by Ganesh Sahathevan
This recent judgment handed down by the NSW Court Of Appeal , led by the Chief Justice NSW Tom Bathurst (photo above) must be read in full if readers, particularly those in Asia are to fully comprehend the Court's reasoning, and its standards.
In this writer's experience, these are not standards that would find acceptance in any court or community of lawyers in Asia. They are in fact likely to be seen to have fallen well short of Asian community standards. That having been said, Australian lawyers seeking business in Asia must be prepared to be judged by these standards.
Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339 (21 December 2021)
Last Updated: 21 December 2021
Court of Appeal Supreme Court New South Wales |
Case Name: | Council of the New South Wales Bar Association v  EFA  (a pseudonym) |
Medium Neutral Citation: | |
Hearing Date(s): | 8 October 2021 |
Decision Date: | 21 December 2021 |
Before: | Bathurst CJ; Leeming JA; Simpson AJA |
Decision: | 1. Appeal dismissed with costs. 2. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2020 (NSW), on the grounds stated in s 8(1)(c) of the said Act, publication of information tending to reveal the identity of the first respondent as a party to the proceeding in the Civil and Administrative Tribunal of NSW on 10 and 11 December 2020 and 4 March, 12 May and 18 June 2021, and in the NSW Court of Appeal on 8 October 2021 is prohibited in Australia for a period of 20 years from the date hereof, except to the extent that such disclosure is required for purposes in connection with the first respondent’s professional indemnity insurance arrangements. 3. Order 2 does not apply to any person, body or entity to whom it is necessary to disclose the information referred to in Order 2 for the purpose of the legislation, regulations and rules applying from time to time for regulating the legal profession, for the assessment of costs and for the enforcement of judgments. |
Catchwords: | ADMINISTRATIVE LAW – particular administrative bodies – New South Wales Civil and Administrative Tribunal – Occupational Division – subject matter of power or decision – disciplinary decisions – legal practitioners – barristers – misconduct and discipline – professional misconduct – where respondent engaged in demeaning, humiliating and inexcusable conduct towards a female clerk at a dinner – where the Tribunal found that the respondent had not engaged in professional misconduct – whether the Tribunal erred in failing to find that the respondent’s conduct would justify a determination that the respondent was not a fit and proper person to engage in legal practice – whether the Tribunal erred in its assessment of the seriousness of the respondent’s conduct by imposing only a formal reprimand OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – disciplinary proceedings – professional misconduct – where respondent is a practising barrister – respondent engaged in demeaning, humiliating and inexcusable conduct towards a female clerk at a dinner – New South Wales Civil and Administrative Tribunal found that the respondent had engaged in “unsatisfactory professional conduct” – respondent alleged to have said the words “suck my dick” to the female clerk – where immediate verbal complaint made by female clerk to a colleague – where the events of the dinner were recorded by closed circuit television cameras – where the Court was in as good a position as the Tribunal to determine questions of fact – whether the respondent said to H the words “suck my dick” OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – professional misconduct – where professional misconduct is defined in s 297 of the Legal Profession Uniform Law (NSW) – where that definition is expressed to be “inclusive” of the traditional definition of “professional misconduct”’ at common law – where the Court has inherent jurisdiction to supervise members of the legal profession in New South Wales – where the admission, suspension or removal of legal practitioners in exercise of that jurisdiction considers whether a person is a “fit and proper to engage in legal practice” – where the applicant contended that Allinson v General Council of Medical Education and Registration [1894] UKLawRpKQB 36; [1894] 1 QB 750 created a distinct category of “professional misconduct” at common law – whether there is a distinct category of professional misconduct at common law beyond that which is incorporated into s 297 of the Legal Profession Uniform Law (NSW) OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – professional misconduct – where s 297 of the Legal Profession Uniform Law (NSW) defines “professional misconduct” as including conduct “that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice” – where conduct that would justify a finding of unfitness is not necessarily conduct that must result in such a finding – where unfitness is not measured by the objective circumstances of the conduct alone but also by consideration of character – whether the respondent’s conduct would justify a finding that he was not a fit and proper person to engage in legal practice OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – professional misconduct – grounds for disciplinary orders – where respondent said the words “suck my dick” to a female clerk – where the respondent’s conduct and words warranted severe condemnation – where the Court has and will have no tolerance for conduct of legal practitioners that does not recognise and meet appropriate standards in respect of the treatment of women – where the objective of disciplinary orders is protective and not punitive – where the Tribunal found that the respondent’s conduct was an isolated instance of departure from accepted norms – where the respondent has suffered significant personal, emotional and financial cost as a result of his conduct – whether the Tribunal erred in its assessment of the seriousness of the respondent’s conduct by imposing only a formal reprimand STATUTORY INTERPRETATION – definitions – “means” and “includes” – definition of “professional misconduct” in Legal Profession Uniform Law (NSW), s 297 – where that section was intended to incorporate “the traditional common law definition” of professional misconduct |
Legislation Cited: | Civil and Administrative Tribunal Act 2013 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW), s 97 Legal Practitioners Act 1898 (NSW) Legal Profession Act 1987 (NSW) Legal Profession Uniform Law (NSW), ss 296, 297, 302 Supreme Court Act 1970 (NSW) Veterans’ Entitlement Act 1986 (Cth) |
Cases Cited: | A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1 Allinson v General Council of Medical Education and Registration [1894] UKLawRpKQB 36; [1894] 1 QB 750 Berger v Council of the Law Society of New South Wales [2019] NSWCA 119 Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40 Council of the Law Society of New South Wales v Parente [2019] NSWCA 33, Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407 Council of the New South Wales Bar Association v EFA [2021] NSWCATOD 21Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 Council of the NSW Bar Association v Costigan [2013] NSWCA 407 Council of the NSW Bar Association v EFA (No 2) [2021] NSWCATOD 84Ex parte Lenehan (1948) 77 CLR 403; [1948] HCA 45 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Griffin v Council of the Law Society of New South Wales [2016] NSWCA 364 In Re Davis (1947) 75 CLR 409; [1947] HCA 53 Law Society of NSW v Foreman (1994) 34 NSWLR 408 Law Society of NSW v Walsh [1997] NSWCA 185 Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited (2019) 266 CLR 129; [2019] HCA 38 Myers v Elman [1940] AC 282 New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 NSW Bar Association v Evatt (1968) 117 VLR 177 [1968] NSW Bar Association v Maddocks Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 Prothonotary of the Supreme Court of NSW v McCaffery [2004] NSWCA 470 Prothonotary v Comeskey [2018] NSWCA 18 Prothonotary v Gregory [2017] NSWCA 101 Re Veron; Ex Parte Law Society of NSW (1966) 84 WN (NSW) 136 Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch Inc (2000) 48 NSWLR 548; [2000] NSWCA 65 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279; [1957] HCA 46 |
Category: | Principal judgment |
Parties: | Council of the NSW Bar Association (Appellant) EFA (a pseudonym) (First Respondent)NSW Legal Services Commissioner (Second Respondent) |
Representation: | Counsel: C A Webster SC/P A Maddigan (Appellant) K Richardson SC/A Horvath SC (First Respondent) T L Wong SC/D Levi (Second Respondent) Solicitors: Hicksons (Appellant) Moray & Agnew (First Respondent) Office of the Legal Services Commissioner (Second Respondent) |
File Number(s): | 2021/90028 |
Publication Restriction: | Nil |
Decision under appeal: | |
Court or Tribunal: | NSW Civil & Administrative Tribunal |
Jurisdiction: | Occupational Division |
Citation: | |
Date of Decision: | 4 March 2021 18 June 2021 |
Before: | Cole DCJ, Deputy President P Callaghan SC, Principal Member E Hayes, General Member |
File Number(s): | 2019/00380341 |
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
HEADNOTE
[This headnote is not to be read as part of the judgment]
The respondent
Just before 11pm, the respondent approached a table at which A and H were seated. The respondent engaged A in a ritualised greeting which, in part, parodied oral sex. The respondent then moved closer to H, stood behind her, and placed his left hand on the back of her head. The Council alleged that the respondent took hold of the back of H’s head, moved her head “to and from his crotch area” and said the words “suck my dick”. The respondent denied these allegations. These events were recorded in their entirety from two different angles on two closed circuit television cameras, neither of which was equipped with audio recording capabilities.
By application filed in the NSW Civil and Administrative Tribunal on 3 December 2019, the appellant Council sought a finding that, by virtue of his conduct towards H at the dinner, the respondent was guilty of unsatisfactory professional conduct within the meaning of s 296 of the Legal Profession Uniform Law (NSW) (the Uniform Law) professional misconduct within the meaning of s 297 and/or at common law; consequential orders under s 302 and an order that the respondent pay the Council’s costs of the proceedings.
By Stage 1 decision made on 4 March 2021, the Tribunal found that the respondent’s conduct did not amount to professional misconduct, either at common law or under statute, but instead amounted to unsatisfactory professional conduct. In reaching this conclusion, the Tribunal found that the respondent had not placed his right hand near his crotch area whilst standing behind H, that he had not guided her head towards his crotch, but that he had said the words “suck my dick” to H. The Tribunal placed significant reliance upon a close examination of the CCTV footage, in addition to H’s immediate complaint to W, in making these findings of fact.
By Stage 2 decision, delivered on 18 June 2021, the Tribunal formally reprimanded the respondent under 299(1)(b) of the Uniform Law, and ordered that he pay the Council’s costs. The Tribunal declined to impose a fine on the respondent, or to order that he undertake a course of counselling.
The Council appealed against both of the Tribunal’s decisions. In respect of the Stage 1 decision, it sought an order that the respondent’s conduct at the dinner constituted professional misconduct at common law and/or pursuant to ss 297 and 298 of the Uniform Law. In respect of the Stage 2 decision, and in addition to the formal reprimand, the Council sought an order that the respondent pay a fine, and undertake a course of counselling.
The respondent filed a Notice of Contention challenging the Tribunal’s finding that he said to H the words “suck my dick”.
The principal issues on appeal were:
1. whether the respondent said to H the words “suck my dick” (the Notice of Contention);
2. whether there is a distinct category of “professional misconduct” at common law, beyond what is incorporated into s 297 of the Uniform Law (the professional misconduct issue);
3. whether the respondent’s conduct would justify a finding that he was not a fit and proper person to engage in legal practice (the fitness issue); and
4. whether the Tribunal erred in its assessment of the seriousness of the respondent’s conduct by imposing only a reprimand (the penalty issue).
The Court held (Bathurst CJ, Leeming JA and Simpson AJA), dismissing the appeal with costs and dismissing the Notice of Contention:
As to the Notice of Contention
Per the Court:
1. The Court was in as good a position as the Tribunal to determine the factual issue of whether the respondent said to H the words “suck my dick”. Having undertaken a close examination of the CCTV footage, the Court was satisfied that the respondent made the offensive remark to H as alleged by the Council. There was simply no explanation for H’s immediate distress and complaint to W other than that it was an accurate reflection of what the respondent said to her: [97], [102].
Lee v Lee (2019) 266 CLR 129; [2019] HCA 38; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22, considered.
As to the professional misconduct issue
Per the Court:
2. The “traditional common law definition” of professional misconduct is incorporated into the inclusive definition in s 297 of the Uniform Law: [118].
3. There does not exist, in the common law of New South Wales, a distinct category of professional misconduct that can be defined by conduct that is regarded as “disgraceful or dishonourable” by professional peers, and divorced from the test of a “fit and proper person to engage in legal practice”. What is recognised is a category of professional misconduct, judged by the test of “fitness”, which may or may not justify or require removal from the roll of practitioners: [149]–[151], [156].
Allinson v General Council of Medical Education and Registration [1894] UKLawRpKQB 36; [1894] 1 QB 750; Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145; A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1; In Re Davis (1947) 75 CLR 409; [1947] HCA 53; Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46; Re Veron; Ex Parte Law Society of New South Wales [1966] 1 NSWLR 511; Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201; New South Wales Bar Association v Maddocks (Court of Appeal (NSW), 23 August 1988, unrep); New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284; Prothonotary v Gregory [2017] NSWCA 101; Council of the Law Society of New South Wales v Parente [2019] NSWCA 33; Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470; Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407; Prothonotary v Comeskey [2018] NSWCA 18, discussed.
4. “Professional misconduct” determined against the “critical criterion” of a “fit and proper person to engage in legal practice” is indistinguishable from “professional misconduct” as defined in s 297(1)(b) of the Uniform Law. This “critical criterion” extends beyond the sole consideration of conduct by encompassing character, and the circumstances relevant thereto: [160].
Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46, referred to; Re A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253; [2005] HCA 1.
As to the fitness issue
Per the Court:
5. Conduct that would justify a finding of unfitness to engage in legal practice is not necessarily conduct that must result in such a finding. There is a range of conduct that would justify, but not necessarily result in, such a finding, and there is a range of conduct with respect to which reasonable minds might differ on whether it did, in fact, demonstrate unfitness. Section 297(1)(b) of the Uniform Law is concerned with the capacity of conduct to establish unfitness: [164].
6. As “poorly judged, vulgar and inappropriate” as the Tribunal correctly found the respondent’s conduct to be, the Tribunal did not err in finding that it was not conduct that would justify a finding of unfitness on the part of the respondent. Unfitness is not measured by the objective circumstances of the conduct alone and, on the evidence before the Tribunal, the respondent had engaged in an isolated instance of appalling conduct. There was nothing, on the evidence, to add to the respondent’s conduct that would warrant a finding of unfitness for the purposes of s 297(1)(b) of the Uniform Law: [171]–[173].
Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46; A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1, referred to.
As to the penalty issue
Per the Court:
7. The Tribunal recognised the seriousness of the respondent’s conduct, including by characterising it as “poorly judged, vulgar and inappropriate”. Saying the words “suck my dick” elevated the respondent’s conduct into a dimension warranting severe condemnation beyond merely a formal reprimand: [180]–[181].
8. Given the significant financial penalty already levelled against the respondent by his insurer, the imposition of a fine was not necessary in light of the protective (and not punitive) objective of disciplinary orders. As abhorrent as the respondent’s conduct was, rightly warranting condemnation, on the evidence before the Tribunal it represented an isolated instance of departure from accepted societal and professional norms of conduct. In considering the penalty issue, the conduct needed to be seen in proportion to what it had already cost the respondent in personal, emotional and financial terms: [195]–[197].
Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46; A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1, considered.
JUDGMENT
1 THE COURT: The respondent to this appeal is a lawyer practising as a barrister in Sydney and elsewhere. In December 2019 the appellant (the Council of the NSW Bar Association, to which we will refer as “the Council”) filed in the Occupational Division of the NSW Civil and Administrative Tribunal (“the Tribunal”) an Application for “Disciplinary Findings and Orders” arising out of conduct of the respondent at an event that took place in July 2017. The Council sought:
- a finding that the respondent was guilty of professional misconduct within the meaning of s 297 of the Legal Profession Uniform Law (NSW) (“the Uniform Law”) and/or at common law;
- consequential (but undefined) orders under s 302 of the Uniform law; and
- an order that the respondent pay the Council’s costs of the proceedings.
2 On 4 March 2021 the Tribunal found that the respondent’s conduct did not amount to professional misconduct, either at common law or under statute, but did amount to unsatisfactory professional conduct within the meaning of s 296 of the Uniform Law: Council of the Bar Association v
3 The Council now appeals against each decision. The appeal is as of right (Griffin v Council of the Law Society [2016] NSWCA 364 at [37]; Civil and Administrative Tribunal Act 2013 (NSW) Sch 5, Pt 6, cl 29(2)(b)). By Amended Notice of Appeal the Council asks this Court:
(1) to set aside the finding of the Tribunal that the respondent’s conduct did not amount to professional misconduct, and to substitute a finding that the conduct of the respondent constituted professional misconduct under any or all of the common law, ss 297 and 298 of the Uniform Law. (The original Application did not expressly seek a finding of professional misconduct under s 298);
(2) alternatively, to remit the matter to the Tribunal for rehearing and
(3) to order, in addition to the reprimand,(a) that the respondent pay a fine, and
(b) that the respondent undertake, at his own expense, a course of sexual behaviour counselling.
4 The appeal is governed by s 75A of the Supreme Court Act 1970 (NSW). It is an appeal by way of rehearing (subs (5)); the Court has the powers and duties of the Tribunal, including the power and duty to make findings of fact and draw inferences (subs (6)). The power to make findings of fact inconsistent with those made by the Tribunal is constrained by the principles stated by the High Court in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679; Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited (2019) 266 CLR 129; [2019] HCA 38.
Non-publication orders
5 Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) the Tribunal made orders prohibiting, subject to specified exceptions, the disclosure of the names of individuals who had participated in the proceedings, and certain entities that had been identified; restricting access to documents and evidence filed in the proceedings; and, specifically, prohibiting publication of the identity of the respondent as a party to the proceedings and of any material tending to reveal his identity. Each individual and entity was assigned a letter of the alphabet by which he, she, or it was referred to. The Tribunal ordered that in relation to the Tribunal proceedings, the respondent continue to be referred to as “
6 On 30 June 2021, by consent, the Registrar of the Court of Appeal made an interim order under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the Non-publication Orders Act”) to the effect that, until the day of the hearing of the appeal, the name of the respondent not be published without leave of the court and that the respondent be referred to as “
7 On 29 September 2021, by notice of motion, the respondent sought further orders, to similar effect, specifying that the non-publication orders with respect to his name, and the assignment of the pseudonym “
8 The appeal was fixed for hearing on 8 October 2021. Shortly after the hearing had commenced the Court received a copy of a communication from the Legal Services Commissioner (a statutory officer whose role is mentioned below) to the President of the NSW Bar Association, advising that he considered that, notwithstanding any order that might be made by this Court under s 7 of the Non-publication Orders Act, he was under a statutory duty to publish certain information on a Record of Disciplinary Action on the website of his Office, that information being the name of the barrister concerned, other identifying particulars and any disciplinary action taken. The Legal Services Commissioner cited the Legal Profession Uniform Law Application Act 2014 (NSW) (“the Uniform Law Application Act”), s 157(3), as the source of the duty.
9 As a consequence the Court directed that the Legal Services Commissioner be joined as a party to the proceedings, and directed that he indicate to the Court what he proposed with respect to publication prior to determination of the appeal. In response, the Legal Services Commissioner indicated that he did not intend to make any publication prior to delivery of the judgment. He was given the opportunity to provide submissions with respect to his contention that the Uniform Law Application Act required him to enter the details on the publicly accessible record. The Legal Services Commissioner has complied with that direction. His submissions and those received from the Council and the respondent will be considered below.
10 Consideration of the respondent’s notice of motion (to which the Council consents) is best deferred until resolution of the substantive matters on this appeal.
Background facts
11 The events that gave rise to the Council’s application took place at a social function (a dinner) on 21 July 2017, following a barristers’ clerks’ conference. The dinner was attended by barristers’ clerks, barristers and some invited guests. At a late stage in the evening the respondent, in a state of intoxication, engaged in the conduct in question. Some of what was alleged by the Council is uncontroversial; some is disputed. The Tribunal made relevant findings of fact to which it will be necessary to refer in due course.
12 It is uncontroversial that, just before 11pm, the respondent approached a table at which were seated a male friend of his (to whom the Tribunal referred as “A”) and a female assistant clerk (to whom the Tribunal referred as “H”). A was a member of a floor of barristers, “Floor Y”. H was the assistant clerk to Floor Y. The respondent did not know H. The respondent greeted A in a fashion that the Tribunal interpreted as “a ritualised greeting which, in part, parodied oral sex”. The respondent then moved closer to H, stood behind her, and placed his left hand on the back of her head. What took place thereafter is the subject of some dispute. The Council alleged (and the respondent denied) that the respondent took hold of the back of H’s head, moved her head “to and from his crotch area” and said “suck my dick”.
13 The whole of the event was recorded from different angles on two closed circuit television cameras, but without audio recording.
14 H made almost immediate complaint of the respondent’s conduct. She spoke to the clerk (“W”) of Floor Y and recounted what she said had taken place. Both H and W, within a few days, made written statements about the event. The allegations made by the Council in the Application were based, almost exclusively, on these statements.
15 On 3 August 2017 the respondent made a written apology to H.
16 Further detail of what was alleged against the respondent, what was admitted and what was disputed, and the findings of the Tribunal, will be given below. It is necessary to understand the statutory context in which the Council’s allegations were made, and the course of events following the dinner (on 21 July 2017) and the hearing in the Tribunal (on 10 and 11 December 2020).
The relevant statutory provisions
17 The principal legislation relevant to the proceedings is the Uniform Law, Ch 5 (ss 260 – 322) which is concerned with “Dispute resolution and professional discipline”. Section 260 states three objectives of Ch 5, as follows:
(a) to provide a framework for the timely and effective resolution of disputes or issues between clients and lawyers or law practices; and
(b) to provide a scheme for the discipline of the Australian legal profession, in the interests of the administration of justice and for the protection of clients of law practices and the public generally; and
(c) to monitor, promote and enforce the professional standards, competence and honesty of the Australian legal profession.
18 Part 5.4 (ss 295 – 305) of Ch 5 is directed to “Disciplinary matters”. For “disciplinary” purposes the Uniform Law draws a distinction between “unsatisfactory professional conduct” and “professional misconduct”. By s 296, “unsatisfactory professional conduct” is defined to include:
...conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.
By s 297(1) “professional misconduct” is defined to include:
(a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice.
By subs (2) of s 297:
For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.
19 The definitions of both unsatisfactory professional conduct and professional misconduct are expanded in s 298 to include further specified categories of conduct. The chapeau to s 298 reads:
Without limitation, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct ... .
Thereafter, in pars (a)-(j), ten categories of conduct are nominated. Relevantly, by par (b), conduct consisting of a contravention of “the Uniform Rules” is specified as conduct capable of constituting either unsatisfactory professional conduct or professional misconduct.
20 The relevant Uniform Rules are the Legal Profession Uniform Conduct (Barristers) Rules made under Pt 9.2 of Ch 9 of the Uniform Law. Relevantly, r 8 provides:
A barrister must not engage in conduct which is:
(a) dishonest or otherwise discreditable to a barrister,
(b) prejudicial to the administration of justice, or
(c) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.
21 Part 5.2 (ss 265 - 284) of Ch 5 of the Uniform Law establishes a formalised process by which complaints about lawyers may be made, investigated, and dealt with. By s 266(1) any person or body may make a complaint that relates to any dispute or issue about any conduct to which Ch 5 applies; by s 266(2) the “designated local regulatory authority” may initiate a complaint containing a disciplinary matter only. By s 267(1) a complaint (which by subs (2), must be in writing, identify the complainant and the lawyer about whom the complaint is made, and describe the alleged conduct the subject of the complaint) is made to or by the designated local regulatory authority.
22 By s 11 (Table 1) of the Uniform Law Application Act the “designated local regulatory authority” is, for the purposes of Ch 5 of the Uniform Law, the Legal Services Commissioner (“the Commissioner”) appointed under Pt 3, Div 2 of the Uniform Law Application Act. The Commissioner may, by s 282(1) of the Uniform Law, investigate the whole or part of a complaint, or may, by s 282(2), appoint a suitably qualified person to conduct an investigation.
23 The Commissioner has power, by s 299(1) of the Uniform Law, to find that a lawyer has engaged in unsatisfactory professional conduct, and to make any of a number of specified orders, which (relevantly) include caution (par (a)) and reprimand (par (b)) and the imposition of a fine not exceeding $25,000 (par (f)). The Commissioner may, by s 406(1) of the Uniform Law, delegate its Ch 5 functions to an entity which, by s 405(2), may be a professional association (which includes the NSW Bar Association).
24 By s 300 the Commissioner may initiate and prosecute proceedings against a lawyer in “the designated tribunal” if of the opinion that:
(a) the alleged conduct may amount to unsatisfactory professional conduct that would be more appropriately dealt with by the [Tribunal]; or
(b) the alleged conduct may amount to professional misconduct.
25 By s 11 (Table 2) of the Uniform Law Application Act, the Tribunal is “the designated tribunal”. Section 302 of the Uniform Law empowers the Tribunal, if it has found a lawyer guilty of unsatisfactory professional conduct or professional misconduct, to make any orders that it thinks fit, (specifically including orders that may be made by the Commissioner under s 299(1)) and specifies a number of orders additional to those stated in s 299(1). The additional orders that the Tribunal may make include an order recommending that the name of the lawyer be removed from a roll kept by the Supreme Court (s 302(1)(f)) (s 22 of the Uniform Law requires the Supreme Court to maintain a roll of Australian lawyers admitted to practice). Where the Tribunal finds the lawyer guilty of professional misconduct the Tribunal may impose a fine not exceeding $100,000 (s 302(1)(l)).
The course of events following the dinner
26 On 25 July 2017 the events of the dinner were brought to the attention of Mr Greg Tolhurst, the Executive Director of the NSW Bar Association, by a director of Floor Y. The director provided copies of statements by H, W, A and F (another barrister from Floor Y). On 2 August 2017 Mr Tolhurst wrote to the respondent, advising him that the matter of his conduct at the dinner was under consideration. The following day, 3 August, Mr Tolhurst wrote to the Local Area Commander of NSW Police, providing copies of the relevant statements. He did this in what he considered to be compliance with s 465 of the Uniform Law, which requires certain persons (including the Council), if they suspect that a person has committed a serious offence, to report the suspected offence to police and to make available relevant information and documents. There was no evidence of any response to this communication and no evidence that any criminal action was taken against the respondent.
27 On 3 August 2017 the respondent wrote to H with an “unconditional apology”; he said that he did not recall the events other than what he described as “horsing around” with A but had no reason to disbelieve that it had occurred and that H had become swept up in it. He expressed his deep embarrassment and remorse. In this letter the respondent did not explicitly address the allegations that H had made about his conduct towards her. He said:
“The actions attributed to me, directed toward you, are not in keeping with my personality and character. I acknowledge that you are not well known to me and that in the circumstances the behaviour referred to is inappropriate and disrespectful. I am sorry that you became the subject of my behaviour with my friend and given my limited recollection I am unable to offer a further explanation.”
28 On 7 September 2017 the Council resolved:
“...pursuant to s 266 of the [Uniform Law] to make a complaint against [the respondent] alleging that [the respondent] has engaged in sexually inappropriate conduct in that, on 21 July 2017 when attending a function attended by barristers, barristers clerks and other people, [the respondent] approached [H] and made a sexually inappropriate advance involving physical contact.”
29 On 8 September 2017 the Tribunal notified the Commissioner of the complaint. On 12 September 2017 (presumably under s 406(1) of the Uniform Law) the Commissioner referred the complaint to the Bar Association for assessment, investigation and determination. On 21 November 2017 a Professional Conduct Committee of the Bar Association resolved that the complaint proceed to an investigation pursuant to s 282 of the Uniform Law.
30 On 2 March 2018 the respondent provided a reply to the complaint. The investigation continued until 17 April 2018 when the Professional Conduct Committee reported, with a recommendation that the Council resolve pursuant to s 300 of the Uniform Law that proceedings be initiated and prosecuted against the respondent in the Tribunal to determine whether he had engaged in unsatisfactory professional conduct or professional misconduct.
31 On 12 June 2018 the respondent provided, in some detail, a response to the Report. On 9 August 2018 the Council resolved to refer the complaint back to the Professional Conduct Committee for further consideration. (The evidence does not disclose the basis for the resolution or the issues in respect of which further consideration was sought).
32 On 23 August 2018 the Council resolved to withdraw the complaint of 7 September 2017. It then resolved:
“...pursuant to s 266 of the [Uniform Law] to make a complaint against [the respondent] alleging that [the respondent] engaged in sexually inappropriate conduct in that, on 21 July 2017 when attending a function attended by barristers, barristers clerks and other people, [the respondent] made sexually inappropriate advances, including physical contact and words spoken, to an assistant clerk [H] and to another in her presence, in particular, that he:
1. held [A’s] head and pulled it backwards and forwards towards [the respondent’s] crotch, in the presence of an assistant clerk [H];
2. stood over [H] when she was seated and took hold of the back of her head;
3. applied pressure to the back of [H’s] head, with his hands;
4. moved [H’s] head to or towards his crotch area;
5. at the same time as the conduct in [3] and [4] said the words ‘suck my dick’.”
33 On 24 August 2018 the Council notified the Commissioner of the resolutions of 23 August. On 29 August the Commissioner referred the new complaint to the Bar Association for assessment, investigation and determination. On 10 September 2018 the Professional Conduct Committee resolved that the complaint of 23 August proceed to an investigation pursuant to s 282 of the Uniform Law. On 12 September the Council notified the respondent of that decision and invited him to make further submissions to be provided by 4 October 2018. An extension of that time (due to the respondent’s ill health) to 19 October was granted by email of 25 September. The investigation proceeded until 18 December 2018 when the Professional Conduct Committee provided a draft report. It recommended that the Council resolve, pursuant to s 300 of the Uniform Law, to initiate and prosecute proceedings in the Tribunal “in relation to the Grounds (a), (b), (c), (d) and (e) of the complaint made by [H]” on the basis that Council was of the opinion that the alleged conduct may amount to unsatisfactory professional conduct more appropriately dealt with by the Tribunal, or conduct that may amount to professional misconduct. (The reference to “Grounds (a), (b), (c), (d) and (e) of the complaint made by [H]” was clearly intended to be a reference to the 5 grounds stated in the Council’s second resolution of 23 August). On 4 February 2019 solicitors acting for the respondent provided a detailed response to the draft report.
34 On 21 May 2019 the Professional Conduct Committee provided its final report. It essentially confirmed the recommendations of the draft report. On 6 June 2019 the Council resolved in the terms recommended to it by the Professional Conduct Committee.
35 On 3 December 2019 the Council filed the Application in the Tribunal.
The Council’s case
36 The Council’s case as presented to the Tribunal was that the respondent’s conduct:
- was in breach of Uniform Rules (Barristers) r 8(a), being conduct that was “discreditable to a barrister”, and r 8(c), being conduct that was likely to bring the legal profession into disrepute, and, accordingly, constituted unsatisfactorily professional conduct or professional misconduct under s 298(b) of the Uniform Law;
- constituted professional misconduct at common law;
- constituted professional misconduct within s 297(1)(b) of the Uniform Law;
- alternatively, constituted unsatisfactory professional conduct within s 296 of the Uniform Law.
37 The Application set out, in detail, the particulars upon which the Council relied. These included a recitation of the conduct in which the respondent was alleged to have engaged with A. The Council alleged that the respondent approached the table at which A and H were seated, “stuck his middle finger of his right hand up and towards A”, pulled A’s head backwards and forwards towards his (the respondent’s) crotch, and then moved to a position standing between and slightly behind A and H.
38 The salient particulars were those involving the respondent’s conduct towards H, and were that:
- the respondent leaned towards H and placed his left hand on the back of her head (particular 18);
- the respondent’s body was turned towards H (particular 19);
- the respondent placed his right hand near his crotch (particular 20);
- the respondent guided H’s head towards his crotch (particular 21);
- the respondent said to H words to the effect of “suck my dick” (particular 22).
39 By particular 23 the Council asserted that the conduct occurred in connection with the practice of law. As discussed below, this allegation was important to the Council’s contention that the respondent’s conduct constituted professional misconduct at common law; it also recognised the s 296 definition of unsatisfactory professional conduct, and the s 297(1)(a) definition of professional misconduct, each of which requires that the conduct have that quality. Connection with the practice of law is not, however, necessary for proof of professional misconduct either as defined in s 297(1)(b) or as defined in s 298, the latter of which, as mentioned above, identifies specific categories of conduct which, “without limitation”, is capable of constituting unsatisfactory professional conduct or professional misconduct and which (in par (b)) includes conduct constituting a contravention of the Uniform Rules.
40 The Council framed its complaint in the following terms:
“The Respondent is guilty of professional misconduct, or in the alternative, unsatisfactory unprofessional conduct, as the Respondent engaged in sexually inappropriate conduct in that, on 21 July 2017 when attending a function attended by barristers’ clerks and (by invitation) barristers, the Respondent made sexually inappropriate advances, including gestures, physical contact and words spoken, to an assistant clerk, H, and to another in her presence.”
41 The respondent filed a Reply to the Application. He expressly admitted, in paragraph 15(b), that his attendance and conduct at the dinner were in connection with the practice of law.
42 He substantially admitted the Council’s allegations, so far as they concerned his conduct towards A. He disputed part of the Council’s allegations so far as they concerned his conduct towards H. He denied that, in his contact with H, he placed his left hand near his crotch (particular 20); he denied that he specifically guided H’s head towards his crotch (particular 21); and he denied that he said words to the effect of “suck my dick” (particular 22).
43 He contended that the allegation that he placed his right hand near his crotch was beyond the scope of the proceedings for determination by the Tribunal because it was not part of the Council’s complaint of 30 August 2018 (sic: 23 August) or the Council’s resolution of 6 June 2019.
The proceedings in the Tribunal
44 As is usual in disciplinary proceedings in the Tribunal, the hearing was conducted in two stages. The first is directed to factual determination of the allegations made, and to the proper characterisation of the conduct in question (professional misconduct, unsatisfactory professional conduct, or neither). The second stage (which only occurs if a finding of professional misconduct or unsatisfactory professional conduct is made) is concerned with consequential orders, and, particularly, what (if any) orders ought to be made under s 299 or s 302 of the Uniform Law.
Stage 1
45 The hearing in Stage 1 of the proceedings was thus concerned with whether the Council had established a basis for all or any of the Disciplinary Findings and Orders that it had sought in the application. A hearing dealing with that issue was conducted over 2 days, 10 and 11 December 2020, and proceeded in the first instance by way of affidavit evidence. To an affidavit sworn by Mr Tolhurst were exhibited a number of documents, including statements made by H, A and others in the days and weeks after the event, and documentary evidence of the chronology set out above.
46 Affidavits subsequently sworn or affirmed by H, A and others were read. No material difference between the content of the statements and the affidavits was identified. Video footage from the CCTV cameras played a significant role in the proceedings.
47 H’s initial account of the events, given in a statement made on 25 June 2017 was to the following effect. She recorded that she had been seated at a table with W (the clerk of Floor Y), and 8 barristers of that floor, one of whom was A, who was sitting next to her. H said that shortly before 11pm the respondent (whose name she did not know) approached the table and engaged with A in a jovial fashion, to which she paid little or no attention. H said that she looked away and then looked back and saw that the respondent had hold of A’s head and was moving A’s head to and from his (the respondent’s) crotch area. This lasted for a few seconds. She said that she looked elsewhere for a moment and turned her head back. She said that the respondent was standing over her, took hold of the back of her head with one hand, and started to move it towards his crotch area. While doing so, he said “suck my dick”.
48 H said that after a few seconds she pulled away. She said that A was looking “awkward and embarrassed”. She said that after she pulled away the respondent said, in an attempt at humour “oh, don’t report me to the Bar Association”. H said that she said something like “what the fuck”, and A motioned towards the respondent and said “he needs to go”.
49 H said that the respondent left the table a few seconds later. She said that she then left the table and found W and told him what had happened. Although W did not witness the event, he largely confirmed H’s account of her complaint to him. W said that H approached him, said that she needed to tell him something and said “you won’t believe what’s just happened to me”. W described H as “visibly shaken”, and recalled that her hands were trembling. He said that she told him that she was “so very angry, upset, embarrassed and humiliated”.
50 No other witness, apart from the respondent, was able to throw real light on the incident.
51 On 30 June 2020 the respondent swore an affidavit in which he acknowledged that his conduct with A (which he at the time thought was “high spirited and jovial”) was in fact inappropriate and unacceptable. Having by that time viewed the CCTV footage, he accepted that his conduct with A was “coarse, inappropriate, sexualised” and took place in the presence of H. The respondent denied both statements attributed to him (“suck my dick” and “don’t report me to the Bar Association”). He did, however, accept that he said something to H that caused her offence (for which he expressed regret). He denied pushing or guiding H’s head towards his crotch. He said that he had not intended to offend or harass H. He accepted that he briefly touched the back of H’s head and that that was unwelcome. He said that having watched the video footage, he was reinforced in his denials. He reiterated his apology to H.
52 In cross-examination H accepted that her statement (“[the respondent] ... started to move my head to and from his crotch area”) was wrong, in attributing more than one movement to the respondent; she acknowledged, having seen the video footage, that “it was just the one action”. She maintained, however, that the respondent “grabbed my head and pulled it towards his crotch”.
53 Two barristers from Floor Y (A and G) gave evidence. Both had been sitting at the same table as H and W. G was able to give no useful evidence, having not observed the conduct in question. A’s account of the events was initially given in a “memo” dated 25 July 2017. He said that the respondent was a good friend of his but that he (A) had been intoxicated and had no recollection of the incident. He then (on 9 April 2020) swore an affidavit having had the benefit of viewing the video footage and having been informed of the allegations made by H. He confirmed that he had no recollection of the incident. He did not recall the respondent saying to H “suck my dick” and believed that, if he had heard that, he would not have continued “horsing around” with the respondent. He did not recall H saying “what the fuck” and did not recall saying to H (of the respondent) “he needs to go”. He did not recall the respondent saying to H, or anybody else “don’t report me to the Bar Association”.
54 H, A, G and the respondent gave oral evidence and were cross-examined. The concession made by H in cross-examination has already been noted. Otherwise, cross-examination did little to elucidate the factual issues.
The decision of the Tribunal
55 The Tribunal, in effect, divided the allegations against the respondent into two segments, the first being his interaction with A, the second being his conduct towards H.
56 The conduct of the respondent towards A was not in issue. The area of factual dispute was therefore narrow, but important. It concerned:
- whether the respondent, when standing behind H, had placed his right hand near his crotch (particular 20); the Tribunal was satisfied that that did not happen (at [38]);
- whether the respondent guided H’s head towards his crotch (particular 21); the Tribunal was satisfied that he did not do so (at [39]);
- whether the respondent said to H “suck my dick” (particular 22).
57 The Tribunal spent several paragraphs of its decision analysing the evidence in respect of this final contested matter and ultimately (at [49]) accepted that the allegation had been made out. It gave detailed reasons for that conclusion, for which it relied on a close examination of the video recording, and H’s immediate report to W.
58 The Tribunal turned to the “characterisation of [the respondent’s] conduct”. As stated above, it considered that the way the respondent behaved towards A appeared to be “a ritualised greeting which, in part, parodied oral sex” (at [56]), that it was inappropriate at a barristers’ clerks’ dinner, even late in the evening, and that it had potential to offend onlookers. The Tribunal noted that there was no evidence that anybody (including H) was in fact offended by that conduct. The Tribunal considered that that conduct did constitute inappropriate sexual conduct (at [57]).
59 With respect to the respondent’s conduct towards H, the Tribunal concluded:
“58. H was offended by the pushing of her head by [the respondent] and the words ‘suck my dick’ which, we have found, he said to her as he did it. [The respondent’s] action and his words self-evidently had a sexual character and were inappropriate conduct towards a clerk who was previously unknown to him in the context of the barristers’ clerks’ dinner. [The respondent’s] words and actions were not, however, in context, an ‘advance’. [The respondent] was not actually inviting H to have oral sex with him. It seemed, rather, from the CCTV footage, that he was extending to her an abridged echo of the greeting he had offered to A. He was including her in the horseplay he had engaged in with A. It was very poorly judged, doubtless on account of [the respondent’s] significant level of intoxication. [The respondent] failed to take into account H’s likely feelings of anger, embarrassment and humiliation. Using the words of the Application, [the respondent’s] conduct was ‘sexually inappropriate conduct’ (or, more accurately, inappropriate sexual conduct), but it was not ‘a sexually inappropriate advance’ or any kind of advance at all.
59. The pushing of H’s head and the speaking of the words ‘suck my dick’ was unwelcome conduct of a sexual nature towards H. A reasonable person, having regard to all of the circumstances, would have anticipated that H would be offended and humiliated. H was, in fact, offended and humiliated. This was a reasonable and proportional response.”
60 The Tribunal then proceeded to consider the Council’s contentions that the conduct amounted to:
- professional misconduct at common law;
- professional misconduct within the meaning of s 297(1)(b) of the Uniform Law;
- unsatisfactory professional conduct or professional misconduct under s 298(b) of the Uniform Law; or
- unsatisfactory professional conduct within the meaning of s 296 of the Uniform Law.
61 The Tribunal rejected the Council’s contention that the conduct was professional misconduct at common law. It did this by reference to the decision of this Court in Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407, in which Gleeson JA, with the concurrence of Macfarlan JA and Sackville AJA, said:
“79. In exercising its inherent jurisdiction to discipline legal practitioners the Court is not bound by any statutory definition of ‘professional misconduct’. Rather ‘it has the capacity to determine, and act on the basis of, unfitness, where appropriate, without any need to stretch the concept of professional misconduct beyond conduct having some real and substantial connection with professional practice’: Prothonotary of the Supreme Court of NSW v Alcorn [2007] NSWCA 288 ...”
(The quoted passage was, in fact, as Gleeson JA acknowledged, virtually a direct quote from the judgment of the High Court in A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253; [2004] HCA 1, to which further reference will be made.)
62 The Tribunal considered that while the dinner “had a connection with the Bar” (by reason of the profession of the attendees),
“...attendance at the dinner could not be said to have ‘some real and substantial connection with professional practice’ (our emphasis) in the relevant sense.”
63 The Tribunal held, therefore, that the respondent’s conduct did not come within the common law concept of professional misconduct. The Tribunal then found it unnecessary to determine whether it had jurisdiction to make a finding of professional misconduct at common law (an issue that had been raised on behalf of the respondent). It also considered (correctly, in our opinion) that, in most cases, conduct that falls within the common law definition also falls within the statutory definition, meaning that a determination of whether the conduct came within the common law concept of professional misconduct was superfluous.
64 The Tribunal then turned its attention to the definition of professional misconduct in s 297(1)(b) of the Uniform Law (conduct that, whether or not occurring in connection with the practice of law, would, if established, justify a finding that the lawyer “is not a fit and proper person to engage in legal practice”) and the extended categories of conduct capable of constituting unsatisfactory professional conduct or professional misconduct stated in s 298. It asked itself, applying s 297(1)(b), whether the respondent’s conduct would justify a finding that he was not a fit and proper person to engage in legal practice (at [70]).
65 The Tribunal noted that an order for removal of a lawyer’s name from the roll may only be made if it is demonstrated that the lawyer is probably permanently unfit to practise law, citing Berger v Council of the Law Society of NSW [2019] NSWCA 119 at [367], in turn citing Ex parte Lenehan (1948) 77 CLR 403; [1948] HCA 45.
66 The Tribunal then expressed its view of the respondent’s conduct at the dinner in the following terms:
“76. [The respondent’s] conduct was poorly judged, vulgar and inappropriate. He failed to consider H’s likely reaction to his actions. His level of intoxication was also inappropriate at a function connected with the practice of law. However, we do not consider that [the respondent’s] actions during the incident on the night of 21 July 2017 indicate that he has a character flaw which would render him unfit to practice [sic] the law for any length of time, let alone permanently. Had his actions and words to H actually constituted a sexual advance, we would have characterised it differently, but we are satisfied that his actions and words were not a sexual advance.”
67 The Tribunal found (at [77]) that the Council had failed to establish that the respondent:
“...is not a fit and proper person to engage in legal practice under s 297[(1)(b)] of the Uniform Law.”
68 The Tribunal rejected an argument advanced on behalf of the respondent that rule 8 of the Uniform Rules was inapplicable because it appears in a part of the Rules dealing with “Advocacy”, and concluded that the conduct was a breach of each of pars (a) (conduct that is discreditable to a barrister) and (c) (conduct that is likely to bring the legal profession into disrepute) of that rule. The Tribunal did not, however, consider that the breaches were sufficiently serious to constitute professional misconduct because the conduct did not indicate that the respondent was not a fit and proper person to practise law (at [81]). The Tribunal finally concluded that the conduct did amount to unsatisfactory professional conduct.
Stage 2
69 Having found that the respondent’s conduct amounted to unsatisfactory professional conduct, it was necessary for the Tribunal to proceed to a further enquiry, as to the consequential orders that ought to be made. The available orders are those stated in ss 299 and 302 of the Uniform Law. The Stage 2 hearing took place on 12 May 2021.
70 For the purposes of that enquiry the respondent swore a further affidavit. He tendered two reports of Dr Kelly Bowers, a clinical psychologist, dated
25 March 2021 and 28 April 2021, a report of Dr Olav Nielssen, a psychiatrist, dated 30 April 2021, and five character references from professional associates. Enclosed with Dr Nielssen’s report were two media articles, one of which recorded the Tribunal’s Stage 1 decision, the other reporting comments made in general terms by a Sydney senior counsel.
71 In his affidavit the respondent reiterated his frequently expressed regret for his conduct. He acknowledged the Tribunal’s disapproval of his level of intoxication at the dinner. He said that he had taken steps to “improve my lifestyle and lifestyle choices” including by controlling his alcohol consumption and attending a detoxification and health retreat. He said that his marriage had come to an end, his wife citing the “humiliation and vulnerability that I have exposed the family to [and] the shame that I have caused”. His access to his children has been limited. He expressed concern about the impact of the findings on his practice and therefore his income.
72 The testimonials of professional colleagues were consistent in expressing the view that the conduct of the respondent was out of character.
73 Dr Bowers was asked by the respondent’s solicitors to express views on a number of questions. She recorded symptoms of low mood, irritability, unrelenting intrusive negative thoughts, loss of appetite, loss of enjoyment of previously enjoyed activities and substantial insomnia. She recorded that the respondent told her that he experienced feelings of isolation and loneliness, impairment in his capacity to work and suicidal ideation. (Dr Bowers assessed the risk of suicide as low, principally because of the respondent’s concern for his family and his determination to secure their long-term welfare.)
74 Dr Bowers considered that the respondent met the criteria for a Major Depressive Disorder and that his symptoms resulted in clinically significant impairment in his social, occupational and personal areas of functioning.
75 Dr Nielssen expressed similar views and concurred with the diagnosis of Major Depressive Disorder.
The decision of the Tribunal
76 The Tribunal noted, and accepted, the evidence of the respondent concerning the steps he had taken towards what might be called “rehabilitation”. It considered that there was no “appreciable risk” of repetition of the conduct in question and that the respondent had a clear and detailed understanding of why his behaviour constituted unsatisfactory professional conduct for which he was “truly repentant and contrite” (at [18]).
77 The Tribunal recognised (citing Law Society of NSW v Walsh [1997] NSWCA 185, per Beazley JA) that the orders to be made consequential upon a finding of unsatisfactory professional conduct are protective (of the community), not punitive or retributive, and are not equivalent to a penalty or sentence imposed for criminal conduct (at [5]-[7]). Notwithstanding that, the Tribunal considered that “general deterrence” (a concept directly borrowed from the criminal law of sentencing) is a significant factor in protecting the public from similar conduct by other practitioners (see, for example, at [19]). It noted the consequential orders sought by the Council, those being:
- a reprimand;
- that the respondent undertake, at his own expense, counselling with respect to sexual harassment; and
- the imposition of a fine.
78 The Tribunal, in effect, repeated its view that the incident concerning H did not involve an unwanted sexual advance or an attempt to:
“35. ... obtain sexual (or other) cooperation by intimidation, threats or other pressure, or even a deliberate decision to humiliate anyone ... .”
Had the incident involved any of those things, the Tribunal said, the disciplinary orders would have been more onerous than those it was considering. The Tribunal repeated its view of the conduct of the respondent as:
“35. ... an ill-judged attempt by [the respondent], late in the evening, after consuming a considerable quantity of alcohol, to include H in a jokey greeting ritual engaged in by [the respondent] with a friend.”
79 The Tribunal reiterated its confidence that the respondent would never behave in a like manner again.
80 In light of that conclusion the Tribunal rejected the Council’s request for an order that the respondent undertake counselling. It further considered that general deterrence would not be enhanced by the imposition of a fine. It considered that the seriousness of the conduct warranted a reprimand rather than a caution. It made an order to that effect and ordered the respondent to pay the Council’s costs as assessed or agreed.
The notice of appeal
81 By amended notice of appeal filed on 12 July 2021 (following delivery of the Stage 2 decision) the Council challenges:
- the conclusion of the Tribunal in the Stage 1 decision that the respondent’s conduct did not constitute professional misconduct; and
- the Tribunal’s assessment of the seriousness of the respondent’s conduct in the Stage 2 decision, resulting in the imposition of a reprimand rather than a more severe disciplinary order.
82 Five grounds of appeal against the Stage 1 decision were identified. They may be encapsulated as:
(1) failure to apply the “correct test” for professional misconduct at common law;
(2) failure to find that the respondent’s conduct constituted professional misconduct at common law;
(3) failure to find that the respondent’s conduct occurred in connection with the practice of law;
(4) and (5) failure to find that the respondent’s conduct constituted professional misconduct, within the meaning of s 297(1)(b) of the Uniform Law.
83 The essence of three stated grounds of appeal against the Stage 2 decision was that, having regard to the findings of the Tribunal, the imposition of the reprimand alone was an inadequate response.
The notice of contention
84 By notice of contention filed on 23 July 2021 the respondent challenges the factual finding that he said to H “suck my dick”.
85 By Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 51.40 a notice of contention may be filed by a party who wishes to support the decision on grounds other than those relied on by the court (or tribunal) below. It may be, as senior counsel for the respondent suggested, that a notice of contention was not the appropriate mechanism for challenging the factual finding. It was, nevertheless, a practical vehicle to crystallise what became an important issue in the appeal.
86 Since the comment was an integral and highly significant aspect of the respondent’s conduct, on which the Tribunal’s decision was based, the most convenient course is to resolve that question first. That is because, if this Court were to conclude that the factual finding was not justified on the evidence, much of the Tribunal’s reasoning would fall away and it would be necessary either to remit the matter to the Tribunal for rehearing, or to proceed, under s 75A(5) of the Supreme Court Act, to a rehearing in this Court and the exercise of the Court’s powers under subs (6) of s 75A.
Consideration
87 The only direct evidence that the offensive remark was made to H was that of H herself. No other witness heard the remark, and the CCTV cameras did not record sound.
88 The substance of the contention made on behalf of the respondent was that, the Tribunal having rejected H’s account in a number of respects where it was inconsistent with what could be seen on the CCTV recording, her evidence could not be accepted, to the requisite degree, as reliable with respect to this remark. It is convenient, then, to refer to those parts of H’s evidence referable to this allegation. In paragraph 8 of her original statement she said:
“[The respondent] took hold of the back of my head with one hand and started to move my head to and from his crotch area. While he did this he said, ‘suck my dick’.”
89 In her affidavit, H elaborated slightly on this. She said:
“The Respondent was standing to my right, leaning over me. The Respondent grabbed the back of my head firmly and moved my head towards his crotch area.”
90 The particulars provided by the Council did not precisely accord with H’s account. The relevant particulars given were:
“19. The Respondent’s body was turned towards H.
20. The Respondent placed his right hand near his crotch.
21. The Respondent guided H’s head towards his crotch.
22. At the time the Respondent engaged in the conduct referred to in paragraphs 18 to 21 above, the Respondent said to H words to the effect of ‘suck my dick’.”
91 In making its findings of fact the Tribunal relied heavily on the CCTV footage. Although the Tribunal considered that H was making every effort to convey her best recollection of the events, where her account was contradicted by the video footage it relied on the latter. The Tribunal found at [37] of the Stage 1 decision (in contrast to what was alleged in particular 19) that:
“With his hand, [the respondent] lightly pushed [H’s] head forward towards the table. Her head did not, as a result, get any closer to him. Rather, her head moved forward, away from [the respondent], and then she moved it back to where it had been before it was pushed.”
92 The Tribunal rejected particular 20, declaring itself satisfied that the respondent did not place his right hand near his crotch. It rejected particular 21, declaring itself satisfied that the respondent did not guide H’s head towards his crotch. As indicated above, the Tribunal did accept that the respondent used the offensive language attributed to him in particular 22.
93 This conclusion was only partly based on the CCTV footage. The Tribunal observed that the footage showed that the respondent “said a few words” to H as he pushed her head. It considered that the CCTV footage showed “a look of shock” on H’s face but that it did not show her saying (as she had asserted “what the fuck” or anything else. The Tribunal put together the finding that the respondent “said a few words” with H’s evidence, including her initial complaint to W, to accept that the words “suck my dick” were spoken. The Tribunal placed considerable weight on H’s immediate report to W of what the respondent had said.
94 The most recent statement of the High Court on appellate review of factual findings is to be found in Lee v Lee. As the appeal to this Court is a rehearing, the Court is bound to conduct “a real review” (Fox v Percy; Robinson Helicopters). As noted in Lee v Lee the restraints imposed on interference with first instance findings are:
“55 ...as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.”
95 Thereafter, the joint judgment said, the appellate court is in as good a position as the trial judge to decide on the proper inferences to be drawn from facts that are undisputed or, having been disputed, found.
96 This is not a case in which the fact-finding exercise depended to any significant extent on the advantage of the Tribunal in seeing and hearing the witnesses as they gave their evidence. Although not criticising H as untruthful, the Tribunal clearly doubted her reliability. For that reason, it depended on objective evidence in order to reach its conclusion that the offensive remark had been made. The objective evidence was the CCTV footage which showed that the respondent said something to H, H’s immediate reaction (looking shocked) and her almost immediate complaint, using those words, to W.
97 This Court is in as good a position as the Tribunal to determine this factual issue. Like the Tribunal, we have watched the CCTV footage several times, including in close up and slow motion. We agree with the Tribunal that, contrary to the Council’s particulars, the footage shows that the respondent “lightly pushed [H’s] head towards the table” (and away from him); that he did not place his right hand near his crotch; and that he did not guide H’s head towards his crotch.
98 The Tribunal was correct to reject those particulars that alleged that he had done those things.
99 Senior counsel for the respondent made much of the rejection by the Tribunal of the particular allegations made by the Council, submitting that it reflected adversely on the credibility of H. It is true that, in her statement, H said that the respondent had taken hold of her head with his own hand and started to move it to and from his crotch area, and, on the basis of the objective evidence, the Tribunal rejected that evidence. Senior counsel also relied on the rejection of particular 20, that the respondent “placed his right hand near his crotch”. The trouble with that submission is that the particular does not reflect anything said in either H’s statement or her affidavit. Similarly, the Tribunal rejected particular 21, that the respondent “guided [H’s] head towards his crotch”. That also does not appear to be drawn from either H’s statement or her affidavit. It reflects the interpretation made by the Council.
100 The allegation is one of utmost importance and requires proof to a commensurate degree: see Evidence Act 1995 (NSW), s 140.
101 We agree with the Tribunal that the video shows that, immediately after the event, H appeared shocked. When the video image is magnified, H can clearly be seen with her mouth open. Moreover, it was very shortly after the incident that she left the table to find W. W’s evidence was that at that time she was “visibly shaken” and her hands were trembling. She reported to W that she was “so very angry, upset, embarrassed and humiliated”. Another factor that supports this conclusion is the Tribunal’s finding (not challenged by the respondent) that his immediately preceding interaction with A was a parody of oral sex. The linkage, or association, is obvious.
102 The most compelling evidence that the offensive remark was made is H’s immediate and obvious shock, her almost immediate report of it, in precise terms, to W, and W’s description of the condition of H when he met her. These circumstances persuade us, although not without hesitation, that the offensive remark, or something very similar, was made by the respondent. In reaching that conclusion we are influenced by the unlikelihood that H would have fabricated or imagined a remark of that kind. There is simply no explanation for her immediate distress and report to W other than that it was an accurate reflection of what the respondent said to her. We do not, accordingly, uphold the notice of contention.
The appeal
Grounds 1, 2 and 3: professional misconduct at common law
103 Grounds 1, 2 and 3 concern the Tribunal’s rejection of the Council’s contention that the respondent’s conduct constituted professional misconduct at common law. By ground 1 the Council asserted error by the Tribunal in failing to apply the correct test; by ground 2 it asserted error “in failing to find that the respondent’s conduct ... occurred in connection with the practice of law”; by ground 3 it asserted error in the conclusion that the respondent’s conduct did not constitute professional misconduct at common law.
104 Ground 2 was ineptly formulated; it did not reflect the proposition the Council sought to advance. The Council’s real complaint, as articulated in both written and oral submissions, was directed to the Tribunal’s express finding, in [68] of the Stage 1 reasons, that the respondent’s attendance at the dinner:
“...could not be said to have had ‘some real and substantial connection with professional practice’ (our emphasis) in the relevant sense.”
105 The Tribunal preceded that finding by expressly accepting that, by reason of the professions of the invitees, the dinner “had a connection with the Bar”. Plainly, the Tribunal considered that the fact that the function at which the conduct took place “had a connection with the Bar” was not sufficient to connect the respondent’s conduct with the practice of law. The issue of the necessity for a connection between the conduct in question and legal practice can, for the moment, be passed over.
106 It is clear that the Tribunal considered that the finding that the respondent’s conduct lacked a connection with legal practice was a sufficient foundation for it to dispose of the Council’s contention that the conduct constituted professional misconduct at common law. The Tribunal did not, therefore, proceed to consider whether, on the basis that the respondent’s conduct did take place in connection with legal practice, it had the defining characteristics of professional misconduct at common law.
107 The finding that the respondent’s conduct did not occur in connection with the practice of law was in direct contradiction to the admission made by the respondent in par 15(b) of the Reply. We accept that the Tribunal erred in this respect. It could not (at least without signalling to the Council that it contemplated departing from the respondent’s express admission) proceed on the basis that the conduct in question did not take place in connection with legal practice. What flows from that error is, however, another matter, to be considered below.
108 The question of professional misconduct at common law occupied a disproportionate amount of the hearing time of the appeal. The respondent offered three responses. The first raised a jurisdictional issue, that the Tribunal, being a (purely) statutory body charged with the task of applying the Uniform Law, lacked any inherent jurisdiction to determine allegations of professional misconduct at common law. The appropriate, and the only appropriate, forum for such determination, the respondent asserted, is the Supreme Court exercising its inherent jurisdiction.
109 The second response was that, even if the Tribunal had jurisdiction to make a finding of professional misconduct at common law, it was correct to conclude that the respondent’s conduct did not meet the relevant test. (That leaves open the question of what test the Tribunal, assuming that it had jurisdiction, ought to have applied.)
110 The respondent’s third response was that, in its consideration of professional misconduct within s 298(b) of the Uniform Law (contravention of the Uniform Rules), the Tribunal necessarily took into account the fact that the conduct took place at a function connected with the practice of law.
111 The absence of an inherent jurisdiction in the Tribunal is not an answer to the Council’s contention. The Council did not purport to invoke an inherent jurisdiction in the Tribunal (which, plainly, it does not have). Rather, the Council pointed to the statutory definition, in s 297 of the Uniform Law, of professional misconduct, which is framed inclusively (so the Council argued) so as to import professional misconduct at common law in addition to the statutory formula.
112 There is some force in the Council’s contention that the concept of professional misconduct as it was understood at common law is imported into the s 297 definition. Until 1987 the legislation governing the legal profession was the Legal Practitioners Act 1898 (NSW) (“the 1898 Act”). By amendment in 1935 (Legal Practitioners (Amendment) Act 1935 (NSW)) Pt X was introduced into the 1898 Act, by which a Statutory Committee of the Incorporated Law Institute of NSW (the predecessor of the Law Society of NSW) was created “for the purpose of hearing charges of professional misconduct upon the part of solicitors”. By s 77 the Statutory Committee was given power to make orders striking off the roll or suspending from practice (conditionally or otherwise) any solicitor who had been referred to it or imposing a fine not exceeding £200. No definition of “professional misconduct” was incorporated by the amendment. Some categories of conduct (for example, failure, without reasonable excuse, to produce documents in response to a statutory request) were declared to be professional misconduct.
113 The 1898 Act was repealed and replaced by the Legal Profession Act 1987 (NSW) (“the 1987 Act”). A definition of professional misconduct was, for the first time, enacted in s 123. As enacted, that definition is in the following terms:
“Professional misconduct’ includes –
(a) conduct (whether consisting of an act or omission and whether occurring in connection with the practice of law or otherwise) that falls short of the standard of conduct that a member of the public is entitled to expect of a legal practitioner; and
(b) conduct that is declared to be professional misconduct by any provision of this Act.”
114 The Council relied on the inclusive nature of the definition for its contention that the concept of professional misconduct, as it was previously understood, was imported into the statutory definition.
115 A definition framed inclusively generally – but not always – expands the meaning of the word or phrase defined beyond its ordinary meaning: Dilworth v Commissioner of Stamps [1898] UKLawRpAC 56; [1899] AC 99, cited in YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395; [1964] HCA 12. The nature of an inclusive definition is, commonly, a word or phrase that is well understood, to the ordinary meaning of which are added concepts that would not, ordinarily, be understood as coming within that word or phrase. Whether it does so, or, notwithstanding the verb “includes”, is to be taken as exhaustive or exclusive depends on the context of the Act in which it appears: see, generally, YZ; Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628; [1966] HCA 74; Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [38]- [43].
116 Section 123 of the 1987 Act (in which the inclusive definition then appeared) gave no clue as to what, if anything, besides the conduct described in the body of the definition, was imported. Section 34 of the Interpretation Act 1987 (NSW) permits resort to extrinsic material in determining the meaning of a provision that is ambiguous or obscure.
117 In the second reading speech by which the Bill which became the 1987 Act was introduced into Parliament the Attorney-General said:
“The reforms to be made by the Legal Profession Bill are principally those agreed to by both the Law Society and the Bar Association. Of course, there are a number of areas of reform upon which the professional associations and the Government were unable to agree. The principal area of difference relates to the definition of professional misconduct. Both the Bar Association and the Law Society support a continuation of the common law definition, which is based on peer review. The Bill reflects the Government’s views that the test of misconduct should include not only the traditional common law definition but also behaviour that falls short of the standard of conduct that a member of the public is entitled to expect of a legal practitioner ... .” (emphasis added)
(New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 29 April 1987 at 10754)
118 The second reading speech makes it clear that the divergence between the professional associations and the government was whether conduct asserted to be professional misconduct was to be measured against the standards of the profession, or the standards of the public (the assumption, apparently, being that there is, or was in 1987, a difference). That, it may be taken, was what was meant by “peer review”. The intention to incorporate “the traditional common law definition” is unmistakable. What remains opaque is what was connoted by that phrase.
119 The 1987 Act was amended later in the same year by the addition of a new concept, “unsatisfactory professional conduct”, defined in similar (but not identical) terms as the present s 296 of the Uniform Law; and by the addition of a definition of professional misconduct in terms replicated in the present s 297(1)(a). “Unsatisfactory professional conduct” was also defined inclusively, but with no indication of what, if anything, in addition to the conduct defined, was intended to be incorporated.
120 Successive enactments have maintained the inclusive definition of professional misconduct: see, for example, s 127 of the Legal Profession Reform Act 1993 (NSW), and s 497 of the Legal Profession Act 2004 (NSW). The definitions have varied but what has remained constant is the inclusive nature of each definition.
121 The questions that then arise are: precisely what was “the traditional common law definition” of professional misconduct to which was added, in 1987, the statutory definition? And what (if anything) is its present status? The 1987 second reading speech was indeterminate on the first question.
122 Professional misconduct at common law, the Council asserted, is as stated by the English Court of Appeal in Allinson v General Council of Medical Education and Registration [1894] UKLawRpKQB 36; [1894] 1 QB 750 at 760-761, 763 and 766. Although the term “professional misconduct” was not used in Allinson, that decision is, undoubtedly, the source of the concept on which the Council relies. The Court of Appeal in Allinson was called upon to consider whether it was open to the General Council of Medical Education and Registration to find that Dr Allinson was “guilty of infamous conduct in any professional respect” (the terminology of the relevant statute). The Court unanimously adopted as a definition of at least one kind of “infamous conduct in any professional respect” the following at 760-761:
“‘If it is shewn that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency’, then it is open to the General Medical Council to say that he has been guilty of ‘infamous conduct in a professional respect’.”
123 Allinson was, as is apparent, a decision concerned with the supervision of the medical profession. The test, or definition, devised by the Court of Appeal was accepted as referable to supervision of the legal profession in Myers v Elman [1940] AC 282. As will be seen it has similarly been applied in this State to the legal profession: Council of NSW Bar Association v Sahade [2007] NSWCA 145 at [54]- [55].
124 The Council’s submission, as recorded in the transcript, was:
“The question at common law is essentially grounded in a consideration of what might be called peer review. That which would be considered by peers, disgraceful or dishonourable. ...”
That is language drawn directly from Allinson. It treats the Allinson formulation as creating a stand-alone category of professional misconduct. And that is at the core of the Council’s position with respect to grounds 1-3.
125 The “definition” proposed on behalf of the Council overlooks the origin and development of what the Council calls “professional misconduct at common law”. That was explained by the High Court in A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253; [2004] HCA 1. Consideration of professional misconduct (other than under statute) stems from cl X of the 1823 Charter of Justice, which authorised the Supreme Court to admit “fit and proper Persons to appear and act as Barristers, Advocates, Proctors, Attorneys and Solicitors”. A power of removal or suspension is incidental to that power: In Re Davis (1947) 75 CLR 409; [1947] HCA 53. The “critical criterion” is that of a “fit and proper person” to remain on the roll. That jurisdiction is preserved by s 264 of the Uniform Law. Fitness to remain on the roll remains the criterion to be applied where the inherent jurisdiction of the Supreme Court is invoked in relation to the supervision of members of the legal profession. The exercise of the jurisdiction has evolved over time. That evolution bears some examination. A convenient starting point is the 1947 decision of the High Court in Davis.
126 Mr Davis was admitted to the Bar in 1946. In 1944, in order to gain admission as a student-at-law, and again in 1946 in order to meet the requirements for admission to the Bar, he presented certificates of two solicitors stating that, in their opinion, he was of good fame and character (a prerequisite for admission either as a student-at-law or to the Bar). Mr Davis did not disclose to the solicitors, nor to the Barristers Admission Board that approved his admission, that as a 20 year old in 1934, he had been convicted of housebreaking, for which he was punished by the imposition of a bond. On discovery of the conviction the Prothonotary reported it to the Supreme Court. The question for the Court was whether, in the exercise of its inherent jurisdiction, derived from the Charter of Justice, Mr Davis’s name should be removed from the roll. The power of the Supreme Court to remove the name of a barrister from the roll being connected with, and derived from, the power to admit, the test to be applied was whether Mr Davis was a fit and proper person to be a member of the legal profession. The Supreme Court held that he was not. All members of the High Court, giving similar reasons differently expressed, upheld that conclusion.
127 Ten years later, in very different circumstances, the same issue arose in relation to Mr Trevor Ziems, who had been a practising barrister for 20 years. Put briefly, Mr Ziems was convicted of manslaughter, having caused the death of a person while driving whilst intoxicated. He was sentenced to a term of imprisonment. The issue again was whether, having regard to the conviction and sentence, Mr Ziems remained a fit and proper person to be a member of the Bar. The Supreme Court held that he was not. Mr Ziems appealed to the High Court. Although the High Court divided on the outcome, all members of the Court approached the question on the same basis asit had been approached in Davis – whether Mr Ziems was a fit and proper person to remain a member of the Bar. Dixon CJ and McTiernan J would have dismissed the appeal; Fullagar, Kitto and Taylor JJ allowed the appeal: Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279; [1957] HCA 46. Kitto J said at CLR 297-298:
“The issue is whether the appellant is shown not to be a fit and proper person to be a member of Bar of New South Wales. It is not capable of more precise statement. The answer must depend upon one’s conception of the minimum standards demanded by a due recognition of the peculiar position and functions of a barrister in a system which treats the Bar as in fact, whether or not it is also in law, a separate and distinct branch of the legal profession.”
128 Kitto J went on to discuss the special nature of the Bar as a profession, the privileged position of its members in relation to the judiciary, and the commensurate need for high standards of conduct, and continued (at CLR 298):
“If a barrister is found to be, for any reason, an unsuitable person to share in the enjoyment of those privileges and in the effective discharge of those responsibilities, he is not a fit and proper person to remain at the Bar.
Yet it cannot be that every proof which he may give of human frailty so disqualifies him. The ends which he has to serve are lofty indeed, but it is with men and not with paragons that he is required to pursue them. It is not difficult to see in some forms of conduct or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self-respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily cooperation which the satisfactory working of the courts demands. A conviction may of its own force carry such a stigma that judges and members of the profession may be expected to find to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails. But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar; and to draw the dividing line is by no means always an easy task.”
129 Of some interest is that the majority, while declining to remove Mr Ziems’s name from the roll, nevertheless accepted that, during the period of imprisonment, he should be suspended (Fullagar J with some reservations).
130 In neither Davis nor Ziems was any mention made of the Allinson formulation. Nor was the term “professional misconduct” used, notwithstanding that it was a term that appeared in the 1898 Act.
131 In each case, the criterion applied was the fitness of the barrister to retain his enrolment. The Allinson formulation, and the concept of “professional misconduct”, had crept into the debate at least by 1966, when Re Veron; Ex Parte Law Society of NSW [1966] 1 NSWLR 511 was decided. Mr Veron was a solicitor whose name the Law Society of NSW sought to have removed from the roll (in the exercise of the Supreme Court’s inherent jurisdiction) for what is now called professional misconduct by reason of repeated and extortionate overcharging of clients who had claimed (and been awarded) damages for personal injury suffered, predominantly, in motor vehicle accidents; breaches of trust account regulations; misappropriation; and misrepresentation. This Court identified the question for determination, having regard to the circumstances brought before it, as whether it was:
“...any longer justified in holding out the solicitor in question as a fit and proper person to be entrusted with the important duties and grave responsibility of a solicitor ...”
132 The Court considered that the meaning of the term “professional misconduct”, whether under statute or in the exercise of the inherent jurisdiction of the Court, was “well settled” and “properly defined” as:
“...conduct which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency.”
That was language adopted and adapted directly from Allinson.
133 The Court cited cases from 1962 (In Re Thom; Ex parte The Prothonotary (1962) 80 WN (NSW) 968 at 969 and Re Hodgekiss [1962] SR (NSW) 340 at 351) as having approved that test. (We have been unable to find any reference to the Allinson test in Thom.) In Hodgekiss, Hardie J noted that no definition of the phrase “professional misconduct” was contained in the legislation then under consideration, and said that its meaning had to be ascertained from case law. He then referred, not to Allinson, but to Myers v Elman [1940] AC 282, in which the Allinson test had been applied (in England) to the legal profession. The Court unanimously allowed an appeal against an order by which Mr Hodgekiss’s name was struck off the roll of solicitors on the ground that he had been guilty of professional misconduct. Apart from the passage in the judgment of Hardie J to which reference has been made, the test applied was not stated.
134 Since the decision in Veron it has not been uncommon for the Supreme Court and this Court to approach the exercise of the inherent jurisdiction by reference to the Allinson formula.
135 One example is to be found in Prothonotary of the Supreme Court of NSW v Costello [1984] 3 NSWLR 201. In that case the Prothonotary sought declarations that Mr Costello, a barrister, had been guilty of professional misconduct and was not a fit and proper person to practise as a barrister, and an order that his name be struck off the roll of counsel. Several instances of alleged professional misconduct were particularised. Two members of the Court (Glass and Samuels JJA) adopted the Allinson formulation as a test of professional misconduct but nevertheless determined the proceeding on the basis of fitness (which they found favourably to Mr Costello, following the passage in the judgment of Kitto J in Ziems extracted above).
136 A similar approach was taken by Kirby P in NSW Bar Association v Maddocks (Court of Appeal (NSW), 23 August 1988, unrep). In stating the principles applicable to an application for removal of the name of a barrister from the roll, Kirby P noted that the jurisdiction derived “either from the Charter of Justice or from the inherent power of the Court” and said:
“The enquiry conducted by the Court is whether the practitioner has been shown not to be a fit and proper person to be a member of the Bar. It is an enquiry said not to be capable of more precise statement [citing Kitto J in Ziems]. ... In considering charges of professional misconduct, the test to be applied is what would reasonably be regarded as disgraceful and dishonourable by the professional colleagues of the practitioner who enjoy good repute for integrity and competence [citing Costello].”
137 The proceeding in Maddocks was determined by a declaration that Mr Maddocks was not a fit and proper person to be a member of the Bar of NSW and an order that his name be struck off the roll. The test applied was that of fitness to remain on the roll.
138 The decision in NSW Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 is illustrative of the evolution of the exercise of the inherent jurisdiction. Mr Cummins was a Queen’s Counsel of long standing who had failed, over 38 years, to file income tax returns or to pay income tax. The Bar Association sought two declarations:
(i) that Mr Cummins had been guilty of professional misconduct; and
(ii) that Mr Cummins was not a fit and proper person to remain on the roll of legal practitioners (the terminology of the then current legislation),
and an order that his name be removed from that roll.
139 The application was made and dealt with in the inherent jurisdiction of the Supreme Court. It will be necessary to return to the decision in Cummins in another context; in the present context it is worth noting that Spigelman CJ, with whom Mason P and Handley JA agreed, treated the two declarations sought by the Bar Association differently. His Honour had no trouble in declaring that Mr Cummins was not a fit and proper person to remain on the roll. In reaching that conclusion his Honour made no reference to the Allinson formulation. It was in relation to the second declaration sought, of professional misconduct, that Spigelman CJ referred to Allinson, after which he said:
“50. It has not generally been useful or necessary to distinguish the terminology of ‘professional misconduct’ from other phrases such as a ‘fit and proper person’, ‘good fame and character’, ‘unprofessional conduct’, ‘unsatisfactory professional conduct’ etc. Statutory formulations differ from one jurisdiction to another. Some of the terminology, originally based on statute, has been adopted in cases decided under the inherent jurisdiction. In the exercise of this jurisdiction, it is not appropriate that the Court should indulge in the splitting of fine hairs on terminology.”
140 Another decision that calls for mention is Prothonotary v Gregory [2017] NSWCA 101. Mr Gregory was convicted of three counts of dishonesty, involving tax fraud. Six years later application was made in the inherent jurisdiction of the Supreme Court for declarations of professional misconduct; that Mr Gregory was not a person of good fame and character and was not a fit and proper person to remain on the roll; and for an order for removal of his name from the roll. An order and declarations to that effect were made. The Court (Bathurst CJ, Beazley P and Sackville AJA) noted, at [25] the principles applicable, including:
“The Court needs to consider the conduct involved in the conviction and see whether it is of such personally disgraceful character that the opponent should not remain a member of an honourable profession.”
141 The Court directed its attention, in a separate segment of the reasons, to the question of Mr Gregory’s fitness. It did not find it necessary to refer to the Allinson formulation.
142 In Council of the Law Society of NSW v Parente [2019] NSWCA 33 the conduct in question was the supply of prohibited drugs for which Mr Parente (a solicitor) was convicted and sentenced. The Council of the Law Society of NSW sought declarations that Mr Parente was guilty of professional misconduct, was not of good fame and character, was not a fit and proper person to remain on the roll of Australian lawyers; and an order that his name be removed from the roll. The summons invoked the inherent jurisdiction of the Court.
143 Brereton JA identified the issue for determination as whether it was shown that Mr Parente was not a fit and proper person to remain on the roll. All members of the Court joined in making an order to that effect. Brereton JA found it unnecessary to make any declaration. Basten and Meagher JJA concluded that a declaration of professional misconduct was neither necessary nor appropriate but did make a declaration of unfitness. Notwithstanding that the summons invoked the inherent jurisdiction of the Supreme Court, their Honours had regard to the statutory definition of professional misconduct.
144 The influence of Allinson can be seen in other decisions. The issue in Prothonotary of the Supreme Court of NSW v McCaffery [2004] NSWCA 470 was whether the conduct concerned was misconduct within s 25(4) of the Legal Profession Act 2004 (NSW) (practising without holding a practising certificate). In those circumstances McColl JA (with the concurrence of Sheller and Beazley JJA) said:
“46. ...it is, strictly speaking, unnecessary to consider the common law meaning of that expression [professional misconduct]. Nevertheless, it gives content to s 25 to note it was enacted in the context that ‘professional misconduct’ at common law was said to connote ‘conduct which would reasonably be regarded as disgraceful or dishonourable’ by one’s peers [citing Allinson].”
145 It may be observed, however, as McColl JA herself did, that professional misconduct at common law was not in issue in that case: the jurisdiction invoked for the declaration of professional misconduct sought was statutory.
146 In Council of the NSW Bar Association v Costigan [2013] NSWCA 407, again, the inherent jurisdiction of the Court was invoked, in relation to what was asserted to be professional misconduct committed in a variety of ways. The Court made declarations that Mr Costigan was guilty of professional misconduct, was not a fit and proper person to remain on the roll, and was not of good fame and character, and ordered that his name be removed from the roll. In reaching those conclusions Gleeson JA (with whom Macfarlan JA and Sackville AJA agreed) found at [120] that Mr Costigan’s conduct:
“...would reasonably be regarded as ‘disgraceful or dishonourable’ by his peers.”
147 His Honour had earlier noted a passage from McCaffery extracted above.
148 In Prothonotary v Comeskey [2018] NSWCA 18 (in which both the statutory and inherent jurisdiction of the Court were invoked) Basten JA said at [13]:
“In this case the [statutory] definition covers concepts that would not have been covered by traditional common law usage. That usage was limited to ‘conduct which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency’.”
149 To the extent that [46] of McCaffery and [13] of Comeskey suggest that there exists in the common law of NSW a category of professional misconduct which can be defined by the formulation taken from Allinson, divorced from the “fit and proper person” concept, we respectfully disagree. The High Court, in A Solicitor, did not suggest that to be the case. Indeed, the High Court retained the “fit and proper person” test as the “critical criterion” in the exercise of the jurisdiction derived from cl X of the Charter of Justice. What the court did recognise was a category of professional misconduct (judged by that test) that might not justify or require removal from the roll.
150 It may be accepted that the Allinson formulation plays an important part in the application of the “critical criterion” of fitness. What it does not do is create, for NSW, a category of legal professional misconduct to be assessed otherwise than in accordance with the fit and proper person test endorsed repeatedly over the years, most recently by the High Court in A Solicitor.
151 That the Allinson formulation has been adopted and used as a test against which fitness (or unfitness) for legal practice may be measured does not have the consequence that it constitutes a separate category of professional misconduct. The “critical criterion” remains, as stated in A Solicitor, that of “fit and proper person”, although a finding of professional misconduct made in the application of that test does not necessarily entail removal from the roll of legal practitioners: A Solicitor at [15]; Costello.
152 So what is “professional misconduct at common law”?
153 In Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch Inc (2000) 48 NSWLR 548; [2000] NSWCA 65 this Court was called upon to construe the language of s 5AB(2) of the Veterans’ Entitlements Act 1986 (Cth), which provided that information about a particular kind of injury, disease or death was taken to be sound medical scientific evidence if (inter alia):
“(b) in the case of information about how that kind of injury, disease or death may be caused – [the information] meets the applicable criteria for assessing causation currently applied in the field of epidemiology.” (emphasis added)
It was the words italicised that the Court was called upon to construe. At [116] Spigelman CJ characterised the words “meets the criteria” as “words of considerable generality and indeterminate reference” involving “what is often referred to in the case law as an ‘ambiguity’.” His Honour preferred to identify the difficulty for the interpreter of the statute as “inexplicitness”.
154 In Cummins, at [51], Spigelman CJ applied the same characterisation to the words “professional misconduct”. As mentioned above, the professional misconduct there under consideration was not professional misconduct as defined by statute but professional misconduct of the common law variety. The conduct in question was the failure by a barrister (a Queen’s Counsel) over 38 years to file tax returns or to pay income tax. The issue under consideration in that part of the judgment to which reference has been made was whether that conduct was sufficiently related to legal practice to constitute professional misconduct (an issue to which it will be necessary to return). The term “professional misconduct”, Spigelman CJ noted, had sometimes been limited to misconduct in the course of professional work (at [49]). The Court (at [66]-[67]) held that Mr Cummins’s conduct had sufficient connection to legal practice, through a close relation with the earning of taxable professional income, to warrant the finding of professional misconduct. It is important that, in reaching that conclusion, the Court was not construing a statutory term. Thus, Spigelman CJ said, the issue was not one of interpretation, it was one of usage (at [52]).
155 The High Court’s decision in A Solicitor (2004) post-dates the decision in Cummins. It signifies a return to the concept of fitness derived from the Charter of Justice as the benchmark by which legal professional misconduct (in the inherent jurisdiction of the Supreme Court) is judged.
156 There is, in NSW, no category of professional misconduct constituted by conduct that would reasonably be regarded (by professional peers) as “disgraceful or dishonourable”.
157 That is not to say that the Allinson formulation is irrelevant; as can be seen from the cases discussed above, it has been treated as a useful test in the determination of the fitness of a legal practitioner to remain on the roll. It does not, however, as the Council would have it, create or constitute a category of professional misconduct independent of, and different from, that class of conduct contemplated as rendering the legal practitioner “not a fit and proper person” to remain on the roll of legal practitioners.
158 There is also this to be considered: the Allinson formulation is directed solely to the conduct under consideration. As the judgment of Kitto J in Ziems demonstrates, the issue of fitness encompasses more than mere conduct. The “fit and proper person” test is directed to character, which may be determined by conduct alone, but which may also take into account other circumstances.
159 One of the statutory definitions (s 297(1)(b) of the Uniform Law) of “professional misconduct” is “conduct ... that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice”.
160 “Professional misconduct” determined against the “critical criterion” of “a fit and proper person” is indistinguishable from “professional misconduct” as defined in s 297(1)(b) of the Uniform Law. There was therefore nothing to be achieved by the Tribunal approaching its determination on the basis that professional misconduct at common law is something different from professional misconduct as defined in s 297(1)(b).
161 That makes it unnecessary to devote time to the Council’s first ground, by which it complained that the Tribunal fell into error, by applying a test of “real and substantial connection to professional practice”. The correct test, the Council argued, is that articulated by Spigelman CJ in Cummins, positing “a sufficiently close connection”. It is sufficient to say that the language of “real and substantial connection” is taken directly from the High Court decision in A Solicitor. There is nothing in this ground of appeal.
162 Grounds 1 to 3 of the appeal are rejected.
The remaining grounds of appeal
163 By ground 4 the Council complains of error in the Tribunal’s finding, at [77] of the Stage 1 reasons, that the Council had failed to prove professional misconduct within the s 297(1)(b) definition on the basis that it had not established that the respondent “is not a fit and proper person to engage in legal practice ...”. In other words, the attack was on the reasoning process to the conclusion. The Council pointed out, correctly, that what it needed to prove to establish professional misconduct under s 297(1)(b) was that the respondent’s conduct (as found) would justify a finding that he was not a fit and proper person to engage in legal practice. It is not necessary that the Council establish that the respondent was, in fact, not a fit and proper person.
164 We accept that, in rejecting the Council’s contention that the respondent’s conduct constituted professional misconduct within the meaning of s 297(1)(b), on the basis that it was not established that he was not a fit and proper person, the Tribunal applied a more rigorous test than is called for by the provision. Conduct that would justify a finding of unfitness is not necessarily conduct that must result in such a finding: there is a range of conduct that would justify, but not necessarily result in, such a finding; there is a range of conduct with respect to which reasonable minds might differ on whether it did, in fact, demonstrate unfitness. Section 297(1)(b) is concerned with the capacity of the conduct to constitute unfitness. We accept that the reasoning of the Tribunal was, in this respect, flawed. That does not mean that the ground must be upheld. Flawed reasoning does not necessarily mean that the conclusion reached is incorrect; a correct conclusion may be drawn notwithstanding flaws in the reasoning process.
165 By ground 5 the Council similarly complains of error in the failure of the Tribunal to find that the respondent’s conduct did in fact constitute professional misconduct within the meaning of s 297(1)(b). This ground also relied on what the Council contends to have been a flawed reasoning process.
166 The Council’s argument was, in essence, that the Tribunal’s failure to find that the respondent’s conduct constituted professional misconduct within the meaning of s 297(1)(b) was inconsistent with three of its factual findings, namely:
(1) that the respondent had engaged in inappropriate sexual conduct with A;
(2) that the dinner at which the conduct took place was a function connected with the practice of law; and
(3) that the respondent’s conduct was conduct that was discreditable to a barrister and was likely to bring the legal profession into disrepute.
167 Put another way, the Council’s argument was that the only correct conclusion for the Tribunal to reach, on the basis of these three findings of fact, was that the respondent’s conduct justified a finding that he was not a fit and proper person to engage in legal practice.
168 We do not agree.
169 There is something of a paradox in s 297(1)(b). On a literal interpretation the paragraph focuses on the objective circumstances of the conduct found (“conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law”). Yet, as the majority judgments in Ziems, (particularly that of Kitto J), show, a finding of unfitness involves more than an objective analysis of the impugned conduct, absent other relevant (often extenuating) circumstances. The question of fitness to engage in legal practice focuses not only on the objective circumstances of the conduct in question but also on the personal qualities of the lawyer in question, and other circumstances that bear upon the conduct. Unfitness is ultimately a finding about character, although conduct plays an important role in the evaluation of character.
170 As noted earlier in these reasons, the issue in Ziems was whether a conviction for manslaughter (by driving whilst intoxicated) was of itself sufficient to establish unfitness. By majority, the High Court held that it was not. In the passage already quoted, Kitto J drew a distinction between conduct which, of itself, demonstrated unfitness and conduct that shows “a defect of character” demonstrating unfitness.
171 To justify a finding of unfitness the conduct in question must be seen in context. But, in the two-stage process by which disciplinary proceedings are ordinarily conducted in the Tribunal, much of that which properly informs a holistic assessment of the character of the lawyer concerned, and therefore his or her fitness to engage in legal practice, will not be known until Stage 2 – by which time the conduct has been characterised as unsatisfactory professional conduct or professional misconduct. It does not seem right to characterise conduct as professional misconduct merely because, objectively speaking, it would justify a finding of unfitness if, after consideration of other relevant factors, such a finding would not be justified or warranted. It is only necessary to look at the facts in Ziems and A Solicitor to see that unfitness is not measured by the objective circumstances of the conduct alone.
172 A finding that the impugned conduct would justify a finding of unfitness needs to be made in the context of all available evidence at the time of Stage 1 of the proceeding. It may be, in some cases, that the Commissioner or the relevant professional association has available to it evidence of other instances of conduct similar to, or equally discreditable as, that under consideration; clearly that would be a relevant factor in the determination of whether the conduct in question (not being isolated) was such as to justify a finding of unfitness. That is not this case: so far as the evidence (at the Stage 1 hearing) goes, this was indeed an isolated instance of appalling conduct on the part of the respondent. (At this point, the evidence given at the Stage 2 hearing that adds weight to that inference must be ignored).
173 “Poorly judged, vulgar, and inappropriate” as the Tribunal correctly found the conduct to be, we are not persuaded that the Tribunal was wrong to decline to characterise it as conduct that would (of itself) justify a finding of unfitness. There was nothing to add to that conduct to warrant a finding of unfitness.
174 We reject grounds 4 and 5.
175 By grounds 6 and 7 the Council complains that, by failing to take into account the gravity of the conduct as found, by reference to four specific findings, the Tribunal erred in its assessment of the seriousness of the respondent’s conduct (ground 6) and in imposing by way of response only a reprimand (ground 7).
176 The four specific findings were:
(1) that the respondent’s conduct towards A, in simulating oral sex, constituted inappropriate sexual conduct;
(2) that the respondent’s conduct towards H in pushing her head and saying “suck my dick” constituted inappropriate sexual conduct;
(3) that pushing H’s head and saying the words “suck my dick” was unwelcome conduct of a sexual nature towards H; and
(4) that the respondent’s conduct was “discreditable to a barrister” and “likely to bring the legal profession into disrepute” (contraventions of Uniform Rules (Barristers) or 8(a) and 8(c)).
177 By ground 8 the Council complains that the imposition of a reprimand alone failed properly to give effect to the need to protect the public against misconduct by legal practitioners, and took into account by way of mitigation the absence of conduct of a more serious nature and/or the respondent’s self-induced intoxication. The argument advanced on behalf of the Council was that the reprimand, with no additional sanction, failed, first, to pay due regard to the objectives of Pt 5 of the Uniform Law, stated in s 260 (set out above), and, second, to pay due regard to the seriousness of the conduct. The argument focused heavily on the protective nature of the Court’s jurisdiction. It is well established that the inherent jurisdiction of the Supreme Court to deal with professional misconduct is “entirely” protective: NSW Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183; [1968] HCA 20; Clyne v NSW Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 201-2; [1960] HCA 40; A Solicitor at [12]; Maddocks. It is, perhaps, one thing to say that the purpose of the jurisdiction is protective; as was recognised in Evatt, the exercise of the powers “may involve a great deprivation to the person disciplined”.
178 That the exercise of the powers may be perceived as punitive is reinforced by the nature of the orders contemplated by ss 299 and 302 of the Uniform Law (eg reprimand, fine). Nevertheless, the principle has been applied to the exercise of the statutory powers conferred under different versions of the legislation governing the legal profession: see, for example the judgment of Beazley JA in Law Society of NSW v Walsh [1997] NSWCA 185; see also the doubts expressed by Mahoney JA in Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 440 and following.
179 The Council presses for the imposition of a fine “in the order of $15,000 - $25,000” (the latter amount being the maximum available for unsatisfactory professional conduct; Uniform Law s 299(1)).
180 We do not accept that the Tribunal failed to recognise the seriousness of the respondent’s conduct. We accept the Tribunal’s characterisation of the respondent’s conduct as “poorly judged, vulgar and inappropriate” ([76] of the Stage 1 reasons or decisions) and “a very poorly judged attempt to include H in the ritualised greeting he had engaged in with [A]” (the Stage 2 decision at [9]).
181 Were it not for the respondent saying to H “suck my dick”, we would be inclined to accept that a reprimand, or a reprimand together with a relatively modest fine, would meet the need to declare to the public at large that conduct of the kind in question, at a quasi (at least) professional function (or, indeed, in any circumstances) is entirely unacceptable and merits sanction. Saying to H, “suck my dick”, however, elevates the conduct into a new dimension calling for severe condemnation. Severe condemnation is not achieved by a mere reprimand. In our opinion more is required; since we do not accept (and the Council does not suggest) that removal from the roll or suspension is warranted, all that is left (leaving aside counselling, to which we will return) is a pecuniary penalty.
182 The Court was conscious that the Tribunal ordered the respondent to pay the Council’s costs in the Tribunal and that those costs are likely to be very substantial, and raised the question whether the costs were covered by the respondent’s policy of professional indemnity insurance.
183 Without objection, after the hearing the Court received an affidavit sworn by the respondent’s solicitor. The Court was told that the respondent’s costs and his liability for any further costs orders are covered by his insurance policy but that any fine imposed would not be covered. The Court was also told that the premium payable by the respondent for the policy for the 2021-2022 year has increased from $4,654.10 to $66,077.00; that the previous cover was not subject to any deductible and that the 2021-2022 policy is subject to a deductible of $50,000; and that the 2021 policy is subject to a limit of indemnity for any one claim of $1,500,000 as distinct from $4,000,000 for the previous year. That represents a very substantial impost. The respondent attributes it to the present proceedings. There is no reason to doubt that that attribution is correct.
184 Although, absent the evidence about the respondent’s insurance position, we would have imposed a substantial fine we have concluded that the need for such a sanction is obviated by the very substantial financial penalty the respondent will suffer by reason of his new insurance terms.
185 There are other factors that need to be taken into consideration. The conduct in question took place on 21 July 2017. The respondent was aware, at least from 2 August 2017, that his conduct was under consideration by the Council. On 7 September 2017 the Council first resolved to take disciplinary action. On 23 August 2018 it withdrew the first complaint and substituted another. It was not until 3 December 2019 that the Council filed its application in the Tribunal. It was another year before the Stage 1 hearing in the Tribunal took place (December 2020). The Tribunal delivered its Stage 1 decision promptly enough, in March 2021, and its Stage 2 decision in May 2021. For more than 4 years the respondent has lived with the uncertainty of his future. It is not necessary to attribute blame for the delay in bringing the matter to a conclusion; the effect has, plainly, involved significant hardship to the respondent.
186 There was also evidence of a great deal of public comment about the events of the dinner. Notwithstanding the non-publication orders, it might be inferred that the respondent’s reputation has suffered damage. The media publications were, almost without exception, and with various degrees of vigour, condemnatory of the course the Tribunal had taken in reprimanding the respondent, without further penalty, and of the respondent’s conduct. In many cases they misstated the evidence and the findings of the Tribunal. One extreme example appeared in an online publication called “J News”. The publication was headed “Sydney Barrister in ‘Religious Fun Greetings’ Ignores Law for Imitating Oral Sex with Female Clerk (Australia)”. Purporting to record the Tribunal’s findings, the publication said:
“This incident is a criminal attempt by EFE (sic) to include H in the evening as a jockey (sic) greeting with his friend after consuming enough alcohol in the evening ... he was fined up to 2,000 after being found guilty of unscrupulous professional conduct.”
187 More moderate publications still misstated the findings of the Tribunal. For example, Justinian (which we understand to be an online publication directed specifically to the legal profession) said:
“Then [the respondent] decides some audience participation would be a good idea: so he picks on a female assistant clerk. He tells her to ‘suck my dick’ while forcing her head in the direction of the table. ... For his trouble [the respondent] has incurred no fine, no ban from practice – not even public ignominy. His name will stay suppressed as long as [the Tribunal] sees fit – the sort of decision that is wildly out of step with efforts by the professional guilds to stamp out sexism, harassment and unwelcome boyo stuff.”
188 That was preceded by:
“The pair give onlookers a tour through all the tropes of unreconstructed blokery: mimed violence, vulgar abuse and barely concealed homophobia ...”
189 The statement that the respondent forced H’s head in the direction of the table was contrary to the factual findings of the Tribunal, and contrary to what can clearly be seen on the CCTV footage.
190 More egregious, because it appeared in what apparently purports to be a professional online publication (“Lawyers Weekly”), was an article headlined:
“Barrister reprimanded for pushing female practitioner’s head towards crotch.”
191 The article read, in part:
“A barrister who pushed a female legal professional’s head towards his crotch area during an event for clerks has been reprimanded and ordered to pay costs, with the Tribunal finding that the action did not warrant any ‘more onerous’ discipline.
... In submissions and affidavits, H alleged that the barrister had taken hold of the back of her head with one hand and ‘started to move my head to and from his crotch area’. While he did this, she alleged that he said ‘suck my dick’ and afterwards, she said he humorously told her not to ‘complain about me to the Bar Association’. (underlining in original)
192 The article failed to mention that the Tribunal expressly rejected the allegation that the respondent had pushed H’s head towards his crotch. The article then directed attention to the Stage 2 decision, but did not mention the Stage 1 decision in which that allegation had been rejected.
193 There was also evidence that the respondent’s practice has been affected.
194 This Court does not underestimate the seriousness of the respondent’s conduct, nor its implications. At its heart it is sexual harassment that has no place in any society, and certainly not in the ranks of an honourable profession. The conduct towards A was, as the Tribunal found, crass and vulgar. The conduct towards H was demeaning, humiliating and inexcusable. Intoxication afforded no excuse. The conduct called for sanction.
195 The question for this Court is what measure is called for to mark the Court’s intolerance of conduct of the kind in question and to convey its intolerance to others who might be tempted similarly to engage in conduct that is demeaning to women and perpetuates unacceptable attitudes. We consider that, notwithstanding (as we have already mentioned) that the objective of disciplinary orders is protective and not punitive, some guidance may be taken from two well established principles of sentencing law: (i) proportionality and (ii) weight that may be given to extra-curial punishment. It is appropriate to note the level of extra-curial punishment (in some respects going far beyond any action the Court could take) that has already been visited on the respondent. This includes:
- notwithstanding the non-publication orders, a level of public notoriety and humiliation;
- a four year period of anxiety, while the Council’s investigations proceeded;
- a further period of anxiety since the filing of the Council’s appeal;
- severe impact on the respondent’s mental health, detailed in the reports of Dr Bowers and Dr Nielssen;
- the termination of the respondent’s marriage and disruption to his family;
- a very significant quantifiable cost resulting from the variation in the terms of the respondent’s policy of professional indemnity insurance for 2022, with an unquantifiable potential penalty in forthcoming years (already, the annual cost has dwarfed the maximum fine this Court could impose); and
- an unquantifiable but real and significant impact on the respondent’s practice.
196 Bad as the respondent’s conduct was, and deserving of condemnation, so far as the evidence goes, it represents an isolated instance of departure from accepted norms of conduct. It is an instance of the “human frailty” that Kitto J recognised in Ziems and was again recognised by the High Court in A Solicitor. It needs to be seen in proportion to what the conduct has already cost the respondent in personal and emotional, as well as financial, terms.
197 In light of the financial penalty already effected by the respondent’s insurer we reject the Council’s contention that a fine ought to be imposed. That leaves for consideration the question of counselling.
198 The Tribunal saw no need for an order for counselling and gave its reasons, those being, essentially, that the incident was isolated, that the evidence shows insight by the respondent into his conduct, and that there is no likelihood that the respondent would conduct himself in a similar way in the future.
199 We agree with those reasons. It is notable that, although the Council has proposed, in general terms, that the respondent be required to undertake a course of counselling, it has not put forward any proposal nor identified any suitable course. This Court could not make any order that could reasonably be enforced.
200 The consequence of these conclusions is that, the Council’s appeal should be dismissed. The Council should pay the respondent’s costs of the appeal.
The application for orders under the Court Suppression and Non-publication Orders Act
201 By notice of motion filed on 29 September 2021 the respondent seeks orders under the Non-publication Orders Act. The application is supported by the Council. The substantive orders sought (in par 1 of the notice of motion) are in three parts and are to the effect that:
1(a) for a period of 20 years the respondent continue to be referred to as “
1(b) publication of the respondent’s identity as party to the proceedings, and of any information tending to reveal his identity, be prohibited in Australia for a period of 20 years (subject to some stated exceptions);
1(c) disclosure of the documents and evidence in “the proceedings” [being, presumably, the proceeding in the Tribunal and the appeal to this Court] be restricted to the parties, their legal advisors and the respondent’s insurer, the respondent’s insurance broker and medical advisors.
202 The nature and effect of the orders sought should be clearly understood. By proposed orders 1(a) and (b) the respondent seeks preservation of his anonymity throughout Australia for a period of 20 years. By order 1(c) he seeks to prevent public disclosure of virtually the entirety of the Tribunal proceedings and the appeal to this Court (with very limited exceptions).
The legislation
203 The Non-publication Orders Act represents a legislative attempt to reconcile and balance two interests that, at times, compete: (i) the public interest in open justice, and (ii) the need, in particular cases, to preserve the confidentiality of material disclosed in court proceedings. The former finds its expression in s 6, which is in the following terms:
“6. Safeguarding public interest in open justice
In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.”
204 Two distinct forms of order are recognised:
(1) a “non-publication order”, defined in s 3, as:
“an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information); and
(2) a “suppression order”, also defined in s 3, as:
“an order that prohibits or restricts the disclosure of information (by publication or otherwise).”
205 “Publish” is defined to mean:
“...disseminate or provide access to the public or a section of the public by any means, including by:
(a) publication in a book, newspaper, magazine or other written publication, or
(b) broadcast by radio or television, or
(c) public exhibition, or
(d) broadcast or publication by means of the Internet.”
206 The orders sought in pars 1(a) and (b) of the notice of motion appear to be non-publication orders; the order sought in par 1(c) appears to be a suppression order. By par 2 of the notice of motion the respondent proposes a number of exclusions from the orders.
207 The operative provision is s 7, which provides that a court “may”, by making a suppression or a non-publication order (on grounds stated in s 8), prohibit or restrict the publication or other disclosure of:
“(a) information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings or any person who is related to or otherwise associated with any party to or witness in proceedings; or
(b) information that comprises evidence, or information about evidence, given in proceedings in the court.”
208 The grounds stated in s 8 are:
“(a) the order is necessary to prevent prejudice to the proper administration of justice,
(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or State or Territory in relation to national or international security,
(c) the order is necessary to protect the safety of any person,
(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature ...,
(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.”
209 The respondent relied on ground 8(1)(c) to support orders (1)(a) and (b) as sought. He relied on ground 8(1)(e) to support order 1(c), by which, (if granted) the whole of the proceedings in the Tribunal would be suppressed and denied to public access. Sections 11 and 12 reinforce the limited scope of any order that may be made. Section 11 requires specification of the place to which the order applies, which is not limited to NSW and may extend to anywhere in Australia; by subs (3), an order is not to be made to apply outside NSW unless the court is satisfied that doing so is necessary for achieving the purpose for which the order is made. Section 12 requires specification of the period for which the order operates, which, by subs(2), must be no longer than is reasonably necessary to achieve the purpose for which the order is made.
210 An affidavit in support of the application was sworn by the respondent’s solicitor. To the affidavit were annexed a number of documents, which fall into two categories:
(1) psychiatric and psychological reports (in addition to those that had been provided to the Tribunal);
(2) media publications reporting and commenting on the proceedings in the Tribunal.
211 Some of the media publications have been described earlier in these reasons. Some of them may be taken to have had wide circulation. Their direct relevance to whether a non-publication order ought to be made is questionable, although, as will be seen, they may have some indirect relevance. And, at least on one view, they contra-indicate an order suppressing the evidence in the Tribunal: access to the evidence given in the Tribunal would (it may be hoped) facilitate accuracy in reporting and prevent overstatement and misstatement.
212 Of more immediate relevance are the updating psychiatric and psychological reports. On 13 September 2021 Dr Neilssen reported:
‘[The respondent] reported the belief that his identity is already well known within legal circles, including among prospective clients. However, publication of his identity would inevitably result in further professional humiliation, including linking his name to the many media releases and the inaccurate and incomplete articles that have already been published.
[The respondent] denies contemplating suicide, because of his obligation to his children. Moreover, suicide is thankfully a comparatively rare event that cannot be reliably predicted. However, he has a number of significant risk factors, including a major depressive illness, which is present in as many as 90% of people who commit suicide, and recent separation, which is strongly associated with male suicide. There was no history of substance use, which would multiply any risks. However, professional humiliation is also known to be a potent trigger to suicidal behaviour, and in my opinion publication of [the respondent’s] identity would greatly increase his risk of suicide.”
213 Dr Bowers reported (27 September 2021):
“Based on the above information it is of my clinical opinion that [the respondent] currently meets the clinical criteria of Major Depressive Disorder with Anxious Distress as per DSM-V consistent with my previous reports, it is of my clinical opinion that these symptoms would likely be further exacerbated if [the respondent’s] identity were to be publicised.” [116]
214 On 2 December 2021, while the Court was in the process of determining the appeal, the Chief Justice wrote to the parties, raising concerns of the Court that the evidence tendered in support of the application may not be sufficient to justify the making of such orders. The Chief Justice pointed out that there was evidence that the respondent believed that his identity was already well known in legal circles, and that the events in question occurred in a public place. The respondent was therefore invited, if he wished, to supply any further evidence or submissions in support of the application.
215 On 16 December 2021 the Court received, by email, supplementary reports from each of Dr Bowers and Dr Neilssen. Dr Bowers said that, since her last report (27 September 2021, predating the hearing of the appeal) she had reviewed the respondent on three occasions. She again stated her clinical opinion that the respondent “meets the clinical criteria of Major Depressive Disorder with Anxious Distress” and that he is “currently at moderate risk of suicide”. She considered that his symptoms of depression, “including risk of suicide” would be exacerbated if his identity in relation to the complaint were to be made public.
216 Dr Neilssen did not personally review the respondent. He provided a further opinion, and some information, in general terms, about the incidence of suicide, and classes of individuals who are at risk. That included:
“Men in their forties and fifties who have been in difficult separations and lack strong community support are known to be a group at particular risk. Most people who suicide are known to be severely depressed, and the pervasively negative outlook that accompanies depressive illness, with a morbid appraisal of oneself, one’s circumstances and the future can create a state of mind in which suicide seems a reasonable course of action.”
Consideration
217 Suppression and non-publication orders represent a departure from the general and fundamental principle that justice is administered openly, in courts and by judgments that are accessible to the general public. The grounds stated in s 8 of the Non-publication Orders Act all have a common element – each requires that the order sought be “necessary” to achieve the stated purpose.
218 Notwithstanding the use of the word “may” in s 7, the power conferred is not discretionary: Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [33]; Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [48] per Bathurst CJ and McColl JA. Accordingly, once the necessity of an order for the relevant purpose is established, refusal to make the order is not an option.
219 That raises the question of what amounts to a “necessity”. In Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125, in the context of the Non-publication Act, Basten JA said:
“46. The meaning of ‘necessary’ depends on the context in which it is used. In s 8(1), it is used in relation to an order of the Court, or, in practical terms a proposed order, because it identifies a standard as to which the Court must be satisfied before making an order. In each paragraph of that provision, the word ‘necessary’ is used to describe the connection between the proposed order and an identified purpose. It may not take the same place on the variable scale of meaning in each case. In paragraph (a) a purpose of the order will be ‘to prevent prejudice to the proper administration of justice’. That language will, in its turn, have a colour which will depend upon the circumstances. The prejudice may be a possibility or a certainty; its effect, if it eventuates, maybe minor or it may cause a trial to miscarry. Similarly, prevention will involve matters of degree; the proposed order may diminish the risk of prejudice or it may obviate the risk entirely. All of these variables may effect what is considered ‘necessary’ in particular circumstances.”
220 Bathurst CJ agreed, adding:
“8 ... Although it is not sufficient, in my opinion, that the orders are merely reasonable or sensible, I agree that the word ‘necessary’ should not be given a narrow construction.”
221 Bathurst CJ adopted observations of Mahoney JA in John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court (NSW) (1991) 26 NSWLR 131. Mahoney JA said (at 161):
“This leads to the consideration of what is meant by ‘necessary to secure the proper administration of justice’ in this context. The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceeding will go on: at least, the instant proceeding will. And if the name of a security officer is revealed, the administration of justice or of the country will not collapse. The basis of the implication is that if the kind of order proposed is not made, the result will be – or at least will assumed to be – that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the Court. ...”
222 Those observations by Mahoney JA, adopted by Hodgson JA in R v Kwok (2005) 64 NSWLR 335; [2005] NSWCCA 245 at [13], were made in relation to non-publication orders made under the common law, prior to the 2010 codification represented by the Non-publication Orders Act. Their adoption by Bathurst CJ in Fairfax Digital establishes their continuing relevance.
223 Nevertheless, the assessment of “necessity” must be made with due regard to the primary objective of the administration of justice, stated in s 6, as the safeguarding of the public interest in open justice. In Rinehart v Welker Bathurst CJ and McColl JA said:
“26. The principle of legality favours a construction of legislation such as the [Non-publication Orders Act] which, consistently with a statutory scheme, has the least adverse impact on the open justice principle and common law freedom of speech and, where constructional choices are open, so as to minimise its intrusion upon that principle, Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [5], [27] (French CJ), see also Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55 (Kirby P).”
224 In Hogan v Australian Crime Commission the High Court (French CJ, Gummow, Hayne, Heydon and Kiefel JJ) said (in the context of a parallel power conferred by s 50 of the Federal Court of Australia Act 1976 (Cth)):
“30 ... ‘necessary’ is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Perish [(1980) [1980] FCA 33; 43 FLR 129 at 133] that the collocation of necessity to prevent prejudice to the administration of justice and the necessity to prevent prejudice to the security of the Commonwealth ‘suggests Parliament was not dealing with trivialities’.”
225 The application for orders 1(a) and (b) depends on the evidence of the respondent’s precarious mental health. The relevance of the media publications lies in the level of publicity and hostility that they demonstrate, generated and directed towards the (so far, at least theoretically, anonymous) perpetrator of the conduct. That ties in with the opinions of Dr Neilssen and Dr Bowers.
226 Dr Neilssen directed his attention specifically to the risk of suicide if the respondent’s identity is made public. That may be in recognition of the approach taken by this Court in DEJ v Council of the NSW Bar Association [2021] NSWSC 72, at [196]-[200]. Necessity to protect the safety of any person, as required before a non-publication order may be made on the grounds stated in s 8(1)(c) does not depend solely on the risk of suicide. The likelihood of harm to mental health, falling short of risk of suicide, may, in an appropriate case, be sufficient to justify an order.
227 Two differing approaches to the application of s 8(1)(c) have emerged. One has been dubbed “the probable harm” approach; the other “the calculus of risk” approach: see AB (a pseudonym) v R (No 3) [2019] NSWCCA 46 at [56]- [58].
228 Put briefly, the “probable harm” approach requires proof of the probability of harm in the absence of an order. The “calculus of risk” approach requires a more nuanced consideration, taking into account the nature, imminence and degree of likelihood of harm to occur to the relevant person. The “calculus of risk” approach appears, in the decided cases, to have gained ascendency as the preferred approach: see AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2019] HCA 6; AB (No 3) (NSWCCA); Wilson v Basson [2020] NSWSC 512 at [18].
229 We likewise prefer the calculus of risk approach. The evidence established that, were the identity of the respondent to be publicly revealed, his mental health would be at risk. That conclusion would favour the making of an order restricting publication of identifying information. Against that has to be balanced the important consideration of open justice. More particularly, what has to be considered is the degree to which an order that would restrict identification of the respondent would encroach upon that principle. That encroachment would be minimal. Such an order would not restrict publication of the salient facts of the proceedings, that a barrister was the subject of disciplinary proceedings, the nature of the conduct that underlay the disciplinary proceedings, and the outcome of the disciplinary proceedings.
230 Having regard to the media commentary to which we have referred, it is likely that disposition of the appeal will revive media interest in the subject, and that some of the reporting will repeat the inaccuracies that have characterised past reporting and commentary. The psychiatric and psychological evidence is that further reporting, and identification of the respondent, would cause further damage to his already fragile mental health, and exacerbate the conditions diagnosed by Drs Bowers and Nielssen.
231 Inaccuracy of reporting was a consideration in the decision of the Court of Criminal Appeal to make a non-publication order in AB (a pseudonym) v R (No 3). True it is that the level of abusive and inflammatory reporting in that case exceeded even the worst of the instances in the present case, and appeared to have resulted in physical attacks on AB and his family.
232 The Court (Hoeben CJ at CL, Price and Adamson JJ) said:
“101 The public interest in open justice is served by reporting of court proceedings and their outcomes. Open justice normally requires the identity of the offender to be revealed. The media, when it reports such proceedings fairly and accurately, deserves the description that it is the eyes and ears of the public. That is why fair and accurate reporting of court proceedings is protected and why, as Spigelman CJ said in John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344; [2004] NSWCA 324 at [20];
‘[20] ... nothing should be done to discourage fair and accurate reporting of proceedings.’
102 In the present case, the ‘reporting’ of the proceedings by the Daily Telegraph was neither accurate nor fair and contained information or imputation that was significantly misleading and emotive. Its reports were further distorted on social media.
103 The only relevant effect that a non-publication order would have in the present case is to prevent the further identification of the applicant and his family in connection with these proceedings with the aim of eliminating or minimising vigilante conduct engendered by the misreporting of the proceedings.”
Those remarks are apposite in the present case.
233 We have come to the view, while taking into account the primary objective of safeguarding the public interest in open justice, that a limited order, restricting publication of identifying information, is, within s 8(1)(c) of the Non-publication Orders Act, necessary to protect the safety of the respondent. We propose to make such an order.
234 Order 1(c) is more easily dealt with. The respondent advanced no submission that could conceivably justify an order for suppression of, effectively, the whole of the Tribunal proceedings (and, presumably, the appeal to this Court). The Council made something of an attempt at justification although the argument postulated related to “harm” to H, and, possibly, to the respondent. Section 8(1)(e) is not concerned with harm; it is concerned with the public interest. No public interest consideration was identified by either the respondent or the Council. There is no reason to accede to the application for order 1(c). Whether the Tribunal maintains its s 64 order is a matter for it.
235 We propose to make an order in the following terms:
Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2020 (NSW), on the ground stated in s 8(1)(c) of the said Act, publication of information tending to reveal the identity of the first respondent as a party to the proceeding in the Civil and Administrative Tribunal of NSW on 10 and 11 December 2020 and 4 March, 12 May and 18 June 2021, and in the NSW Court of Appeal on 8 October 2021 is prohibited in Australia for a period of 20 years from the date hereof, except to the extent that such disclosure is required for purposes in connection with the respondent’s professional indemnity insurance arrangements.
236 It is common ground that, in the event that this Court makes an order pursuant to the Court Suppression and Non-publication Orders Act, the Legal Services Commission must nonetheless record the disciplinary action taken against
237 Part 12 of the Application Act deals with “Registers and publicising disciplinary action”. Section 152 provides:
“152 Register of Disciplinary Action
(1) The NSW Commissioner must keep a register (in this Act referred to as the Register of Disciplinary Action) of—
(a) disciplinary action taken under a law of this jurisdiction against lawyers, and
(b) disciplinary action taken under a corresponding law against lawyers who are or were enrolled or practising in this jurisdiction when the conduct that is the subject of the disciplinary action occurred, and
(c) disciplinary action taken under a corresponding law against lawyers who are enrolled or practising in this jurisdiction if the disciplinary action was recorded on a register of disciplinary action kept under the corresponding law when the lawyer became enrolled or commenced to practise in this jurisdiction.
(2) The register may include the details that may be included in the register under section 435 of the Legal Profession Uniform Law (NSW) and must not include the details that must not be included in the register under that section. Subsection (3) prevails over this subsection in the event of an inconsistency.
(3) The local regulations may make provision for or with respect to the information that may or must be included in the register.
(4) The register may be kept in a form determined by the NSW Commissioner.
(5) The register is to be made available for public inspection on—
(a) the internet site of the NSW Commissioner, or
(b) an internet site identified on the internet site of the Commissioner.
(6) Information recorded in the register may be provided to members of the public in any other manner approved by the NSW Commissioner.
(7) The NSW Commissioner may cause any error in or omission from the register to be corrected.
(8) The requirement to keep the register applies only in relation to disciplinary action taken after the commencement of section 577 of the Legal Profession Act 2004, but details relating to earlier disciplinary action may be included in the register.
(9) A Council or NCAT must provide to the NSW Commissioner sufficient information to enable the Commissioner to exercise the Commissioner’s functions in respect of the register.”
238 The reprimand issued by the Tribunal, and the orders sought by the Council on appeal, are “disciplinary action”. For the purposes of s 152(3), local regulations have been made, in the form of cl 62 of the Legal Profession Uniform Law Application Regulation 2015, which provides:
“62 Register of Disciplinary Action—section 152 of the application Act
For the purposes of section 152 (3) of the application Act, the following particulars must be included in the Register of Disciplinary Action in relation to a person against whom disciplinary action is taken:
(a) the person’s professional capacity (for example, barrister or solicitor) in which the conduct complained of occurred and, if different, the person’s professional capacity in which the complaint was made against the person,
(b) the local regulatory authority that took the disciplinary action,
(c) the date of the decision or determination of the local regulatory authority to take the disciplinary action and, if different, the date the disciplinary action was taken,
(d) a description or summary of the conduct that is the subject of the disciplinary action,
(e) the date and jurisdiction of the person’s first and each later admission to the legal profession.”
239 The second sentence of s 152(2) provides that the particulars required by cl 62 prevail to the extent of any inconsistency over any requirements in the Uniform Law. For present purposes, it suffices to note that the effect of the provisions is that the practitioner’s name and a description or summary of the conduct which is the subject of the disciplinary action must be recorded in the register.
240 Subsection (5) imposes an obligation upon the Commissioner to make the register available for public inspection on an internet site. Further to that obligation, s 152(6) empowers the Commissioner to make information in the register available to members of the public in any other manner approved by the Commissioner. Further to and separately from that power, s 153(1) empowers the Commissioner or a Council to publicise the disciplinary action in any manner the Commissioner or Council sees fit.
241 It will be seen that the provisions distinguish between the Commissioner’s obligation to keep a register, and the powers to publish information contained in the register. The same distinction may be seen in s 155, which confers an immunity in relation to various aspects of the Part. The submissions of the parties draw upon that distinction.
242 Section 156 makes special provision for action not to be recorded in the register where action was taken “because of the person’s inability properly to carry out the requirements of legal practice and the inability arises wholly or principally from infirmity, injury or mental or physical illness”. It is common ground that this is inapplicable.
243 Section 157 is the last section in Part 12. It deals specifically with the interrelationship between the provisions of the Part and non-disclosure orders. It provides as follows:
“157 Effect of secrecy provisions and non-disclosure orders
(1) The provisions of this Part apply despite any confidentiality or secrecy provisions of this Act or the Legal Profession Uniform Law (NSW).
(2) The provisions of this Part are subject to any order made by—
(a) NCAT in relation to disciplinary action taken under the Legal Profession Uniform Law (NSW), or
(b) a corresponding authority in relation to disciplinary action taken under provisions of a corresponding law that correspond to that Law, or
(c) a court or tribunal of this or another jurisdiction,
so far as the order prohibits or restricts the disclosure of information.
(3) Despite subsection (2), the name and other identifying particulars of the person against whom the disciplinary action was taken, and the kind of disciplinary action taken, must be recorded in the Register of Disciplinary Action in accordance with the requirements of this Part and may be otherwise publicised under this Part.”
244 What is the effect of those provisions in the event that this Court makes an order preventing the publication of the respondent’s name or information identifying him? The parties’ submissions ranged more widely, including as to the power of the Commissioner to maintain a “back end” of the Register not available to the public, and the precise particulars proposed to be made available. It is neither necessary nor appropriate to resolve all the matters raised. The parties’ submissions on the central question, which is an important question of principle, were quite brief.
The parties’ submissions
245 The Council emphasised the express words of s 157(2), giving primacy to a non-publication order, and noted that such an order would only be made if the criterion of necessity in the Non-publication Orders Act were satisfied. The Council said that this was to be achieved “by interpreting [s 157] as concerned with the publication (including on the internet) but not the recording of ‘disciplinary action’ as defined on the Register”. The Council did not address the concluding words of s 157(3).
246 The first respondent helpfully elaborated upon the Council’s submissions. He drew upon the immunity provisions in s 155(1) and (2) in support of the proposition that “the legislature intended there to be a difference between the recording, as opposed to publishing of information in Part 12”, the same distinction as is drawn by s 157(3). We agree. Unlike the Council, the respondent gave detailed attention to s 157(3), contending that the opening words require that the Commissioner’s obligations to record the name, other identifying particulars and the kind of disciplinary action must be recorded on the register, even if a non-publication order were made. The first respondent observed that in contradistinction with the obligation to record matters in the register despite a non-publication order, the concluding words of s 157(3) confer a power to publish falling short of a legislative mandate that the information be published. He submitted that:
“In this way, a harmonious construction of the Application Act and the Court Suppression Act can readily be reached. The Commissioner’s discretion to publish is subject to any order under the Court Suppression Act to the contrary. The Court would be slow to construe s 157(3) as requiring the Commissioner to publish the Limited Particulars (or the particulars listed in [17]-[18] above) on the RoDA where a contrary order had been made under the Court Suppression Act.”
247 That conclusion is supported by what were said to be absurd conclusions. If a lawyer were convicted for breaching the Intelligence Services Act 2001 (Cth) and a court made a suppression order prohibiting the publication of the lawyer’s name in the interests of national security when, inevitably, disciplinary proceedings were brought, then on the Commissioner’s construction, the Commissioner would be required nonetheless to publish the lawyer’s name. The first respondent observed that if a counselling order were made, on the Commissioner’s construction that order would be required to be published, which might in turn make it easy to identify a decision requiring a lawyer to be counselled.
248 The first respondent also pointed to the flexibility of the Commissioner’s power to maintain the Register in the manner the Commissioner sees fit and the Commissioner’s statutory right to appear and make submissions in disciplinary cases, including concerning non-publication orders. The first respondent also challenged the assumption that the Register must in its entirety by made available for public inspection.
249 It is not necessary separately to summarise the Commissioner’s submissions, which invoked the text and purpose of the section, and which in large measure are reflected in what follows.
Construction of the provisions
250 We start with the text. Unusually, s 157 deals explicitly with the interaction between a non-disclosure order and the obligations in Part 12 to make information available to the public. Section 157 provides in terms that some but not all of the obligations in Part 12 remain in place despite a non-disclosure order. Both the parties and the Commissioner accept that those words mean what they say. We agree. This is a case where the Legislature has spoken with clarity about what will occur when the statute requires information to be made available and an order requires that it be kept confidential. In large measure (s 157(2)) the order prevails. But that is subject to s 157(3). That is the unambiguous meaning of the words “Despite subsection (2)” with which s 157(3) commences.
251 Subsection 157(3) has two limbs. The first is the obligation to record name and identifying particulars and the kind of disciplinary action taken in the register. The second is the power to publicise under Part 12. Both the obligation and the power are excluded from the effect of s 157(2). That is to say, the section operates distributively, as if it were worded:
“Despite subsection (2), the name and other identifying particulars of the person against whom the disciplinary action was taken, and the kind of disciplinary action taken, must be recorded in the Register of Disciplinary Action in accordance with the requirements of this Part.
Despite subsection (2), the name and other identifying particulars of the person against whom the disciplinary action was taken, and the kind of disciplinary action taken, may be otherwise publicised under this Part.”
252 As the Commissioner noted, the word “otherwise” must be given meaning. A construction which confined the scope of s 157(3) merely to the obligation to record matters in the Register would be inconsistent with the further power authorising the lawyer’s name, identifying particulars and the kind of disciplinary action taken to be “otherwise” publicised under the Part. It follows that both the obligation and the power are excluded from the subjection effected by s 157(2) of the provisions of Part 12 to any non-disclosure order. That is to say, both the obligation and the power are unaffected by the operation of the non-disclosure order.
253 The first respondent’s hypothetical example of the lawyer who is convicted of an offence under the Intelligence Services Act 2001 (Cth) is just that, namely, a hypothetical and rather extreme example far removed from the facts of the present case, and one which introduces federal considerations. Arguments based on extreme examples are commonly of little weight, as was observed in Waste Recycling and Processing Corporation v Global Renewables Eastern Creek Pty Ltd [2009] NSWCA 315 at [40] and [77]. Turning to the practical operation of the construction in the event that a counselling order is made, this does not arise. For the reasons given above, no order requiring counselling will be made. Nevertheless, we accept the force in the balance of the respondent’s submission that to some extent the construction of these provisions may serve to assist a person who wishes to identify the barrister from conducting searches to do so. But that submission is diminished by the facts that (a) the events giving rise to these proceedings took place in public, in plain sight of other guests at the event, (b) the first respondent’s own evidence that he believes that “his identity is already well known within legal circles, including among prospective clients”.
254 There are express powers to publicise disciplinary action taken against a lawyer under s 152(6) and s 153(1). Further, there is plainly implied power to make the information recorded in the register available for public inspection, which is necessarily conferred in order for the Commissioner to comply with the obligation in s 152(5). Those powers, both express and implied, apply notwithstanding this Court’s non-publication order.
255 That said, it is to be expected that the Commissioner and the Council will exercise those powers sensitively, in light of the evidence received and the reasons given for making the non-publication order. The premise of the making of a non-publication order under the statute is that such an order is “necessary” in the sense earlier described. It is not lightly made, and indeed but for the most recent evidence from those treating the first respondent, it may not have been made. However, it is clear from the affidavit of the Legal Services Commissioner (which proposes a relatively limited form of publication) that he is conscious of the need to balance the public interest in publishing information of disciplinary action with the interests protected by the order made.
256 The orders of the Court are:
1. Appeal dismissed with costs.
2. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2020 (NSW), on the ground stated in s 8(1)(c) of the said Act, publication of information tending to reveal the identity of the first respondent as a party to the proceeding in the Civil and Administrative Tribunal of NSW on 10 and 11 December 2020 and 4 March, 12 May and 18 June 2021, and in the NSW Court of Appeal on 8 October 2021 is prohibited in Australia for a period of 20 years from the date hereof, except to the extent that such disclosure is required for purposes in connection with the first respondent’s professional indemnity insurance arrangements.
3. Order 2 does not apply to any person, body or entity to whom it is necessary to disclose the information referred to in Order 2 for the purpose of the legislation, regulations and rules applying from time to time for regulating the legal profession, for the assessment of costs and for the enforcement of judgments.
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