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Professional misconduct

Council of the New South Wales Bar Association v John Peter Hart [2011] NSWCA 64. McColl JA. 21.03.11

[12] In exercising the inherent jurisdiction, the Court must satisfy itself that it is appropriate to make orders removing the respondent's name from the Local Roll, even if he concedes that the orders should be made: Council of the New South Wales Bar Association v Power [2008] NSWCA 135; (2008) 71 NSWLR 451 (at [9]); Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 (at [12]).

[13] Where an order for removal from the Roll is contemplated, the ultimate issue is whether, at the time of the hearing, the practitioner is shown not to be a fit and proper person to be a legal practitioner of the Supreme Court upon whose Roll the practitioner's name presently appears: A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 (at [14] - [15], [21]).

[14] In exercising its inherent jurisdiction to discipline legal practitioners the Court is not bound by any statutory definition of "professional misconduct". Rather "it has the capacity to determine, and act on the basis of, unfitness, where appropriate, without any need to stretch the concept of professional misconduct beyond conduct having some real and substantial connection with professional practice": Prothonotary of the Supreme Court of NSW v Alcorn [2007] NSWCA 288 per Hoeben J (Beazley and McColl JJA agreeing), referring to A Solicitor v The Council of the Law Society of NSW (at [21]).

[15] As I said in Prothonotary of the Supreme Court of New South Wales v McCaffery (at [46]) (with Sheller and Beazley JJA's agreement):

"Professional misconduct at common law is said to connote conduct which would reasonably be regarded as disgraceful or dishonourable by one's peers: see Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 and other authorities collected by Spigelman CJ (with whom Mason P and Handley JA agreed) in New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [36] ff. Allinson was adopted in relation to the legal profession in In re a Solicitor; Ex parte Law Society [1912] 1 KB 302 at 311-312: see A Solicitor v Council of the Law Society of New South Wales, above, at [13]."

[16] The applicant submits that the nature of the wrongdoing in this case is so antithetical to the practice of law that the Court would readily conclude that the orders sought are appropriate. It draws attention to Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 (at 681) where Isaacs J said:

"The errors to which human tribunals are inevitably exposed, even when aided by all the ability, all the candour, and all the loyalty of those who assist them, whether as advocates, solicitors, or witnesses, are proverbially great.

"But, if added to the imperfections inherent in our nature, there be deliberate misleading, or reckless laxity of attention to necessary principles of honesty on the part of those the Courts trust to prepare the essential materials for doing justice, those tribunals are likely to become mere instruments of oppression, and the creator of greater evils than those they are appointed to cure.

"There is therefore a serious responsibility on the Court - a duty to itself, to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential."

[17] The applicant submits that having regard to the respondent's dishonest conduct, it is impossible to conceive that any Court, legal practitioner or client could ever trust him. The instances of dishonesty in the context of court proceedings in which the respondent appeared are undoubtedly of sufficient seriousness to warrant removal of his name from the Local Roll.

[18] In my view the Court should make the orders the applicant seeks.

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