Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407
• Hearing dates: 22 October 2013
• Decision date: 04 December 2013
• Before: Macfarlan JA at [1]; Gleeson JA at [2]; Sackville AJA at [123]

Decision

1. Declare that the respondent is guilty of professional misconduct.

2. Declare that the respondent is not a fit and proper person to remain on the roll of persons admitted as lawyers maintained by the Supreme Court of New South Wales under s 32 of the Legal Profession Act 2004 (NSW) (the Roll).

3. Declare that the respondent is not a person of good fame and character.

4. Order that the name of the respondent be removed from the Roll.

5. Order the respondent to pay the applicant's costs of and incidental to these proceedings.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: LEGAL PRACTITIONERS - professional misconduct - application to have legal practitioner struck off the Roll of legal practitioners - dealing with trust moneys received in advance on account of legal costs - where contravention of s 252 of the Legal Profession Act 2004 - practicing without holding a practicing certificate - show cause events - whether fit and proper person to remain on the Roll
• Legislation Cited: Legal Profession Act 2004, ss 4, 5.5, 6, 14, 32, 55, 67,68, 78, 105, 243, 252, 309, 498, 504, 540, 590; Legal Profession (Amendment) Act 2006, Sch 2[1].; Legal Profession Regulation 2005, rr 4, 106A; Legal Profession Regulation 2002, r 133; Road Transport (Driver Licensing) Act 1998, s 25A; Road Transport Safety Act 1999, s 9; Tax Administration Act 1953, s 8G
• Cases Cited: Allinson v General Counsel of Medical Education and Registration [1894] 1 QB 750; A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; 216 CLR 253; Carr t/as Forshaws Neill v Swart [2007] NSWCA 337; Council of the NSW Bar Association v Power [2008] NSWCA 135; 71 NSWLR 451; Drayton v Martin (1996) 67 FCR 1; Law Society of New South Wales v Bannister (1993) 4 LPDR 24; Mee Ling v The Law Society of New South Wales [1974] 1 NSWLR 490; NSW Bar Association v Cummins [2001] NSWCA 284; 52 NSWLR 279; New South Wales Bar Association v Hamman [1999] NSWCA 404; 217 ALR 553; New South Wales Bar Association v Perry [2007] NSWCA 111; Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 16 FCR 465; Prothonotary of the Supreme Court of NSW v Alcorn [2007] NSWCA 288; Prothonotary of the Supreme Court of New South Wales v Kearns [2011] NSWCA 394; Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470; R v Khazaal [2012] HCA 26; 86 ALJR 884
• Category: Principal judgment
• Parties: Council of the New South Wales Bar Association (Applicant); John Bernard Costigan (Respondent)
• Representation: Counsel: C Webster SC (Applicant); P Beazley (Solicitor) (Respondent); Solicitors: Hicksons Lawyers (Applicant); Beazley Singleton (Respondent)
• File Number(s): 2013/115495

Judgment

1 MACFARLAN JA: I agree with Gleeson JA.

2 GLEESON JA: By summons filed 15 April 2013, the Council of the New South Wales Bar Association (the applicant) claims the following orders against John Bernard Costigan (the respondent):

(1) A declaration that the respondent is guilty of professional misconduct.

(2) A declaration that the respondent is not a fit and proper person to remain on the roll of persons admitted as lawyers maintained by the Court pursuant to s 32 of the Legal Profession Act (the Roll).

(3) A declaration that the respondent is not a person of good fame and character.

(4) An order that name of the respondent be removed from the Roll.

(5) An order that the respondent pay the applicant's costs of and incidental to these proceedings.

(6) Such further or other orders, including declaratory relief, as the Court thinks fit.

Jurisdiction

3 The summons arises in the exercise of the inherent jurisdiction of the Court in relation to the control and discipline of local lawyers. This jurisdiction is expressly preserved by s 590 of the Legal Profession Act 2004 (the Act).

4 A " local lawyer " is defined in s 5(b) of the Act to mean a person who is admitted to the legal profession under the Act. A person who was admitted by the Supreme Court as a legal practitioner before the commencement of the Act and whose enrolment was current immediately before the commencement of the Act, is taken to have been admitted by the Supreme Court as a lawyer under the Act: Sch 9, cl 6.

5 In the exercise of the inherent jurisdiction, the ultimate question for the Court, where an order for removal from the roll is contemplated, is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner of the Supreme Court. That question must be determined at the time of the hearing: A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; 216 CLR 253, at [14]-[15], [21].

6 In Prothonotary of the Supreme Court of New South Wales v Kearns [2011] NSWCA 394 at [8], Sackville AJA (Campbell and Young JJA agreeing) pointed out that as s 590 of the Act does not use the expression "professional misconduct", the statutory definition of that term in s 497 does not directly apply to an exercise of the Court's inherent jurisdiction to discipline legal practitioners. Nonetheless, his Honour considered it relevant to note that the statutory definition of that expression in s 497(1) includes:

"conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice. (s 497(1)(b))."

7 The jurisdiction which the court exercises is not one of punishment, but protective. In New South Wales Bar Association v Hamman [1999] NSWCA 404; 217 ALR 553, a case involving the exercise of the Court's inherent jurisdiction, Mason P stated at [99] the following propositions derived from the judgment of Sheller JA (with whom Gleeson CJ and Handley JA agreed) in Law Society of New South Wales v Bannister (1993) 4 LPDR 24, at 27-28:

"...

(b) The Court's supervisory jurisdiction goes beyond protecting the public by incapacitation of the recalcitrant practitioner. The jurisdiction aims generally to maintain and encourage appropriate standards of professional behaviour. 'The maintenance of such standards involves deterring the offender from repeating the offence and deterring others who might be tempted to offend.' [Emphasis added]

(c) The normal consequences of the misappropriation by a solicitor of a client's money is that his name be removed from the roll. In Ex parte Macaulay (1930) 30 SR(NSW) 193 at 194 Street CJ said that where a solicitor has been proved guilty of theft he should not, unless in very exceptional circumstances, ever be allowed again to be held out to the public as a solicitor in whom confidence might be reposed; compare Ex parte Lenehan (1948) 77 CLR 403 at 422: This is not only to protect the public in need of assistance in managing their affairs from reposing confidence in the person concerned on the basis that he is a solicitor but also to deter others from behaving in the same way in the future."

Mr Costigan's professional history

8 The respondent was admitted to the Supreme Court Roll of Legal Practitioners (as it was then called) on 4 August 1989. He held a barrister's practising certificate from 4 August 1989 until 26 April 2012, from time to time subject to conditions.

9 On 16 March 2012, the respondent sent to Ms Helen Barrett, the Deputy Director of Professional Conduct for the Bar Council, an email in which he said:

"I am at present discussing with my family as to whether I wish to continue as a practicing member of the NSW Bar.

I will inform the Association by next Friday 23 March 2011 as to my decision.

If it be my decision not to continue as a member of the Association, I shall return my practicing certificate to the Association on that day." (sic)

The respondent's reference to "23 March 2011" was clearly an error and should have read 23 March 2012.

10 On 26 March 2012, the respondent sent an email to Ms Helen Barrett, the Deputy Director of Professional Conduct for the Bar Council, informing her that he had that morning been made a bankrupt as a result of sequestration order made on a creditors presentation in the Federal Magistrate's Court of Australia.

11 On 26 April 2012, the Bar Council, by resolution, pursuant to s 78 of the Act suspended the respondent's practising certificate for 56 days as a consequence of the receipt of a complaint made by Mr Ross Mercer.

12 On 21 June 2012, the Bar Council, by resolution, pursuant to s 67(6)(a) of the Act cancelled the respondent's practising certificate.

13 Since that time, the respondent has not appealed against the suspension of his practising certificate or its ultimate cancellation. He has not applied for, nor been issued with, a further practicing certificate since 22 June 2012.

Some additional background matters

14 There are some additional background matters which provide the context and circumstances surrounding some of the grounds on which the applicant seeks the relief in these proceedings.

15 First, reference needs to be made to a number of convictions for traffic and driving offences over the period 2002 to 2007, of which the respondent did not notify the applicant, either within the time required under s 55(1)(a)(i) of the Act or at all. These are relevant to the "show cause events" referred to below under the heading "Statement of facts".

16 Secondly, reference should be made to the medical treatment and reporting conditions which the applicant imposed on the respondent's practising certificate commencing in November 2007. In the first instance, this followed a plea of guilty and conviction of the respondent in respect of a failure to comply with an order pursuant to s 8G of the Tax Administration Act 1953 in July 2007. The conviction was subsequently annulled on 20 September 2007, apparently on the ground that the respondent had not received notice of the proceedings. In the course of the applicant's investigation of this conviction, the respondent provided the applicant with a report of Dr John Roberts dated 20 September 2007, which was given by Dr Roberts in connection with the respondent's "late lodgement of a Personal Income Tax Return and his inadvertent failure to indicate at the time of his routine annual professional registration, that he had been convicted of an offence." Dr Roberts noted two matters. First, that:

"Mr Costigan referred to the relevant tax return being for the financial year 2005, that he had failed to submit it, that his failure to attend to such matters related to his total preoccupation with the circumstances in which he found himself.

Mr Costigan stated that a summons had been issued by the Australian Tax Office in August 2006, that he never received it, that he was convicted in absentia and fined $750.00.

I note that in a Hearing in April 2007, his conviction was annulled. Mr Costigan stated that in regard to correspondence between himself and the Deputy Commission[er] of Taxation, such that was sent to his home - he referred to not having access to his home office at that time."

17 Secondly, Dr Roberts noted that:

"in regards to disciplinary proceedings emanating from the New South Wales Bar Association, Mr Costigan stated that on filling in an application for renewal of his professional registration, he did not mention a conviction.

Mr Costigan deeply regrets this oversight but commented that in regard to his state of mind and preoccupation with events, that he neglected to mention that matter. Mr Costigan repeated that he was functioning on a day to day basis in a state of fear not knowing whether each day would be his last."

18 In his summary and opinion, Dr Roberts reported that the respondent:

"gives a history dating from 1986 of heightened anxiety associated with panic attacks and a fear of flying.

Such would fulfil the DSM-IV requirements of panic disorder with agoraphobia. Superimposed on this pre-existing state is a cluster of symptoms that would be consistent with the diagnosis of Post-traumatic stress disorder...

From the psychiatric viewpoint having regard to the extreme and frightening stressors to which Mr Costigan has been exposed, and having regard to the effects upon cognition that such stressful circumstances would inevitably have, from the psychiatric viewpoint the errors of omission made by Mr Costigan are understandable."

19 On 29 November 2007, the applicant resolved to impose medical treatment and reporting conditions on the respondent's practising certificate and any practising certificate issued to him in the period to 30 November 2008.

20 On 17 June 2008, the respondent applied for renewal of his practising certificate for the period 2008/2009. He disclosed a conviction on or about 23 November 2007 for a charge of drive with a low range prescribed concentration of alcohol and a charge of using a mobile phone whilst driving.

21 On 13 August 2009, the applicant resolved to require the respondent to be medically examined pursuant to s 105 of the Act. This led to a report from Dr Wodak dated 13 April 2010.

22 Dr Wodak reviewed Mr Costigan at the request of Ms Helen Barrett, Deputy Director of Professional Conduct for the NSW Bar Association, in relation to whether the respondent's alcohol problem was such as to preclude him from continuing to practice. Dr Wodak noted that:

"for the time being, Mr Costigan's alcohol consumption does not justify action being taken by the Bar Association to preclude him from practice as a barrister. Such action should only follow, in my view, when there is incontrovertible evidence of chronic excessive alcohol consumption impairing adequate functioning, preferably in at least one important domain of his life, and preferably when the individual has not responded to one or more warnings or offers of assistance. This is clearly not the case here...

Mr Costigan is not currently suffering any illness, impairment or disability."

23 Prior to the receipt of Dr Wodak's report, on 9 October 2009 the respondent disclosed to the applicant that he was charged with offences of drive with a special concentration of alcohol and drive while disqualified on 1 October 2009, contrary to s 9(1)(a) of the Road Transport Safety Act 1999 and s 25A(1)(a) of the Road Transport (Driver Licensing) Act 1998.

24 These matters led the applicant to impose medical treatment and reporting conditions on the respondent's practising certificate on 8 September 2011 and 27 October 2011 and on any practising certificate issued to him in the period up to and including 31 December 2013.

25 Thirdly, reference should also be made to a number of bankruptcy petitions served on the respondent over the period from July 2008 to August 2011, of which the respondent failed to notify the applicant pursuant to s 67 of the Act. These are referred to below in the statement of facts as part of the "show cause events". Section 67 of the Act requires the holder of a local practising certificate to provide to the appropriate Council (being the applicant in the case of a barrister), written notice within 7 days, of the happening of a show cause event, and a written statement within 28 days of such happening, explaining why, despite the show cause event, the person considers himself or herself to be a fit and proper person to hold a local practising certificate. The applicant did not become aware of the bankruptcy matters until 24 November 2011.

Statement of facts

26 The applicant tendered a statement of facts. The respondent's solicitor did not dispute any of the matters in that statement, but informed the Court that he did not have instructions to agree to the statement of facts. Having reviewed the supporting materials relied upon by the applicant, I am satisfied that those facts, as set out below, have been established on the evidence.

27 Omitting matters relating to the respondent's practice history, the statement of facts was as follows:

"Mercer and Dan complaints

9 On 5 December 2011, the respondent received from Ross Mercer a total of $25,410 on account of legal costs for legal services to be provided by him to 10 Green Bottles Pty Ltd, Ross Mercer and Janine Mercer (the Mercer Parties).

10 The payment followed a conversation with the respondent regarding legal work he was to perform for the Mercer Parties.

11 Mr Mercer deposited the total amount of $25,410 on 5 December 2011 to account number 5085 72333 (Account 72333).

12 On 7 December 2011, $23,000 was withdrawn from the account and transferred to an account 4509 4992 4554 3725 (Account 3725).

13 After receipt of the monies, the respondent failed to attend to matters as instructed, was uncontactable and failed to respond to correspondence from Mr Mercer.

14 In December 2011 and February 2012, the respondent received from Professor Noel Dan a total of $82,500 on account of legal services to be provided to Professor Dan's daughter Kerrie-Louise Dan, being:

(1) $55,000 comprising two cheques (for $45,000 and $10,000) deposited on 22 December 2011 by Professor Dan into a bank account nominated by the respondent to Professor Dan; and

(2) $27,500 comprising two cheques (each for $13,750) received by the respondent from Professor Dan on or about 1 February 2012.

15 Professor Dan deposited cheques totalling $55,000 into Account 72333 on 22 December 2011. At the time that deposit was made Account 72333 was overdrawn.

16 Substantial payments were made from Account 72333 on 28 December 2011 including transfers to Account 3725.

17 Account 3725 was a credit card in the respondent's name, related to another credit card number 4509 4992 4554 3717 (Account 3717).

18 On 16 January 2012, Account 3717 was transferred to a further account 4509 4992 4659 5500 (Account 5500).

19 Substantial charges were debited to Account 5500 including overseas charges during January 2012.

20 One of the two cheques drawn by Professor Dan for $13,750 was deposited into Account 5500 on 1 February 2012.

Disclosures

21 The respondent made a written disclosure to Ms Dan dated 28 November 2011 (Dan disclosure).

22 The respondent did not give any written disclosure to Ms Dan as required by r 24B of the NSW Barristers Rules 2011 and/or r 80 of the former NSW Barristers Rules.

23 The respondent made a written disclosure to the Mercer Parties dated 23 November 2011 (Mercer disclosure)

24 The respondent did not give any written disclosure to the Mercer Parties as required by r 24B of the NSW Barristers Rules.

Section 660 Notice

25 A notice under s 660(1) of the Act dated 13 March 2012 was served on the respondent by Helen Barrett, a Deputy Director Professional Conduct of the NSW Bar Association.

26 Ms Barrett was an authorised person appointed under s 531A of the Act.

27 The notice was issued in connection with the investigation of the complaint made by Mr Mercer against the respondent.

28 The respondent did not respond to the notice.

29 On 16 March 2012, Mr Mercer requested a refund from the respondent by email sent at 10:55am.

30 The respondent stated in an email sent to Mr Mercer on 16 March 2012 at 3:08pm:

'having now received your email as set out below the transfer of funds will be undertaken as requested'.

31. As at 16 March 2013, the respondent did not have the funds available to make the promised refund.

Practising when not entitled

32 On 26 July 2012, in the Local Court at Waverly the respondent appeared before Magistrate Milledge in apprehended personal violence order (AVO) proceedings, for the respondent to the AVO proceedings. The complainant (MH) was her former husband.

33 At about 2.15pm the respondent approached MH outside the court room and asked in effect: 'Are you Mr [former wife's name]?'

MH said: 'No, I am [H]. I am the applicant.'

The respondent said: 'Where is Mrs [former wife's name]?'. The respondent did not introduce himself.

MH said: 'She's just up there.' MH pointed out his former wife. The respondent went up to MH's former wife, and both went into a conference room.

34 The respondent appeared for the former wife when the AVO proceedings were called on before Magistrate Milledge. He did not seek leave to appear.

35 At about 2.30pm or 2.40pm, the Magistrate ordered a short adjournment to permit discussions. She did not go off the Bench. The parties were formally excused.

36 During the adjournment the respondent approached MH in the foyer and asked him to put in writing what he was proposing. When asked his name by MH, twice, on each occasion the respondent only gave his first name, John.

37 MH wrote out short minutes of order. He wrote the respondent's name, obtained from court staff, as appearing for the former wife, on the short minutes of order and handed them to the respondent outside the court room.

38 The respondent took the short minutes and said: 'I'll take these to my client.'

Shortly he returned and said: 'No, we cannot agree with this.'

MH said: 'Why did you not say something earlier? Why did you waste my time and the Court's time?'

The respondent did not respond to the question. He talked to MH about matters that had occurred earlier. MH declined to discuss them, referring to his former wife as the respondent's client. The respondent asked MH to send him a copy of a letter MH had sent. MH said he would, however the respondent did not give MH any address to send it to.

39. When the matter was mentioned again, the respondent referred to the former wife as his client and made submissions regarding her position. At about 3.00pm, the matter was adjourned to 30 August 2012. The respondent kept the handwritten short minutes MH had prepared.

40 On 30 August 2012, the AVO proceedings were again before the Court. The respondent approached MH in the foyer of the Court. He asked MH for a copy of the letter that had been discussed on the previous attendance. He also said words to the effect: 'Where's your statement? You haven't filed anything. You sought an extension until the 13th.'

MH said words to the effect: 'What are you talking about?'

The respondent said words to the effect: 'We're going to have the matter kicked today because you haven't filed. Give me the letter.'

MH responded in words to the effect: 'You gave me no address to send it to. No, I don't have a copy of it here now either as you gave no indication it would be required. I have received no 'Notice to Produce' and I will advise the Court of this if you press the matter.'

41 The respondent pressed on with discussions of matters not relevant to the AVO proceedings. MH said words to the effect: 'I'm not discussing this with you any further' and walked away from the respondent, remaining in the foyer area near where Court staff were checking for attendances for matters listed that day.

42 MH saw the respondent approach the Court staff and heard him say words to the effect: 'Can I have the Court file for the [former wife's name] matter please?'

One of the Court staff responded in words to the effect: 'Are you legal counsel, are you representing one of the parties?'

The respondent said words to the effect: 'Yes, I'm the barrister in this matter, I am briefed by the duty solicitor'. He pointed in the direction of a woman, who ultimately appeared for the former wife that day before Magistrate Milledge.

The Court attendant did not provide the file to the respondent. The Court attendant said words to the effect, 'The file is already in the Court. The matter will need to be taken up with the Magistrate directly once Court commences'.

43 The AVO proceedings were again before the Court on 4 October 2012. The respondent sent three emails to MH between 3 and 4 October 2012. MH sent an email to the respondent on 6 October 2012 to which the respondent replied on 8 October 2012.

Show cause events and convictions

44 In the period between 21 January and 1 April 2009, the respondent was served with a creditor's petition. The respondent did not notify the applicant of that fact:

(1) within seven days of service; or

(2) in his Applications for renewal of his practising certificate for the period 2009/2010 and for the period 2010/2011.

45 The respondent did not notify the applicant of service on him of creditor's petitions issued on behalf of:

(1) Graeme Arthur Rogerson on 29 July 2008, Federal Magistrates Court proceedings No SYG 1495/2008;

(2) Lion Finance Pty Ltd in November 2010, Federal Magistrates Court proceedings No SYG 2170/2010 in which SCEGGS Darlinghurst Limited was substituted as the petitioning creditor; and

(3) International Conference Management Pty Ltd trading as CCM Travel on 14 August 2011, Federal Magistrates Court proceedings No SYG 1969/2011 in which Citigroup Pty Ltd was substituted as the petitioning creditor.

46 In his response to a s 660 Notice the respondent:

(1) referred to a mental illness as yet undiagnosed and untreated (resulting in conditions being placed on his practising certificate) and the fact that the proceedings had been settled as the reason he did not disclose service of the Rogerson creditors petition in his practising certificate renewal application for 2009/2010; and

(2) stated that he did not know he was required to disclose the show cause events or provide a s 67 statement.

47 The respondent's solicitors had notified tax offences to the Bar Association on 18 July 2007. The respondent had been advised by letter dated 21 March 2011 that service on him of a creditors petition in early 2009 was a show cause event.

48 The respondent did not provide to the applicant a written statement showing why despite being made bankrupt (on 26 March 2012) he was a fit and proper person to hold a local practising certificate.

49 The respondent did not notify the applicant of his convictions for the following offences:

(1) conviction for driving with a low range concentration of alcohol, on 19 October 2007; notification of which was required under s 55(1)(a)(i) of the Act within seven days of his plea of guilty to that charge and matter being adjourned for sentence;

(2) convictions for negligent driving, not give particulars to police and drive on road while licence suspended, on 26 December 2007, to which he pleaded guilty on 20 June 2008, notification of which was required under s 55(1)(a)(i) of the Act within seven days of his plea of guilty and the matters being adjourned for sentence;

(3) conviction for drive after licence cancelled or refused, and fail to supply particulars to police after an accident on 8 November 2002, for which he was convicted on 11 December 2002 notification of which was required within seven days under cl133 of the Legal Profession Regulation 2002 (2002 Regulation) and in his Applications for renewal of his practising certificate for the periods 2004/2005 and 2005/2006.

50 The respondent did not disclose until 6 June 2006 (with his application to renew his practising certificate for the period 2006/2007), an offence of driving with a high range concentration of alcohol which occurred on 8 November 2002 and he was convicted on 11 December 2002 (although the respondent stated he thought it occurred in October 2003). The respondent answered 'no' to questions as to offences in applications for renewal of his practising certificate for 2004/2005 and 2005/2006."

28 In addition to these facts, two further matters are established on the evidence. First, in relation to [14](2) and [20] of the statement of facts, the second cheque drawn by Professor Dan for $13,750 on or about 1 February 2012 in favour of the respondent, was endorsed by the respondent in favour of a third party on 8 February 2012 (WF, tab 7, p 12). This explains why there is no record of this cheque being deposited into any of the bank accounts in the name of the respondent.

29 Secondly, I find that the respondent did not render a bill to either Mr Mercer or Ms Dan before either withdrawing the moneys received on account of legal costs, or depositing in one instance a cheque for $13,750 directly into the respondent's credit card Account 5500, and in another instance, endorsing a second cheque for $13,750 in favour of a third party.

30 The established facts make it clear that:

(1) over the period from 2011 to 2012, the respondent made inadequate disclosure to two direct access clients regarding his costs, and received moneys in advance from, or on behalf of, those clients for legal work to be performed, and applied such moneys for the purpose of discharging personal expenses without having rendered a bill to the clients;

(2) in July and August 2011, the respondent represented a party involved in proceedings in the Local Court at Waverley when he was not qualified to practice as a barrister; and

(3) over the period 2002 to 2012, the respondent failed to notify the applicant of a number of "show cause events" either in a timely fashion or at all.

Relief not opposed

31 By letter dated 17 October 2013 to the registrar of this Court, the respondent's solicitors stated, amongst other things, that they had received instructions from the respondent not to oppose the orders sought by the applicant. Mr Beazley, a solicitor, who appeared for the respondent at the hearing, confirmed that the respondent did not oppose the relief sought.

Approach of the Court

32 Although the respondent does not contest that orders should be made, the Court must satisfy itself that it is appropriate to do: Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 at 12 per McColl JA (Sheller JA and Beazley JA, as her Honour then was, agreeing) and the cases there cited.

33 Accordingly, it is necessary for the Court to make findings of fact in appropriate detail as to the basis for its orders, particularly as this could be of significance in the event that there is a subsequent application for readmission: Council of the NSW Bar Association v Power [2008] NSWCA 135; 71 NSWLR 451 at 459 [10] per Hodgson JA (Beazley JA and McColl JA agreeing).

34 Whilst the Court is not required to make a finding on every matter alleged against a legal practitioner in an application such as the present, generally it is appropriate to make findings on significant matters concerning the conduct which is the subject of the complaint: Power at [11]; McCaffery at [12].

Consideration

35 The grounds on which the applicant seeks the relief in the summons may be conveniently grouped under the following headings:

(1) Dealing with client moneys in late 2011/early 2012.

(2) Practising in July and August 2012 when not entitled.

(3) Failure to notify the applicant of "show cause events".

(1) Dealing with client moneys - Mercer and Dan

Mercer

36 The evidence establishes that Mr Mercer paid the respondent a total of $25,410 on 5 December 2011 for legal work he was to perform for the Mercer parties, and that this amount was deposited into the respondent's Account 72333 on that date. This deposit was expended as follows:

(1) First, on 7 December 2011, $23,000 was withdrawn from that account and transferred, to Account 3725, being one of the respondent's credit card accounts, which was related to the respondent's 450949-9245543717 account. Both accounts were with the ANZ Bank.

(2) Secondly, on 8 December 2011 a series of further withdrawals were made from Account 3725 including various visa card transfers and an ATM withdrawal, resulting in a debit balance of $45.92 at the end of that day.

37 The effect of the transfer of $23,000 to Account 3717 was that the debit balance on that account of $10,181.51 was discharged and the respondent was left with a credit balance of $12,818.49. However, further debits to Account 3717 on 9 December 2012 had the effect that the balance returned to a debit amount of $1,523.12 and thereafter increased.

38 The transfer on 7 December 2011 and the withdrawals from Account 72333 on 8 December 2011, occurred before any legal services had apparently been provided, and before a bill rendered by the respondent to Mr Mercer.

Dan

39 In the case of Professor Dan, the evidence establishes that he paid a total of $82,500 to the respondent on account of legal services to be provided to his daughter. This amount comprised two payments. The first involved two cheques totalling $55,000 deposited on 22 December 2011 by Professor Dan into a bank account nominated by the respondent, being Account 72333. At the time of the deposit, this account was overdrawn by $1584.33. The effect of the deposit was to discharge the respondent's debt to ANZ, leaving the Account 72333 with a credit balance of $53,415.67. This credit balance was expended by the respondent over the period 23 December 2011 to 11 January 2012, when this account became overdrawn.

40 The second payment comprised two cheques totalling $27,500 which the respondent collected personally from Professor Dan on or about 1 February 2012. The respondent deposited one cheque for $13,750 into his Account 5500 ANZ Frequent Flyer. Immediately prior to the deposit of that cheque, the debit balance of Account 5500 was $11,073.95. Following that deposit, the account had a credit balance of $2676.05. By 8 February 2012, that credit balance had been expended by the respondent and the account returned to a debit balance.

41 In respect of the second cheque, also for $13,750, there is no evidence that this cheque was deposited into any account of the respondent. Rather, as noted at [28] above, it appears from the photocopy of the reverse side of the cheque that the respondent endorsed this cheque in favour of a third party on 8 February 2012.

Contravention of s 252 of the Act

42 The applicant contends that the respondent breached s 252 of the Act, which provides:

"A barrister is not, in the course of practising as a barrister, to receive trust money."

43 The expression "trust money" is defined in s 243(1) of the Act and includes in subparagraph (a), money received on account of legal costs in advance of providing the services.

44 The prohibition on receipt of trust money in s 252 of the Act is subject to an exemption in cl 106A of the Legal Profession Regulation 2005 (2005 Regulation). The power to make this regulation arises under s 246(3)(c) and (d) of the Act which provides:

"Application of Part to law practices and trust money

(3) Exclusions

However, this Part does not apply to:

...

(c) prescribed kinds of trust money, or

(d) prescribed kinds of trust money in prescribed circumstances."

45 The reference in s 246(3) to "this Part" is a reference to Part 3.1 of the Act.

46 Clause 106A of the 2005 Regulation sets out the basis on which directly instructed barristers are permitted to receive money on account of legal costs for legal services in advance of the provision of the legal services:

"106A Part 3.1 of the Act does not apply to trust money received and held by a barrister if the money is received by the barrister on account of legal costs for legal services in advance of the provision by the barrister of the legal services, in the following circumstances:

(a) the barrister is practising as a sole practitioner and the money is received in connection with instructions accepted by the barrister directly from a person who is not a solicitor,

(b) the money is deposited, within a reasonable time, after the barrister receives the money, in an account maintained with an ADI in connection with the barrister's law practice,

(c) the money remains deposited in that or another account maintained with an ADI in connection with the barrister's law practice until:

(i) a bill is given to the client, or

(ii) the money is refunded to the client, or

(iii) the money is paid to a solicitor who is later engaged by the client in the matter."

47 The applicant submitted that the respondent dealt with moneys received from Mr Mercer and Professor Dan contrary to the provisions of s 252 of the Act and cl 106A of the 2005 Regulation. Strictly, the contravention alleged is in respect of s 252 of the Act. A contravention is said to have occurred because the respondent's dealing with client moneys was not within the exemption to s 252 provided by cl 106A. This requires attention to be given to whether the respondent satisfied the terms of the exemption.

Deposit of money

48 The applicant submitted that the respondent failed to comply with both subclause (b) and (c) of cl 106A. As observed during oral argument, the language of clause 106A(b) is not a model of clarity. It requires the money to be deposited within a reasonable time after receipt by the barrister in an account maintained with an ADI "in connection with the barrister's law practice". An "ADI" is defined as an Australian Deposit Institution. There is no specification of the type of "account" into which the deposit must be made. The only relevant qualification is that the account must be maintained "in connection with" the barrister's law practice.

49 Whilst there is no express prohibition on depositing moneys into an account which is in overdraft at the time of the deposit, such a prohibition appears to be implicit from the terms of cl 106A(c), which requires that the money "remains deposited" in that account, or another such account, until a bill is given to the client, or the money is refunded, or paid to another solicitor engaged by the client.

50 It is unnecessary in the present case to determine whether payment of money into an overdrawn cheque account, or into a credit card account could ever satisfy cl 106A(b). For the reasons given below, I am satisfied that the accounts into which the money was deposited in this case, were not maintained "in connection with the [respondent's] law practice".

"In connection with"

51 The phrase "in connection with" in cl 106A of the 2005 Regulation may be described as a "relational term". As explained by French CJ in R v Khazaal [2012] HCA 26; 86 ALJR 884 at [31]:

"Relational terms ... may refer to a relationship between two subjects which may be the same or different and may encompass activities, events, persons or things. They may denote relationships which are causal or temporal or relationships of similarity or difference. The task of construing such terms does not involve the resolution of ambiguity. They are ambulatory words and may be designed to cover a variety of subjects and a variety of relationships between those subjects. The nature and breadth of the relationships they cover will depend upon their statutory context and purpose . Generally speaking it is not desirable, in construing relational terms, to go further than is necessary to determine their application in a particular case or class of cases." (emphasis added; footnote omitted)

52 In Drayton v Martin (1996) 67 FCR 1 at [32], Sackville J pointed out the width of the ordinary meaning of this phrase is indicated by a passage from the judgment of Wilcox J in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 16 FCR 465 at [479]-[480]:

"The words 'in connection with' have a wide connotation, requiring merely a relationship between one thing and another. They do not necessarily require a causal relationship between the two things: see Commissioner for Superannuation v Miller (1985) 8 FCR 153 at 154, 160, 163. They may be used to describe a relationship with a contemplated future event: see Koppen v Commissioner for Community Relations (1986) 11 FCR 360 at 364; Johnson v Johnson [1952] P 47 at 50-51 . In the latter case the United Kingdom Court of Appeal applied a decision of the British Columbia Court of Appeal, Re Nanaimo Community Hotel Ltd [1945] 3 DLR 225, in which the question was whether a particular court, which was given 'jurisdiction to hear and determine all questions that may arise in connection with any assessment made under this Act', had jurisdiction to deal with a matter which preceded the issue of an assessment. The trial judge held that it did, that the phrase 'in connection with' covered matters leading up to, or which might lead up to, an assessment. He said, [1944] 4 DLR 639:

'One of the very generally accepted meanings of 'connection' is 'relation between things one of which is bound up with or involved in another'; or, again 'having to do with'. The words include matters occurring prior to as well as subsequent to or consequent upon so long as they are related to the principal thing. The phrase 'having to do with' perhaps gives as good a suggestion of the meaning as could be had."

53 In this case, the phrase "in connection with" refers to a relationship between the activity of a barrister's law practice and an account maintained by the barrister with an ADI. The closeness and nature of the relationship required must be identified by reference to the context, whether the phrase is used in a statute, or in a contract: Drayton v Martin at [32] per Sackville J.

54 Drayton v Martin and Carr t/as Forshaws Neill v Swart [2007] NSWCA 337 both concerned insuring clauses in professional indemnity insurance policies. The requisite nexus with legal practice arose in a different context - the phrase "in connection with" required a nexus between the liability and the solicitor's practice which, broadly described, required that the former arose from the latter.

55 In this case, the nature of the connection can be evaluated by reference to the specific obligations imposed on the barrister both with respect to the deposit and withdrawal of money received from direct access clients. Although the Act specifies that the money received from direct access clients is not trust money, the barrister receiving money on account of legal costs for services to be provided, must deal with the money in the prescribed manner if he or she is to bring themselves within the exemption provided by cl 106A.

56 In the case of the respondent's Account 72333, it is clear from the nature of the entries recorded in that account that it was used for the respondent's personal financial affairs. The position is likewise in relation to the credit card Account 3725, and credit card Account 5500. None of these accounts were maintained by the respondent "in connection with" his practice as a barrister.

Dealing with money

57 Furthermore, the evidence establishes that insofar as the money received from Mr Mercer and Professor Dan was deposited into an account of the respondent, it did not remain deposited in those accounts until a bill was given to the client, or the money refunded, or the money paid to another solicitor later engaged by the client.

58 In the case of Mr Mercer, the entirety of the deposit of $25,410 was withdrawn within two days and used by the respondent to discharge debts on his credit card account and other personal expenditure. No bill had been given to Mr Mercer prior to those withdrawals.

59 In the case of Professor Dan, he was not the client; he was a third party providing money for legal services to be provided to his daughter. The deposit of $55,000 on 22 December 2011 was withdrawn, commencing on 28 December 2011, by a series of transfers to the respondent's credit card account. No bill had been given to the client, his daughter. It may be inferred from other evidence, that the respondent was away on holidays during the period 28 December 2011 to 31 January 2012. First, the transactions on the respondent's credit card account during January 2012 include substantial overseas charges. Secondly, the respondent's email to Mr Mercer dated 31 January 2012 at 10:48am stated in the subject header stated "Back at work today, will call you after lunch".

60 In respect of the two cheques each for $13,750 received by the respondent from Professor Dan on or about 1 February 2012, no bill had been given to Ms Dan prior to the expenditure of the $13,500 deposited into the respondent's credit card Account 3725, or the endorsement by the respondent of the second cheque for $13,750 in favour of a third party.

61 The respondent's conduct in dealing with the moneys received from direct access clients contravened s 252 of the Act. Such conduct was not inadvertent. It may be inferred that the respondent knew that no bill had been provided to the clients. No submission to the contrary was advanced by Mr Beazley, the solicitor appearing for the respondent.

Inadequate costs disclosures

62 The applicant also submitted that the respondent made inadequate cost disclosures to the Mercer and Dan clients in his cost disclosure letters.

63 The applicant contended that those cost disclosure letters omitted to include:

(1) the basis of calculation of the costs;

(2) the client's rights, amongst other things, to negotiate a costs agreement with the law practice and to receive a bill;

(3) the estimated recoverable costs in the proposed litigation if the client was successful;

(4) the range of costs that may be ordered against the client; and

(5) the right to progress reports.

64 Section 309 of the Act imposed requirements on a "law practice" to make disclosure regarding costs to the client. The expression "law practice" is defined in s 4 of the Act to mean, relevantly, an Australian legal practitioner who is a sole practitioner. This definition included the respondent.

65 The applicant contended that the respondent failed to make disclosure to the Mercer and Dan clients of the particular matters referred to in s 309(1)(a), (b), (c), (d), (f), (g), (i), (j) and/or (k). The terms of s 309(1), so far as material to the present case, were as follows:

"(1) A law practice must disclose to a client in accordance with this Division:

(a) the basis on which legal costs will be calculated, including whether a fixed costs provision applies to any of the legal costs, and

(b) the client's right to:

(i) negotiate a costs agreement with the law practice, and

(ii) receive a bill from the law practice, and

(iii) request an itemised bill after receipt of a lump sum bill, and

(iv) be notified under section 316 of any substantial change to the matters disclosed under this section, and

(c) an estimate of the total legal costs if reasonably practicable or, if that is not reasonably practicable, a range of estimates of the total legal costs and an explanation of the major variables that will affect the calculation of those costs, and

(d) details of the intervals (if any) at which the client will be billed, and

(f)..if the matter is a litigious matter, an estimate of:

(i)..the range of costs that may be recovered if the client is successful in the litigation, and

(ii)..the range of costs the client may be ordered to pay if the client is unsuccessful, and

(g)..the client's right to progress reports in accordance with section 318, and

(i)..the following avenues that are open to the client in the event of a dispute in relation to legal costs:

(i)..costs assessment under Division 11,

(ii)..the setting aside of a costs agreement or a provision of a costs agreement under section 328 (Setting aside costs agreements or provisions of costs agreements),

(iii)..mediation under Division 8, and

(j)..any time limits that apply to the taking of any action referred to in paragraph (i), and

(k)..that the law of this jurisdiction applies to legal costs in relation to the matter."

Mercer cost disclosure

66 In the case of the disclosure to the Mercer parties dated 23 November 2011, I am not satisfied that the respondent failed to disclose the basis on which legal costs will be calculated. An estimate of the costs of preparation and conduct of final hearing of the matter was given in "the vicinity of $39,000 exclusive of GST". The letter then provided the respondent's detailed estimates for preparing and appearing at the interim hearing and directions hearing with respect to the final application. This estimate was broken down into two amounts. The first relating to preparation included a number of itemised matters in respect of which an estimate was given "say 50 hours - $27,500". The second related to conferences with the Mercer clients and witnesses, including travel to Tweed Heads where an estimate was given "say 20 hours - $11,000". It is tolerably clear, in my opinion, that the basis on which costs were to be charged was an hourly basis of $550 per hour plus GST.

67 Other than compliance with s 309(1)(a), the cost disclosure letter given to the Mercer parties did not comply with the requirements of s 309(1)(b), (d), (f), (g), (i), (j) and (k).

68 The applicant also contended that the cost disclosure letter to the Mercer clients did not comply with rule 24B of the Barristers' Conduct Rules of the New South Wales Bar Association and also was misleading, insofar as it stated as follows:

"As you would appreciate with a direct client brief where I have to undertake the role of both Solicitor and Counsel it is incumbent upon me to proceed with work and appear at a trial only if I have funds to cover these estimated fees."

The applicant submitted that this statement was misleading for two reasons. First, in suggesting that the respondent was undertaking the role of a solicitor. Secondly, in suggesting that the respondent could only proceed with work and appear if he had received funds in advance. The first contention should be accepted, however, I am not satisfied that the second contention is established.

69 By virtue of the Barristers' Conduct Rules of the New South Wales Bar Association dated 8 August 2011, a barrister was not permitted by rule 17, subject to two exclusions which are not presently relevant, from acting in particular ways, including:

"A barrister must not, subject to Rules 18 and 19:

...

(b) conduct correspondence in the barrister's name on behalf of any person otherwise than with the opponent;

...

(d) act as a person's only representative in dealings with any court, otherwise than when actually appearing as an advocate;

(e) be the address for service of any document or accept service of any document;

(f) serve any process of any court."

70 In short, the respondent was not permitted to perform the work of a solicitor.

71 Further, rule 24B is relevant as it provided:

"24B. A barrister who proposes to accept instructions directly from a person who is not a solicitor must:

(a) inform the prospective client in writing of:

(i) the effect of Rules 15 and 17;

(ii) the fact that circumstances may require the client to retain an instructing solicitor at short notice, and possibly during the performance of the work;

(iii) any other disadvantage which the barrister believes on reasonable grounds may, as a real possibility, be suffered by the client if the client does not retain an instructing solicitor;

(iv) the relative capacity of the barrister in performing barristers' work to supply the requested facilities or services to the client compared to the capacity of the barrister together with an instructing solicitor to supply them; and

(v) a fair description of the advocacy experience of the barrister; and

(b) obtain a written acknowledgement, signed by the prospective client, that he or she has been informed of the matters in (a) above."

72 The cost disclosure letter given to the Mercer clients by the respondent failed to inform them of the matters which a barrister must inform a direct access client as required by rule 24B, and also misrepresented to those clients that the respondent could undertake the role of both solicitor and counsel.

73 As to the applicant's second complaint that the cost disclosure was misleading in suggesting that the only basis on which the respondent could proceed with work and appear was if he received funds in advance, I do not accept the applicant's submission that the letter gave the impression that the respondent was not entitled to undertake work without first receiving funds in advance. In my view, the letter simply conveyed a statement as to the basis upon which the respondent was prepared to undertake work.

Disclosure to Ms Dan

74 The respondent's disclosure letter to Ms Dan dated 28 November 2011 gave an estimate of costs "in the vicinity of $137,500 inclusive of GST". The estimate was said to be based upon a final hearing of six days. The letter also contained a statement to the effect that as the respondent was performing both the role of solicitor and counsel, he requested a deposit of 60 per cent, being $82,500 including GST, to cover the work to be undertaken.

75 Although the cost disclosure letter referred to the estimate being based on a final hearing of six days, it did not contain a statement as to the costs to be charged per day, nor the cost to be charged in relation to preparation. I do not consider that the basis on which legal costs would be calculated was disclosed to Ms Dan as required by s 309(1)(a) of the Act.

76 The cost disclosure letter given to Ms Dan also did not comply with the requirements of s 309(1)(b), (d), (f), (g), (i), (j) and (k).

77 In addition, the cost disclosure letter failed to make proper disclosure in accordance with rule 24B of the Barristers' Conduct Rules.

78 I also accept the applicant's submission that the letter was misleading in suggesting that the respondent would be performing the role of both solicitor and counsel. The letter was not misleading in requesting a deposit of 60 per cent to cover the work to be undertaken.

Professional misconduct

79 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 Council of the Law Society of NSW (at [21]).

80 As McColl JA 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 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]."

81 The applicant submitted that the respondent's conduct contravened the only statutory basis on which a barrister, directly instructed, is entitled to receive money on account of costs, and accordingly may constitute either professional misconduct or unsatisfactory professional conduct under s 498(1)(a) of the Act, and would also constitute professional misconduct at common law. It is argued that the respondent's conduct would reasonably be regarded as disgraceful or dishonourable by professional colleagues: Allinson v General Counsel of Medical Education and Registration [1894] 1 QB 750 referred to by Spigelman CJ in NSW Bar Association v Cummins [2001] NSWCA 284; 52 NSWLR 279 at 286-287 [36]-[41].

82 The applicant submitted that this conduct occurred in the course of professional practice. It is contended that it is conduct of a kind which would cause lay clients concern about the honesty of the practitioner.

83 The applicant submitted that the respondent's conduct demonstrated at the very least "reckless laxity of attention to necessary principles of honesty" referring to McCaffery at [51]. In oral submissions, the applicant contended that the respondent's conduct involved theft of the client's money, which was taken in advance on a promise of work being performed, but the work was not done and the money was not refunded.

84 The applicant further submitted that the respondent's conduct involved a reckless disregard of his professional obligations, and that it was not necessary for the Court to positively find dishonesty but that such a finding was open.

85 The respondent has not advanced any explanation for his conduct.

86 In my view, the respondent's conduct in failing to deposit moneys received from direct access clients into an account maintained in connection with his law practice is appropriately characterised as a reckless disregard of his professional obligations, in that he contravened s 252 of the Act.

87 Furthermore, the respondent's conduct in applying those moneys to his personal needs before undertaking work or rendering any bill was, in my view, dishonest. To receive money on account of costs for legal work to be performed and then apply those moneys to the payment of personal expenses before undertaking any legal work or rendering any bill, involves a very serious departure from the standard of conduct expected of a barrister.

88 The respondent's conduct was not an isolated incident. It occurred on three separate occasions between December 2011 and February 2012, relating to two clients. The fact that it occurred at a time when the respondent was under serious financial pressure is no excuse. This simply highlights that the respondent preferred his own interests to those of his clients. The respondent's conduct amounted to professional misconduct both under the Act, s 498(1)(a), and at common law, and would reasonably be regarded as "disgraceful or dishonourable" by his peers.

(2) Practising without a practising certificate

89 Paragraphs 32 to 43 of the statement of facts sets out the circumstances of the applicant's complaint that the respondent purported to represent a party involved in proceedings in the Local Court of Waverly in July and August 2012, when he was not qualified to practice as a barrister.

90 The evidence establishes that on 26 July 2012, the respondent appeared before Magistrate Milledge representing a party who was the respondent in AVO proceedings, brought against her by her former husband. The respondent did not seek leave to appear. During an adjournment of the AVO proceedings, he communicated directly with the complainant in the AVO proceedings. The respondent represented to the complainant that the complainant's former wife was his client. It appears that the complainant was unrepresented. The AVO proceedings were adjourned on that day to 30 August 2012.

91 On the next occasion (30 August 2012), the respondent again approached the complainant at the Waverly Local Court and communicated with him in terms that he was representing his former wife. The respondent also attempted to obtain access to the Court file from court staff. In answer to a direct question by the court staff as to whether he was legal counsel representing one of the parties, the respondent answered in the affirmative and stated that he was a barrister in the matter briefed by the duty solicitor.

Prohibition on practising as a barrister

92 The applicant submits that the respondent was prohibited by s 14(1) of the Act from engaging in legal practice in New South Wales, being a person who is not "an Australian legal practitioner". The expression "Australian legal practitioner" is defined as "an Australian lawyer", being a person who is admitted to practice s 5.5(a) and accordingly on the role of local lawyers maintained by the Supreme Court under s 32 of the Act, and who holds a current practising certificate: s 6(a) of the Act.

93 The prohibition on engaging in legal practice in New South Wales by a person who is not an Australian legal practitioner is not restricted to legal practice undertaken for a fee. Such a qualification to the prohibition previously arising from the words "for fee, gain or reward" was omitted from s 14(1), with effect from 2 June 2006 by the Legal Profession (Amendment) Act 2006, Sch 2[1].

94 In this case, the respondent's practising certificate for the 12 months ending 30 June 2012 was first suspended from 27 April 2012 and then cancelled on 21 June 2012. The respondent did not appeal either the suspension of his practising certificate or its cancellation. Nor did he apply for the grant of a fresh practising certificate after 30 June 2012, as would have been necessary by virtue of s 47(3) of the Act, because he had not sought to renew his practising certificate before 30 June 2012.

95 The applicant submits that the respondent was aware of the suspension of his practising certificate as from 27 April 2012 and its cancellation as from 21 June 2012, because he was notified of these matters by the applicant in writing by post and email. The respondent replied to the email notifying him of the suspension of his practising certificate on the evening of 27 April 2012, saying that he had "decided not to renew" his local practising certificate. It was submitted that the Court should infer that the respondent was aware of the need to seek to renew his practising certificate as from 1 July 2012, but had not done so. The applicant also submitted that the respondent's conduct on 26 July 2012 and 30 August 2012 cannot have been inadvertent.

96 In my view, this submission should be accepted. The respondent was undoubtedly aware that he did not hold a current practising certificate at the time he appeared in the Waverly Local Court in July and August 2012.

97 The respondent's conduct on those two occasions, albeit there is no evidence that he was appearing for a fee, misled the Court, the other party in the AVO proceedings and, it may also be inferred his purported client for whom he appeared, that he was a barrister entitled to practice and appear in the local court for a party to the proceedings.

98 The respondent has not at any time advanced any explanation for his conduct.

99 The applicant submitted that the respondent's misleading conduct was deliberate and is the antithesis of the requirements of candour and honesty expected of members of the legal profession. It argued that the respondent's conduct demonstrated that he lacked the qualities of character and trust which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner.

100 In my view, these submissions should be accepted.

101 At common law, a practitioner who purports to practice, or to hold himself or herself out as entitled to practice, without being the holder of a practising certificate may, by that fact alone, be guilty of professional misconduct: Mee Ling v The Law Society of New South Wales [1974] 1 NSWLR 490 at 497E per Hardie JA, at 498D-E and 499F-G per Reynolds JA; McCaffery at [36]-[37], [46]-[47] per McColl JA; Council of the New South Wales Bar Association v Perry [2007] NSWCA 111 at [19]-[25] per Mason P (Hodgson and Santow JJA agreeing).

102 In addition, contravention of s 14(1) of the Act by an Australian lawyer who is not an Australian legal practitioner is capable of being professional misconduct under the Act: s 21.

103 The applicant submitted that the respondent's conduct on both 26 July and 30 August 2012 was dishonourable and disgraceful and it should be found to be professional misconduct both at common law and under Pt 2.2 of the Act.

104 In my view, this submission should be accepted.

(3) Show cause events

105 Paragraphs 44 to 50 of the statement of facts relate to the respondent's failure to comply with his obligations to notify the applicant of various show cause events. The expression "show cause event" is defined in s 4 of the Act and includes becoming a bankrupt, or being served with notice of a creditor's petition and conviction for a serious offence or a tax offence. The term "serious offence" means an indictable offence, whether or not the offence is or may be dealt with summarily: s 4 of the Act.

106 The scheme of the Act in relation to "show cause events" is as follows:

(1) Where a show cause event occurs in relation to the holder of a practising certificate, the barrister is required to provide the applicant with:

(a) written notice of the show cause event, within seven days after it happened: s 67(2)(a); and

(b) a written statement explaining why, despite the show cause event, the barrister considers himself or herself to be a fit and proper person to hold a local practising certificate.

(2) Contravention of s 67(2) is professional misconduct: s 67(3).

(3) Furthermore, failure to provide notice or a written statement is a ground for cancellation or suspension of the barrister's practising certificate: s 67(6)(a). The applicant may cancel or suspend the barrister's practising certificate if, in its opinion, the barrister has failed to show in the written statement provided that the barrister is a fit and proper person to hold a practising certificate: s 67(6)(b).

(4) The applicant is required to investigate and make a determination under s 68(3) of the Act in respect of show cause events disclosed to it or of which it becomes aware. This requires a determination whether having regard to the facts and circumstances that surround, arising and in connection with, relate to or give rise to the show cause event, the barrister is or is not a fit and proper person to hold a practising certificate. Further, conditions may be imposed on the barrister's practising certificate.

107 There is also a separate obligation on practising barristers to notify the applicant of convictions. Up until 30 September 2005, this obligation arose by virtue of cl 133 of the 2002 Regulation. This required written notification within seven days of being found guilty of an offence, other than an excluded offence, of the finding and nature of the offence. Failure to notify, without reasonable cause, a finding of guilt of an offence (not being an indictable offence or tax offence) as required by cl 133 was capable of constituting professional misconduct or unsatisfactory professional misconduct: cl 137(2)(b) of the 2002 Regulation.

108 Under the 2002 Regulation, an offence of driving with the prescribed concentration of alcohol was not an excluded offence. Thus, a conviction for such an offence was required to be notified to the applicant.

109 The disclosure obligation after 1 October 2005 arises under s 55(1) of the Act, by virtue of a statutory condition of a practising certificate. Relevantly, a practising barrister must notify the applicant of a conviction for an offence that would have to be disclosed under the rules for admission to the legal profession under the Act. The notification must be within seven days of the event and by a written notice. The matters requiring disclosure under the rules for admission are matters going to suitability. Suitability matters are defined in s 9 of the Act and include:

"...

(c) whether the person has been convicted of an offence in Australia or a foreign country, and if so:

(i) the nature of the offence, and

(ii) how long ago the offence was committed, and

(iii) the person's age when the offence was committed."

110 In addition, at the time of an application for renewal of a practising certificate, a barrister is required to answer questions as to whether he or she has been found guilty of any offence, other than an excluded offence, not previously disclosed. "Excluded offences" include offences under the Road Transport legislation, with some identified exceptions, and parking offences: cl 4 of the 2005 Regulation.

111 The applicant's complaint in relation to the respondent's failure to notify "show cause events" relates to two types of events:

(1) the convictions in respect of a number of driving offences; and

(2) the service on the respondent of creditors' petitions.

Convictions for driving offences

112 Paragraphs 49 and 50 of the statement of facts, record the nature of the convictions for driving offences which the respondent failed to disclose to the applicant in a timely manner. This conduct was the subject of a report from the Professional Conduct Committee to the Bar Council dated 22 June 2009.

113 On 16 July 2009, the applicant resolved to make a complaint against the respondent pursuant to s 504 of the Act alleging that he had engaged in unsatisfactory professional conduct and/or professional misconduct in relation to his failure to notify these driving convictions, and the respondent was invited to make submissions.

114 Ultimately on 8 September 2011, the Bar Council having received a report from the Professional Conduct Committee dated 1 September 2011, resolved in respect of the complaint against the respondent by the Bar Council on 16 July 2009, that the respondent be reprimanded pursuant to s 540(2)(b) of the Act on the basis that:

"After investigation of the complaint, the Council is satisfied there is a reasonable likelihood that Costigan would be found by the Administrative Decisions Tribunal to have engaged in unsatisfactory professional conduct (but not professional misconduct), that Costigan is generally competent and diligent and that the taking of action under s 540 is justified having regard to all the circumstances of the case, including the seriousness of the conduct concerned."

115 The respondent's conduct was undoubtedly unsatisfactory professional conduct. The applicant submitted that the totality of this conduct is relevant to an assessment of the respondent's character, particularly his attitude to his legal and civic obligations, with others, as a driver on public roads. So much may be accepted, but, in my view, in and of itself, this conduct would not justify the orders sought by the applicant in these proceedings. The applicant did not contend otherwise.

Creditors' petitions

116 Paragraphs 44 to 47 of the statement of facts, relate to the respondent's failure to notify the applicant of a number of creditors' petitions which had been served on him in bankruptcy proceedings in the Federal Magistrate's Court on 29 July 2008, in November 2010 and on 14 August 2011.

117 As noted in [46] of the statement of facts, the respondent sought to explain the non-disclosure of these matters in his letter to Ms Helen Barrett, Deputy Director, Professional Conduct Committee to the Bar Council, that he was suffering under a mental illness, as yet undiagnosed and untreated, and the reason for non-disclosure was the fact that the proceedings had been settled.

118 The respondent's explanation for his conduct needs to be viewed in the light of [47] of the statement of facts. The respondent was advised by letter dated 21 March 2011 from Ms Barrett, that service on him of a creditor's petition in early 2009 was a show cause event. Notwithstanding that the obligation to disclose a show cause event of this nature had been drawn to his attention in March 2011, the respondent failed to disclose to the applicant the service of the creditor's petition on him on 14 August 2011.

119 In my view, the respondent's conduct disclosed a reckless disregard for his obligations of disclosure and a lack of candour in failing to notify the applicant that he had been served with a creditor's petition within seven days of service and in failing to disclose those matters when applying for renewal of his practising certificate for the period 2009/2010 and 2010/2011.

Conclusion and orders

120 The facts which have been established reveal, in my view, that the respondent's conduct would reasonably be regarded as "disgraceful or dishonourable" by his peers. He would not be regarded as a person of good fame and character for the purpose of admission, both because of the nature of his conduct in misleading courts and engaging in legal practice and holding himself out as a barrister when he did not have a current practising certificate, and his improper dealing with client moneys advanced on account of legal costs for legal services to be provided.

121 The respondent's conduct is relatively recent and is such that I find that the respondent is not a fit and proper person to remain on the Roll maintained by the Supreme Court of New South Wales under s32 of the Act.

122 The orders that I propose are:

(1) Declare that the respondent is guilty of professional misconduct.

(2) Declare that the respondent is not a fit and proper person to remain on the roll of persons admitted as lawyers maintained by the Supreme Court of New South Wales under s 32 of the Legal Profession Act 2004 (NSW) (the Roll).

(3) Declare that the respondent is not a person of good fame and character.

(4) Order that the name of the respondent be removed from the Roll.

(5) Order the respondent to pay the applicant's costs of and incidental to these proceedings.

123 SACKVILLE AJA: I agree with Gleeson JA.

**********

Amendments

06 December 2013 - Typo - "casual" to "causal"
Amended paragraphs: 52

06 December 2013 - Typo, 4th line - "misconduct" to "conduct"
Amended paragraphs: 81

Decision last updated: 06 December 2013