participate in the hearing of this application -

and that is, in a sense, echoed by the other two

members of the court. But the members of the court

did participate in dealing with the legal issues

which were before them. I can understand a

distinction, perhaps, that if the court had been

asked to exercise some quite technical power, such

as giving notice to someone, that the court would

be free to exercise those sort of powers even

though there might be a question of prejudgment,

but you are seeking to isolate law and fact, are

you?

MR HULME:  Yes, Your Honour.

TOOHEY J: And say that even though the court accepted

itself that there may be an appearance of

pre-judgment, the court was free to determine

questions which were purely questions of law?

MR HULME:  Yes, Your Honour, particularly when one has

regard to the extent to which the court thought

there might be an appearance of prejudgment.

DEANE J: What you say may well be right, but there is this

problem, is there not, that the court held that it

was precluded, because of the risk of an

appearance, from dealing with the substance by

reason of views expressed in relation to certain
matters concerning Ms Wentworth in previous cases,

but the very question that they determined was

really directed to whether evidence of those

matters about which they had expressed earlier

views could effectively be led in the substantive

hearing.

MR HULME: Well, whether the Legal Profession Act as a

matter of law precluded the leading of that

evidence, yes.

DEANE J: Well now, we and you have no difficulty in drawing

lines and so on, but what we are concerned with now

is whether, in a situation where - because, as I

say the Court of Appeal naturally dealt with the

question of parties as the first item - not if

there were an appeal it would succeed on the basis

that what they decided on this question is affected

by an appearance of prejudgment but whether, in all

the circumstances, the administration of justice supports a grant of special leave. So this not

unimportant point can be dealt with by a court

Wentworth(2) 8 5/12/91

about whom I presume there is no suggestion of

pre-judgment of any relevant matter.

MR HULME:  Your Honour, I understand the point Your Honour

is making, but I would submit, with respect, that

it is appropriate, not only in this case but in any

case where this is suggested, to look at the basis
upon which it is suggested a court should, or a

court decides that it should not sit because of an

appearance of prejudgment, because if one does not

make that sort of distinction one may be quickly

led to a situation, particularly with parties who

are frequent litigants - and there are a few of

them around - that effectively any judge who has

ever sat on a case in which they are involved and

who has made some credibility findings, cannot then

sit again in relation to that person.

DEANE J:  What you say is unanswerable, but here we start

with the fact that the Court of Appeal has decided

that it cannot deal with this substantive matter.

MR HULME:  Yes, Your Honour, but one must, we submit with

respect, not merely look at the fact that the

Court of Appeal has said in relation to matter A,

"We think we should not sit" and say, "Well because

they said that in relation to matter A, therefore
they should not sit on any matter involving this

litigant, or alternatively on any matter connected

or involved in the proceedings which ultimately,

before some other judge, is going to involve matter

A."

The second point we would make is this, that

two judges of the court, at least, took the view

that the only reason that they should disqualify

themselves was because of the Bar Association's

joinder in the application. They themselves were

not minded to disqualify themselves, but because

the Bar Association said, in effect, "We think you

should", they were prepared to make a decision

contrary to their own inclination. That again, we

submit, is a factor which is relevant to the

question of whether, because they accepted they
should not sit in the final hearing, it does not
follow that they should not sit in relation to
preliminary matters, particularly matters of law

divorced from the matters on which they should not

sit.

The next point I would make is this - and I

want to go back over to develop propositions I have

advanced a little further - that there was no

application to the judges not to deal with these

interlocutory matters. In other words, Mr Garnsey

did not say, "I want you to rule first on the

question of disqualification". He was content to

Wentworth(2) 9 5/12/91

run the question of parties and the question of

evidence first, to take his risks of getting a

favourable decision on those matters.

In that situation, he should not be allowed to

come along here and say, "I now want this Court to

interfere with the decisions which were

unfavourable to me on those topics". No doubt he

would have been delighted to get a decision in his

favour on the question of parties and evidence, and

no one would have heard anything more about it,

unless the Bar Association had brought it up.

I accept that the notice of motion which was

put on asked the court not to further deal with the
proceedings but, in fact, when the matter came on
before the court, there was no point raised that

the court should not buy into these two questions

of parties and evidence, nor at the end of the
day's hearing did Mr Garnsey suggest, when it

decided to reserve on the three issues, that the

court should, if it was minded to disqualify

itself, not make a decision on the other two

issues.

So that, with respect, it is certainly unfair

and it is inappropriate that the applicant can put

herself in a situation where she takes the benefit

of the decision if it works out her way but then is

in a position to complain about it on the grounds

of apprehended bias in the event that it goes

against her.

I do acknowledge that on two prior occasions -

it was certainly raised on two, it was ruled on on

one or two when Mr Garnsey had said that the

applicant did not wish the Court of Appeal to sit
and the court had said that it proposed to, but

there was no significant debate on any of those

occasions, nor even a definition of whether the

application really related to the final hearing or

anything else at all, subject only to this

perhaps - I think that is a fair statement of the

situation.

Without going back to the transcript, I could not be sure that my friends did not say, "Well, we

don't want you to deal with anything at all."

Certainly on the day when this came on, there was

no suggestion that the court should not decide the
question of parties and evidence.

Your Honours, it is, as we have submitted, appropriate to look at the reasons why the

court - - -

Wentworth(2) 10 5/12/91

DEANE J:  Mr Hulme, we will be adjourning at some stage for

luncheon adjournment, would this be a convenient

time from your point of view?

MR HULME: It would, Your Honour, yes.

DEANE J: In that case, we will resume at 2 o'clock.

AT 12.51 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

DEANE J: Yes, Mr Hulme.

MR HULME:  Your Honour, could I take the Court to

submissions which are included in the appeal book

because they, together with a short reference to

transcript, indicate the way in which the matter

was put to the Court of Appeal, and with respect,

when one reads that, our submission is that the

Court of Appeal was not asked to disqualify itself

from determining the questions of parties and

evidence, and in that situation it is not

appropriate for my learned friend to be allowed to

raise that matter here.

The relevant passages, part of the written

submissions which were handed to the Court, appear

at page 26 in paragraph 16 and proceed through to

page 29.

The matter is perhaps summarized in

paragraph 16.4:

In those circumstances, it is respectfully

submitted that ..... there is a reasonable

apprehension that each of the Judges of Appeal

appointed to hear these proceedings might -

or might not -

bring an unprejudiced mind to the resolution

of the issue in these proceedings.

and that issue, we submit with respect, is the
fitness of Ms Wentworth to be admitted to the Bar,

or whether she is of good fame and character. I

draw no distinction between those expressions at

the moment. The matter is dealt with orally,

commencing at page 72 of the appeal book, and it is

probably sufficient if I merely say that there is

Wentworth(2) 11 5/12/91

nothing there to indicate that my learned friend's

application went further than reference to the

particular matters in which the court had ruled

previously against Ms Wentworth, being conduct

which constituted an abuse of process or matters of

that nature, matters having a bearing on the

ultimate question but having absolutely no bearing

on the questions of parties or evidence, which was

posed for the court this day.

As I say, one looks in vain through the

earlier parts of the submissions to find any

objection by my learned friend to the Court of

Appeal ruling on the questions of parties and

evidence. With respect, he cannot, or should not

be allowed to come here, having taken the benefit

of a possible judgment in his favour on those
issues, and then complain for the first time here
that the court should not have embarked upon those

matters.

If one goes to the reasons for judgment

themselves, the relevant passage appears at page 98

of the appeal book so far as Mr Justice Mahoney is
concerned, commencing at line 3 and concluding at

line 10. In that first paragraph:

It may be thought that there can in reality be

little contest either as to the conclusions of
fact and the assessments based on them or as

to the conclusions of law then arrived at.

But if, as is to be accepted, the instructions

of the applicant in the present matter are to

contest these issues, then, within the

existing principles, I do not think that I

should take part in the determination of them.

So far as the other two judges are concerned, if

one goes to page 109 of the appeal book at about

line 24:

But there is another important consideration

in this case. After the plaintiff's

submissions on this issue had

concluded •.... Mr R Hulme QC indicated to the

court that his client supported the

plaintiff's submissions. What he said was

summarised by the learned presiding judge in

these words:

"On consideration the Bar is the view that

issues of fact which may well arise are issues

of fact on which decisions have already been

given by the various members of the court and

that could give rise within existing law to an

appearance of apprehended bias (or

pre-judgment)."

Wentworth(2) 12 5/12/91

The precise words are at the appeal book 74.

Now, again, one is talking about prejudgment

of the factual issues which would, on the Bar

Association's case, lead to the conclusion that

Ms Wentworth was not a fit and proper person.

So, if one then considers the test a

reasonable apprehension of prejudgment, we would

submit, with respect, that where the matter has

been put to a court that the prejudgment relates to
particular factual matters having a relevance in

one area of the case, and the court decides that

there is a reasonable apprehension in relation to

those matters which bear on that aspect of the

case, and one comes back to the test, a reasonable

apprehension, with respect, one cannot then say,

"Because the court found on issue (a) a reasonable

apprehension of prejudgment of an issue, therefore,

an outsider might reasonably apprehend there is a

prejudgment in relation to distinct, discrete,

separate issues, particularly where they are issues of law rather than issues of fact". And the matter was not put to the court on the basis that, as

appears from the passages I have taken you in the

applicant's submissions, was not put to the court

on the basis that the individual members were

biased against Ms Wentworth, as distinct from

either prejudgment or bias in relation to discrete

issues, which would go to her fitness but not to

the questions of law.

The only other matter that I think I can

assist the Court with on this aspect of the case is

to inquire of the Court, first of all, whether it

has looked at the particulars of the Bar

Association's, as it were, complaints on which it

relies.

DEANE J: That is this document?

MR HULME:  They are annexed to Mr Russo's affidavit of

21 November; in particular, at the end of

that affidavit.

DEANE J:	Yes, I have - we all have it.
MR HULME:	Your Honours see there are 32 or so sections?

DAWSON J: Yes.

MR HULME:  The document which we handed up to the Court to

illustrate the points where we saw the potential

for an allegation of prejudgment is this document

and perhaps I might hand copies to the Court. It

is probably sufficiently summarized in what the

judges said but if I can just take the Court to it.

Wentworth(2) 13 5/12/91

You will see what we have done is go to various

sections of the particulars, being only those

sections where the three judges,

Mr Justice Mahoney, Mr Justice Clarke and Mr Acting

Justice Hope had previously appeared.

If one goes to section 2, for the moment, one·

can see a reference to Mr Justice Hope at about

point 4 on the first page, in the paragraph

commencing, "Kirby P delivered a judgment". And

section 4, there is a reference to Mr Justice Hope

and Mr Justice Mahoney, as a certain part of a

notice of motion was "wholly inappropriate".

Section 10 was only an adjournment but

Mr Justice Hope participated; there was no

criticism.

Section 12 - and this is the one which, I

think, is the one on which the court relied - one

sees the extent to which Mr Justice Mahoney and

Mr Justice Clarke made criticisms of Ms Wentworth's

conduct in relation to particular steps.

Section 17, one can see the extent of the criticism

on which we rely and so forth.

In summary, our submission is that when one

looks at the way in which the proceedings were
conducted before the Court of Appeal, the point

should not be allowed to be taken here; secondly,

it is not reasonably arguable, when one looks at

the test of reasonable apprehension and given the

split between the matters of law we are primarily

concerned with here and the factual matters, that

there could be any suspicion or any reasonable

apprehension of prejudgment.

DEANE J:  Mr Hulme, the Court would be grateful if you could

put any other arguments against a grant of leave at

this stage. I presume you want to make some

submissions in relation to other matters.

MR HULME:  Yes, Your Honour. Your Honours, we have also

prepared an outline of the propositions we propose

to advance, and I hand that up.

DEANE J: Yes, Mr Hulme.

MR HULME:  In summary, we would submit that the two issues

which were decided by the Court of Appeal adversely

to Ms Wentworth could only reasonably be decided

one way, and that was the way the Court of Appeal
decided them. Hence, we would submit, with

respect, that there is no point in granting special

leave if the Court takes the view that there is no
reasonable doubt as to the correctness of the Court
of Appeal's decision on those two issues, the two

issues being whether the Bar Association was

Wentworth(2) 14 5/12/91

entitled to be there and, if not, whether the Bar

Council, which it was conceded was entitled to

appear, could adduce evidence.

Mr Justice Deane is no doubt familiar with the

history of the Bar Association's participation in

these proceedings in the supreme court. Might I
perhaps, just for the assistance of other members

of the Court, hand up firstly a summary of cases

which go back to the beginning of the century,
which indicate the participation of the Bar

Association, or previously the Bar Council or members of the Bar in these sorts of proceedings

and then come against that background and one or

two short cases to the terms of the legislation

itself.

Your Honours, could I then hand up copies of,

firstly, the decision of the High Court in Clyne v

NSW Bar Association, though there is only one page

I wish to take the Court to, and an emasculated copy of an unreported decision of the New South

Wales Court of Appeal in Evatt v The Bar

Association, in which we have confined it to

matters presently relevant. The page in Clyne to

which I would take the Court is at page 189 and the

particular passage appears a little more than

half-way down. There is a quote from a judgment of

Mr Justice Kitto and then shortly after that

passage commencing:

The respondent to this appeal, the Bar

Association of New South Wales ..... It is

recognized by the Supreme Court as the body

which represents the Bar, and it is heard by

counsel in matters coming before the Court in

which the status or conduct of a member of the

Bar is in question.

If one then goes to Evatt's case, the relevant

passages appear firstly in the judgment of the	Chief Justice at the top of the second page, in a
passage commencing:

The Court has been assisted on the

hearing of the present application by the appearance of senior and junior counsel -

half-way through that paragraph is sufficient.

In the judgment of the President, again the

second page of His Honour's judgment, at the bottom

of the page, the paragraph commencing "It is

appropriate to observe", I would invite the Court

to read to the bottom of that page. Then in the

judgment of Mr Justice Hope, again the second page

of the pages we handed up from His Honour's

Wentworth(2) 15 5/12/91

judgment, in the middle of the page there is a

paragraph commencing "There is lastly the

opposition of the association", and invite the

Court to read to the bottom of that page.

There is nothing in the reported cases to

indicate that there was anything regarded as
unsatisfactory arising from the Bar Association's

participation in these sorts of proceedings.	we
have looked through the Law Reform Commission

Report, which was a precursor of the Act, and again

one sees nothing to indicate that there was any

dissatisfaction with the Bar Association's

participation, and the report indicated that the

supreme court should keep its inherent power;	no
comments were made as to how the supreme court
proceedings should be run.

There is in that report references to the fact

that the Bar Council is, as it were, the body which

looks after the discipline of the Bar. There is

recognition that within the terms of the

Bar Association memorandum and articles, the

Bar Council, which is effectively a board of

directors, is subject to control by the

Association, and the commission took the view that

in any statutory functions given to it the

Bar Council should not be subject to control by the

Association. But again, no suggestion that, in

terms of the court proceedings, there should be any

change.

It is against that background that one comes

to the Legal Profession Act. Section 4 is, I
think, the first relevant one, which deals with the

admission of barristers. It is put in wide terms;

subsection (4) repeals the charter of justice in so

far as it relates to the admission of barristers

and solicitors. There is then a reference to the

Barristers Admission Board, which in the ordinary

run of the mill case looks after the formalities
and sees that things are done.	In section 9 there
is a reference:

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.

And then the matter goes on to deal with the

question of solicitors. I think I need not take

the Court to it. All that is contained in Part 2
of the Act. There is nothing in that part which

bears at all on the procedure to be followed by the

court proceedings.

Wentworth(2) 16 5/12/91

One then goes to Part 3 that deals with

practising certificates - barristers are now

required to have practising certificates. Indeed,

as the Court saw we are now officers of the Court.

I think I need not take the Court at this stage to

Part 3.

DEANE J:	Do you frame them and put them in your chambers?
MR HULME:	I have not seen any on the eleventh floor,

Your Honour. One then comes to Part 4 section 49

and because section 51 appears in this section and

my friends placed reliance on that, it is probably

desirable if the Court looks through the three

sections in Division 1. I will return to

section 51 in due course, but at this stage may I

draw attention to the fact that in its terms it is

empowering the Bar Council to do various things.

In no sense is it in terms directed to how the

supreme court ought to conduct its affairs.

DEANE J: Mr Hulme, what about the roll of barristers? Is

that dealt with in this Act?

MR HULME:  I think it is not, Your Honour. I do not

recall - - -

DEANE J: Is there such a thing?

MR HULME:	Yes, there still is.
DEANE J:	And the prothonotary keeps it?

MR HULME:  I think so. I must confess I have not checked up

recently.

DEANE J: Possibly nothing turns on it though. I was just

interested.

MR HULME:  I have read through the Act a number of times. I

do not recall seeing anything which bears on that,

Your Honour, but I certainly was not looking

specifically. You still have to sign it when you

are admitted, Mr Garnsey tells me.

Your Honours, I think it is then probably

sufficient if I just go back to the index for a

moment on the second and third pages just to

indicate why I am skipping over them - - -

DAWSON J: May I just ask a question? The Bar Council is

the governing body of the Bar Association, is it

not?

MR HULME:  The Bar Association is a company incorporated

under the relevant companies legislation. The Bar

Wentworth(2) 17 5/12/91

Council is its board of directors, and there are

effectively the normal - - -

DAWSON J:  You cannot really dissociate the one from the

other.

MR HULME:  Normal provisions as to the powers of effectively

the board of directors, but that is what it is.

DAWSON J:  And anyone who is appearing for the Bar

Association would, in effect, be instructed by the

Bar Council.

MR HULME:  Yes. And indeed, as is adverted to in the

judgments, if ultimately the Court holds that the

Bar Association is not entitled to be a party, I

have indicated I have instructions to seek in the

supreme court to appear on behalf of the Bar

Council, and Mr Justice Mahoney with the others agreeing, indicated that he would be disposed to order that the Bar Council be joined in that

situation.

If I can just go to the index again for a

moment, one can skip over Parts 5, 6 and 7 and keep
skipping indeed until one comes to Part 10,

"Professional Misconduct", where the Bar Council

again acquires a significant role. There are two

statutory tribunals established, a professional

standards board and the disciplinary tribunal.

There is a system for complaints to be made either

to be considered by the Bar Council, or for the Bar

Council itself to then make complaints against

barristers to either the professional standards
board or the disciplinary tribunal, depending on

the seriousness of the complaint. There is an

appeal from the board to the tribunal. In matters

properly brought before the board there is an
appeal from the tribunal to the court. In matters properly brought before the tribunal, the tribunal

has power to disbar.

If I could then come to section 130 - to just

indicate the format, a person may make a complaint

to the appropriate Council, that is, the Bar

Council for barristers, the Council of the Law

Society for the solicitors, alleging that a legal

practitioner is guilty of conduct that is either

unsatisfactory professional conduct or professional

misconduct. Section 131 - a Council may do various

things; section 132 - may dismiss a complaint

without further investigation; section 133 - may

conduct an investigation; section 134 - after it

has completed an investigation it can in certain

circumstances dismiss it.	I ought to go over the
page to page 80.	A Council, if satisfied the

complaint involves a question of unsatisfactory

Wentworth(2) 18 5/12/91

professional conduct, it shall refer the complaint,

and so forth.

If I could then go to section 142:

The Board shall, for the purpose of conducting

a hearing into a complaint, be constituted -

as follows, and it is two barristers and one lay

person; if it is a complaint against a barrister,

it is two solicitors and one lay person.

Section 143:

The Board shall conduct a hearing .....

(2) ..... the Board is not bound to observe the

rules of law governing the admission of

evidence -

Section 144 -

The following persons are entitled to appear

at a hearing into a complaint .... .

(b) the appropriate Council .... .

(2) A complainant -

only in limited circumstances. And if one then

goes to section 150 - I am sorry, may I go back to

144 for a moment.

(6) Any person who appears (otherwise than as
a witness) at a hearing shall be deemed to be

a party to the hearing.

And that obviously includes the Bar Council.

Section 150:

Any party to a hearing conducted by the Board

may apply to the Tribunal for a review -

and then it goes on to deal with the tribunal.

If I go then to Division 7, at the bottom of

page 89, headed Professional Misconduct, one can

see a similar pattern in relation to proceedings

before the tribunal. The parties are defined in

section 158 and, again, include the appropriate

Council. The right of appeal is conferred in

section 164:

Any party to a hearing conducted by the

Tribunal may appeal to the Supreme Court ....

Wentworth(2) 19 5/12/91

(4) An appeal shall be by way of new hearing

and fresh evidence, or evidence in

addition ..... may be given.

If I might just go back for a moment to perhaps

section 157, proceedings before the tribunal

involving professional misconduct or which do

involve professional misconduct, says:

the Tribunal shall observe the rules ..... of

evidence -

and the proceedings -

shall be held in the presence of the public -

that is section 159.

Now, in one sense, it may be a long way from

section 51 in this but the point of the matter is

this: it is clear when one looks at those sections

concluding in 164 that the Bar Council is firstly a

party to the proceedings before the board or the

tribunal, as the case might be, and it has rights
as a party to appeal and it has rights to call

evidence - well, presumably it has rights to call

evidence. It is a party, it may appeal to the

supreme court and the supreme court may receive

fresh evidence and conduct a hearing de novo.

We would submit that when one looks at the Act and its approach to, as it were, the conduct of

disciplinary proceedings or the exercise by the

court of its power to admit, firstly one finds

nothing in the Act which seeks to limit or define

the way in which the supreme court shall conduct

its admission proceedings. One sees in

disciplinary proceedings against barristers that

the Council has its normal position as a party in

proceedings, with rights to adduce evidence and so

comes then to consider the only two sections on	forth. And it is against that background that one
which my friend relied down below to support the
proposition that the Bar Association was not
entitled to be a party or that the Bar Council, entitled to be a party could not adduce evidence.

Going to section 51 first, the argument runs

that section 51 is the only section which in terms

refers to the Bar Association or the Bar Council

appearing in admission proceedings, though
obviously it is not the only section relevant to

disciplinary proceedings. It says:

the Bar Council may -

Wentworth(2) 20 5/12/91

(b) appear by counsel before, and be heard

by, the Supreme Court in the exercise of the

functions of the Supreme Court.

Now, it is said that because there is a reference

to "appear before and be heard by" and no reference

to "and call evidence", therefore the Bar Council

appearing has no power to call evidence and the

supreme court may not permit it to do so.

It is perhaps not going too far to say it is

an extraordinary result if, indeed, in disciplinary

proceedings, the Bar Council was a party and could

call evidence, the supreme court is charged under

section 9 with determining whether people are -

of good fame and character -

if anyone suggests, in effect, they are not, and

against that background it is said the Bar Council

can be there but cannot call evidence.

We submit, with respect, what section 51 is really directed to doing is this: there would be

some doubt whether the Bar Council, as an

unincorporated board of directors, or body, would

have power to ever appear in proceedings at all, as

the Bar Council.	No doubt its members could, but
that would have its own problems.	Do you nominate

the 20 members in the institution of disciplinary

proceedings or anything else? If they are sued,

are they sued together? What if there is a

difference of opinion, a majority view and a

minority view, to institute proceedings? Does one

appear for the majority or all of them, including

those dissenting?

It would seem, we would suggest, that what the

Act has done is to do one of two things. It has

either used the term "Bar Council" as equivalent to

Bar Association because, effectively, the Bar

Association, in these sorts of matters, is run by

the Bar Council; or alternatively it has given a

quasi-corporate existence to the Bar Council to

take these various steps. And section 51 is

directed to making it clear that the Bar Council,

which would not normally be able to appear on its

own, may do so, just as it is charged with doing so

in the disciplinary proceedings before the board,

tribunal, and then given a right of appeal.

One cannot spell out of section 51 any

restriction on the way in which proceedings before

the supreme court on admission or, indeed, because

Sl(b) is not restricted to admission situations, it

covers all situations where the court is exercising

its functions in relation to barristers or

Wentworth(2) 21 5/12/91

candidates for admission as barristers. One cannot

spell out of that any way the possibility that the

Bar Council is restricted in its participation in

the proceedings before the supreme court.

TOOHEY J:  Mr Hulme, I take it the objection to the Bar

Council adducing evidence was, also, an objection

to cross-examination, or did that not arise?

MR HULME:  I think it did not specifically arise,

Your Honour.

TOOHEY J: Presumably, your submission, I take it, is that

the Council could do both?

MR HULME:  Yes, do all the things which a party could,

subject to the court's control of proceedings.

DEANE J: Your primary submission is that the Association

can still appear as a corporate body?

MR HULME:  Yes, I have tackled things a little bit the wrong

way around, Your Honour, but my friend,

effectively, needs to succeed on both grounds for

there to be any benefit to him. It does not assist

him, in practical terms, to exclude the Bar

Association but have the Council there as a full

party.

DAWSON J:	You are really appearing for the Bar Council any way, are you not, because the Association includes
the Bar Council?  I mean, it may be mystical to
approach it that way but it would seem to be so.

MR HULME:  Yes. The people who make the decision whether I

am going to be here or not going to be here is the

Board of Directors, the Bar Council.

Now, other interesting questions arise: if it

was the Bar Council and an order for costs was made

who bears it, the Bar Association or the Bar

Council or the individual members? The Bar Council
has no particular funds or no funds of its own and
in an ordinary situation it, presumably, has a

right of indemnity if it chooses to exercise it in

appropriate situations.

DEANE J: Perish the thought, but it is rather hard to keep

out the thought that having all these provisions

about consultation and so on with the Bar Council,

somebody may have made a mistake when it has come

to section 51, but be that as it may the section is

there.

MR HULME: It is there, but it is there in terms. It says,

Your Honour:

Wentworth(2) 22 5/12/91

In addition to its functions, the Bar Council

may -

Now, to translate into that proposition that it may

not do various things traditional in these

proceedings.

DEANE J:	We are on a leave application.
MR HULME:	I appreciate that.
DEANE J:	I think we appreciate the force of what you say.

The question we are asking though is the question

whether there is sufficient doubt about the matter

for this Court of three to say it goes no further,

or there is insufficient doubt about the matter.

MR HULME:  Insufficient doubt. Your Honour, we obviously

submit there is no real reasonable doubt - I will

put it in - - -

DEANE J: Well, you have done that, in the document.

MR HULME:  Your Honours, can I just perhaps at the risk of

repetition remind the Court again of the

extraordinary situation where evidence can be

adduced in disciplinary proceedings under those

sections, but suggest that it cannot be by the Bar

Council under 51 in admission proceedings because

51 itself certainly does not seem to suggest such a

distinction.

DEANE J:  Is the role of the prothonotary mentioned

anywhere in this Act?

MR HULME:  No, Your Honour.

DEANE J: Thank you.

MR HULME:  Your Honour, if I can then go to the position of

the Bar Association. The basis for the argument

that the Bar Association is not entitled to be a

party lies in the repeal, or revocation pro tanto

of the charter of justice in section 4(4). We

submit that while the charter of justice certainly

conferred on the supreme court power to admit

barristers, it does not seem to have been referred

to as defining the procedure which the court

followed for the admission of barristers.

Furthermore, it is clear, we would submit, from the

case of In Re Antigua, if I have the pronunciation

right - my junior says I do not - Justices, 1 Knapp

267, 12 ER 321, that colonial courts were regarded,

of necessity, as having a power to admit the

practitioners who were going to appear before them.

Wentworth(2) 23 5/12/91

May I just hand up the report of that case. It

has the advantage that it is two pages long. It

has been referred to with approval in Re Davis

75 CLR 409, at pages 414 and 419, and in Ziems

case, 97 CLR 279 at 290, or the proposition that

the power to admit carries with it the power to

disbar. We would submit that if there is an

inherent power to admit there must be an inherent

power to control the manner in which admission

proceedings are conducted. The court, over the

years, has exercised that inherent power of

regulating its own procedures by allowing the Bar

Association to participate, and that has been

recognized in the judgments to which I have

referred the Court.

Against that history, to suggest that - I am

sorry, let me add one other thing. There is

nothing in the cases to suggest that the

Bar Association's entitlement to appear depended

solely on the charter of justice, or indeed

depended on the charter of justice. To suggest

that in that situation, against that background,

the repeal of the charter of justice, revocation

pro tanto charter of justice, without anything else

being said, removed the entitlement of the

Bar Association to appear is, we would submit,

again, a proposition which has to be rejected.

We would submit the situation is the

supreme court is entitled, given that it has the

power to admit barristers, to decide who it is

going to hear on those applications, and that is

that.

This is not a case where it is an application

inter partes between A and Bin which C is trying

to buy in. It is a case where someone is going to the court and saying, "Please allow me to practice

before you." In that situation, it is appropriate

for the court to say, "We'll regulate it." The New

South Wales Supreme Court has done it over the

years in the way indicated.

May I just remind the Court, in the written

submissions we handed up, of three cases where this

Court has indicated it has some reluctance in

interfering in the supreme court's control of the

legal profession. The reservations which this

Court made are within a limited compass, and I

think I probably should invite the Court to just

look at the paragraph or half page at most in which

that is expressed.

We submit here that it is not appropriate for

this Court to grant special leave, given what we

submit is the clarity of the legal situation and

Wentworth(2) 24 5/12/91

the decision which the New South Wales Court of

Appeal expressly reached on this aspect. The page

references are given in the written submissions,

Your Honours, and they are very short.

DEANE J: Yes.

MR HULME:  Your Honours, the next matter to which I would

direct the Court's attention is the fact that the

Bar Association was joined as a party by an order of Mr Justice Badgery-Parker on the basis that the

second and third prayers of the summons affected

the interests of the Bar Association. That was an
order seeking that the applicant be permitted to
join the - it was expressed as "the Bar Council's

reading course". There is an affidavit of Ms Truss

which is filed which sets out the history of the

proceedings before Mr Justice Badgery-Parker. So

we were in a situation where we had been joined by

an order of the court against which there had been

no appeal.

There is one further matter to which I would

refer, and that is this. 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.

Now, Ms Wentworth, if admitted, is entitled to a

practising certificate. It may be qualified, it

may be conditional in the first instance, but on

admission she is entitled to become a member of the

Bar Association. On any view, the Bar Association

has an interest, then, in the result of the
proceedings.

We would submit, with respect, that the application ought to be refused on the basis that

the appeal is doomed to failure.

DEANE J: Thank you, Mr Hulme. Mr Garnsey, we would like to

hear you on the question whether there is
sufficient doubt on this matter to warrant a grant

of leave.

MR GARNSEY:  Yes, Your Honour. First, as to the question of

whether the Bar Association or the Bar Council is

properly a party - - -

DEANE J: Well, we would like to hear you generally,

Mr Garnsey.

MR GARNSEY: If Your Honours please. Your Honours, as to

the questions of public importance raised in our

Wentworth(2) 25 5/12/91

submission by this application, the first is as to

the proper constitution of the proceedings; that

is, whether the Bar Association or the Bar Council

should be a party. A reading of - - -

TOOHEY J:  Excuse me, Mr Garnsey. Do you mean one or the

other or either?

MR GARNSEY:  I am sorry, Your Honour. It is our submission

that the Bar Association cannot be, and the Bar

Council, in some form or other - unfortunately the

Legal Profession Act does not make it clear in what

form - should be. When I say "should be a party",

if Your Honour pleases, I leave aside what it is

entitled to do on the proper construction of the

Legal Profession Act, if the Bar Council appears

and is heard pursuant to section 51. I am only

seeking to address Your Honours now as to whether

an entity, known as the Bar Council, should be a

party. It is our submission the Bar Association

should not be.

The recommendations of the New South Wales Law

Reform Commission in its first report, which led to

the enactment of the Legal Profession Act, make it

crystal clear that it was regarded as a vice that

the Bar Association should be a party and - page 11

of the first report, recommendation 7. I think my

friend might have had a number of multiple copies

of this because he did provide me with a copy.	It
would be very kind of my friend to make them
available to Your Honours.	I am looking at the

first photocopy bundle, page 11, which contains the

recommendations, Your Honours.

MR HULME:  The Court's two reports have been bound together.

DEANE J: Page 11?

MR GARNSEY: Eleven. Your Honour sees R7?

DEANE J: Yes.
MR GARNSEY:	The Bar Council should have some statutory
powers -

there was difference of opinion as to how many -

(2) The Council should continue to have non-

statutory powers .....

(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.

Wentworth(2) 26 5/12/91

DEANE J: That seems to answer the suggestion I made to

Mr Hulme.

MR GARNSEY:	Mr Hulme did refer to it very briefly in his introductory remarks. It also, with respect, meets
some of the remarks of Your Honour
Mr Justice Dawson.  The reason for that is quite
clear if one looks at the Act.  I do not want to go
through all the sections, if Your Honours please,
that my friend went through, but the Council is
indicated as, in personae designatae, as having
responsibility to perform a number of functions
under the Act dealing with the regulation of the profession, the regulation of barristers, and there is no function entrusted under the Act to the Association although the Association and the Bar
Council is separately defined.

DAWSON J: Theoretically, if you are right, you could have

conflicting submissions by the Association and

Council?

MR GARNSEY:  Yes, and the Law Reform Commission recognized

that. The members could meet in general meeting

and say, "We want this put", and the Law Reform

Commission said, "That's the very sort of thing we

don't want to occur.". Well, that would be our

submission on appeal.

Your Honours, the Bar Association is referred to in section 2ll(a), which is a section that

protects from liability the Bar Association or the

Bar Council or their committees. That distinction

is clearly maintained. The Bar Association is

defined because at times the Act refers to
committees of the Association performing certain

functions. But, at no stage, is any function given

by the Act to the Bar Association as such, it is

always given to the Bar Council which is defined.

It is presumably a matter - whether it has been attended to or not is another matter - for the	directors of the Bar Association to ensure they are
properly indemnified for the costs and expenses of
performing their functions under the Legal
Profession Act. So in our respectful submission,
the Act, especially when read in the light of the
Law Reform Commission's recommendations, is a very
powerful argument in itself for denying the Bar
Association as such the right to appear.

That is not the only ground on which we say

the Bar Association is not properly a party. Until
the Legal Profession Act, admission was governed by

the charter of justice and the Legal Practitioners

Act 1898 in New South Wales. The charter of

justice enabled the supreme court to admit fit and

Wentworth(2) 27 5/12/91

proper persons as barristers, and that was where

the phrase "fit and proper person" came in.

The Legal Practitioners Act and its

predecessor, an 1848 Act, introduced the

requirement of "good fame and character" as a

statutory phrase and requirement, but did not

specify that an applicant must be a fit and proper

person. An examination of the cases considering

admission up to the time of the Legal Profession

Act shows that the courts refer to the charter of

justice and the Legal Practitioners Act or its

predecessor and the requirements of fit and proper
person and good fame and character without

distinguishing between them specifically. I cannot

recall in any case an examination of the precise

meaning of good fame and character. There is often

extensive observation of what constitutes a fit and
proper person to be admitted as a barrister.

There has been no consideration in any of

these previous cases as to the precise basis upon
which the Bar Association was permitted to appear.

The prothonotary was sometimes a party, especially

for striking off proceedings. The views were

expressed that it was undesirable that the court should, of its own notion, oppose admission. So

that was something the Bar Association should

perhaps do.

However, there simply has been no examination

of the precise basis on which the Bar Association
was permitted to appear. Whether or not it
properly did so before 1987 when the Legal

Profession Act was enacted, we submit the Act makes

it quite clear that it is no longer entitled so to

do.

In any event, the supreme court in Corporate

Affairs Commission v Bradley, a decision of the New

South Wales Court of Appeal, has held that the

supreme court does not have inherent power to

permit intervention generally. There must be some

statutory basis or a right of appearance

specifically under the general law, such as the

Attorney-General's right to uphold specific

legislation.

That decision is still, in our respectful

submission, good law, though its correctness has
been doubted by three statements, one by
Sir Laurence Street as Chief Justice when sitting

in the Court of Appeal, another by the President of

the Court of Appeal, and the third by a single

justice of the supreme court.

Wentworth(2) 28 5/12/91

TOOHEY J:  Mr Garnsey, bear in mind that this is an

application for special leave. If you make good

your Bar Association point but steps are taken to
substitute the Council or add the Council to the

Bar Association, does the matter not then come down

in the end to whether the Bar Council is in a

position to adduce evidence?

MR GARNSEY:  Yes, Your Honour. The first step is important

because in the matter of admission the proceedings

must be properly constituted, we submit.

TOOHEY J: Yes, I do not suggest that it may not be

important, but from the point of view of the Court considering whether to grant special leave and the

practical implications of doing so or refusing, it

may be necessary in the end to focus upon the role

of the Bar Council and its entitlement to adduce

evidence.

MR GARNSEY:  If Your Honour pleases, and before making a

short submission as to that, could I submit, and to

the converse of what my friend said, that it would

be a reason in favour of granting special leave

that in the matter of an admission where the Court

of Appeal of New South Wales has disqualified

itself from hearing the matter further but has

decided on the question of parties, to allow what

we submit is a manifestly wrong decision as to

parties to stand.

In relation to the question of whether the Bar

Council, if admitted, can adduce evidence at all,

it is our primary submission that it is in the

position of an amicus curiae. We say the Act when

looked at and examined together with the admission

rules, bearing in mind the revocation of the
charter of justice and, we would say, the

extinction of the issue whether a person is a fit

and proper person to be admitted as an issue, is

confined to the questions under the Act, that is has there been satisfaction of the regulatory	requirements as to education and the provision of
certificates? That, we say, is a statutory scheme
as to what constitutes a fit and proper person to
be admitted.

The only remaining issue is whether a person

is of good fame and character. It is our

submission that that is a much narrower issue and

should be because it is a composite phrase, and

refers to a person's known reputation or character.

TOOHEY J:	And do you accept the entitlement of the Bar Council to adduce evidence on that matter?
MR GARNSEY:	No, Your Honour.

Wentworth(2) 29 5/12/91

TOOHEY J:	How then is the Court to be informed of matters bearing upon that question?
MR GARNSEY:	The regulations require the applicant to put various matters before the court, and one of them
relates to certificates of good fame and character,
and another declaration which the applicant must make, I think, requires a statement of any matters
which might affect the admission.  The question
then is what if someone does not reveal a conviction? Our answer is that the regulations
have not been satisfied and the Attorney-General
has an interest to appear to bring that before the
court or the admissions board itself which is
charged with seeing that everything is in order before admission can do so.

The situation, we submit, is different and is

shown to be different by the present statutory

scheme to that which previously obtained, and is a

value judgment by the legislature as to the

appropriate method of regulating admissions and the

profession. We have long assumed that it is quite

in order for the concept of the fitness and
propriety, to embody characteristics which must be
inherently known or assumed by a homogeneous

society. That, we submit, is no longer the case

and that, we submit, is what the legislature has

recognized.

I appreciate that in long-standing decisions of this Court there have been certain criteria

enunciated; really coming, I think, from

Mr Justice Kitto in Clyne's case, who referred to

two types of rules: those which are conventional,

as against those which are fundamental. The

fundamental ones, His Honour said, are ones which

are usually not defined which must occur to admit

practitioners. Clyne's case, of course, was a

striking-off case of an existing practitioner. It

was not a question of admission, but it is our

submission - - -

DEANE J: Excuse me, Mr Garnsey. Mr Garnsey, looking at the

draft notice of appeal, if you were given leave,

the grounds are all over the place - - -

MR GARNSEY:  Yes, Your Honour.

DEANE J: As I understand it, and am I correct, the only

basis on which you seek leave is in relation to the
respective entitlements of the Bar Association and

the Bar Council, by leave or otherwise, to appear, make submissions, cross-examine and lead evidence?

MR GARNSEY: That is so, Your Honour.

Wentworth(2) 30 5/12/91

DEANE J: Well, now, any grant of leave would be strictly

restricted to those questions, unless there is something that you want to say in that regard.

MR GARNSEY:  No, Your Honour. The draft notice of appeal is

a little disparate.

DEANE J:  It raises things that have nothing to do with an

appeal, really.

MR GARNSEY:  Yes, Your Honour, except that, as the outline

of our submission shows, we do rely on some of the

substantive matters to say why the parties should

be the Bar Council and why the Bar Council should

be restricted in what it does.

TOOHEY J: But they are grounds of appeal, as it were. They

do not mark out the area of appeal, do they?

MR GARNSEY:	No, Your Honour.
TOOHEY J:	And in that regard, I take it we should be

looking at the document described as "Further draft

notice of appeal", should we?

MR GARNSEY:  Yes, Your Honour.

DEANE J: Well, what I had in mind, for example, was 3.3 in

that document.

MR GARNSEY:  Yes.

DEANE J: But if the application for leave to appeal is

confined in the manner I indicated, that can be

understood.

MR GARNSEY:  Yes. I appreciate what Your Honour says. That

is perhaps a little proleptic, in that it is a

matter which will be decided by Mr Justice Campbell

next Wednesday.

DAWSON J:  You are prepared to confine your application to

those matters which were mentioned by His Honour

the presiding judge.

MR GARNSEY:	Your Honour, might I just obtain precise instructions as to that before answering?
If Your Honour pleases, we would not seek leave in respect of 3.3. We would, however, seek
leave although that may not be a question which, on
reflection, we would necessarily pursue as to
whether the Court of Appeal should have proceeded to determine the question of parties, having decided it should disqualify itself, but I
appreciate what Your Honour said earlier.

Wentworth(2) 31 5/12/91

DEANE J: If you want to include that in a global

application for leave, it will only be relevant if

you were going to ask us not to determine the

question of construction, but to send it back

somewhere, in which case the whole approach to the

application for leave will be absolutely different.

MR GARNSEY:  Your Honour is right, and on reflection, I do

not make that application.

DEANE J:  Very well. Thank you. Mr Hulme, is there

anything you want to say in reply to what

Mr Garnsey has said?

MR HULME:  Your Honour, there are two things only. learned friend referred to, I think, to My

recommendation 7 to suggest that the Law Reform

Commission took the view that the Bar Council in

its statutory functions should not be subject to

control by the Association. There does not seem to

be anything in the Act along those lines.

The second thing is this, with respect. My

learned friend did not point to any other section

of the Act, or indeed, adduce any argument to

support his proposition that the Bar Council should

be restricted from adducing evidence. All he said

was that there were some provisions in the rules

which said that the applicant had to provide some

character evidence and say that she did not know of

anything.

Now, to think that the powers of the Court to

deal with the issue posed for it under section 9

are so circumscribed by that material, with

respect, is extraordinary.

DEANE J: Thank you, Mr Hulme.

MR GARNSEY:  I was proceeding to develop that, if

Your Honour pleases, and Your Honour did interrupt

me.

DEANE J: Yes, Mr Garnsey.

In this matter, there will be a grant of

special leave to appeal which will be strictly

restricted to the questions identified in

discussion with Mr Garnsey.

AT 3.20 PM THE MATTER WAS ADJOURNED SINE DIE

Wentworth(2) 32 5/12/91