Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Council of the New South Wales Bar Association v Asuzu (No.3) [2012] NSWADT 183
• Hearing dates: 27 August 2012
• Decision date: 04 September 2012
• Jurisdiction: Legal Services Division
• Before: S Norton SC, Judicial member; RJ Wright SC, Judicial member; C Bennett, Non-Judicial member

Decision

The Tribunal orders that the orders made on 30 May 2012 in Council of the NSW Bar Association v Asuzu (No.2) 2012 NSW ADT 104 be amended as follows:

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 and to the extent necessary, any subsequent 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 for a period of 12 months from the date he returns to practice at the bar.

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, such agreement to be in effect for a period of 12 months from the date he returns to practice at the bar.

v. The barrister to pay 50% of all the applicant's costs of this application including reserved costs as agreed or assessed.

• Catchwords: Professional misconduct - unsatisfactory professional conduct - protective orders.
• Cases Cited: Council of the NSW Bar Association v Asuzu (No.2) 2012 NSWAT 104
• Category: Principal judgment
• Parties: Council of the New South Wales Bar Association (Applicant); Ignatius Nswafor Asuzu (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): This application relates to order made by this tribunal on 30 May 2012 in Council of New South Wales Bar Association v Asuzu (No.2) (2012) NSWADT 104. The matter was relisted pursuant to liberty to apply which was reserved in those orders. The relisting was sought by the applicant in order to have Order (iv) of the original orders clarified. The Applicant gave notice to the solicitor for the respondent that such an application would be made by email dated 3 July 2012. The solicitor for the respondent, by email dated 4 July 2012, consented to the relisting and indicated that he would be seeking clarification to the practical effect of the whole orders. The Tribunal notified the parties that the matter would be listed for hearing part heard on Monday 27 August 2012 at 2pm.

2 When the matter was called on for hearing there was no appearance on behalf of the respondent. The solicitor for the Applicant then telephoned the solicitor for the respondent who indicated that he had wrongly diarised the matter for 28 August 2012. A copy of the proposed amendments were sent by email to the solicitor for the respondent. The hearing then continued with Mr Ezekiel Hart appearing for the respondent by telephone. The tribunal adjourned for a short period to enable the respondent to consider his position.

3 The amendments proposed by the applicant to Order (iv) of the original orders were as set out below in the underlined portions:

The first practising certificate and to the extent necessary, any subsequent 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 for a period of 2 months from the date he returns to practice at the bar.

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, such agreement to be in effect for a period of 12 months from the date he returns to practice at the bar.

4 When the matter resumed the solicitor for the respondent indicated that he did not consent to the proposed amendments principally because the respondent did not accept that he should not be able to have direct access clients for a period of 12 months as this would cause hardship to him and to the people he wished to represent. The respondent submitted that the orders should be amended to allow him to accept direct access briefs, with supervision, from the time he recommenced practice.

5 When the tribunal made the original orders it appeared that the respondent would be seeking a new practising certificate on the 1 July 2012. The orders were framed to reflect this situation. No practising certificate in fact issued on that date.

6 If a practising certificate were to issue now or sometime in the future it will expire on 30 June the following year so that the period of supervision and restriction required by Original order (iv) might be significantly less than one year. This would be contrary to the view of the Tribunal which was sought to be expressed in the Original order that such supervision and restriction should last for a period of 12 months.

7 The amendment proposed by the Applicant is in accordance with the intent of the Tribunal when it made the original orders. To accede to the submissions of the respondent would lead to a result inconsistent with the orders originally made and with the intent of this Tribunal in making those orders.

8 The respondent took the opportunity during the hearing to seek clarification of the costs order contained in paragraph (vi) of the original orders. It was indicated that the respondent was unclear whether the order required him to pay 50% of all of the costs or only 50% of the costs associated with those aspects of the proceedings in which the Applicant was successful. As noted in paragraph 27 of Council of the NSW Bar Association v Asuzu (No.2) the Tribunal ordered the barrister to pay 50% of the Council's costs in recognition of the fact they had not been successful on all grounds of their applications. The order thus related to the entire costs of the proceedings including reserved costs. In order to put the matter beyond doubt, the Tribunal proposes to amend Original order (vI) as set out below.

ORDERS

9 We therefore make the following orders:

The Tribunal orders that the orders made on 30 May 2012 in Council of the NSW Bar Association v Asuzu (No.2) 2012 NSW ADT 104 be amended as follows:

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 and to the extent necessary, any subsequent 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 for a period of 12 months from the date he returns to practice at the bar.

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, such agreement to be in effect for a period of 12 months from the date he returns to practice at the bar.

v.The barrister to pay 50% of all the applicant's costs of this application including reserved costs as agreed or assessed.

I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL.

REGISTRAR

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Decision last updated: 04 September 2012