Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Council of the New South Wales Bar Association v Asuzu (No 2) [2012] NSWADT 104
• Hearing dates: 8 February 2012 and 16 May 2012
• Decision date: 30 May 2012
• Jurisdiction: Legal Services Division
• Before: S Norton, Judicial member; R J Wright SC, Judicial member; C Bennett, Non-Judicial member

Decision

The Tribunal orders that the barrister be:

i. Publicly reprimanded with respect to the professional misconduct found in relation to section 660.

ii. Be fined the sum of $1,000 with respect to the professional misconduct found in relation to s660 and be given 12 months to pay.

iii. Within 12 months of being issued with a practising certificate:

a. Complete and provide evidence of completion of the first three modules of principles of risk management education workshop offered by LawCover.

b. Complete and provide evidence of completion of a course in administrative law offered by the Legal Profession Admission Board or some other institution approved of by the Director, Professional Conduct.

c. Sit and pass the bar exams in practice and procedure and evidence.

iv. The first practising certificate issued after the making of these orders shall be subject to the following conditions:

a. The barrister must not accept direct access briefs.

b. The barrister enter into a mentoring agreement with a barrister and on terms both of which are approved by the Director of Professional Conduct.

v. Liberty to apply in relation to these orders on 7 days notice in writing to the other party.

vi. Barrister to pay 50% of the applicant's costs including reserved costs, as agreed or assessed.

• Catchwords: Professional misconduct - unsatisfactory professional conduct - protective orders.
• Legislation Cited: Legal Profession Act, 2004 (NSW).
• Cases Cited: Legal Services Commissioner v Knudsen (2000) NSW ADT 62; Council of the Law Society of New South Wales v Sheehan (No. 2) (2010) NSWADT 135; Council of the New South Wales Bar Association v Asuzu (2011) NSWADT 209; PM v Council of the New South Wales Bar Association (2005) NSWADT AP47; PM v New South Wales Bar Association (No. 2) (2006) NSWADT AP36
• Category: Principal judgment
• Parties: Council of the New South Wales Bar Association (Applicant); Ignatius Nswafor Asuzu (Respondent)
• Representation: Counsel; D A McLure (Applicant); Niger Delta Lawyers (Applicant); Hicksons Lawyers (Respondent)
• File Number(s): 092020, 102005

REASONS FOR DECISION

1 LEGAL SERVICES DIVISION (S NORTON SC (JUDICIAL MEMBER), R J WRIGHT SC (JUDICIAL MEMBER), C BENNETT (NON JUDICIAL MEMBER): These proceedings related to two applications for original decision filed by the Applicant, the Council of the New South Wales Bar Association ("the Council"), seeking relief under s562(2) and (4) of the Legal Profession Act 2004 (NSW) ("the LPA") and ancillary relief. The Council alleged in both applications the Respondent barrister ("the Barrister") engaged in professional misconduct or unsatisfactory professional conduct or both. The Barrister in substance denied all of the allegations.

2 On 31 August 2011 the Tribunal handed down its decision in the substantive proceedings (Council of the New South Wales Bar Association v Asuzu (2011) NSWADT 209. In summary the Tribunal:

a. Found the Barrister guilty of:

i. Unsatisfactory professional conduct in relation to the Statutory Declaration ground.

ii. Professional misconduct in relation to the s660 ground.

iii. Unsatisfactory professional conduct in relation to his failure to properly plead forgery in the Kawala matter.

iv. Unsatisfactory professional conduct in relation to preparation for and submissions in the Ally matter.

3 In accordance with the wishes of the parties the Tribunal provided them with the opportunity to adduce further evidence and make specific submissions on the question of the appropriate protective orders that should be made. To that end directions were given as to the filing and service of affidavits and submissions.

4 The Tribunal accepted into evidence the following exhibits:

On behalf of the Council

a) Exhibit A - A report of the Bar Council dated 19 October 2004.

b) Exhibit B - A memorandum to the President of the New South Wales Bar Association dated 17 October 2005.

c) Exhibit C - A policy document of the New South Wales Bar Association.

d) Exhibit D - Course guide from the University of Sydney with respect to administrative law.

e) Exhibit E - Two letters and a file note from Mr Phillip Selth.

f) Exhibit F - Affidavit of Roderick Stewart Cameron sworn 30 March 2012.

On behalf of the Barrister

a) On behalf of the Respondent two Affidavits of the Barrister dated 7 October 2011, Exhibit 1 and 7 March 2012, Exhibit 3.

b) Exhibit 2 - An affidavit of Mona Moutrage sworn 24 February 2011.

c) Exhibit 4 - Photographs of the Barrister at the Nigerian Judges Conference with Australian Judges which occurred on 16 March 2012.

5 The Tribunal also received submissions from the Barrister dated 7 October 2011 and 3 May 2012.

6 The Council relied on written submissions dated 8 February 2012, 30 March 2012 and 8 May 2012.

7 The matter came before the Tribunal for an oral hearing on 8 February 2012 at which time the Barrister was cross examined after which by consent the matter was stood over to give the parties an opportunity to file more evidence and make further submissions. In accordance with directions made on that day the hearing concluded on 16 May 2012.

8 In written submissions the Council sought the following orders:

a) Public reprimand.

b) Fine of $2,000.

c) Pursuant to s562(4)(b) and (d) of the Legal Profession Act 2004, an order that the Barrister refrain from applying for a practising certificate until he had completed the New South Wales Bar Exams, the New South Wales Readers Course and a course in Administrative Law offered by the Legal Profession Admission Board or another institution approved by the Director Professional Conduct.

d) Barrister to pay 80% of the Bar Council's costs as agreed or assessed.

9 The Barrister initially requested the Tribunal to take no further action with respect to either matter but subsequently requested a caution and during oral submissions agreed to undertake a course in administrative law offered by the Legal Profession Admission Board or a university and to undertake a course in civil procedure. The Barrister also agreed to undertake the first three modules of the principles of risk management education workshop offered by LawCover and accept mentoring for a period of 6 months.

CONSIDERATION

10 None of the complaints against the Barrister involve dishonesty or deception of any kind. The grounds of the applications did not arise out of any complaint made by a client of the Barrister.

11 There has been one prior disciplinary finding against the Barrister in this jurisdiction PM v Council of the New South Wales Bar Association (2005) NSWADT AP47 and PM v New South Wales Bar Association (No. 2) (2006) NSWADT AP 36.

12 That complaint related to a direct access matter and a complaint that the barrister had not complied with rule 80 of the New South Wales Barristers Rules. This was a matter where the Bar Council resolved to reprimand the Barrister who objected to that course of action and complained of breaches of natural justice. The Tribunal hearing the matter was of the opinion that there had been no breach of any rule of natural justice and dismissed the Barrister's application which in effect had sought to overturn the reprimand. In the second proceedings the Tribunal ordered the barrister to pay the costs of the Council.

13 As can be seen from the orders sought by the Council and the Barrister's suggested orders there is a limited area of agreement as to the orders that should be made by the Tribunal.

14 In his Affidavit sworn 7 March 2012 (Exhibit 3) the Barrister states that he was suffering from depression "during the time Windeyer J made the costs order against me" and that he informed the Bar Association of this hoping to be assisted through counselling. This relates to the Karwala matter which concluded in 2006. Annexed to the Affidavit is a brief report from Dr Maudrell dated 10 February 2012 which states "Ignatius was first noted at this practice to have depression in October 2008. In 2010 his depression had exacerbated. In August 2010 he commenced on antidepressants and continued for 3 months. His depression has resolved and he is no longer on medication".

15 It is not clear from the Affidavit whether the Barrister actually ever formally sought assistance through counselling services and the Tribunal accepts the submission made by the Council that the report of Dr Maudrell does not appear to relate to the period when the conduct took place and is so lacking in detail to be of little assistance. The Tribunal nonetheless accepts that these matters did have an impact on the Barrister's psychological health.

16 The largest area of dispute was the question of when the Barrister should undergo further education and what form that education should take.

17 The Council was most concerned that the Barrister appears to refuse to accept there have been any deficiencies in his behaviour and therefore urges that he not be issued with any practising certificate until he successfully passes the Bar Readers Examination and completes the Bar Readers Course.

18 The Barrister, on the other hand, emphasised that he is presently unable to work in his chosen profession and his only current form of income is Centrelink payments. The Barrister also submits that despite being unable to practice in the last 4 years he has maintained his skills by attending Court regularly and undertaking further study. The Barrister points out that he did successfully complete a readers course in Queensland and practiced in various jurisdictions for some years.

19 The facts with respect to these complaints were dealt with in some detail in the principle judgment and we will not repeat them here. The Tribunal does not doubt that the Barrister is an intelligent man and a diligent worker. During the course of his career at the Bar he undertook a number of pro bono matters and did his best to assist his clients in some very difficult cases.

20 The Tribunal accepts that the Barrister has involved himself in further study and attempted to keep abreast of changes in the law whilst he has been unable to practice. The Tribunal finds, however, given the difficulties he experienced in the Ally matter the Barrister would benefit from some further courses of study in the area of administrative law. The Tribunal does not find it is necessary for these courses to be completed before the Barrister recommences practice

21 Given the Barrister's experience and his successful completion of the course in Queensland we do not think it is necessary that he undertake the Bar Readers Course. We do find, however, that it would be of assistance if he would re-sit the Bar Exams with respect to practice and procedure and evidence. This is because the Barrister has not practiced for a period of 4 years and we think the public would be protected by requiring him to objectively demonstrate he has the necessary knowledge of these areas.

22 A second area of contention revolves around the acceptance of direct access briefs. The Tribunal is concerned that the conduct of the Barrister does show he has difficulty being objective and maintaining a distance between himself and his clients so as to enable him to distil relevant matters from irrelevant ones. In effect he has a tendency to become very closely aligned with the interests of his client and this can cause him to lack objectivity. The Tribunal is therefore of the opinion that it is necessary, for an initial period at least, to limit the Barrister's ability to appear in direct access matters. We also agree with the parties that it would be helpful if the Barrister could have a mentor when he returns to active practice.

23 The affidavit of Stewart Cameron sworn 30 March 2012 annexes a letter from Mr Mathew Hudson of Sydney West Chambers dated 13 March 2012. The Tribunal is impressed by the contents of that letter and notes that those chambers are willing to offer the Barrister a place and provide him with practice management support and guidance of other barristers. Unfortunately the letter does not nominate any person who is willing to undertake the supervision of the Barrister. We note the Barrister has consented to mentoring for a period of 6 months. Given the length of time he has been unable to practice we find it would be in the public's interest and the Barrister's interest if this mentoring period were to last for 12 months.

24 In the substantive judgment we made a finding of professional misconduct with respect to the Barrister's non compliance with a s660 notice. This is a serious matter. The Tribunal was referred to a number of decisions arising out of similar defaults including Legal Services Commissioner v Knudsen (2000) NSWADT 62 and Council of the Law Society of New South Wales v Sheehan (No. 2) (2010) NSWADT 135. As noted in the Sheehan decision:

"... The main purpose of the provisions of s660 and the other investigatory provisions is to ensure the prompt and efficient investigation of complaints against practitioners in order to promote a high standard of legal service to clients. Another subsidiary purpose is to protect the reputation of practitioners generally and to protect the reputation of individual practitioners against whom false or trivial complaints are made". (paragraph 10).

We find that the seriousness of this default must be reflected in the Barrister being reprimanded and fined.

25 Subsection 562(1) of the Legal Profession Act 2004 provides that once the Tribunal has found an Australian legal practitioner guilty of professional misconduct or unsatisfactory professional conduct "the Tribunal may make such orders as it thinks fit". The orders listed in subsection 562(2) range from removing a practitioner from the role to an order reprimanding the practitioner. Orders requiring compliance by the practitioner are set out in s562(4) and include an order for the practitioner to pay a fine. Subsection 562(7) provides the maximum fine for professional misconduct is $75,000.

26 Subsection 566(1) provides that the Tribunal must make orders requiring an Australian legal practitioner whom it is found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs unless the Tribunal is satisfied that exceptional circumstances exist. Subsection (6) provides the Tribunal may fix the amount of that costs itself or order the amount of the costs to be assessed while subsection (7) provides the Tribunal may order terms on which the costs be paid.

27 There are no exceptional circumstances which would warrant the Tribunal not ordering the Barrister to pay costs. The Council sought that the Barrister pay reserved costs arising out of an interlocutory application in their entirety and 80% of the balance of the Council's costs. We note that there were a number of grounds on which the Council was not successful and in our opinion in all the circumstances the barrister should pay 50% of the costs of the Council including reserved costs.

ORDERS

28 We therefore make the following orders:

i. Publicly reprimanded with respect to the professional misconduct found in relation to section 660.

ii. Be fined the sum of $1,000 with respect to the professional conduct found in relation to s660 with 12 months to pay.

iii. Within 12 months of being issued with a practising certificate:

a. Complete and provide evidence of completion of the first three modules of principles of risk management education workshop offered by LawCover.

b. Complete and provide evidence of completion of a course in administrative law offered by the Legal Profession Admission Board or some other institution approved of by the Director, Professional Conduct.

c. Sit and pass the bar exams in practice and procedure and evidence.

iv. The first practising certificate issued after the making of these orders shall be subject to the following conditions:

a. The barrister must not accept direct access briefs.

b. The barrister enter into a mentoring agreement with a barrister and on terms both of which are approved by the Director of Professional Conduct.

v. Liberty to apply in relation to these orders on 7 days notice in writing to the other party.

vi. Barrister to pay 50% of the applicant's costs including reserved costs, as agreed or assessed.

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Decision last updated: 30 May 2012