Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Council of the New South Wales Bar Association v Fitzgibbon (No. 3) [2012] NSWADT 148
• Hearing dates: 4 July 2012
• Decision date: 27 July 2012
• Jurisdiction: Legal Services Division
• Before: S Norton SC, Judicial member; R J Wright SC, Judicial member; F Fitzgerald, Non-Judicial member

Decision

The Tribunal orders:

i. That the Barrister be publicly reprimanded with respect to the unsatisfactory professional conduct found in relation to the first ground in the application.

ii. Should the practitioner be issued with a practising certificate it will be subject to the following condition. The barrister shall not advise with respect to, or appear in:

a. Any appeal from the Local Court, District Court, Supreme Court or Federal Court;

b. Any matter in the Land & Environment Court;

c. Any matter in the Court of Appeal or Court of Criminal Appeal; and

d. Any matter in the High Court,

Without being led by senior counsel and this condition is to be disclosed to any prospective client and instructing solicitor.

iii. The barrister is to pay all of the costs in the interlocutory application which was dismissed, counsel of the Bar Association of New South Wales v Fitzgibbon (2010) NSWADT 291 and to pay 75% of the Applicant's costs, as agreed or assessed, on the balance of these proceedings.

• Catchwords: Professional misconduct - unsatisfactory professional conduct - protective orders.
• Legislation Cited: Legal Profession Act, 2004 (NSW).
• Cases Cited: Council of the New South Wales Bar Association v Fitzgibbon (2010) NSWADT 291.; Council of the New South Wales Bar Association v David Claude Fitzgibbon (No. 2).
• Category: Principal judgment
• Parties: Council of the New South Wales Bar Association (Applicant); David Claude Fitzgibbon (Respondent)
• Representation: Counsel; C A Webster (Applicant); M S Jacobs QC (Respondent); Hicksons Lawyers (Applicant); Carneys Lawyers (Respondent)
• File Number(s): 092042

REASONS FOR DECISION

1 LEGAL SERVICES DIVISION (S NORTON SC (JUDICIAL MEMBER), R J WRIGHT SC (JUDICIAL MEMBER), R FITZGERALD (NON JUDICIAL MEMBER): These proceedings relate to an application for original decision filed by the Applicant, the Council of the New South Wales Bar Association ("the Council"), seeking relief under s562(2) or (4) of the Legal Profession Act 2004 (NSW) ("the LPA") and ancillary relief. The Council alleged in the application that the Respondent barrister ("the Barrister") engaged in unsatisfactory professional conduct on two grounds. The Barrister made a partial admission with respect to ground 1 but denied all the allegations and resisted the orders sought.

2 On 27 March 2012 the Tribunal made findings of unsatisfactory professional conduct by the respondent with respect to the matters contained in ground 1 of the application. Ground 2 of the application was dismissed.

3 In accordance with the wishes of the parties the Tribunal provided them with the opportunity to adduce further evidence and make submissions both written and oral directed to 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 affidavits and exhibits:

On behalf of the Council:

Affidavit of Phillip Allen Selth affirmed 16 April 2012.

5 The Tribunal also received submissions from the Barrister dated 11 June 2012 and filed in the Tribunal on 18 June 2012.

6 The Council relied on written submissions dated 4 June 2012 and filed in the Tribunal on 4 June 2012.

7 The matter came before the Tribunal for an oral hearing on 4 July 2012. No oral evidence was taken on that day but oral submissions were heard.

8 In written submissions the Council sought the following orders:

a) Public reprimand.

b) Fine of approximately $5,000.

c) Barrister to pay the Bar Council's costs including costs reserved in the interlocutory application.

9 The Barrister in written submissions requested the Tribunal impose no penalty except for a caution and order each party to pay his or its own costs.

CONSIDERATION

10 Neither of the complaints against the Barrister involved dishonesty or deception of any kind. The complaint arose out of the conduct of the Barrister in relation to an appeal to the Court of Criminal Appeal from the Land and Environment Court. The Barrister appeared for Mr Bernard Hardt who was the Appellant. Mr Hardt has bought a complaint seeking compensation against the Barrister which was the subject of a separate hearing and a separate decision.

11 There have been two prior disciplinary matters concerning the Barrister. On 24 October 2002 the Council resolved to reprimand the Barrister pursuant to Section 155(3)(a) of the Legal Profession Act 1987 in relation to a complaint made by the Australian Government Solicitor. This complaint arose out of the Barrister's failure to expressly withdraw certain comments made in written submissions when he appeared on a hearing of an application for special leave to appeal to the High Court. The Barrister consented to and was reprimanded with relation to that matter.

12 The second matter related to a failure by the Barrister to give advice in respect to a defence to a claim for the proceeds of sale of property and some advice given with respect to proceedings in the Fair Trading Tribunal. As a result of these complaints proceedings were bought in this Tribunal, New South Wales Bar Association v "LG" (2005) NSWADT 180. After those proceedings had been filed the Council sought to amend the information and omit the second complaint and then withdraw the information on the basis that the Barrister be reprimanded in relation to the first complaint and pay compensation in the form of repayment of legal fees relating to the proceedings. The Barrister consented to this course and the Tribunal in the decision referred to above allowed the information to be withdrawn.

13 The two prior matters concerned the Barrister's professional conduct but did not involve any complaint made by a Court or a Judicial Officer.

14 The Council did not propose any orders of a supervisory nature nor any continuing legal education. During oral submissions the non Judicial Member of this Tribunal indicated he was concerned that the imposition of a fine would do little to protect the public and the Tribunal as a whole expressed its concern that reprimands in the past had not been effective in preventing the occurrence of the matters complained of here. The possibility of the Barrister undertaking some further studies was raised.

15 After a short adjournment the parties indicated to the Tribunal that they were of the opinion that the most effective way of supervising the Barrister's future conduct was for him to be restricted from appearing in certain categories of matters unless led by senior counsel. It was also noted that as the Barrister has not had a practising certificate for a period of 2 years he may be required to undergo some or all the modules of the reading course should he apply for a practising certificate in the future.

16 The Council maintained its position that a fine should be imposed and referred the Tribunal to the decision of New South Wales Bar Association v Meakes (2006) NSWCA 340 at paragraphs 113-114 where Basten JA outlined the indirect effects of a fine to include:

"First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more significantly, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. The underlying purpose is not self aggrandisement on the part of the profession, but recognition of the social value in the availability of services provided to the public, combined with an understanding of the vulnerability of many who require such services".

17 The Barrister emphasised that he had not been involved in any moral or professional turpitude and suggested that he had been severely punished by the effect of these proceedings and the publicity relating to comments made by the Court of Appeal. Emphasis was placed on the fact he had not been able to practice since 1 July 2010 and has had to bear certain costs associated with these proceedings.

18 The facts with respect to these complaints are dealt with in the principle judgment and we will not repeat them here. The Tribunal accepts that the Barrister has been in practice for a considerable period and that at the time this complaint arose he was in very difficult personal circumstances. Details of those circumstances are also contained in the principle judgment.

19 The Tribunal was not provided with any direct evidence of the Barrister's financial position, nor details of what steps, if any, he has taken to maintain his skills while he has not been practising. There was some evidence that in the future he will be more careful with monitoring his medication. We were not provided by the Barrister with any affidavit evidence relevant to this hearing.

20 In the substantive judgment we made a finding of unsatisfactory professional conduct with respect to the Barrister's preparation of written submissions but found that in all the circumstances the oral submissions should not be independently categorised as falling short of the requisite standard and thus ground 2 was dismissed. We did not make a finding that the oral submissions were of an appropriate standard.

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

22 The Tribunal remains of the opinion that the imposition of a fine is not appropriate in this matter and that a reprimand alone offers insufficient protection to the public. In all the circumstances we think the appropriate order is that the Barrister be reprimanded and that any future practising certificate be subject to the conditions agreed on by the parties.

COSTS

23 Section 566(1) of the Legal Profession Act 2004 provides that if the Tribunal finds a practitioner has engaged in unsatisfactory professional conduct it must order the practitioner pay costs "unless ... satisfied that exceptional circumstances exist".

24 Section 566(3) of the Legal Profession Act 2004 provides the Tribunal may make orders requiring payment of the practitioner's costs from the public purpose fund only if:

"a. The Tribunal is satisfied that the practitioner did not engage in unsatisfactory professional conduct or professional misconduct; and

b. The Tribunal considers that special circumstances warrant the making of the orders".

25 The Tribunal has the power to fix the amount of the costs itself or order that the costs be assessed under Part 3.2 of the Legal Profession Act 2004. Section 88(2) of the Administrative Decisions Tribunal Act provides that the Tribunal may determine by whom and to what extents costs are paid, and order costs to be assessed on a basis set out in Part 3.2 Division 11 of the Legal Profession Act 2004 or on any other basis.

26 The Tribunal was not directed to any authority that dealt with the meaning of exceptional circumstances as it occurs in s556 as there was no equivalent provision in the Legal Profession Act 1987. It was not suggested that the Tribunal lacked the power to order the Barrister to pay a percentage of the Council's costs.

27 The Barrister submitted that as he had been successful in having ground 2 of the application dismissed there were exceptional circumstances within the meaning of the Legal Profession Act 2004. Reliance was placed on the fact that the Barrister had never resiled from his admission that the written submissions were not up to standard and it was suggested that had the Council not persisted with ground 2 the matter "could have been easily resolved with a tremendous saving of costs".

28 In its submission the Council drew the Tribunal's attention to the interlocutory proceedings in 2010 and submitted the cost of those proceedings should be paid in full. The Barrister then appeared to concede this point.

29 The Council also referred the Tribunal to the evidence given by the Barrister wherein he did resile in part from the admissions that had been made in the pleadings and pointed out that at no time did the Barrister concede that ground 1 had been made out.

30 The Council submitted that the fact that the Tribunal had after a hearing reached the conclusion that ground 2 had not been made out did not in itself constitute exceptional circumstances for the purposes of s566(1) or special circumstances such as to warrant an order for costs against the society under s566(3) of the Legal Profession Act 2004. In written submission the Council suggested that costs should be assessed under Part 3.2 of the Legal Profession Act 2004.

CONSIDERATION

31 We do not think that the fact that the Barrister successfully defended one ground of the application amounts to exceptional circumstances such as to deny the Council the benefit of an order for costs. We do not think there are any grounds for making an order under s566(3) of the Legal Profession Act 2004.

32 During the course of oral submissions the Barrister agreed that if there was to be an adjustment to the level of costs then this was most appropriately dealt with by way of ordering him to pay a percentage of the total costs of the Council.

33 We find that there should be a costs order made in favour of the Council. We accept that the Barrister has been partly successful in defending the application and this should be reflected in the costs order. We accept that we have a discretion both under the Legal Profession Act 2004 and the ADT Act to fix the extent of any costs which must be paid.

34 We find that the Barrister should pay the costs of the Council with respect to the interlocutory application. With respect to the substantive hearing we find that the bringing of ground 2 by the Council was not unreasonable and did not greatly extend the amount of time taken to prepare or hear the proceedings. In all the circumstances we assess that the barrister should pay 75% of the costs of the substantive hearing and the hearing relating to these protective orders.

ORDERS

35 We therefore make the following orders:

That the Barrister be:

i. Publicly reprimanded with respect to the unsatisfactory professional conduct found in relation to the first ground in the application.

ii. Should the practitioner be issued with a practising certificate it will be subject to the following condition. The barrister shall not advise with respect to, or appear in:

a. Any appeal from the Local Court, District Court, Supreme Court or Federal Court;

b. Any matter in the Land & Environment Court;

c. Any matter in the Court of Appeal or Court of Criminal Appeal; and

d. Any matter in the High Court,

Without being led by senior counsel and this condition is to be disclosed to any prospective client and instructing solicitor.

iii. The barrister is to pay all of the costs in the interlocutory application which was dismissed, counsel of the Bar Association of New South Wales v Fitzgibbon (2010) NSWADT 291 and to pay 75% of the Applicant's costs of the balance of these proceedings as agreed or assessed.

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Decision last updated: 27 July 2012