A Solicitor v The Council of the Law Society of New South Wales [2003] HCATrans 455 (12 November 2003)

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A Solicitor v The Council of the Law Society of New South Wales [2003] HCATrans 455 (12 November 2003)

Last Updated: 12 November 2003

[2003] HCATrans 455

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S406 of 2002

B e t w e e n -

A SOLICITOR

Appellant

and

THE COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 NOVEMBER 2003, AT 10.18 AM

(Continued from 11/11/03)

Copyright in the High Court of Australia

GLEESON CJ: Yes, Mr Griffiths.

MR GRIFFITHS: Thank you, your Honour. Yesterday I finished dealing with the relationship between Part 10 of the Act and the inherent jurisdiction, and your Honours will recall that I drew your Honours’ attention to the fact that the claimant did not press a notice of motion in the Court of Appeal in which he sought to strike out the proceedings as an abuse of process. I mentioned to your Honours that we handed up a bundle of material which I thought had included not only the solicitor’s outline of argument, but also the Law Society’s outline.

I omitted to provide that latter outline, but it has been distributed to your Honours this morning. I need to say nothing more about that. On the issue, though, of the relationship between Part 10 and the inherent jurisdiction, there is one other observation that I should make at this juncture and it is this. I will be taking your Honours in due course to the correspondence which gives rise to the Court of Appeal’s finding of breach of duty of candour. It is the correspondence that my learned friend took you to, in part, yesterday, namely, during October and November 2000.

Your Honours will see in due course that the primary thrust of the material being advanced by the solicitor at that time was designed to persuade the Law Society not to proceed further with the matter under Part 10, but rather was designed to persuade the Law Society to exercise what the solicitor described as the Law Society’s common law powers to inflict some punishment on him, falling short of striking him off the roll.

KIRBY J: We will come to that, in due course, because you will remember yesterday - - -

MR GRIFFITHS: I will come to that in due course. I will take your Honour, in due course, on the duty of candour issue, in particular, and highlight that point.

KIRBY J: Yes, but also, I hope, on that principle, if it be a principle, that you only strike off if you reach a view that the person forever, or indefinitely, is not fit to practise.

MR GRIFFITHS: Yes, I will come to that in due course, your Honour.

KIRBY J: It seems a high allegation in this particular case.

MR GRIFFITHS: It is a high allegation or it is a high requirement to meet, but nevertheless it is a requirement that is met in the context also of an appreciation that it will be open to the solicitor at an appropriate time, if he or she thinks fit, to seek readmission.

KIRBY J: Very hard to adopt, Mr Griffiths, very hard. I mean, I sat there for years and I do not remember – I once proposed it in Ms Foreman’s Case, but very hard. Once you are off, it is very hard to get back. That is why the battles are joined usually at this stage.

MR GRIFFITHS: Yes. We would agree with my learned friend’s observation that the onus shifts unquestionably between the strike-off and the application for readmission. We would not also shy away from the difficulty that it may be very hard, but it is certainly not insurmountable. There are numerous instances - - -

McHUGH J: Except you have to overcome the presumption of permanent unfitness, and it is not an easy onus to overcome. If you take a case like Evatt, he succeeded on getting back on the rolls on his third attempt, but it is three attempts in 16 years.

MR GRIFFITHS: Yes.

KIRBY J: Part of the problem that people face is that very relevant, according to the authorities, is what they have done in the meantime, and the very fact that they are a struck-off solicitor makes it very difficult for them to get work which is going to be useful for their application to be readmitted.

MR GRIFFITHS: Yes, but I suppose that all goes back, though, to what the basis for the original striking off was. If, in this case, it is something in at least as far as the offences are concerned, something that is not directly related to the practitioner’s practice, then the problem that your Honour just identified will not be so acute. I should also emphasise that although the test is high, as your Honour has described, it is a probability of permanent unfitness to adopt Justice McHugh’s language. Chief Justice Spigelman, I think, in the Somosi Case, refers to it being “unfitness indefinitely”, which was the other expression that your Honour used. Nevertheless, that is a finding that is made at the present time, a present finding of probable permanent unfitness which does not preclude, naturally, that circumstances do change and circumstances will change, and practitioners do overcome the high hurdle and are readmitted.

McHUGH J: Well, take what is alleged against this solicitor. The principal problem he has, I think, is the question of lack of candour. Now, what occupation is he going to be able to follow where he is going to be able to prove that he has overcome lack of candour?

MR GRIFFITHS: It may well not be just an occupation that he would need to engage in. It may well involve also a course, an educational course, in which his appreciation of the obligations of candour owed by an officer of the court, not only to the court, but also to his professional body, is more fully appreciated. It is all the more acute, in our respectful submission, in this particular case that that should occur, in circumstances where not only has there been a finding of breach of candour by the Court of Appeal, but to this day, of course, the solicitor denies that there has been a breach of a duty of candour. That denial in itself was commented upon by the Court of Appeal as providing some insight into his lack of comprehension of his obligations and duties as a practitioner.

McHUGH J: There was an answer he gave at page 38, I think. I do not think it is set out in the Court of Appeal. Yes, it is at page 38, line 42:

Q. Do you see anything now that is misleading about your letter of 27 October 2002?

A. I certainly don’t see anything misleading about it and I didn’t intend - - -

MR GRIFFITHS: Yes.

KIRBY J: I thought he did at some stage concede that, armed with hindsight, it would have been - - -

MR GRIFFITHS: If your Honour goes to page 43, line 45, where I put it to the solicitor:

Q. Do you accept now in the light of what the presiding judge has put to you that that was a relevant matter?

A. I can see that it may well be. I’ve had to think about a lot of things since I’ve had to go over it in these proceedings and I can see that it probably would have been better to disclose everything to the Law Society and just put everything before them.

Q. Do you regret [that]?

A. Definitely, definitely.

Notwithstanding that, though, your Honour, the solicitor’s case before this Court, as indeed it was before the Court of Appeal, was that there was no breach of the duty of candour. That is a matter that is picked up and commented on by the Court of Appeal in its judgment at paragraph 109, page 331 of the second appeal book, where, on the bottom line of the page, Justice Sheller said:

I say nothing of a practitioner’s obligation to bring such matters to the attention of the claimant whether under investigation or not. The opponent denied that he breached the duty of candour. That denial in itself indicates a failure to comprehend the duty of candour required of a solicitor when dealing with an investigation –

et cetera. Your Honours, if I could go back to the issue and - - -

KIRBY J: I think I took you off your track because you will have gathered yesterday that it was a matter that concerned me.

MR GRIFFITHS: It will save me having to deal with it later on, your Honour.

KIRBY J: It may be that it is more logical to deal with the issues of substance and then come to how the court approached the final resolution. In that final resolution it does seem to have, as it were, blown up from the matters which have to be kept in perspective, and maybe the lack of candour has to be seen in that light as well.

MR GRIFFITHS: If I can - - -

KIRBY J: But maybe it is better if you take your course and we will come to it. I will remember my question. I will not let you fail to answer it.

MR GRIFFITHS: I am sure your Honour will.

McHUGH J: When you are dealing with it at some later stage, will you let me know what your submission is on this point, that, although the Court of Appeal has said that he does not realise his obligation, is it so clear-cut that no responsible solicitor could possibly take another view? When you get into matters of ethics, the most respected practitioners have different views. I presided over the Ethics Committee of the New South Wales Bar for six years, and highly respectable counsel can have very different views about what is ethical in particular situations.

MR GRIFFITHS: Yes. I take your Honour’s point. I will come to it and I will deal with it if I may in the context of the correspondence on the duty of candour and the reasons why we say the Court of Appeal was entirely justified in finding that there was a breach of duty in this case. In our respectful submission, that was a finding well open to the court to make and, in our respectful submission, we would go further and say that no reasonable practitioner could, in the circumstances of the correspondence here, noting in particular that the solicitor was putting forward in his favour a claim of good fame and character, absent the first set of convictions and was saying, “In the absence of further ancillary adverse material bearing upon my good fame and character, you shouldn’t take the course that you might otherwise be inclined to take”.

In those circumstances, where a solicitor advances his own good fame and character and the absence of anything contrary to that and withholds from the investigating body the fact that he had been convicted of four further counts of aggravated sexual assault against the elder child - - -

KIRBY J: Which he denied and was appealing and was successful.

MR GRIFFITHS: Which he denied and was appealing, but plainly the convictions were relevant to the very matter that at that time he was putting forward to the Law Society to take into account, namely his claim that the earlier offences were isolated and that there was nothing else adverse to his good fame and character when plainly at the relevant time there was.

KIRBY J: As at that time there was, yes.

GUMMOW J: You have been responding to Justice McHugh’s question to you. Did the Court of Appeal deal with that question at all?

MR GRIFFITHS: Yes, they did, your Honour. I beg your pardon, your Honour, do you mean the question whether or not another reasonable view could be taken?

GUMMOW J: Yes.

MR GRIFFITHS: Not directly, not expressly, but by strong implication the court took the view that in the circumstances of the advancement of absence of any other adverse material on good fame and character he ought to have disclosed – and I am indebted to my learned junior, I may have been too hasty in saying that they did not expressly deal with it. Paragraph 109 of the judgment, page 331:

No practising solicitor conscious of the duty of candour would suppose that the claimant could properly judge the solicitor’s fame and character without reference to a recent conviction on four charges of serious indictable offences with a sentence of imprisonment imposed.

GLEESON CJ: Right or wrong, that is a fairly direct way of dealing with it.

MR GRIFFITHS: It is a very direct way of dealing with it. Your Honours, if I could just go back – at the risk of frustrating you, Justice Kirby, again – and just finish off on Part 10 and inherent jurisdiction.

KIRBY J: Do not worry about that. It happens every day.

MR GRIFFITHS: Can I remind your Honours that the issue of the interrelationship between the two was also discussed by the Chief Justice of the South Australian Supreme Court in the Rodda Case [2002] SASC 274; (2002) 83 SASR 541 at 542, in paragraphs 3 and 4 - - -

KIRBY J: I assume that the Supreme Court of South Australia is in a similar constitutional and historical position as the Supreme Court of New South Wales in respect of its inherent- - -

MR GRIFFITHS: As far as I am aware, your Honour.

GUMMOW J: It is not, because they do not have the Charter of Justice. They are not the inheritors of the New South Wales Charter of Justice.

MR GRIFFITHS: No, they are not, but they do have a very similar provision - - -

GUMMOW J: Which they are very prone to point out.

MR GRIFFITHS: - - - to 171M, which preserves the inherent jurisdiction.

KIRBY J: But it still goes back to Justice Gummow’s question yesterday, what is the foundation of this idea that Supreme Courts have an inherent jurisdiction as distinct from an implied and broad jurisdiction from the imperial statute that originally established them? This may be a question that we do not really have to get into in this case. I mean, it is rather peripheral to our concerns.

MR GRIFFITHS: It may be. I am not in a position to answer your Honour’s question insofar as South Australia is concerned.

KIRBY J: They are very proud of the fact that they were never a convict colony and they were established by special imperial legislation. They were in a rather unique position.

MR GRIFFITHS: Yes. Your Honours see, though, that this question of the interrelationship is dealt with by the Chief Justice in paragraphs 3 and 4. There was a statutory regime there for investigation for a charge before the tribunal in that State, and then for a recommendation to be made for proceedings to be commenced against the practitioner, involving a conduct of inquiries and investigation. The Chief Justice observes in paragraph 4:

in the present case it was appropriate for the matter to be brought before the court without following that procedure. The relevant circumstances are adequately established by the affidavits tendered at the hearing.

GLEESON CJ: Have these disciplinary tribunals power to order injunctions stopping people disposing of money, for example, or assets?

MR GRIFFITHS: In the case of the South Australian Tribunal, my understanding, your Honour, is that it does not have a power to impose any direct sanction.

GLEESON CJ: The reason I ask the question is that as a matter of fact and practice, particularly in the case of financial defalcation by solicitors, matters are often brought to the Supreme Court as a matter of urgency to obtain relief against transfer of funds or disposition of assets and they are often commenced at very short notice in the court and the disciplinary issues, as it were, become for the time being secondary to the remedial issues.

MR GRIFFITHS: Yes. I would assume that that would certainly be the case in South Australia because my reading of the Legal Practitioners Act 1981 in that State suggest that the Tribunal there, unlike the equivalent body in New South Wales, does not itself have the power to impose sanctions on a practitioner but rather makes a recommendation that proceedings be commenced in the Supreme Court.

GLEESON CJ: We happen to be looking at a case where the actual complaint against the solicitor is not, if I might use this expression, a typical complaint against the solicitor.

MR GRIFFITHS: Yes. In this particular case, your Honour’s remarks are directed? Yes, not typical, although the Rodda Case, as my learned friend commented yesterday, has remarkably similar facts, at least as far as the criminal offences are concerned. Could I deal next with the issue of the extension of the concept of professional misconduct to include conduct of a personal character.

I said a little about this yesterday but I wish to draw your Honour’s attention to a number of paragraphs in Chief Justice Spigelman’s decision in Cummins that bear upon this matter and, in particular, paragraph 56 to which my learned friend took the Court yesterday where his Honour identifies two categories of Acts which might fall within the extended definition of professional misconduct.

GLEESON CJ: I would still like to understand a little better than I do at the moment why everybody regards this as such an important issue. In the case of Cummins, for example, why was it important to apply the rubric of professional misconduct. Why was it not sufficient to deal with it as a question of unfitness? What did it mater?

MR GRIFFITHS: Yes. We embrace wholeheartedly your Honour’s rhetoric question to my learned friend about is there any practical significance in it. In our respectful submission, there is not, subject only to this, that the answer to your Honour’s question as to why the Court of Appeal in Cummins saw fit to make that declaration appears to be found, if one looks at paragraphs 68 and 69 of the Chief Justice’s judgment, by reference back to what his Honour says at paragraph 32.

KIRBY J: It is very important in this appeal, is it not, Dr Griffiths? If in fact it ought not to have been dealt with under that rubric, then error has been demonstrated and that error might have infected the orders that were made. There has been a wrong declaration made. There has been an erroneous foundation for a removal order and therefore either we would have to send it back, absent that error, or we would have to exercise the jurisdiction ourselves if that was - - -

MR GRIFFITHS: What your Honour has put to me would be correct if it had been the case that the approach of the Court of Appeal in this instance was to equate the declarations concerning professional misconduct with the declaration as to absence of fitness and propriety. Plainly, the court did not do that.

KIRBY J: You say paragraph 33 answers that point?

MR GRIFFITHS: No. I beg your pardon, I say - - -

KIRBY J: That is the one where they say - - -

MR GRIFFITHS: I say paragraph 112 of the Court of Appeal’s judgment in this matter before this Court - - -

KIRBY J: I am sorry, I was referring to Cummins.

MR GRIFFITHS: - - - deals with that. Insofar as the Chief Justice’s question to me is concerned, paragraph 32 seems to provide the answer to the reason why the Court of Appeal thought that it was desirable, in the circumstances of that case, not only to make a declaration - - -

GUMMOW J: We know that. We read this yesterday, Mr Griffiths. That may be why it is done, but, to my mind, it is not an adequate explanation of how it was correctly done. You just do not go around making declarations because it will assure the public of something.

MR GRIFFITHS: It may well be, as I also said yesterday, your Honour, even if the declaration was wrongly made, it does not go anywhere at the end of the day - - -

GUMMOW J: I agree. That may be right.

GLEESON CJ: I just want to be sure we are sufficiently informed on this issue, because I am afraid I have a feeling it has wider implications than would appear from the matter with which we are concerned. Does it have something to do with the powers and jurisdiction of the Tribunal? Does it have something to do with the disciplinary functions of the Bar Association or the Law Society? I have an uneasy feeling that I am not fully informed on what it is that causes people to agitate themselves about whether or not what is involved is professional misconduct, as well as something that demonstrates unfitness. One thing I do know, from my experience, is that this is an area of great complexity.

MR GRIFFITHS: It is, indeed, an area of great complexity. Your Honour, we have turned our mind to the issue. We are not aware of any other practical reason for - - -

GUMMOW J: Well, 171C(1)(a), is not it? Is not the Tribunal activated to remove by a finding of guilt of professional misconduct? That is how it gets into the dialogue, I can understand, when one is at the Tribunal level. That phrase “guilty of professional misconduct” is in 171C(1)(a).

MR GRIFFITHS: That is naturally, though, in the context of the statutory regime - - -

GUMMOW J: I understand that. The mystery is how it creeps across to somehow confine or expand or to do nothing to the inherent jurisdiction.

MR GRIFFITHS: It might be by a process of osmosis, your Honour.

GUMMOW J: That is what I am worried about.

GLEESON CJ: It might also be that, as a matter of history, the inherent jurisdiction was there first. In other words, it might not be that it is getting from the statutory jurisdiction into the inherent jurisdiction. It might be that, as a matter of history, it got into the statutory jurisdiction by reason of what was previously done in relation to the inherent jurisdiction. There was a judgment we were shown yesterday of Justice Giles, in which he went in great detail to the history of this legislation.

MR GRIFFITHS: Yes. Your Honour may well be right. It is in this sense that your Honour drew our attention yesterday to the decision of the New South Wales Court of Appeal in the Evatt Case in 1967. Although, ultimately, no declaration of professional misconduct was made in the circumstances of that case, that was the nature of the relief that was sought by the Bar Association in that case back in 1967.

GLEESON CJ: We are, as it were, now taking a snapshot of the current legislative position, but I cannot help the suspicion – I have not had an opportunity to check it – that if you looked at it as a matter of history, you would find that the process at work was the reverse process.

MR GRIFFITHS: Yes. That would be logical, your Honour, naturally, because the inherent jurisdiction is a well-established jurisdiction and will no doubt have informed the legislators when the various statutes were passed, amended and evolved.

McHUGH J: One potential reason is, the Court of Appeal wanted to make this declaration so that the Tribunal could then strike off barristers for tax offences.

MR GRIFFITHS: Your Honour, I am not in any position naturally to answer that question. All I can say to assist the Court is that the summons in this particular case with which your Honours are concerned was drafted in the light of recent decisions of the Court of Appeal and consistently with the relief that was sought there. As I indicated yesterday, declarations were sought not only in respect of professional misconduct, but also absence of good fame and character. The Court of Appeal did not address that form of declaratory relief for reasons of which one can only assume are consistent with the approach taken by the Chief Justice in Cummins. It was considered that striking off the roll, a declaration of absence of fitness and propriety was not sufficient but that public confidence would be further bolstered and the good standing and reputation of the profession as a whole supported by making the additional declaration about professional misconduct.

GLEESON CJ: This is an area of the law, Dr Griffiths, in which memory is important and what supports the suggestion just put to you by Justice McHugh is what actually happened in the solicitors’ cases that underlie or lay behind the case of Evatt v New South Wales Bar Association. A series of cases against solicitors in relation to a particular form of dealing with clients financially arose and what happened was that the Supreme Court dealt with three or four of them for the purpose of establishing a principle, but there were a lot of other solicitors involved who were doing the same thing and part of the object of the exercise, as I recollect it, was to establish a principle in the Supreme Court about whether or not a particular form of charging clients in personal injuries cases constituted professional misconduct on the basis that once the principle was established, then what used to be called the Statutory Committee of the Law Society could deal with the others.

KIRBY J: But we have a spectrum here. At one end of the spectrum or at one point is the type of case that the Chief Justice has just mentioned –Veron was such a case – and that would clearly be professional misconduct because you are dealing with clients and you are taking money and not accounting properly and so on. A bit further down the track is the case of Mr Cummins, where one can see an argument that the way in which you respond or do not respond to your taxation obligations is of a professional nature and it takes on aspects of fraud against the community or dishonesty in relation to your statutory obligations. But then you get to a case like the present, where the conduct of which this solicitor was accused and which he acknowledged in respect of the first elements, it is very hard to squeeze that into professional misconduct. It is personal misconduct and it is a breach of duty in the sense of his duty as a father figure, but it is not really professional misconduct. It is not in his professional respect. It is in the personal - - -

MR GRIFFITHS: It is not in his professional respect but, in our submission, the Court of Appeal acted correctly in regarding the conduct as fitting into the second category, described by Chief Justice Spigelman in Cummins in paragraph 56 as manifesting “absence of quality”. The particular reason for that is to be found in the matter that your Honour has raised, namely, the significant breach of trust that was involved in the offences.

KIRBY J: I think that is a play on words, Dr Griffiths. You are really trying to make a mountain out of a molehill there. He agreed he had breached his trust but that was breach of a personal trust as the surrogate father.

MR GRIFFITHS: Your Honour, it is more than simply the solicitor agreeing under cross-examination before the Court of Appeal that his conduct constituted a breach of trust, which is what my learned friend mentioned yesterday. There is more to it than that and the “more” is to be found, in our respectful submission, in what appears in the police interview that your Honours will find at page 157 of the first appeal book, this material of course being in evidence in the proceedings below. Upon presenting himself to the police to deal with the matters and to confess to the matters he was asked on the bottom line of the page to explain why he did these things, and the paragraph on the top of page 158 is, in our respectful submission, very revealing:

I was very close to the children. I think I found some mysterious interest or excitement, or maybe it was just curiosity, and I gave in to a temptation, I think also because the children trusted me. Even that doesn’t explain anything that was, there was some excitement or interest in it and I gave in.

KIRBY J: What does this have to do with his life as a solicitor and his duties - - -

MR GRIFFITHS: Because what the solicitor is saying here, candidly, is that not only from an objective viewpoint should these offences be regarded as amounting to a serious breach of trust, but part of the reason or explanation for his conduct was because they trusted him. It was because they held his trust that he got some fascination or excitement out of what he did. In other words, in our respectful submission, this case is an even stronger case than, say, the Rodda Case, where the Chief Justice also said objectively that where an adult takes advantage of an immature and vulnerable young person, there is a breach of trust involved. We not only had the breach of trust objectively; we actually had it as a subjective component of the explanation for the behaviour.

McHUGH J: Yes, but it only shows he is not a fit and proper person to be a solicitor, at best. It does not show he is guilty of professional misconduct.

MR GRIFFITHS: Your Honour, we could accept - - -

McHUGH J: What about the solicitor who involves himself or herself in using unlawful drugs, or, as I said yesterday, gets involved in hold-ups or break and enters. How can you say that is professional misconduct? It means the person is not fit and proper to be a practitioner.

MR GRIFFITHS: What your Honour puts to me may well be the case. The distinguishing feature, though, between those two hypotheticals and here is the presence of the element of trust which excited the behaviour, or incited the behaviour, in terms of the practitioner’s own explanation for what he did, and the fact that trust, as the cases testify, is at the heart of relationships that legal practitioners have – whether it be with the court, whether it be with their professional colleagues, whether it be with their clients, or the public as a whole.

GLEESON CJ: It is a very difficult area and I am not suggesting the following example is anything like the present case, but I suppose you could have a solicitor who was engaged in repeated behaviour which displayed an attitude of contempt towards the law. That itself could involve questions of degree. It could range from a solicitor who repeatedly parks in a no-parking area – which one would have hoped would be regarded as trivial, but I suppose it could in some circumstances be more serious – to a solicitor who repeatedly breaks the customs law, for example. When there was an allegation against a member of the New South Wales Bar that he had smuggled motor vehicles, or parts connected with motor vehicles, into the country, I suppose a question might arise whether that was capable of being regarded as professional misconduct.

MR GRIFFITHS: That question could arise.

KIRBY J: Why is it not better, from a point of view of principle, for this Court now to clarify the matter and say, “professional misconduct” means misconduct in a professional respect. That is the life of the law. “Fit and proper person” is a wider category and that can have a much wider penumbra and attracts wider considerations. That seems a more conceptual approach to the issue.

MR GRIFFITHS: I see the force of what your Honour puts to me and my only retort would be to say that there were understandable reasons advanced in the Cummins Case for making a discrete declaration of professional misconduct.

KIRBY J: We are not sitting in appeal on the Cummins Case. I can see that the taxation issue is a quite distinct issue and does, at least arguably, involve dishonesty and fraud, and that that is relevant to professional misconduct.

GLEESON CJ: And it also relates to compliance with laws governing your accounting for the proceeds of your professional practice.

MR GRIFFITHS: I accept that, your Honour. There is one other matter I should say in relation to the declaration of professional misconduct in this particular case and it is a declaration of professional misconduct that is made in respect of not just the offences. Paragraph 1 of the amended summons sought:

A declaration that the solicitor is guilty of professional misconduct –

in respect of three separate matters. One of those matters was dismissed on the basis of ignorance of a relevant provision, but there were two other matters, the second of which quite plainly did relate to the legal practitioner and his practice arising as it did naturally in the context of his interaction with the Law Society during the course of its investigation. So it is not simply a case of a declaration of professional misbehaviour limited simply to the offences.

GLEESON CJ: Well, that only serves to complicate the matter further because speaking purely for myself I do not have any difficulty with the proposition that if there has been a breach of his obligation of candour towards the Law Society, since that obligation arose out of his professional relationship with the Law Society, that could be professional misconduct.

MR GRIFFITHS: Yes. I accept what your Honour says.

KIRBY J: The lack of candour in relation to the later events is not covered by paragraph 1, is it? Is that not covered by a later paragraph?

MR GRIFFITHS: Paragraph 1(c), your Honour, covers it.

KIRBY J: I see, and paragraph 2 is in the “light of” paragraph 1.

MR GRIFFITHS: That is correct. Your Honours, the issue of trust, objectively and subjectively, the way I have described those concepts, plainly weighed very heavily with the court’s conclusion that insofar as the offences or convictions were concerned, or the conduct underlying them, that that amounted to professional misconduct because of the translation of that fundamental lack of trust into areas as part of the practitioner’s professional life in terms of the trust held out by various persons and institutions that I have already described as the court dealt with in paragraph 101 of its judgment.

Your Honours, as I have indicated, the persons who expect that trust identified in 101 include the other practitioners and it is the case, as your Honours are aware, that there were four character references tendered by the solicitor and the deponents were not cross-examined, those deponents being three barristers and one solicitor, the effect of that evidence being, if I could summarise it, that they knowing of the offences and the circumstances of the offences would nevertheless be content to deal with the solicitor.

While that may be so, there are two matters that we would say in respect of that. The first is that there was also evidence before the court that at least one other solicitor, namely a partner of Magney & Rhodes, made it very clear that if that firm had known of the convictions it would never have employed the solicitor. That evidence your Honours will find at page 198, paragraph 54 of the solicitor’s affidavit in volume 1 of the appeal book.

KIRBY J: It is not a bit like the public’s reaction to crime that we see every day, that if you know all the details then you put events in context and you see them in their full perspective, whereas if you simply know that a person has been convicted of this sort of offence, you have the worst possible view of them? Maybe that is illustrated by Magney’s reaction. Did they know all the details of the case that came out in the proceedings? Mr Hoeben did. He said he would be happy to receive a brief.

MR GRIFFITHS: Mr Hoeben and the other deponents were certainly presented with the agreed statement of facts and I believe also the judge’s comments on sentencing. It is not apparent from the solicitor’s affidavit to what extent the two partners of Magney & Rhodes, with whom he had the meeting on 8 July, were informed of the wider matters relating to the offences.

GLEESON CJ: I notice from the remarks on sentence that one of the matters that went in mitigation was that he had lost his career with the Army Reserve.

MR GRIFFITHS: Yes.

GLEESON CJ: Was Mr Hoeben asked how he came to lose his career with the Army Reserve?

McHUGH J: Yes, he was.

MR GRIFFITHS: Yes.

GLEESON CJ: Where do we find that?

CALLINAN J: He resigned, did he not?

MR GRIFFITHS: He resigned.

CALLINAN J: He was, in effect, called upon to show cause and he thought it would be less traumatic for everybody if he resigned, did he not?

MR GRIFFITHS: That is correct.

McHUGH J: His brigadier told him that - - -

MR GRIFFITHS: He discussed it with some of his senior officers as to what would happen and he did disclose to his senior officers these offences and he was told that he would have to show cause and I believe that his evidence was that in the circumstances he was not going to put himself or his family through that so he resigned his commission.

CALLINAN J: And he lost a considerable amount of tax free income in consequence.

MR GRIFFITHS: That is correct.

GLEESON CJ: Just a page reference will do, in due course. There is no hurry. Just a page reference.

MR GRIFFITHS: Thank you, your Honour.

CALLINAN J: He said, I think, and he was accepted, was he not, that really the military was, if anything, his preferred career and he devoted himself to it since his school days.

MR GRIFFITHS: He had certainly had a long association and had advanced to a relatively senior rank. Mr Hoeben’s evidence was to the effect, as I recall, that it would have been expected that he would have advanced to a quite senior level within the Reserve.

CALLINAN J: His evidence is summarised at page 301, paragraph 64.

McHUGH J: It is at 185, Mr Hoeben’s evidence, at paragraph 6.

MR GRIFFITHS: Yes, thank you, your Honour. There is just one other matter I should say in the context of the character evidence from his legal peers and it is this, that of necessity, if you like, the deponents of those affidavits would not have been aware of the duty of candour issue.

McHUGH J: No. It does not appear to have been put to them.

MR GRIFFITHS: No. It arose after they actually, most probably, finalised their affidavits because the issue only surfaced, of course, in the course of the proceedings when the solicitor swore his affidavit in – I think it was late August, from memory – 31 August 2001 that the issue surfaced.

CALLINAN J: None of them were required for cross-examination.

MR GRIFFITHS: None of them were, your Honour.

CALLINAN J: So there was no contest as to what they said?

MR GRIFFITHS: No, there is not.

KIRBY J: You could have required them for cross-examination.

MR GRIFFITHS: It could have been required, that is right, your Honour, but as I have indicated – I am only repeating myself – there was some evidence, also, to the contrary in terms of Magney & Rhodes reaction when learning of the fact of the convictions and the failure to disclose those convictions to them before the solicitor was employed.

Your Honours, could I turn to the duty of candour now, if I may. Mr Brereton described this aspect of the case as taking on some Kafkaesque-type qualities, because the solicitor was ultimately acquitted of the later charges. It cannot be denied that, of course, that he was. But the relevant issue, in our respectful submission, as correctly approached by the Court of Appeal below, was that the solicitor’s conduct in not disclosing the later convictions had to be examined in the context of what was happening at the relevant time when he failed to disclose those later convictions to the Law Society. He was, at the relevant time, under investigation by the Law Society and he consciously and deliberately withheld information which was plainly relevant to that investigation.

Instead of the solicitor being honest and frank, which is the test as described by Justice Kirby in the Thomas Case – frankness and honesty with one’s professional body – rather, the solicitor took a conscious decision to withhold information from the Law Society because he thought that its disclosure would prejudice his primary objective at the relevant time, which was to dissuade the Law Society from pursuing the investigation through either Part 10 or, indeed, necessarily, in some other place, such as the Court of Appeal.

Mr Brereton took you yesterday to the correspondence. I do not intend to take your Honours to it all again, but I would submit that the four critical letters for this issue are the letters dated 9 October 2000, at page 111 of the appeal book, secondly, the letter of 27 October 2000, at page 114, then 15 November, page 124, and 21 November, at page 126. Those letters need to be looked at in the context of the particular chronology of events.

The hearing of the later charges against the solicitor took place on 24, 25 and 26 October and he was convicted on 7 November. Now, the solicitor’s letter of 27 October, written a day after that three day hearing, is written in response to the Law Society’s letter of 9 October. The 9 October letter is at page 111 of the appeal book. Your Honours were taken to it, and your Honours will see that it invites:

further comments or material by you in response to those complaints -

in the light of the ADT’s decision of that day, holding that it did not have jurisdiction because of the Barwick problem.

GLEESON CJ: Did the evidence disclose whether he was acting with advice at the time he had those communications with the Law Society?

MR GRIFFITHS: No, the evidence does not indicate that one way or the other, your Honour. My learned friend says that he believes that it pretty well shows that he was not. The solicitor’s response - - -

KIRBY J: I think the fact that it is in the very midst of the proceedings means that it can hardly be said this would not have been at the very forefront of his mind and his emotions at that time.

MR GRIFFITHS: Absolutely. The solicitor’s response, written a day after that three-day hearing, but prior to his conviction to be fair, is at page 114. Your Honours see that in the third paragraph he refers back to other material relating to his fame and character. He relies on the material. He points out that the sentencing judge:

found that four offences were out of character and were of an isolated nature.

Your Honours then see paragraphs 4 through to 11. I will not read them out. I simply indicate to your Honours that these are the paragraphs that are then picked up again, adopted and relied upon by the solicitor in his later letter post conviction, which is dated 21 November. Similarly, paragraphs 15 to 27 of that earlier letter are adopted and relied upon in his subsequent letter. It is paragraph 25at page 118 which is of particular significance because the solicitor, both at this time and then subsequently, puts the proposition that:

the cited authorities show that the facts in my case would not justify removal of a practitioner from the roll at common law. Much more severe criminal conduct would be required for this, or else ancillary evidence adverse to fame and character.

Those words are being written, as I say, in the context as at 27 October, where the charges had been laid and the hearing conducted. Then, perhaps even more significantly, when those paragraphs are repeated and reiterated at page 127 of the appeal book in the later letter, 21 November 2002 post conviction, in paragraph 3 he relies upon and adopts those same propositions.

So here we have a circumstance where a solicitor is advancing his good fame and character and the isolated nature of the earlier offences with a view to dissuading the Law Society from embarking upon a more formal investigation which could lead to him being struck off the rolls, notwithstanding that the convictions - and we need go no further than that in view of the way in which the amended summons is particularised - were plainly relevant to whether or not there was ancillary evidence adverse to his good fame and character.

KIRBY J: Would you just remind me, was the complainant in the second batch of complaints the same child as was involved in - - -

MR GRIFFITHS: It was the elder child. From the viewpoint of the breach of the duty of care, in our respectful submission, the fact that ultimately the solicitor was acquitted is neither here nor there. What this conduct serves to demonstrate, in our respectful submission, is it provides a further insight of course into the solicitor’s character.

GLEESON CJ: It is probably reasonable to assume that if the solicitor’s convictions had not been quashed in relation to that second group of matters, we would not be here.

MR GRIFFITHS: Yes, indeed. We also have to say that we join issue with my learned friend’s submission yesterday that it is a mitigating factor, to use his words, that, at the end of the day, it was the solicitor who disclosed these later convictions in the course of the proceedings before the Court of Appeal. Could I adopt what Chief Justice Gleeson just said to me a moment ago, that if he had been successful in his primary objective of heading off a formal investigation, he may not have had that opportunity to do it either.

GLEESON CJ: What was the sentence imposed in respect of the convictions that were ultimately quashed?

MR GRIFFITHS: It was a term of imprisonment for, I believe, two years.

GLEESON CJ: Well, I think that is sufficient.

MR GRIFFITHS: I will just check that though, your Honour. I will come back to it, if I may. Our written submissions deal with the appellant’s claims of denial of procedural fairness and Browne v Dunn and whether or not matters were properly - - -

GLEESON CJ: I am sorry, perhaps I should ask you one further question. He was convicted and sentenced to a term of imprisonment for two years?

MR GRIFFITHS: I would need to check the period, your Honour.

GLEESON CJ: What was the status of the sentence at the time of his communications with the Law Society?

MR GRIFFITHS: It had been stayed, I am told. He lodged an immediate appeal.

GLEESON CJ: So the non-disclosure was not just of the facts of his convictions. The non-disclosure was that he was subject to a sentence of imprisonment.

MR GRIFFITHS: Indeed. That is correct, your Honour. We believe it is two years, but we still need to check it.

KIRBY J: When did he disclose that fact?

MR GRIFFITHS: In his affidavit sworn 31 August 2001.

KIRBY J: Where is that?

MR GRIFFITHS: It is page 200, your Honour. The proceedings were commenced in the Court of Appeal on 24 May 2001 and the affidavit sworn on 31 August is at pages 190 and following.

KIRBY J: There was no psychiatric evidence in this case to explain his non-disclosure?

MR GRIFFITHS: No, there is not.

KIRBY J: Sometimes the human mind compartmentalises and rejects unpleasant information, and if one were taking this as based upon a belief in innocence and a belief that ultimately it would be found to be innocent, there might have been some process going on in his mind that explains this. But it is very hard to say that it would not be bearing upon the consciousness of a rational person at the time that he was writing these letters to the Law Society.

MR GRIFFITHS: Yes, indeed. The answer to your Honour’s question is that there was no evidence, other than the evidence of the solicitor, as to why he did not make the disclosures.

KIRBY J: My point is that he might be the last person who can really explain what was happening in his brain at this time. Some people we all know – amongst counsel it is very often manifested in mental blanks about briefs that are long outstanding. They just put them in the corner and hope that they can forget about them. Ultimately, they loom up like galleons in the night. I just wonder what was going on in this man’s mind at the time, but anyway.

MR GRIFFITHS: No doubt. No one would deny that it must have been a terribly traumatic time for the solicitor. Trauma afflicts many professional lives and it does not offer an excuse for what was here a blatant breach of the duty that he owed to his professional body.

KIRBY J: I think you have made that point very powerfully. The question still remains what follows.

MR GRIFFITHS: Indeed. Your Honours, can I turn now and deal with Mr Brereton’s 11 points. I will deal with them briefly, I am conscious of the time. I will give your Honours page references rather than take you to relevant material in the interests of time. We do not accept that the application of those 11 points necessarily indicates that the ultimate and operative finding of the Court of Appeal here of striking off was inappropriate.

The first of the 11 matters is whether or not the solicitor has a past record, and I need say nothing about that. He clearly does not. These are the matters of course that were accepted in the P Case as being relevant matters to take into account in determining what is an appropriate sanction.

Motive for personal enrichment is the second criterion. It is a criterion which is perhaps more appropriately applied to cases of dishonesty, but even allowing for some extension of the concept to a case such as this, which does not involve any personal financial gain by the solicitor, it is plain that the solicitor’s conduct insofar as the sexual offences were concerned, that he was driven by selfish motives and those matters are evident, not only from the passage that I took your Honours to from the police interview at page 158 – and I will not take you back to it – but your Honours would also be asked to go to page 154 of the appeal book where earlier, in the same police interview, at about point 5 of the page, your Honours see there, and I will not read it out, the solicitor’s description of a fascinating thing in respect of the second girl.

The other matter that we would suggest is relevant in the context of this criterion also is the solicitor’s inaction at the relevant times in seeking professional help. He knew that he had a problem. He did not actually seek professional help until several weeks after the fourth offence was committed. Realising that he had a problem, in our respectful submission, the responsible thing for him to have done would have been for him to seek professional help. His evidence was to the effect that he did not do that at that earlier time because of his concerns that the matter would be reported to the police.

KIRBY J: But in the range of these cases, his application for professional help was rather speedy.

MR GRIFFITHS: After the commission of the fourth offence, that is correct, your Honour, and in circumstances where the authorities had by then also become involved in view of DOCS interviewing the two girls. The writing may well have been on the wall, in our respectful submission, by that time. We would also suggest that it is relevant to have regard to the fact that the solicitor, when first confronted by his then girlfriend with the allegations made by the elder daughter, denied that there had been any improper conduct and it was not until some two weeks after he was so confronted that he admitted to his girlfriend that the incidents had occurred.

Those matters that I have just described are also relevant, in our respectful submission, to the third criterion – honesty and co-operation with the authorities after detection. It is true that ultimately the solicitor approached the police and made confessions, including drawing their attention to two offences of which the police were previously unaware, but it is not just a case of the behaviour after detection or behaviour when he decided to take that case, but his own inaction and denial of what he had done, both to himself and also to his girlfriend that also need to be borne in mind. Naturally, the issue of co-operation with authorities squarely raises the “duty of candour” finding that I have already referred to.

The fourth criterion relates to whether it is conduct unrelated to practice, whether there has been harm to clients or other people. True it is that insofar as the two young victims were concerned there was no evidence that they would suffer any enduring adverse effects, as the sentencing judge comments on page 94 of the first appeal book. Nevertheless, there was material to demonstrate that the victims, understandably, were very distressed and very concerned by the events that occurred. The sentencing judge’s remarks are on page 94 and 95 of the appeal book.

The distress and concern evidence is to be found at page 195 of the appeal book in paragraphs 34 and 35 of the solicitor’s own affidavit. The fear and distress of the children was said to relate especially to the contact that they had had with DOCS and naturally their concerns, generally, about where the whole thing was going to go. It is not only, in our respectful submission, a case involving harm to the victims themselves, in the sense that I have just described, but it is also a case where conduct of this nature, in our respectful submission, harms the reputation of the legal profession as a whole. Similarly, in that respect, with the Cummins Case and also the Rodda Case at paragraph 29 where that point is made.

The fifth criterion relates to ignominy and deterrence and it is clear that the solicitor has suffered a degree of ignominy here in the eyes of his family and certainly in the eyes of his Army colleagues who became aware of the offences and also there are obviously some members of the legal profession who are aware of the matters, but it also is an unusual aspect of this particular matter that of course as a result of the suppression order being made in the interests of the children, the solicitor’s personal involvement is not a matter of wider public knowledge. The issue of deterrence, in our respectful submission, is one which is important, not simply in terms of this solicitor, but also members of the profession, generally.

Absence of premeditation is the sixth criterion. In our respectful submission, the solicitor’s own description of his motives and the choices that he made in terms of the commission of the offences and his denials and his inaction for a limited period of time in obtaining professional help are relevant considerations. Likewise, on the issue of premeditation, insofar as the duty of candour matter is concerned, the evidence demonstrates that quite conscious and deliberate decisions were made by the practitioner not to disclose the convictions because of his concern that wrong weight would be given to it.

McHUGH J: Dr Griffiths, what about the evidence about his depression during this time? He had no income and he is living on charity. His wife’s parents, I think, were supplying groceries, somebody was – clothes were being given for Alexander, the boy, by some family friend. I mean, this may explain part of his conduct here. I mean, this man must have been going through terrible stress, when you read all the evidence in the case, when you read from the Director of CAPS, Dr McConaghy’s evidence. It is a tragic case.

MR GRIFFITHS: We would not disagree with your Honour’s description of that. It is a tragic case. It is a very, very sad case. At the end of the day, however, one has to still ask insofar as the – I do not know whether your Honour’s remark was being directed at the characterisation of the offences, or at the characterisation of the conduct as a whole.

McHUGH J: No, I was directing it at the candour issue, which I think is the real difficulty he has in the case. You get the impression that he was a man who must have been distraught, full of guilt at what he had done, had to give up his Army career, unable to support his wife, children, had to live on charity, to some extent, could not work as a solicitor, has got to go along to CAPS where obviously other offenders are there. They are all treating each other brutally. There is no opportunity for self-deceit, apparently, according to Ms Ginn. You just wonder whether or not these things ought to be weighed in his favour in determining his reaction to what the Law Society did. It strikes me as a case that, even if he should be struck off, nevertheless, it might not take much evidence to show that he ought to be readmitted.

MR GRIFFITHS: Your Honour, what your Honour says are unquestionably relevant surrounding factual matters. Having said that, however, it is evident, in our respectful submission, that the submissions that the solicitor made, both in his letter of 27 October, page 114, followed by the letter of 21 November, written post-conviction, at page 126, do not suggest a confused mind – the letters – and we do not shy away from - - -

KIRBY J: Justice McHugh is really searching for this very thing that I was raising earlier, that this is such an apparently irrational conduct to write a letter as if nothing is happening in his life at the time. It is so irrational that you ask yourself, how can this happen in what is otherwise an apparently rational letter? And the answer that a rational mind then says, well, he is in the midst of this and he is just blotting this out of his brain. But is that just amateur psychology? I do not want to be guilty of amateur psychology without evidence supporting it.

MR GRIFFITHS: But, your Honour, it, with respect, was not irrational insofar as the breach of the duty of candour was concerned. It was very rational and very deliberate and very clearly thought through.

KIRBY J: Dr Griffiths, I cannot accept that, because ultimately this had to come out, and did.

MR GRIFFITHS: If your Honour goes to page 42 of the transcript of his cross-examination, at the bottom of the page the question is put to the solicitor:

Q. It’s the case is it not as your affidavit suggests that you came to the decision not to make those disclosures after giving the matter due consideration, as you put it?
A. That is correct.

Q. So you gave a lot of thought to this sir, is that right?
A. I did give it thought but – I certainly thought it through.

Q. I put it to you . . .
A. I was concerned – I did have a concern that the Law Society would give a wrong weight to it when deciding whether to institute proceedings or not.

Q. You took it upon yourself –

et cetera. Your Honour, there is nothing irrational about that. It is all very deliberate and very calculating.

Your Honours, on evidence of good character, I think I have said enough about the fact that, yes, in his favour four affidavits, but Magney & Rhodes going in the other direction. The eighth criterion is voluntary self-imposed suspension. True it is that the solicitor ceased practice on 1 October 1998 but only because he had been told by the Law Society that unless he complied with 48K(5) and disclosed the fact of the convictions to a prospective employer, proceedings would be taken to restrain him from conducting his practice. That is scarcely a voluntary suspension.

KIRBY J: The fact remains he has not been practising for five years.

MR GRIFFITHS: That is correct, your Honour, since 1 October.

CALLINAN J: Mr Griffiths, does the record disclose whether, when the year 2000 convictions were reversed, anything was said about the admission before the magistrate of the evidence of the previous convictions? I noticed in the record that the magistrate did admit evidence of the other convictions. Was that on similar conduct or something of that kind?

MR GRIFFITHS: I do not know that the evidence demonstrates that one way or the other, your Honour.

GLEESON CJ: The reasons of Judge Tupman appear at page 249 of the appeal book and they turned upon the precision of the date in the charge.

MR GRIFFITHS: Yes, indeed, that is correct.

GLEESON CJ: The charge was not in the usual form of alleging conduct between two dates. It alleged conduct on 28 April and the evidence of the complainant was that it happened at about 9.00 am on 28 April and records, including telephone records, demonstrated that the complainant was unlikely to be right about that.

MR GRIFFITHS: Indeed, your Honour. Your Honour, delay by the regulator has been raised, although not, as we understand it, seriously pressed in any significant way. What we would emphasise is that the initial complaints arising from the earlier convictions were made less than two months after the solicitor’s successful appeal on sentencing. So less than two months after that decision and after the Law Society’s attention was drawn to those earlier convictions by the Acting Prothonotary, formal complaints were made.

The correspondence that is in evidence before the Court then demonstrates the various exchanges of correspondence that took place between the Law Society and the practitioner, the making of further complaints in respect of 48K(5), the various submissions made by the solicitor, which naturally needed to be given due and proper consideration, resulting in proceedings being commenced in the Administrative Decisions Tribunal in December 1999 and it was not until 9 October 2000 that the ADT delivered its decision on the interlocutory matter relating to the Barwick issue.

Your Honours, as to the issue of evidence of rehabilitation, the evidence which is unchallenged is that, from the viewpoint of the solicitor’s own personal weakness which led to him committing the criminal offences, that the prospects of recidivism in that regard are negligible or minimal. Of more concern though is the solicitor’s attitude to the breach of the duty of candour. Not only, in our respectful submission, was the Court of Appeal correct in holding that there was a breach of duty but the court was also correct in drawing attention to the fact that the solicitor’s denial of the fact that there has been a breach of duty also provides insight into his lack of understanding as to what is required in terms of candour to one’s professional organisation.

Your Honours, can I just deal with four final matters. The first is this, Mr Brereton conceded yesterday that this is an appeal in a strict sense, not a rehearing, and this Court has previously acknowledged and emphasised the need for restraint in reviewing the exercise of the discretion of a State Supreme Court in disciplinary matters of this type. The Chief Justice kindly drew our attention yesterday to the Court’s decision in Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186. It is not on our list and your Honours do not need to go to it. At 198 the Court made the following observations:

We have thought it desirable to state fully the facts and circumstances of the case. Having been stated, they speak for themselves. This Court would not interfere with the discretion of the Supreme Court in a matter so peculiarly the concern of that Court unless it seemed to it clear that the discretion had been wrongly exercised. A relationship of trust and confidence between that Court - - -

GUMMOW J: Wait a minute. What is the discretion being spoken of?

MR GRIFFITHS: The discretion in this matter is whether or not to remove the person from the roll.

GUMMOW J: That is right, but that depends upon anterior findings of fact.

MR GRIFFITHS: Absolutely, your Honour.

GUMMOW J: You do not say we cannot get into that?

MR GRIFFITHS: No, not at all, your Honour. I am simply saying that this Court would look for appellable error and apply House v The King before interfering with the exercise of a discretion. I am not saying that your Honours are not able to do that.

CALLINAN J: What about if we thought, for example, that paragraph 108 demonstrates error of law? Page 331.

MR GRIFFITHS: Yes, your Honour. Which particular aspect, your Honour?

CALLINAN J: I am sorry, I should have said 103, the holding by his Honour that the convictions in 1997 amounted to “professional misconduct” rather than going to his fitness to practise.

MR GRIFFITHS: The Court certainly held the first but it did not hold the second, with all due respect. It did not say that it did not go to his fitness and propriety.

CALLINAN J: No. Is it not error to say that his conduct, the 1997 conviction, was “professional misconduct”?

MR GRIFFITHS: No, in our respectful submission not, if one accepts the second limb of paragraph 56 of Chief Justice Spigelman’s decision in Cummins.

CALLINAN J: Say I took the view that that is an error of law. Say I took that - - -

MR GRIFFITHS: If that is an error of law, it would be, in our respectful submission, an immaterial error of law because the finding of professional misconduct was simply the pathway or foundation for the ultimate finding of not fit and proper.

GUMMOW J: Yes, but do you accept – if I can put this to you – what Lord Wright said in Myers v Elman [1940] AC 282 at 318? Myers v Elman is often referred to in these cases. The point that was made by Lord Wright, and I think the other Lords too, was that the power of the court in the summary fashion to order a solicitor to pay costs personally, which we have all seen, that that is a species of response to professional misconduct but, says Lord Reid, that sort of professional misconduct is not the serious activity one is talking abut when one is speaking of striking off or suspending from the roll. Professional misconduct is not a coextensive concept at all. There is area out there at one side which does not go to fitness and propriety to stay on the roll.

MR GRIFFITHS: Absolutely, your Honour, and the Court of Appeal appreciated and recognised that fact here.

CALLINAN J: Where?

MR GRIFFITHS: It was recognised in paragraph 112, for example, which comes a page after the heading “Decision”. Let me start at paragraph 110, your Honour. Justice Sheller states his finding about guilty of professional misconduct, he states his finding about no question of misconduct in respect of 48K(5) and then 112 clearly, in our respectful submission, demonstrates that the court was proceeding on the basis that merely because there were findings of professional misconduct did not mean that the practitioner was not fit and proper.

CALLINAN J: But that does not correct what may appear to have been a mischaracterisation of the conduct.

MR GRIFFITHS: Even if the conduct were mischaracterised as professional misconduct, what his Honour is saying is that even if that label were not given to it of professional misconduct, nevertheless the conduct demonstrates that he is not a fit and proper person, which is in effect reflecting what the Chief Justice has said, that what is the practical significance of the finding. You can put a label on it of professional misconduct or you can go straight to home base and say the conduct in question demonstrates qualities which are unacceptable in a legal practitioner and he is not fit and proper.

GUMMOW J: That is the problem, you see. You do not go immediately, as you say, to home base. You go off on this indirect route.

CALLINAN J: I think they may attract different considerations. You might approach the matter quite differently, depending upon whether it is a matter of professional misconduct or whether it is a matter of fitness and whether it is proper for you to remain in practice. They are not identical concepts by any means. All sorts of things may bear upon them, different things.

MR GRIFFITHS: They may not be identical concepts in every case. I know it is not an appeal from Cummins, but again Chief Justice Spigelman appreciates that, while they will overlap, they are not identical in every case.

CALLINAN J: Where is that passage?

MR GRIFFITHS: In paragraph 56, your Honour, in Cummins, the last sentence: “usually it is not necessary to distinguish it”. There may well be though some instances where it is necessary.

CALLINAN J: It may not be the last word on it anyway, Mr Griffiths. It does not bind us.

MR GRIFFITHS: No, I accept that entirely, your Honour.

CALLINAN J: I am not at all satisfied that it invariably overlaps. His Honour seems to have put it in absolute terms. I am not prepared to accept it in absolute terms, I can tell you, but it always overlaps.

MR GRIFFITHS: The fundamental point is, in our respectful submission, that where one has conduct by a practitioner, the conduct may be capable of being characterised as professional misconduct, which may, but not necessarily, then lead to a finding of lack of fitness and propriety, or the same conduct itself without resort to the language of “professional misconduct” might be regarded as being conduct that demonstrates that a person is not fit and proper.

KIRBY J: Yes, but if you have put “professional misconduct” into the formula, at least arguably you have put into your mind considerations that lead at the very end to an order or declaration that might have been different if you had not had that ingredient in. It is really just basic stuff, but I think it leads – and I would like your submission on this – if it be shown that there is error because of this, it would seem to me to lead not to our substituting our view of what the order is, but to an order that the matter return to the Supreme Court for it to determine the matter, both because it is the court with the general responsibility and supervision of the legal profession of the State and, secondly, it may be that you would need more up to date information about the position of the appellant to make a proper order.

MR GRIFFITHS: If your Honours were to take the view that there was legal error and that the legal error was material and was significant, contrary to what I have just put to your Honours, then it may well be that the course that your Honour has indicated is unavoidable. If, however, your Honours found that there was no material legal error but that the ultimate order was unduly harsh, and that was the only basis for intervention, in our respectful submission, there would be no need to remit the matter and your Honours would be in as good a position as the Court of Appeal to substitute a different sanction.

CALLINAN J: As this Court did in Ziems.

MR GRIFFITHS: Indeed, your Honour.

KIRBY J: The only thing is that – it is years since I did these cases and I am not sure that I know what – assume you want to suspend, how would I fit the order of suspension in this case, unless one came to the view that six years, or whatever it is, is enough suspension?

MR GRIFFITHS: Five, your Honour.

KIRBY J: Five years is enough in the circumstances. Normally, I would have thought this is a matter for the Supreme Court to decide.

MR GRIFFITHS: Your Honours have the advantage of a complete record of the proceeding below. For our part, I do not believe that the Law Society would wish to adduce any additional evidence. It would be a matter for my learned friend to indicate whether or not his client would wish to do so, but we would have thought that the Court was in as good a position as the Court of Appeal, subject to my learned friend wishing to have that opportunity, to make that determination.

Your Honours, can I just finish a couple of other points, if I may. The Chief Justice asked me yesterday about the current position of non-practising barristers. I am instructed that that concept no longer exists. There is no such creature as a non-practising barrister and apparently there is no separate category in the almanac of the sort that your Honour had in mind and that I also had in mind that describes people as non-practising barristers.

The issue was raised by several members of the Court yesterday as to when this transmogrification took place to produce the current definition of legal practitioner in section 3 of the Act and that process took place by virtue of clause 1 of Schedule 1 of the Legal Profession Reform Act 1993, which is Act No 87 of 1993.

GLEESON CJ: Yes, thank you, Mr Griffiths. Yes, Mr Brereton.

MR BRERETON: May it please the Court. May I deal first with the non-disclosure or lack of candour part of the case. In order to appreciate the significance of the failure to disclose the convictions it is necessary to look back at the appellant’s position at the time. He was a man of previous unblemished character. He was a man obviously who had a promising legal career ahead of him. Your Honours have seen his own correspondence and letters in the appeal books and it is clear he is not without ability in the law himself, and that is demonstrated in the correspondence that he wrote from time to time to the Law Society and elsewhere. He had ahead of him a promising military career also, having been graded as one for promotion to major and identified as a potential commanding officer of an infantry battalion.

In circumstances of extraordinary stress and pressure in April and May 1997 he engages on inexplicable, uncharacteristic and improper misbehaviour over a period of three weeks. As a result of that, he loses his military career. He, in effect, loses his civil career by mid-1998. He is retrenched from a substitute civilian occupation but, on the other hand, there are a couple of hopes on the horizon for him. One of those is that the criminal proceedings against him have been resolved in a relatively favourable manner, so he has some hope. The other, and perhaps the most telling one, is that he is forgiven by his wife, the mother of the children involved, who is with him in Court today, and by the children. So he still has a family.

But he still has the Law Society pursuing, understandably enough, the professional conduct aspect. In that context, on 9 October, struggling to make ends meet to support his family, he has a win in the Administrative Decisions Tribunal when those proceedings are held to be without jurisdiction. On the very same day, any hope that arises from that is dashed by the Law Society’s letter received that afternoon saying, “Well, we’re going to have another crack”. He responds to that and makes his submissions and at the same time he is facing what he knows to be false allegations in respect of a second set of alleged assaults.

KIRBY J: Yes, but what do you say to Dr Griffiths’ point that this happened in the very midst of the criminal trial? I mean, it cannot have been at anything except the absolute forefront of his mind, yet he writes a letter that does not disclose it. It just is inconceivable that this would not be known to a solicitor. We all learn as young articled clerks, the clerk who does not reveal a marijuana conviction. We all know the duty of disclosure.

MR BRERETON: Granted, your Honour, and he does not suggest for a moment, and he has never suggested that this was not at the forefront of his mind. He has always said this was a conscious decision. What I am seeking to do is to explain that decision, accepting it was a conscious one. Now, he then has the second magistrate’s summary trial and on 7 November, I think, the conviction as a result of that, right in the middle of when he is trying to persuade the Law Society that he should be allowed, or that he should not be further pursued by the Law Society.

Conscious of his duty of disclosure or candour, not ignorant of it, he turns his mind to that question, and his mind goes something along these lines – and this is based on his own evidence. He does not doubt that he has a duty of candour, but he thinks that the content of that duty is informed by the subject matter and scope of the investigation the Law Society is undertaking, under Part 10, into a particular specified complaint, namely, whether his 1997 misconduct was professional misconduct.

He thinks, rightly or wrongly, that his duty of candour is defined, in a sense, by the scope of that inquiry, and the 2000 convictions would not be relevant to deciding whether his 1999 misconduct was or was not professional misconduct and should be referred to the Tribunal. I venture to suggest that, in that context, let us assume his decision was wrong, but it is very easy for a man much less traumatised at that stage than he was to err in his own favour in making such a decision. Making such an error in those circumstances is not one that would be seen as revealing such a weakness of character or such a personal flaw as to render him even temporarily, let alone permanently, unfit to practise the law.

The real question is, does it reveal something that is likely to recur in the course of his professional practice if he continues to practise? The Court can be confident that it does not, for at least three objective reasons. First of all, his disclosure to the police, in connection with the original offences, of the two additional offences not known to them. Secondly, his ultimate disclosure of these matters, of his own motion, to the Court of Appeal, when he came to file his principal affidavit in the Court of Appeal. Thirdly, his disclosure of his convictions to the Army, and the consequent loss of his military career.

What that shows is that sweeping these things under the carpet and pretending that they do not exist is not a characteristic of him. It is not characteristic of him dishonestly to suppress adverse material, but he does have the totally human flaw, which I venture to suggest all of us share to a greater or lesser extent, of erring in our own favour when it comes to making a very, very difficult decision under circumstances of considerable stress.

In my submission, it is quite wrong to think that that is a marker of permanent unfitness to practise. Even if it was a marker of some temporary unfitness, such as to warrant a lesser remedy or a lesser sanction than removal from the roll, his time has, by now, been well and truly served.

The question might be asked, as it was asked in The Prothonotary v P, to which reference was made yesterday, what utility is to be served by keeping this man off the roll? What public interest is now to be served by that? My learned friend in his submissions placed considerable weight on the letter of 27 October. It needs to be remembered that the letter of 27 October is outside the particulars. There had been no conviction at that stage and he was not charged with failing to disclose the pendency of the charges.

Your Honour the Chief Justice referred to her Honour Judge Tupman’s reasons in the District Court. The Court of Appeal focuses on the fact that the appeal from the Magistrate succeeded on the basis of the specific factor or consideration of date.

GUMMOW J: Can we just be confident that it was two years?

MR BRERETON: Yes.

GUMMOW J: Do we have a reference to that?

MR BRERETON: I think Mr Beaumont found one. Page 77, line 15, I am told.

GUMMOW J: Thank you.

MR BRERETON: The case was pinned down to a particular date and it was fought on the basis of that particular date. It is clear from a reading of the transcript of the appeal before Judge Tupman, which immediately precedes her Honour’s judgment in the appeal papers, that while some other issues had initially been flagged, her Honour adjourned, read the papers, came back, and, having read the papers, responded immediately at page 244, about line 60, to the Crown, “how can you prove this beyond reasonable doubt”. So the judge’s immediate reaction on having read the papers below was:

how can you prove this beyond reasonable doubt on one simple essential element which is this date? Forget about –

all the other issues –

How could I be satisfied beyond reasonable doubt that the essential element of 28 April 2000 has been proved?

Effectively, her Honour went on to say, “There are other issues in the case. I do not have to be troubled about them because it is quite clear that I cannot possible be satisfied beyond reasonable doubt on one critical issue”. In other words, the appellant’s confidence that he was going to be successful on appeal was not misplaced. It was entirely justified. That has to be built into the equation of judging how serious his non-disclosure of the convictions, when it took place, was.

KIRBY J: You look at it that way, Mr Brereton, but we have to look at it from the point of view of what happens if this becomes a general rule or a general conduct on the part of practitioners. Then you are chipping away at the principle of candour. You are saying, well, if you are very sure you are going to win the case, you do not really have to worry too much.

MR BRERETON: With the greatest respect, your Honour, I am not chipping away at the principle of candour. I am acknowledging that there is an obligation of candour, but I am submitting that in judging what it says of this man’s fitness to practise at the time that the matter was before the Court of Appeal - - -

GUMMOW J: That is the critical question, is it not?

MR BRERETON: Yes, your Honour.

GUMMOW J: Is.

MR BRERETON: And in judging whether it is demonstrating an unsatisfactory characteristic of the man, as opposed to a one-off reaction in a very difficult situation, then one does take into account the circumstances which oppressed him at the relevant time.

Can I just draw attention, in connection with the principle of candour, to what this Court said in Walsh v Law Society [1999] HCA 33; (1999) 198 CLR 73 at 100. In paragraph 74, in the joint judgment of your Honours Justices McHugh, Kirby and Callinan, about halfway into the paragraph, your Honours said:

It is unnecessary now to decide whether the previous law –

this is the law about candid and honest answers of legal practitioners to inquiries made of them –

which initially arose in the context of the common law obligations of legal practitioners (and the duty ultimately owed by them to the Supreme Courts exercising their inherent jurisdiction) has survived the introduction of the scheme of particularised complaints now provided by Div 8 of Pt 10 of the Act.

The previous law was footnoted to Bridges v Law Society of New South Wales. I have had a look overnight at Bridges on this point and, with the greatest of respect, it does not seem to touch on that particular issue; Johns v Law Society, which certainly does; Veron, which certainly does; and New South Wales Bar Association v Thomas, to which I referred yesterday. I have handed your Honours this morning a copy of the first six pages of Johns and the relevant passage is at page 6C to F. That was in the context, particularly just after the letter D:

The obligation to inform and assist has always been regarded as resting on a solicitor or barrister whose conduct is the subject of an inquiry whether by the court or by the committee, as appears in the court’s observations on numerous occasions, an example being in Re Veron –

I have also provided your Honours this morning with a copy of Veron. Veron is relevant to what has been said today for two reasons. The first is the current one, the question of disclosure. That appears at 141, at point 6. Essentially, what was there said was that Mr Veron had not filed an affidavit when called upon to show cause why he should not be dealt with. The court goes on to say, at the foot of the page, that the proceedings:

are not conducted as if the Law Society . . . was a prosecutor in a criminal cause or as if we were engaged upon a trial of civil issues at nisi prius. The jurisdiction is a special one and it is not open to the respondent when called upon to show cause, as an officer of the Court, to lie by and engage in a battle of tactics, as was the case here, and to endeavour to meet the charges by mere argument.

In the following paragraph, reference is made to May v O’Sullivan and the types of inferences which can be drawn from the absence of evidence.

I should say, as to Thomas, to which my learned friend also referred, your Honour Justice Kirby referred in that case to the obligations of frankness and honesty associated with what took place immediately antecedent to the proceedings in the Tribunal, as well as to the proceedings themselves. What I am putting at this point is not an argument that there is no duty of candour, but simply that, for someone in the appellant’s position, it is understandable that he would draw the conclusion, even looking at those cases, that there was a triable or arguable view that a duty of disclosure did not require him to disclose something he did not think to be relevant, in the strict sense, to the inquiry then under way.

GLEESON CJ: It is all a little unusual and strange because there is a more practical aspect of its relevance. If he was not going to be successful in his appeal from the magistrate’s decision, this was all going to go out the window. He was going to go to gaol for two years. That was the end of any correspondence with the Law Society or any further arguments about whether he would be struck off the roll.

MR BRERETON: Absolutely, your Honour, and he would be off the roll.

GLEESON CJ: The odd thing that strikes me is, not only that he did not disclose the convictions, but that he did not disclose the fact that he was the subject of a current sentence of imprisonment for two years.

MR BRERETON: The only thing that immediately springs to my mind in response to that, your Honour, is that, of course, was not the way in which the complaint was framed against him. It might well be said that the convictions carry with it the sentence, but the case below turned on the question of convictions and nothing else.

GLEESON CJ: Whether it is for you or against you, ultimately, it is the practical context in which these communications with the Law Society arose. As I say, if he was not going to succeed in his appeal against the convictions, that was it.

MR BRERETON: The Law Society was certainly going to know about that and he was not going to be practising law but ultimately - - -

KIRBY J: One will have to read the letters carefully, but the suggestion that Dr Griffiths made was that the second letter - the November letter, I think it is – was written with language that rather suggested that it was relevant to take into account subsequent conduct and yet he did not reveal subsequent conduct.

MR BRERETON: My learned friend is repeating the error into which Mr Justice Sheller fell. The second letter, the November letter, at page 126, the only sentence that anyone has relied on in respect of this letter is the first sentence in paragraph 3 on page 127:

I refer to my submissions to the Council dated 27 October 2000.

Now, both Justice Sheller and my learned friend seize on that as renewing everything that was said in the earlier letter, but the context in which that sentence appears makes it quite clear that all he is repeating is:

[my] arguments that my conduct in 1997 is not Professional Misconduct within the meaning of section 127(1)(b) of the Act, because at common law the proper sanction is not removal from the roll but rather a range of other possible disciplinary measures.

GUMMOW J: Sorry, can you just explain that again, Mr Brereton? I am being slow-witted.

MR BRERETON: It is clear that the only purpose for which reference was made back to the letter of 27 October, in that sentence, in the later letter, is to reiterate:

arguments that my conduct in 1997 is not Professional Misconduct within the –

statutory definition.

McHUGH J: Except for this, Mr Brereton, you have to read it with paragraph 1 on page 119 of the letter of 27 October where the argument is:

I respectfully submit that the scheme under Part 10 of the Legal Profession Act is not appropriate to this case, because the four convictions –

and these are the critical words –

without further circumstances showing defect of fame and character and in light of considerable mitigating material on the issue of fame and character, do not justify removal from the roll of solicitors.

So the two letters are open to the construction that he was saying on 21 November that “the four convictions, without further circumstances showing defect of fame and character” do not justify his removal, when at that time, he had in fact been convicted and sentenced to two years.

MR BRERETON: I think I will have to accept that, your Honour, even if not on the paragraph to which your Honour refers, because that was not one of those picked up in the later letter. Paragraph 25 on the preceding page is to much the same effect, and I have to accept that that was picked up.

KIRBY J: He had not been convicted at that stage.

McHUGH J: Yes, he had been – sorry, the later November letter - - -

MR BRERETON: At the time of the November letter he had been convicted.

KIRBY J: Yes, but the letter that his Honour has just read from at 119.

MR BRERETON: Yes, and at the time of that earlier letter he had, of course, not been convicted.

One can see, parsing and analysing it now, that on a construction of the correspondence, yes, the second letter picks up and repeats paragraph 25 of the earlier letter, but to treat that as not just a lack of candour but such a lack of candour in all the circumstances as to manifest unfitness, in my submission, affords insufficient weight to the circumstances in which the appellant then found himself.

May I, just by comparison, illustrate what has happened in the other cases. In Thomas, to which reference has been made, there was a clear misstatement that the Attorney had found no case to answer. That was not even found to be misconduct at all. In a South Australian case which I handed up this morning of Kerin, a Full Court case of 21 November 1997, amongst the findings against the practitioner, at page 4 of the print, just after point 5, paragraph 3:

the practitioner knowingly made a statement to a customs officer that was false in a material particular namely that the practitioner was not bringing into Australia firearms or weapons.

At paragraph 5 on the same page:

By letter dated the 19^th day of September 1994 to the Legal Practitioner Complaints Committee the practitioner misled or attempted to mislead the Committee in as much as he implied or stated:-

that the Australian Customs Service had no interest in the contents of the correspondence . . . then knowing that the practitioner had been prosecuted under the Customs Act.”

So that is a pretty grotesque positive misstatement. What the court thought of that at page 12, in the second paragraph, was:

The deliberate misleading of the complaints committee is a more serious consideration, although there is force in Mr Hayes’ argument that this one incident should not be taken as an indication that the practitioner could never be accepted as truthful.

At the end of the day, the practitioner there was suspended for 18 months, having regard to a large number of other breaches, including breaches of fiduciary duty in connection with the mortgage practice.

McHUGH J: The real issue is not whether it indicated that a practitioner could never be accepted as truthful. Is it not really in that case and this case a question as to whether, faced with pressures, conflict between his interest and his duty to the court, he would prefer his private interest to his duty to the court. Is that not the real issue?

MR BRERETON: Yes, your Honour. That should be tested against faced with ordinary pressures and the ordinary sorts of conflicts that can be expected to arise, not necessarily the most extraordinary situations which have arisen for him in this context. The Court can have some confidence about that because at the end of its cross-examination in a passage which was cited by Justice Sheller at page 313 of volume 2, line 52:

Do you accept now in the light of what the presiding judge has put to you that that was a relevant matter? A. I can see that it may well be. I’ve had to think about a lot of things since I’ve had to go over it in these proceedings and I can see that it probably would have been better to disclose everything to the Law Society and just put everything before them.

Q. Do you regret now as you sit in the witness box today not having disclosed those matters? A. Definitely, definitely.”

He has learnt his lesson, your Honours, if there was a lesson to be learnt, and the very fact that we are in this Court arguing about it is testament enough for that.

GLEESON CJ: Did you say if there was a lesson to be learnt? It would not have escaped his attention that if he had added a paragraph saying “For the sake of completeness I should add that I have been sentenced to imprisonment for two years, but that is not relevant”.

MR BRERETON: He has learnt the lesson that in dealing with the Law Society, or in dealings in situations of conflict where he needs to be full and frank, that it is better to be full and that such a paragraph ought to have been included.

McHUGH J: Yes. There is always a danger that appellate judges, in particular, who have seen numerous of these cases and been involved in them have a ready recall of all the rules that do not readily come to mind to a run-of-the-mill practitioner.

MR BRERETON: Yes. May I also refer, although it is a little off the facts of this case, to a passage in a judgment of Justice Heydon, then in the Court of Appeal – your Honours do not have this but it is short – in The Prothonotary v Del Castillo [2001] NSWCA 75. In cross-examination it had been put to the practitioner:

“Q. And if it suits you, sir, you would lie, if it’s necessary to protect your family, will you? A. I will do anything for my family.

Q. Including telling lies, is that right? A. I have lied. I don’t know if I’d lie again.”

Of that, Justice Heydon said:

[81] Avoidance of lying is not a moral absolute. Lying can be wrong, but it is not always wrong. Bearing false witness against one’s neighbour is forbidden, but not necessarily uttering untruths otherwise than as a witness which protect one’s neighbour. If the opponent was trying to protect his wife, his culpability must be judged in the light of the fact that many people think that lying to protect one’s family is in many circumstances not blameworthy.

[82] But even if the opponent’s lie to the solicitor for the purpose of protecting his wife was culpable, it is conduct which he said he would not repeat.

CALLINAN J: Can you provide us with a copy of that, Mr Brereton?

MR BRERETON: Certainly. Some of the matters significant about the present case are not just the context to which I have adverted but the fact that he was not on his oath, the fact that when it came to being on his oath he did disclose and the fact that in the correspondence he was, as in Thomas, responding to a limited inquiry. All of that makes more understandable making an erroneous decision in his own favour at the time and shows that it is not something that marks him as one who will not be honest when it comes to a conflict between his own interests and those of a client or his duty to report.

May I turn then, and I think more shortly, to what my learned friend said on the 1997 misconduct. While it is true that there is some indirect evidence that his employers at Magney’s were upset and were not prepared to retain him as an employee once the convictions came to light, the bottom line is that there was evidence from four senior professionals, which was unchallenged, as to their willingness to continue to deal with him notwithstanding their knowledge of the whole facts and circumstances. In those circumstances, it would be wrong to give particular weight to what Magney said as distinct from what the four witnesses on oath in the court said.

My learned friend suggested also that there was harm to the victims. The only evidence before the court on that topic, I think, was the findings of the sentencing judge, volume 1, page 94, line 50, which was that, so far as it could be said, this was one of those fortunate cases in which it seemed that at least so far there was no harm to the victims, and that tended to be corroborated by Professor McConaghy’s - - -

CALLINAN J: And Ms Ginn. Ms Ginn said it would be in the interests of the family - - -

MR BRERETON: That he retain his ticket.

CALLINAN J: Yes. She was quite emphatic.

MR BRERETON: Yes. My learned friend said that in this area, deterrence is important. In my submission, in this area, deterrence is the role of the criminal law and not the role of the professional discipline.

GUMMOW J: Yes, that is right, and it is the fact that it is not a criminal proceeding that brings about the duty of candour.

MR BRERETON: Yes.

KIRBY J: Yes, I thought about that, but we still hold to high standards in order to deter other practitioners from conducting themselves in a way that is unacceptable, and that is one of the reasons for the obligation of candour.

MR BRERETON: We do, your Honour, and in so many of these cases we see, at the end of the day, an allegation, even in submissions – and this Court dealt with this sort of situation in Smith v Bar Association – that the practitioner lacked candour in dealing with the Tribunal. Often that is a device resorted to by a disciplinary authority such as – and I am not trying to tar the Law Society necessarily with the brush - Law Societies and Bar Associations. When they cannot point to an actual deception or act of perjury, they say the evidence generally lacked candour. That is a way of reinforcing the case against the practitioner, and, in my submission, an unfortunate way of distracting from the real issue before the Tribunal.

Secondly, we cannot lose sight of the fact that while these proceedings are of a special sort, and while special duties do and are repeatedly said to arise in them, for a person on the receiving end they bear precious little difference to a criminal trial. Your Honour the Chief Justice referred yesterday to the terminology even used in Evatt’s Case of “guilt” and “sentence”. It easy for those of us who participate in these proceedings as intermediaries to say that they are special proceedings, but to a person on the receiving end they have all the hallmarks and all the gravity in their outcome, and sometimes a greater gravity than a criminal trial, and it is not unnatural that someone will be defensive in such a situation. It does not make it right, but it needs to be taken into account in considering what such conduct says of the human being involved.

My learned friend said that the appellant delayed in seeking professional help after the initial incidents. It was a delay of a couple of weeks. He was talking about seeking professional help already when he was talking to the police.

May I come to the questions of principle, which I think I can also pass over relatively shortly. The discussion which has taken place perhaps enables the principles to be refined in this way. First, to the extent that the inherent jurisdiction is preserved by section 171M, its touchstone, at least when it comes to proceedings for removal, is fitness and propriety, not professional misconduct.

GUMMOW J: Present fitness and propriety.

MR BRERETON: Present fitness and propriety. Secondly, declaratory relief in this context is inappropriate. The court may find a charge of misconduct proved, or it may find that a practitioner is not a fit and proper person, and make an appropriate disciplinary order. The appropriateness of declaratory relief – although it was claimed but apparently not granted in Evatt – was discussed in two cases in the Court of Appeal.

CALLINAN J: What difference does it make, Mr Brereton? What the Chief Justice put to you yesterday is right, is it not, with respect, that all the declarations – perhaps the form is odd – are just an expression of the findings, are they not, of the Court of Appeal? That is how I would be inclined to read them. If the word “declaration” had been left out - - -

MR BRERETON: The court finds – I think your Honour is quite right that - - -

CALLINAN J: Nothing really turns on the form here.

KIRBY J: And it has been the practice forever. I mean, it has been done in countless cases. I would be very disinclined to get into this in this case by a side wind. We do not really have to determine this, do we, except in relation to confirming orders?

MR BRERETON: And except in respect of the question of professional misconduct, and because the practice has established of seeking a declaration, even in cases involving non-professional conduct, of professional misconduct, that may benefit from elucidation, but it is not essential to the resolution of this casse.

GLEESON CJ: It is complicated, is it not, by the fact that, on any view, if the finding of lack of candour was justified, that would constitute professional misconduct?

MR BRERETON: Yes, but that would still require a variation to the existing declarations if the other finding were not - - -

CALLINAN J: In any event, you would make the point that it was the combination that led to the removal from the roll.

MR BRERETON: Yes.

CALLINAN J: That is clear from paragraph 112, that it was the combination of a finding in respect of fitness and the finding in respect of lack of candour.

MR BRERETON: Exactly, your Honour, and if one of the ingredients that - - -

CALLINAN J: If you show one is wrong, then at least that infects the conclusion, and the question is, what do you do about that?

MR BRERETON: And it has to be revisited and that then – well, if one is wrong, then the conclusion has to be revisited by this Court.

CALLINAN J: You have to say, do you not, that the mischaracterisation does have consequences? The inquiries are different. As Justice Gummow has put to you, that whether you look at it in the present tense or not may be a highly relevant matter, depending upon whether it is professional misconduct or whether it is a question whether the person is a fit and proper person.

MR BRERETON: Exactly.

CALLINAN J: Although, of course, as to the latter, past conduct is a highly relevant matter.

MR BRERETON: As was said in, I think, Ex parte Tziniolis, that one of the best guides we have to present character is past conduct, but that becomes less and less relevant as time goes by.

CALLINAN J: Also, if it is fitness, you do not have any question of a need, for example, for professional re-education that you might have in a case of professional misconduct. It seems to me also that the question of reasonable public perception might be different. In the case of fitness to practise, and that is assuming – and I think it is – reasonable public perception is relevant, whether a person has already been punished in the way in which the person has suffered may have a much sharper focus, if you are looking at reasonable public perception, in the case of fitness than it would have in the case of professional misconduct.

MR BRERETON: I respectfully embrace all of that and your Honour has already in discussion with my learned friend articulated some of the collateral punishments that this man had suffered in respect of the loss of his other career.

KIRBY J: If that is made good, would not the normal order be that we remit the matter with correction of the error, being a court of error, and leave it to the court which has the general responsibility of the discipline of solicitors to deal with the order that follows?

MR BRERETON: Where this Court is in as good a position to make a judgment as the Court of Appeal, where the Law Society does not ask for the matter to go back, where I do not ask for the matter to go back, then, in my submission, in the interests of putting an end to litigation, this Court should substitute its own decision.

CALLINAN J: As it did in Ziems?

MR BRERETON: Exactly, your Honour.

KIRBY J: I suppose one can say that the issue is within a very small compass and we have had all the evidence. It does not, as it were, involve a detailed examination of the facts and of new areas of the law.

McHUGH J: One factor that worries me about that course, Mr Brereton, is that the Court of Appeal judges had the advantage of seeing the appellant being cross-examined and it is not easy to say that what they saw may not have reinforced their view about these findings.

MR BRERETON: There is nothing in their Honours’ findings which seems to depend on the subtle influence – at least their Honours do not expressly make any reference to that. In those circumstances, in my submission, your Honour should not be unduly troubled by it.

KIRBY J: That doctrine is looking a little bit less certain than it once was, but we will not get into that, at least in the minds of some of us.

McHUGH J: It still seems to be very resilient.

KIRBY J: In some minds.

MR BRERETON: I see I have touched a sore point.

CALLINAN J: I would keep out of that one, Mr Brereton.

MR BRERETON: I need to keep out of that. I need to keep out of - - -

GUMMOW J: Your also need to get on to finish, I think.

MR BRERETON: Your Honour Justice McHugh yesterday referred to the old practice of charging a practitioner with professional misconduct and a statement of charge. In my submission, the correct practice nowadays is pretty much the same. The summons should claim the disciplinary order sought, for example, an order that X be removed from the roll or an order that X be suspended. It should be supported by a statement of charge specifying the misconduct alleged and particularising it, just as is the process, for example, in a contempt proceedings in the Supreme Court.

Your Honour Justice Callinan drew our attention yesterday to the decision of this Court in Lamb. Lamb is a good illustration of how conduct which would be viewed scandalous at the relevant time and was much more closely related to professional practice than it was in the present case is not demonstrative of unfitness. The precise reasons for that are buried in the reasons for judgment of the acting Chief Justice of the Supreme Court of Queensland, which are endorsed in the judgment of Mr Justice Menzies in this Court, but which, at least, I do not immediately have access to. One can but suppose that they had something to do with the conduct being a one-off event and unlikely to be repeated, because one cannot imagine that the Acting Chief Justice would have endorsed - - -

CALLINAN J: We ended up getting that, Mr Brereton. We have the reasons.

MR BRERETON: I am indebted to your Honours. If at some stage I can get access to them - - -

CALLINAN J: You can take my associate’s and get a copy of it.

MR BRERETON: Thank you very much, your Honour.

CALLINAN J: So can Mr Griffiths.

MR BRERETON: Most of what I wanted to say about professional misconduct has been covered. There has been discussion of the process of osmosis by which professional misconduct as a concept has found its way into the inherent jurisdiction. Some hint of that process of osmosis – and perhaps it is invalidity – can be found in Re Veron. I ask your Honours to go back to (1966) 84 WN 136, this time at 142. At the foot of page 142 the Chief Justice of the court said:

When application is made to the Court to strike a solicitor off the roll for professional misconduct, the question for the Court is whether, having regard to the circumstances . . . it is any longer justified in holding out the solicitor in question as a fit and proper person –

et cetera. Now, that is, so far as it goes, perfectly right. Then their Honours note:

There is no statutory definition of professional misconduct, although certain contraventions of the Legal Practitioners Act, 1898-1960, render a solicitor liable to disciplinary action –

It is true that nowadays there is a statutory definition but for the purposes of the statutory regime. Then their Honours say:

The meaning of the expression, and the general nature of the conduct for which a solicitor may be struck off the roll or suspended . . . are, however, well settled.

GUMMOW J: Then they get into Myers v Elman, halfway down the page.

MR BRERETON: But before that, your Honour, the root of the evil seems to be Allinson v General Medical Council which is - - -

GUMMOW J: We know that comes from a statute.

MR BRERETON: Exactly. Then:

In In re a Solicitor; Ex parte The Law Society Darling J - - -

GUMMOW J: Yes, it looks like Lord Darling is the villain.

MR BRERETON: That appears to be source of the evil, your Honour. That is how the statutory definition has become the definition for the purposes of the inherent jurisdiction.

GLEESON CJ: But the passage that you passed over is also significant, right at the beginning of what you read. That is part of the significance of the fact that solicitors are officers of the Supreme Court and are on the roll of the Supreme Court. It involves the Supreme Court representing to the public that they are fit and proper people to practise.

MR BRERETON: Yes. That is consistent with the approach adopted in Queensland Law Society v Smith to which I referred yesterday.

The importance of distinguishing between conduct which is professional misconduct and conduct which may bear on fitness and propriety, but is not professional misconduct, has been elucidated in discussion by your Honour Justice Callinan, but it also comes back to recognising what was first said in this Court by Justice Fullagar in 1957, that if it is professional misconduct, its relevance to fitness is likely to be much greater than if it is conduct outside the call of professional practice. If we merge the two and call them all professional misconduct, we run the risk of overlooking that important distinction, and that is essentially what happened here.

If the Court of Appeal had asked, not “Is the appellant guilty of professional misconduct?” but “Is he now not a fit and proper person, having regard to what he did three years ago and what has transpired since?”, it cannot be gainsaid that a different answer would have been reached. Early in my submissions in reply, I inadvertently uttered the name of my client.

GLEESON CJ: Yes.

MR BRERETON: Might I just ask that the transcript not reflect that?

GLEESON CJ: Yes, thank you, Mr Brereton.

MR BRERETON: May it please the Court, those are my submissions.

KIRBY J: Could I just ask, whilst considering this, is the non-naming of the solicitor a statutory provision?

MR BRERETON: Yes.

KIRBY J: Does that carry over into this Court?

MR BRERETON: I do not know the immediate answer to that, I will have to look at it. It is a result of a provision in the Crimes Act (NSW). It is either the Crimes Act or one of the Children’s Acts.

GLEESON CJ: It relates to the nature of the offences of which he was convicted, not to the disciplinary proceedings against him.

MR BRERETON: Precisely.

KIRBY J: That is for the protection of - - -

MR BRERETON: The protection of the children.

KIRBY J: - - - the children, yes.

McHUGH J: Well, it could not apply in this Court, but as a matter of practice we have always given anonymity whenever anonymity is required or been given in the courts below.

KIRBY J: There is just a slight concern that this is the lawyer community looking after lawyers, as distinct from applying the same rule that is applied to everyone else who is named in court proceedings, embarrassing though they sometimes are.

MR BRERETON: As is clear from the judgments below, this has nothing to do with protection of the lawyer and everything to do with protection of the children concerned.

GUMMOW J: Yes, there was an endorsement to that effect in the Court of Appeal’s reasons.

MR BRERETON: On the order, yes.

GUMMOW J: In bold type.

GLEESON CJ: Thank you, Mr Brereton. We are obliged to counsel for their assistance in this matter. We will reserve our decision. We will adjourn to reconstitute in Court No 1 at 2.00 pm.

AT 12.40 PM THE MATTER WAS ADJOURNED