Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Prothonotary of the Supreme Court of New South Wales v Hendrick Jan van Es [2014] NSWCA 169
• Hearing dates: 22 May 2014
• Decision date: 05 June 2014
• Before: Macfarlan JA; Leeming JA; Sackville AJA

Decision

The Court declares that:

1. Mr Hendrick Jan van Es is not a person of good fame and character.

2. Mr Hendrick Jan van Es is not a fit and proper person to remain on the Local Roll of Lawyers of the Supreme Court of New South Wales.

The Court orders that:

1. The name of Mr Hendrick Jan van Es be removed from the Local Roll of Lawyers of the Supreme Court of New South Wales.

2. Mr Hendrick Jan van Es pay the applicant's costs of $11,000.00 in full satisfaction of the applicant's costs and disbursements.

[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 - removal from Roll of Local Lawyers - whether fit and proper person to remain on the Roll - whether person of good fame and character - attempt to cheat in Ethics examination - dishonest explanation to Bar Association - breaches of obligations of candour to Bar Association - nature and quality of conduct established present unfitness to practise
• Legislation Cited: Supreme Court Act 1970 (NSW), s 48; Supreme Court Rules 1970 (NSW), Pt 65A
• Cases Cited: A Solicitor v Council of the NSW Law Society [2004] HCA 1; 216 CLR 253; Bridges v Law Society (NSW) [1983] 2 NSWLR 361; Council of the New South Wales Bar Association v Einfeld [2009] NSWCA 255; 258 ALR 768; Council of the New South Wales Bar Association v Power [2008] NSWCA 135; 71 NSWLR 451; HealthCare Complaints Commission v Wingate [2007] NSWCA 326; 70 NSWLR 323; Prothonotary of the Supreme Court of New South Wales v Da Rocha [2013] NSWCA 151; Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325; Prothonotary of the Supreme Court of New South Wales v Leon Nikolaidis [2010] NSWCA 73; Re Davis (1947) 75 CLR 409; Smith v New South Wales Bar Association (1992) 176 CLR 256
• Category: Principal judgment
• Parties: Prothonotary of the Supreme Court of New South Wales (Claimant); Hendrick Jan van Es (Opponent)
• Representation: Counsel: V Hartstein (Applicant); B Walker SC (Respondent); Solicitors: Crown Solicitor's Office (Applicant); Dianne Burn Lawyers (Respondent)
• File Number(s): 2013/194440

Judgment

1 JUDGMENT OF THE COURT delivered by LEEMING JA: By summons filed on 26 June 2013, the Prothonotary of the Court applied for a declaration that the respondent, Mr Hendrick Jan van Es, be removed from the Roll of Local Lawyers of the Court on the basis that he is not a person of good fame and character and not a fit and proper person to remain on the Roll. The applicant contends that Mr van Es attempted to obtain an improper advantage by behaving deceitfully during the Legal Ethics for Barristers examination administered by the NSW Bar Association on 24 February 2012 and in lying to officers of the Bar Association when attempting to explain his actions.

2 Consent orders were filed with the Court on 22 October 2013 in these terms:

The Court declares that:

1. The Opponent is not a person of good fame and character.

2. The Opponent is not a fit and proper person to remain on the Local Roll of Lawyers of the Supreme Court of New South Wales.

The Court orders that:

1. The name of the Opponent be removed from the Local Roll of Lawyers of the Supreme Court of New South Wales.

2. The Opponent pay the Claimant's costs of $7,920.00 in full satisfaction of the Claimant's costs and disbursements.

3. Such further or other orders as the Court deems fit.

3 Those consent orders were propounded on an agreed set of factual premises, contained in particulars in the summons, in the following terms:

"(a) On 24 February 2012, as a candidate in the examination in Ethics for Barristers conducted by the Bar Association of New South Wales, the Opponent attempted to obtain an improper advantage by deceitfully:

(i) taking to his desk in the examination room materials which he was not permitted to use during the examination or the reading time for the examination;

(ii) referring to materials to which he was not permitted to refer during the examination or the reading time for the examination;

(iii) attempting to conceal from the invigilator, by turning them face down on his desk, materials to which he had been referring and which he was not permitted to use during the examination or the reading time for the examination;

(iv) refusing to allow the invigilator to examine the materials to which he had referred in the reading time for the examination;

(v) after leaving the examination room attempting to regain entry after concealing the prohibited material under his clothing and deceitfully inviting the invigilator to examine the materials he had brought to the examination;

(b) On 27 February 2012 at the premises of the NSW Bar Association the Opponent falsely denied to Philip Selth, Executive Director, NSW Bar Association and to Christopher D'Aeth, Director of Organisation and Development of the NSW Bar Association:

(i) that he had had unauthorised material with him in the examination room on 24 February 2012, and;

(ii) that he had done anything wrong on 24 February 2012 during his attendance at the Ethics examination conducted by the NSW Bar Association at the Bar Common Room."

4 For the reasons which follow, declarations in the form to which the parties have consented should be made.

Applicable principles

5 The application by the Prothonotary invokes this Court's jurisdiction with respect to the control and discipline of lawyers. Proceedings in the exercise of that jurisdiction are assigned to the Court of Appeal: Supreme Court Act 1970 (NSW), s 48(2)(k), Supreme Court Rules 1970 (NSW) Pt 65A r 2. The meanings of and distinction between "good fame and character" and "fit and proper person" are explained in Prothonotary of the Supreme Court of New South Wales v Da Rocha [2013] NSWCA 151 at [17]-[32].

6 This Court must itself be satisfied that the orders sought are appropriate, at the date of hearing, even though the respondent consents to removal from the Roll: Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 at [27] and the cases there cited by McColl JA. In Bridges v Law Society (NSW) [1983] 2 NSWLR 361 at 362 Moffitt P explained the reasons for the importance of dealing fully with matters of this nature: first, to recognise the public interest in the discipline and control of the profession, and to maintain public confidence that this is handled openly and fully; and secondly, to assist the Court and others in relation to any future application for readmission. Those considerations were repeated in Council of the New South Wales Bar Association v Einfeld [2009] NSWCA 255; 258 ALR 768 at [15]-[17]. It is therefore necessary to address fully the circumstances, so far as they are disclosed by the evidence.

7 At one stage senior counsel for Mr van Es seemed implicitly to invite this Court to adopt an approach whereby the record (including for this purpose the transcript of Mr van Es' cross-examination) would speak for itself: "The record of the Court otherwise contains not only the material in written form but also will contain a transcript of his testimony and that, in principle, is what this Court at some future time which may never occur, or some future occasion which may never arise, needs to have." We respectfully disagree. That course may create an unnecessary burden for those charged with determining any subsequent application for admission. Moreover, the general public interest warrants a transparent and complete approach, including our assessment of Mr van Es' testimony before this Court. As was said in Einfeld at [16]:

"When, as happens from time to time, a member of the profession so conducts him or herself as to bring disrepute on to the profession, the administration of justice and the legal system, procedures (such as this hearing) should be unquestionably complete in examination of relevant conduct. To do less may lead to a view (even if misguided) that the system operates without a full opportunity for the public examination of such wrongful conduct. This is not part of any process of punishment; rather, it is as an aspect of protecting the public and fostering the public interest by maintaining full accountability of those in the profession and involved in the administration of justice."

Factual background

8 The respondent, Mr Hendrick Jan van Es, was admitted as a Lawyer of the Supreme Court of New South Wales on 17 February 2012. He does not hold a current Practising Certificate. On 22 August 2011 Mr van Es applied for registration to sit for all three NSW Bar Association Bar examinations to be held in February 2012. His registration was confirmed on 23 August 2011 and the NSW Bar Association subsequently provided Mr van Es with details of the examination materials, including general documentation concerning examination procedure, examination dates and times and reading lists.

9 On 31 October 2011, at his request, the NSW Bar Association sent Mr van Es an email setting out the material that had been permitted to be taken into both the examinations for Evidence and Ethics in July 2011. Mr van Es had been previously advised that the examination materials and formats were under review because a new version of the NSW Barristers' Rules had recently commenced.

10 The NSW Bar Association finalised the materials for the February 2012 Ethics examination in December 2011 and uploaded the relevant information to the area of its website dealing with examinations. The information included a sample cover page for the Ethics examination and listed the materials that would be permitted in the February 2012 examination.

(a) Mr van Es attends the Ethics examination on 24 February 2012

11 Mr van Es was one of 55 candidates who presented to sit the Ethics examination on 24 February 2012. The circumstances in which Mr van Es' conduct came to notice on that day was described in an affidavit dated 1 May 2013 made by Mr Christopher D'Aeth, Director of Professional Development Department of the NSW Bar Association. Mr D'Aeth was not cross-examined. In his affidavit, Mr D'Aeth states that he read from the 'Examinations Procedure' documentation as the candidates entered the room. Mr D'Aeth also notes that the permitted material for the examination was clearly set out on the cover page of the February 2012 Ethics examination paper.

12 During the 15 minutes reading time at the beginning of the examination period, Mr D'Aeth noticed that Mr van Es had with him an unusually large bundle of loose papers, which did not look like any of the permitted materials. Mr van Es appeared to be reading and "shuffling through" the loose papers. Upon being approached by Mr D'Aeth, Mr van Es turned over and covered the loose pages to which he had been referring. When Mr D'Aeth requested that Mr van Es show him his examination materials Mr van Es refused. Mr D'Aeth then informed Mr van Es that he would need either to show him his examination materials or be required to leave the examination room. Mr van Es proceeded to collect his materials and leave the examination room.

13 Some minutes later Mr van Es sought to speak with Mr D'Aeth outside the examination room, at which time he invited Mr D'Aeth to look at his examination materials. He said "I haven't left the building". It may be inferred that Mr van Es was seeking to re-enter the examination room to sit the examination. Mr D'Aeth informed him that as he had chosen to leave the examination room he would not be permitted to sit the examination and would need to register for the next examinations scheduled for July 2012.

14 Mr D'Aeth subsequently obtained CCTV footage taken from the cameras situated at the Bar Association reception and lift area between 9.30am and 9.45am on 24 February 2012. The footage showed Mr van Es leaving the examination room, and then attempting to open a door at the end of the corridor. He then sorted through his materials, extracted some papers from those materials and placed them down the front of his trousers, pulling his jumper down over them.

(b) Mr van Es meets with Messrs Selth and D'Aeth on 27 February 2012

15 The Executive Director of the NSW Bar Association, Mr Philip Selth, wrote to Mr van Es at 12.25pm on Monday 27 February requesting that they meet during the next three weeks to discuss his eligibility to sit the July Bar exams. Mr van Es arrived at the Bar Association's reception about 35 minutes later, without an appointment, and a meeting took place with Mr Selth and Mr D'Aeth. What follows is taken from Mr D'Aeth's affidavit and detailed file note of that meeting.

16 Mr van Es provided his version of events which included his anxiety on the day of the Ethics examination, that he had suffered a "panic attack", and that he had wished to return to the examination room to participate in the examination. Mr van Es said "I did not have unauthorised material with me in the examination room and I did nothing wrong". Only after Mr van Es was alerted to the fact that CCTV footage had captured his movements once he had left the examination room on the previous Friday did he offer an explanation for having hidden the material under his clothing. The file note records the following occurring thereafter:

"Mr van Es admitted he had removed items from the bag but said that they were his study notes and that they were in his bag in the examination room and were not with him at his examination desk nor in his folder of materials. Mr Selth indicated that such behaviour in an Ethics examination raised serious questions in our mind. Mr van Es indicated that he did not regard his behaviour as being part of the Ethics examination as he had left the examination room. Mr Selth indicated that he thought such an explanation was an exercise in semantics, especially as, at the time, Mr van Es was asking to return to the examination.

Mr Selth indicated that he considered this incident a serious matter - in particular misleading a member of staff - by asking Mr Selth to review his material knowing that material had been placed under his clothes - and the lack of candour. Mr Selth also indicated that he felt the explanation just given lacked candour; was not included or offered in the earlier explanation of events. In fact, it was not until Mr Selth revealed the presence of the camera footage that any explanation concerning the material he had hidden under his clothing was offered."

17 Mr van Es was advised by Mr Selth that he would likely refuse any application by Mr van Es to sit the Bar examinations in July 2012, but that decision was reviewable by the Bar Council. Mr Selth also advised him that he should carefully consider his position before taking any further steps.

(c) Mr van Es' letter of 2 March 2012

18 In light of Mr van Es' subsequent affidavit and cross-examination, it is necessary to reproduce the entirety of a letter written by Mr van Es to Mr Selth on Friday 2 March 2012 (four days after their meeting on 27 February; the references to 26 February in the letter should be read as 27 February). The portions which are of greatest significance for present purposes are emphasised.

"To:

Philip Selth OAM

Executive Director

New South Wales Bar Association

Selborne Chambers

174 Phillip Street

Sydney. New South Wales, 2000

Dear Mr Selth,

I write to express again my sincere and unreserved apology for what occurred in February this year.

At our conference in your office on 26 February 2012, in the presence of Mr Chris D'Aeth, I gave you an outline of what occurred on Friday 24 February 2012 and I expressed my sincere apology to both you and Mr D'Aeth.

I accept that my conduct that day was misleading. Since then, I have undertaken significant reflection on my actions. I have also sought counselling about it.

I should not have concealed any document and my behaviour was not appropriate. I do appreciate that my actions were wrong and why they were wrong. I should have immediately disclosed every bit of information to you on the 26th of February 2012 at the outset of our meeting. I was reminded by you of that fact that you had obtained CCTV footage and that I was observed placing something underneath my shirt. You said you felt misled at that point, though it was certainly not my intention to do so.

I willingly came to meet with you in order for me to be frank, open and honest with you about what had occurred on 24 February 2012 at the earliest moment possible.

I did conceal what I did believe to be prohibited material in the examination room from Mr D'Aeth when asked for. On realisation in the foyer that the material I did have with me was not all prohibited material, I did attempt to mislead Mr D'Aeth into believing otherwise. Though I stated my apologies orally to you on 26 February 2012, I still am and continue to be fully and unreservedly remorseful to have misled both you and Mr D'Aeth of my poor and unbecoming conduct on that day.

I am ashamed of my actions and I appreciate and understand now that I should have immediately discussed everything in sufficient detail with you at the outset of our meeting - no matter the embarrassment or discomfort it might have caused me. I am sorry for that. As you and Mr D'Aeth are aware, I did discuss those additional matters and more detail when highlighted at our meeting.

As to my intentions for the coming months, the remainder of this year, and next year, may I say the following: I do not propose to seek to apply to sit for any NSW Bar Examinations until next year, 2013, at the earliest. I note your decision that I have forfeited any examination results as sat this year. I shall continually reflect on my actions and my ethical obligations as a person to individuals and to society as a whole.

I again apologise to both you and Mr D'Aeth and I am certain that this shameful incident will play at the forefront of my thoughts for a long time to come. I appreciate that I have caused you significant worry and concern and I hope to be in a position to make amends.

I am very sorry, Mr Selth and I would be most grateful if you could once again extend my apologies to Mr D'Aeth.

Yours sincerely,

Hendrik Jan van Es"

Procedural background

19 As noted at the outset, Mr van Es consents to the orders being made against him, notwithstanding which it is necessary for the Court to be persuaded that they should be made. Indeed, he consented to those orders some seven months ago.

(a) The hearing on 11 November 2013

20 The matter was listed for hearing before this Court on 11 November 2013. On that occasion, the solicitor appearing for Mr van Es relied on written submissions signed by her which included an unreserved apology to the Court, and the factual propositions that her client "is ashamed and he has sincere regret for what he has done" and that he "is reflecting on his behaviour with professional assistance". She sought leave to tender a letter dated 23 August 2012 which had a number of disconcerting features. It was unsigned. It was dated some 15 months prior to the hearing. It contained serious typographical errors on its face (for example, it said "My actions were satisfactory [sic] by any standard") and this Court was asked to infer that what was intended to be conveyed was an acknowledgement by Mr van Es that his actions were unsatisfactory by any standard. The hearing concluded with the following exchange:

"LEEMING JA: This is a serious matter, why should we give these pieces of paper any weight when it must be obvious to you and to him he could put on an affidavit in a conventional way if he wanted to prove these things?

BURN: We had dealt with this by consent, we did not think it was necessary to put on an affidavit at that time because it was by consent and we agreed with what the Crown--

SACKVILLE AJA: This is not ordinary civil litigation, this is the exercise of the jurisdiction of the Court at a most important time to deal with discipline and the maintenance of the high standards expected of members of the profession. Just as the opponent got into difficulties in part because he attempted to mislead on 27 February, the Bar Association and just as that reflects a departure from standards to be expected of an aspirant for a practising certificate as a barrister, that is a reflection of high standards. There are authorities that indicate what might be expected of an aspirant or an actual practitioner if matters of fact that he or she wishes to have taken into account by a court exercising the jurisdiction should be taken into account. There's a series of unsupported statements in here, some of which seem to be difficult to accept, including the proposition I read as satisfactory but you tell me is meant to be unsatisfactory. Hard to see how that's satisfactory.

MACFARLAN JA: It's for us to make findings which would justify the making of the orders and that is so notwithstanding there is consent to the orders. In that respect the position is different from ordinary civil litigation where the Court acts on consent orders. In our judgment we will be making findings based upon the evidence and it's difficult to see how this material, which is a matter of assertion by way of letter, could be taken into account to mitigate the findings [we] might make in favour of the applicant. The course that may have to be adopted is to give you an opportunity to consider this position and to obtain instructions. Do you want to do that?

BURN: Yes.

LEEMING JA: The paper you've handed to us is dated 23 August 2012, 15 months ago, the findings this Court [would] make in order to support the declarations consented to would be findings as of today. It's odd to rely upon expressions of contrition that are 15 months old.

BURN: The opponent apologises and he knows the seriousness of this."

21 The matter was adjourned, briefly, and Ms Burn obtained instructions to apply for an adjournment, to which the Bar Association did not object. The Court acceded to that course. As the presiding judge put it:

"What we have in mind doing is giving Ms Burn the opportunity to obtain instructions as there is a probability the matter would need to be adjourned to enable the opponent to put material before the Court in the proper form. There appears to be material he wishes to advance and it has not yet come forward in a proper form."

22 The presiding judge then said:

"An adjournment will be granted but your client needs to be aware of a couple of things. The Court as [it] is presently constituted and disposed, [considers that] material in the form of this letter would be given little if any weight, and the Court's view is that the tender, notwithstanding the consent that's been given, should be rejected and I do reject the tender of exhibit 1.

There is the possibility on the further hearing you would seek to re-tender it but you would do so with the cautionary note I have added."

23 There were communications between the parties and the registrar in December, when a date in March 2014 was offered, but which was not suitable to one party. Both parties agreed for the proceedings to be adjourned to 22 May 2014.

(b) The adjourned hearing on 22 May 2014

24 Notwithstanding Mr van Es' application for an adjournment, and the six months which subsequently elapsed, an affidavit was only affirmed on the morning of the hearing. It comprised the following two paragraphs:

"I continue to hold the views expressed in my letter to Philip Selth dated 2 March 2012 which is annexure "N" to the affidavit of Christopher David D'Aeth affirmed 1 May 2013.

I remain very sorry, remorseful and ashamed of my actions."

25 Mr van Es was cross-examined on his affidavit by counsel for the Prothonotary, principally by reference to his letter dated 2 March 2012. Early in his cross-examination, he said that he affirmed that "the contents of this letter in my affidavit to be absolutely correct". He accepted that he had intended to cheat in the Ethics examination by taking summaries of cases into the room. He accepted the accuracy of the substance of Mr D'Aeth's filenote of the meeting of 27 February 2012. He accepted that the explanation which he initially gave at that meeting to Mr Selth and Mr D'Aeth was false.

26 Cross-examination focussed on the sentences in the letter of 2 March that stated that when Mr Selth said he had felt misled by Mr van Es' initial explanation, "it was certainly not my intention to do so", and that he "willingly came to meet with you in order to be frank, open and honest with you about what had occurred on 24 February 2012 at the earliest moment possible".

27 Mr van Es maintained that he had intended to be "frank, open and honest", but had changed his intention during the meeting.

"Q. When you went to meet with Mr Selth and Mr D'Aeth you did not go there with the intention of being frank, open or honest did you?

A. I did go there with the intention.

Q. At what point did that intention change?

A. To become not frank, open and honest, I would assume - I did go there with the intention to be frank, open and honest.

Q. You were not, you agree with that don't you?

A. I agree initially and on the onset I was not honest, open and frank.

...

Q. The end of paragraph 4 in annexure N on page 32 of the affidavit, the last sentence says you said, "You felt misled at that point, though it was certainly not my intention to do so." I want to suggest to you that it was your intention to mislead Mr Selth and Mr D'Aeth?

A. No it was not. Alternatives do exist.

Q. What do you say is the alternative?

A. That I felt at the time I was with Mr Selth, asked to sit down, I felt Mr Selth, being in a very overpowering position, I felt I was in a very belittled position and by that very nature I felt as if I was there with my tail between my legs in a corner. That's the alternative which did change the intention."

28 There followed this exchange between Sackville AJA and Mr van Es:

"Q. Why do you say in your letter it was not your intention to mislead him?

A. Because my intention on the onset to go to Mr Selth and Mr D'Aeth was to be open, honest and frank. Initially that was my initial intention at that point in time. That intention did change by my actions of not being honest, open and frank and thereafter it went back to my correct and initial intention of what it should have been and always should have been, open, frank and honest.

Q. Do you consider that what you have said in that last sentence of the fourth paragraph is accurate?

A. It was never my intention to mislead Mr Selth but the facts remain I did mislead Mr Selth knowingly."

29 Despite the length of the exchange, it is desirable to record in full Mr van Es' reconciliation of his evidence about the meeting and his confirmation of what was said in his letter:

"Q. ... I have some difficulty in understanding how you could have actually misled Mr Selth in the circumstances of that interview on 27th and yet not have intention to mislead him as you appear to say in the last sentence of the fourth paragraph. My question invited you to explain how that could be so?

A. I did go there with the intention to be honest, open and frank. That was my ultimate intention. It was my responsibility, my duty as I saw it at that point in time. This was even so up until the point that I was asked to come in to Mr Selth's office by Mr D'Aeth. Mr Selth he came out of his office to his table and he said please sit down in a very overpowering tone. That tone never changed. I felt very nervous in the way that he was approaching the situation. By my feelings I did back down as it were and as I have explained to counsel I felt like I was being put into a corner with a tail between my legs. I didn't know which way out to go. I did have the dishonesty at that point in time get the better of me over my initial intention and it was not till later after the CCTV footage at some point I realised regardless of the consequences on me I'm here for a reason. I should have been honest, open and frank. It was and still is in hindsight thinking about this a very embarrassing situation and the position I was put in. But be it Mr Selth or any other member of society I realised no matter how embarrassed I am, no matter the detriment or the consequences it's my - I felt it as my duty really. I came there to be open honest and frank. I started down the wrong path afterwards by misleading Mr Selth and in the presence of Mr D'Aeth and I came to a point that almost I felt I had no choice. No other way. How do I get out of here. Well honesty is the best policy. I had to go back to my initial intention to be open, honest and frank and that's exactly what occurred afterwards. That's exactly what I mean here. It was not my intention to do so. I wasn't my intention to be dishonest and misleading.

Q. Before you went into the room?

A. Yes it was a big, it was a big - not as big as this but it was a big room. Yes it wasn't and it wasn't my intention at all but the fact is it did happen. I was dishonest. I did mislead Mr Selth.

Q. Looking now at that last sentence of the fourth paragraph written on 2 March after these events, do you now state or assert that that is an honest sentence?

A. The sentence I think, I think I understand. The sentence wasn't in reference to the CCTV footage. Yes, sorry. Part of the sentence was you said you felt misled at that point, that did occur after mention was made of the CCTV footage. The part you're also referring to your Honour, though it was certainly not my intention to do so that statement wasn't just meant with in respect to or wasn't mean to in respect to the CCTV footage. That statement was with respect as I've explained to you. My intention was when I came there not to mislead Mr Selth. I would further point your Honour yes when reading that in the whole sentence and with reference to the CCTV footage and with reference to the CCTV, with reference to the CCTV footage that would be an incorrect statement. That's wrong. Because, because simply I didn't mention and wasn't - I didn't come back to my intended purpose of being open, frank and honest until after it was told about the CCTV and before that I was dishonest."

30 Mr van Es said the reason that he had supplied no references from family, friends or professional colleagues was because he thought that the members of this Court would be the best judges of his character. He clarified that he had been counselled by friends, his mother, and some professional colleagues, but not by a professional counsellor.

31 Mr van Es was not cross-examined about the reason for the delay in providing his affidavit.

32 Senior counsel for Mr van Es made brief submissions. He emphasised that those submissions "ought not to be understood as canvassing to the slightest degree the unequivocal and complete acceptance of the matters conveyed by the consent to the orders". He said that his client did not and does not deny the misleading of officers of the Bar Association, nor that it was deliberate.

Consideration

33 In our view, this is a clear case. The only findings available on the uncontested evidence are that there was (a) a deliberate attempt to cheat in the Bar Association's Ethics examination, (b) a deliberate attempt to deceive a senior officer of the Bar Association following Mr van Es' exclusion from that exam, (c) a lack of candour in explaining what had occurred to the Executive Director of the Bar Association and (d) a failure, which is ongoing, extending to Mr van Es' evidence in this Court, to appreciate the obligations of candour owed by Mr van Es. The evidence amply supports the declarations as particularised. In accordance with Smith v New South Wales Bar Association (1992) 176 CLR 256, we confine our findings of professional misconduct to those which were particularised and are described in [2] and [3] above. Our findings concerning the evidence that Mr van Es gave to this Court are relevant only to respond to Mr van Es' contention that his particularised conduct is not, or at least is no longer, a fair reflection of his character.

34 Mr van Es has been shown to have acted dishonestly on two separate occasions. On the first, he attempted to gain an improper advantage in order to satisfy the requirements for the issuing of a practising certificate as a barrister. On the second, he attempted to mislead the Bar Association. On both occasions, he said things that were not true to his knowledge.

35 Mr van Es' dealings with the Bar Association took place three days after the examination had been held. In the meantime, he had the opportunity to reflect on his actions in and outside the examination room. Nonetheless, he persisted in his course of dishonest conduct.

36 We have taken into account Mr van Es' expressions of remorse in his letter of 2 March 2012 which was the subject of his affidavit. Mr van Es described his conduct as "misleading". His conduct was in fact deceitful, and repeatedly so. Even in his apology, Mr van Es confined his shame and remorse to what had occurred on the day of the examination, rather than extending to what occurred at the meeting on 27 February 2012. That letter was sent after Mr van Es had been given the opportunity to view the incriminating CCTV footage, the existence of which had been drawn to his attention in the meeting with Mr Selth and Mr D'Aeth on 27 February 2012. Nevertheless, we are satisfied from Mr van Es' testimony in this Court that he now appreciates that it was very wrong of him to have done what he did.

37 However, it is necessary to say something more about Mr van Es' obligation of candour, which we are not satisfied, even today, he fully appreciates or understands.

38 Mr van Es owed an obligation of candour in his dealings with the Bar Association: see A Solicitor v Council of the NSW Law Society [2004] HCA 1; 216 CLR 253 at [30]. He is also obliged to be candid with the Court.

39 The importance of the obligation of candour may be seen in Re Davis (1947) 75 CLR 409, where Latham CJ's and Dixon J's judgments contain some measure of sympathy for the circumstances in which Mr Davis committed a crime years before, but none at all for his failure to disclose it in the course of his application. The obligation emphasised in Re Davis has not diminished subsequently: see HealthCare Complaints Commission v Wingate [2007] NSWCA 326; 70 NSWLR 323 at [43] and Council of the New South Wales Bar Association v Power [2008] NSWCA 135; 71 NSWLR 451 at [16]. That obligation was breached, repeatedly, by Mr van Es, on the morning of the Ethics examination and again in his dealings with senior officers of the Association. He did not tell the whole truth; in fact he actively and repeatedly sought to conceal the truth by telling lies.

40 Moreover, Mr van Es' conduct at the meeting calls into serious question his statement in the letter, reproduced above, that he had been seeking to be "frank, open and honest" at the meeting. Indeed, until the CCTV footage was disclosed, his conduct was the opposite of "frank, open and honest". Ultimately, he admitted that he had been dishonest.

41 We have carefully considered Mr van Es' evidence in this Court. His counsel described his statements as to his intention as "idiosyncratic". Understandable as that advocacy was, it seriously understates the concerns we share arising from Mr van Es' testimony.

42 It is to be recalled that by the time he gave evidence Mr van Es was squarely on notice of the case against him, of the concerns of this Court, of the inevitability of cross-examination, and of the nature of the obligations of officers of the Court. He had leading senior counsel appearing for him (who had only relatively recently been retained). He was better placed than most people to receive advice as to his professional obligations.

43 Mr van Es gave evidence to the effect that he now understood the gravity of his conduct. However, having heard that evidence, we are not satisfied that Mr van Es fully understands what being candid means or requires.

44 The plainest example was his explanation of the sentence in his letter, "You said you felt misled at that point, though it was certainly not my intention to do so." Mr van Es' consistent account in his evidence in this Court was that notwithstanding that he had given a false explanation to Mr Selth and Mr D'Aeth, and had been told that his conduct had been captured on CCTV, and that Mr Selth had said he felt misled, the fact that (so he said) he had arrived at the conference with an intention to be frank, open and honest - being an intention which was not reflected in what he said, and which was immediately replaced by an intention to deceive - justified the correctness of the letter.

45 There are, as we see it, precisely two possibilities. The first is that Mr van Es fully intended to deny any wrongdoing until he was told that the CCTV had recorded his placing material under his shirt. If that were so, his letter of 2 March 2012 would have been deceitful, and his evidence to this Court false.

46 The second is that Mr van Es had the intention of being frank, open and honest with Messrs Selth and D'Aeth when he arrived at the meeting, but almost immediately changed that intention because of what he perceived to be Mr Selth's overpowering tone. He then was concededly dishonest, his dishonesty "getting the better of me over my initial intention" (to use his language) until confronted with fact that there was CCTV footage, at which time he determined to be truthful. That accords with his evidence to this Court. Although that evidence might appears to be self-serving, and improbable, there is the countervailing consideration that its very improbability means that it reflects Mr van Es' sincere belief as to what occurred more than two years ago.

47 It was not put to Mr van Es that his evidence to this Court was false, and it would be wrong to proceed on that basis: cf Smith v New South Wales Bar Association. We accordingly proceed on the basis stated in his evidence. That evidence fails to persuade us that he appreciates the obligations of candour owed by an Australian lawyer to a court.

48 Even on the account most favourable to Mr van Es, it is impossible to conclude that the statement that it was "certainly not my intention" to mislead Mr Selth was "absolutely correct", as he asserted to this Court it to be. On that account, although he did not enter the meeting intending to mislead, he did intend to mislead Mr Selth after the meeting commenced (when he felt "belittled" and "with my tail between my legs" and when his dishonesty "[got] the better of me over my initial intention"). The long explanation given by him which we have reproduced above suggests that Mr van Es continues to think that by taking an improbably technical and literal approach to the words he uses, he can comply with his obligations of candour.

49 Because it went squarely to the conduct which gave rise to the proceeding, this example was the focus of most attention. But it was not an isolated instance. For example, Mr van Es explained that a sentence in his letter, which was plainly intended to be exculpatory, "I have also sought counselling", was to be read in a special way, contrary to its ordinary meaning:

"Q. Who did you seek counselling from?

A. I saw sought from my friends, I sought counselling from legal friends as well, also that of my mother included. But specifically a counsellor as counsel is referring to, no I have not, not a counsellor but I have sought counselling from those that I can relate to, both directly and objectively."

50 To similar effect, Mr van Es made the submission in writing that "The Opponent is reflecting on his behaviour with professional assistance". It is very difficult to see how that submission, which was only qualified when brought to Mr van Es' attention after his cross-examination, could ever have fairly described his position.

51 As at today's date, the Court concludes that Mr van Es is not a person of good fame and character and that he is not a fit and proper person to remain on the Roll. We therefore make the orders to which the parties consented, the final order (as to costs) reflecting a further agreement in light of the additional hearing.

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Decision last updated: 05 June 2014