Clyne v Bar Association

Clyne v Bar Association - [1960] HCA 40 - HCA 1960 case summary — Zoe

[5]

With regard to the jurisdiction of the Supreme Court, it is sufficient to refer to Ziems v. The Prothonotary of the Supreme Court of N.S.W. [1] . The words "fit and proper person" are the words used in the Charter of Justice of 1823, which issued under the authority of the Imperial statute 4 Geo. IV, c. 96, and by which the present Supreme Court of New South Wales was constituted. Clause 10 of the Charter provided for the admission of persons to practise in the Court. It empowered the Court to approve, admit and enrol persons who had been admitted at Westminster, Dublin or Edinburgh "to act as well in the character of Barristers and Advocates as of Proctors, Attorneys and Solicitors in the said Court". Persons so admitted were authorized "to appear and plead and act for the suitors of the Court, subject always to be removed by the said Court from their Station therein, upon reasonable cause". It was further provided that if there should not be a sufficient number of such persons in the Colony competent and willing to appear for the suitors of the Court, then the Court might admit other "fit and proper persons" according to such general rules and qualifications as it might make. In Ziems's Case [1] Kitto J. said: "The issue is whether the appellant is shown not to be a fit and proper person to be a member of the Bar of New South Wales. It is not capable of more precise statement. The answer must depend upon one's conception of the minimum standards demanded by a due recognition of the peculiar position and functions of a barrister" [2] . Since 1835 barristers in New South Wales have, by virtue of a rule made under s. 16 of 9 Geo. IV, c. 83, constituted, as in England, a separate and distinct branch of the legal profession. The respondent to this appeal, the Bar Association of New South Wales, is a voluntary association of barristers, which was incorporated in 1936. It exercises supervision over the conduct of members of the Bar, and lays down rules and decides questions of professional conduct and etiquette. It is recognized by the Supreme Court as the body which represents the Bar, and it is heard by counsel in matters coming before the Court in which the status or conduct of a member of the Bar is in question.

[7]

In the proceedings with which we are immediately concerned, the appellant's client was a man named Jacombe, who with his wife (or reputed wife - the reason for this alternative will appear later) had come from a foreign country and settled in Australia in 1954. They had one child, a girl aged about twelve years. They appear to have brought with them money or property of very considerable value: whether the whole of this belonged to Mr. Jacombe or some of it to Mrs. Jacombe (as we will call her) has been a matter of violent controversy between them. The pair were not on good terms in 1956, and in that year Mrs. Jacombe left their home, but returned some three weeks later. Towards the end of August 1958 Mr. Jacombe was found with a woman in circumstances strongly suggesting adultery, and he does not appear to have denied at any time that he committed adultery. Mrs. Jacombe left the home for the second time on 2nd September, and on 17th September commenced proceedings for divorce. Then followed what can fairly be described as an orgy of litigation. The number of proceedings pending in December 1958 has been variously stated at figures lying between twenty and twenty-seven, but, apart from the four proceedings which are relevant in this case, most of these had been initiated by Mr. Jacombe. Of those four proceedings the first was a suit for divorce on the ground of adultery. The second was a suit in equity for an account in respect of certain moneys alleged to belong to Mrs. Jacombe. The third was a suit under s. 66G of the Conveyancing Act, 1919-1954 (N.S.W.), which contains provisions for the partition or sale of real property held in co-ownership. The subject matter of this suit was a property known as Lynton Manor, the legal title to which stood in the joint names of Mr. Jacombe and Mrs. Jacombe. The fourth was an application by Mrs. Jacombe for alimony pendente lite in her suit for divorce. This was, of course, not really an independent proceeding but an incident of the suit for divorce. In the prosecutions about to be mentioned, however, it was treated as a separate substantive proceeding. In fact the application came on before the Registrar in Divorce on 27th November 1958, when it was adjourned to 17th February 1959, Mr. Jacombe being ordered to pay alimony and maintenance during the adjournment at the rate of £36 per week.

[20]

The fifth and last of the accusations made against Mr. Mann was that he was conducting on behalf of his client, and without expectation of receiving any payment directly from her, proceedings which he knew to be hopeless. It could not, of course, and was not, pretended that the divorce suit, or the application for alimony pendente lite, was frivolous or vexatious. Nor could it be legitimately pretended that the suit under s. 66G of the Conveyancing Act was of that character. Mrs. Jacombe was clearly prima facie entitled to an order under that section. The appellant said that this suit was vindictive. There is no real reason for saying that Mrs. Jacombe was inspired by vindictive motives in bringing that suit: the marriage had been broken up, and the best thing to do with the large matrimonial home would seem to be to sell it and divide the proceeds. In any case, it is obviously not misconduct for a solicitor to act for a client who has a perfectly good cause of action but is inspired by ill-will towards the defendant. The appellant also said that the suit under s. 66G could not end in any advantage to Mrs. Jacombe because, when Lynton Manor was purchased in their joint names, he had himself provided one half of the purchase money, and had lent the other half to Mrs. Jacombe. Lynton Manor was expressly excluded from the operation of the deed of release which will have to be mentioned in a moment, and which expressly refers to "her interest in the freehold property known as Lynton Manor", and to "her one-half interest as joint tenant in the freehold property known as Lynton Manor", but what Mr. Jacombe suggested was that, if Lynton Manor were sold, he would be entitled to one half of the net proceeds, and, although Mrs. Jacombe would be entitled to the other half, he had a claim against her for money lent which would leave her with nothing as a result of the sale. In relation to this matter, there are three things to be said. First, the appellant adduced no evidence that Mr. Mann knew anything of Mr. Jacombe's allegation that Mrs. Jacombe was indebted for money lent in connexion with Lynton Manor. Secondly, if Mr. Mann did know of this allegation, he might well have had instructions which led him to doubt whether the allegation was well founded. Thirdly, if Mr. Jacombe's allegation was well founded, Mrs. Jacombe might nevertheless, if Lynton Manor were sold, well derive a very substantial benefit from an increase in the price received over the price originally paid for the property. It was a thoroughly disgraceful thing for the appellant to assert publicly that, in and about the suit under s. 66G, Mr. Mann was conducting, merely in order to make costs for himself, litigation which he knew could not result in any benefit to his client.

[22]

The appellant was not content with building the baseless fabric which has been described. He adorned it by extravagant characterizations of the most offensive and damaging nature. A number of objectionable passages in his opening address are set out in full in the judgment of Ferguson J. We need refer only to a few short passages. Early in his opening he said: "The essence of the charge against the defendant is he is using his own client as an instrument of blackmail against a wealthy man in the hope of extracting money". After asserting that the defendant was in financial difficulties, and referring to the equity suit, he said: "This suit was brought utterly without any foundation or responsibility". He then said: "The alimony order which has already been made we will establish was procured by fraud upon an affidavit prepared by the defendant and with his knowledge sworn by Mrs. Jacombe, an affidavit which was false". The proposals made by Mr. Jacombe in his letter of 6th September 1958 were, he said, "offers which no responsible solicitor could have failed to advise his client to accept". Referring to the payments into Mrs. Jacombe's bank account, he said: "Those moneys were paid to Mrs. Jacombe in such a way that she became a tool in the hands of the defendant for the purpose of bringing proceedings against a wealthy man". This was an accusation of the grossest possible professional dishonesty, and it was deliberately made without the slightest foundation. "In conclusion" he said that "all the difficulties between the informant and his wife can be settled on a basis that is fair and equitable if Mrs. Jacombe had the advice of an independent and reputable solicitor". Mr. Mann is a solicitor of forty years' standing, and the suggestion that he was not an independent and reputable solicitor was entirely without foundation. Finally he said: "In conclusion, this is an informant who is regarded by the defendant as the goose most likely to lay a large number of golden eggs if it is squeezed".

[27]

As the learned judges of the Supreme Court have said, a member of the Bar enjoys great privileges both de jure and de facto. In particular his privilege in relation to defamatory statements made by him in court is not qualified but absolute. It is perhaps worth while to quote yet again the oft-quoted words of Lopes L.J. in Royal Aquarium and Summer and Winter Garden Society v. Parkinson [2] . His Lordship said: "This "absolute privilege" has been conceded on the grounds of public policy to ensure freedom of speech where it is essential that freedom of speech should exist, and with the knowledge that Courts of justice are presided over by those who from their high character are not likely to abuse the privilege, and who have the power and ought to have the will to check any abuse of it by those who appear before them" [3] . The last thing we would wish to do would be to say anything which might be thought to curtail this freedom of speech, which public policy demands. Cases will constantly arise in which it is not merely the right but the duty of counsel to speak out fearlessly, to denounce some person or the conduct of some person, and to use such strong terms as seem to him in his discretion to be appropriate to the occasion. From the point of view of the common law, it is right that the person attacked should have no remedy in the courts. But, from the point of view of a profession which seeks to maintain standards of decency and fairness, it is essential that the privilege, and the power of doing harm which it confers, should not be abused. Otherwise grave and irreparable damage might be unjustly occasioned. The privilege may be abused if damaging irrelevant matter is introduced into a proceeding. It is grossly abused if counsel, in opening a case, makes statements which may have ruinous consequences to the person attacked, and which he cannot substantiate or justify by evidence. It is obviously unfair and improper in the highest degree for counsel, hoping that, where proof is impossible, prejudice may suffice, to make such statements unless he definitely knows that he has, and definitely intends to adduce, evidence to support them. It cannot, of course, be enough that he thinks that he may be able to establish his statements out of the mouth of a witness for the other side. This was explained to the appellant, who should have known it before, by Manning J. in certain proceedings in April 1957, to which we shall refer in a moment.

[35]

That the position of an attorney is as we have stated it above appears to have been recognized long ago. It is so stated in Bacon's Abridgement and in Hawkins, and these authorities are cited in Russell on Crimes, 10th ed. (1950) vol. 1, p. 381 for the proposition that "a solicitor, when retained, may lawfully prosecute or defend an action, and lay out his own money in the suit ". In charging a jury in Ladd v. London Road Car Co. [1] the Lord Chief Justice (Lord Russell of Killowen) said: "In reference to the subject of speculative actions generally, I think it right to say, on the part of the profession and the class of persons who were litigants in such cases, that it was perfectly consistent with the highest honour to take up a speculative action in this sense - viz., that if a solicitor heard of an injury to a client and honestly took pains to inform himself whether there was a bona fide cause of action, it was consistent with the honour of the profession that the solicitor should take up the action." After observing that if it were not so, the wrongs of the "humbler classes" might go unvindicated, he said: "Justice would very often not be done if there were no professional men to take up their cases and take the chance of ultimate payment; but this was on the supposition that the solicitor had honestly satisfied himself by careful inquiry that an honest case existed." This statement was approved by the Court of Appeal in Rich v. Cook [2] . The whole position is admirably put by Ostler J. in Sievwright v. Ward [3] to which the appellant himself referred us. His Honour said: "If a solicitor (or a partner of a firm of solicitors) has honestly investigated a client's case, and honestly come to the conclusion that the client has a good cause of action or a good defence to an action, then, so long as he makes no bargain with his client to take a share of the proceeds, he does not, by advancing money for disbursements and by conducting the case without having received any payment on account of his costs, commit the wrong of either champerty or maintenance. I think further that, whether the solicitor does this without any prior agreement with his client, or whether he makes a prior agreement either that in any case he shall be repaid such costs and disbursements, or that he should be paid only out of the proceeds of the suit, and that if there are no proceeds the solicitor will bear the loss, the result is the same: the solicitor would be guilty of no wrong. To hold otherwise would be against the public interest" [4] . Then, after citing Ladd's Case [1] and Rich v. Cook [2] , his Honour said: "In the statement quoted it is said that solicitors may lawfully take the chance of ultimate payment. In many cases the solicitor must know the client to be so poor that unless the action succeeds he will never be able to pay the costs, and the only chance he has of recovering them is out of the proceeds of the judgment. It is the taking of that chance which, in my opinion, the Court of Appeal has said is not only lawful, but consistent with the highest professional honour" [1] .

At a glance

Court

Decision date

Before

Source

Judgment (38 paragraphs)

Parties