Council of the New South Wales Bar Association v Dwyer

Contravention of s 14(1)

1. Section 14(1) of the Legal Profession Act relevantly provided that a person must not engage in legal practice in New South Wales unless the person is an Australian legal practitioner. Under s 6(a), "Australian legal practitioner" was defined as an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate. Under s 5(a), "Australian lawyer" was relevantly defined as a person who is admitted to the legal profession under the Legal Profession Act. Thus, while Mr Dwyer was an Australian lawyer, he was not, after the surrender of his practising certificate on 18 March 2013, an Australian legal practitioner. Accordingly, he contravened s 14(1) if, after that time, he engaged in legal practice in New South Wales.
2. Under s 4 of the Legal Profession Act, the term "engage in legal practice" is defined to include "practise law". The expression means to engage in legal practice as a legal practitioner. A person does something as a legal practitioner if the person does something that is usually done by a legal practitioner and does it in such a way as to lead to the reasonable inference that the person is a legal practitioner. [9]
3. In general, the responsibility for and conduct of legal proceedings is the preserve of barristers and solicitors. On the other hand, merely doing something that is usually done by a barrister or solicitor, but which may be done by someone else, will not necessarily constitute engaging in legal practice. What constitutes the conducting of legal proceedings is a question of fact to be determined objectively. [10]
4. As a general rule, the giving of professional legal advice is exclusively within the province of those trained in the law and having the necessary expertise. The provision of legal advice for reward is typical of the work undertaken by a barrister and the fact of conducting litigation on behalf of a client will often incidentally involve the giving of advice. The work of a barrister when conducting legal proceedings commonly involves such things as appearances in court, preparation of evidence and advising on the gathering of evidence, advising on interlocutory processes, advice in connection with the drafting of legal and other documents, advice and participation in alternative dispute resolution procedures, advice on prospects of the proceedings and advice on the settlement of the proceedings. [11]
5. With the knowledge that he did not hold a practising certificate, Mr Dwyer engaged in legal practice between 18 March 2013 and 14 October 2013 in relation to seven different matters. In two of the matters, Mr Dwyer had been briefed before surrendering his practising certificate, but continued to act after that surrender. In relation to the other five matters, it is more likely than not that Mr Dwyer accepted briefs after he had surrendered his practising certificate. In relation to all seven matters, Mr Dwyer engaged in conduct that can fairly be described as engaging in legal practice.
6. The first matter, Lord v McMahon, involved proceedings in the Equity Division of the Supreme Court relating to a property dispute in New South Wales. Mr Dwyer was briefed by a solicitor, Mr Glenn Henniker, on or about 30 January 2012 and held a brief in that matter until 21 October 2013. The proceedings were commenced on 23 July 2013. In the period between 19 March 2013 and 14 October 2013, Mr Dwyer advised the solicitor and the client in relation to the dispute and the commencement of proceedings, conferred with the solicitor and the client and attended a site visit with them, drafted and settled a summons and supporting affidavit, reviewed correspondence received from the other parties and advised the solicitor in relation to that correspondence, advised in relation to directions hearings and appeared for the client at a directions hearing on 11 October 2013 (apparently without seeking the Court's leave to appear).
7. The second matter was Enviro Pak Pty Ltd v Green Pak Pty Ltd. In that matter, Mr Dwyer read and considered material and prepared an outline of submissions during the period from 27 March 2013 to 1 April 2013. He also conferred with a solicitor in relation to an application made in the proceedings during that period.
8. The third matter involved a dispute between Mr and Mrs Stephen Dykes and Lake Macquarie Shire Council (the Dykes Matter), in relation to which, in May and June 2013, Mr Dwyer provided legal advice to Mr and Mrs Dykes. Mr Dykes had asked Mr Dwyer to read a number of documents and a legal opinion that he had received from a solicitor. Mr Dwyer read the material and informed Mr Dykes of his opinion about the advice that had been received.
9. The fourth matter was Hills Commercial Pty Ltd v Muccillo. In that matter, on or about 12 July 2013, Mr Dwyer provided a draft written advice to Mr Michael Parasyn, a solicitor.
10. The fifth matter involved a potential claim for defective building works (the Solis Matter), in relation to which, on or about 9 August 2013, Mr Dwyer read and considered contract documents and an expert report. He provided a draft written advice to Mr Christian Solis in relation to that matter.
11. The sixth matter, Independent Waterproofing Pty Ltd ats Bakkante Constructions Pty Ltd, involved proceedings in the Equity Division relating to a dispute with an owners corporation. On 8 August 2013, Mr Dwyer accepted a brief from Michael Atkinson & Associates, solicitors, to appear on behalf of Independent Waterproofing Pty Ltd at a directions hearing on 9 August 2013. Mr Dwyer appeared at the directions hearing without seeking leave to appear. The proceedings were adjourned to 16 August 2013, when Mr Dwyer again appeared without seeking the leave of the Court.
12. The seventh matter, Pavert v Reward Homes Pty Ltd, involved proceedings in the Consumer, Trader & Tenancy Tribunal relating to damages claimed for defective building works. On or about 12 September 2013, Mr Dwyer was briefed by Michael Atkinson & Associates to appear on behalf of Mr and Mrs Kevin Pavert on 22 and 23 October 2013. Mr Dwyer entered into a fees agreement with Michael Atkinson & Associates on 3 October 2013 in which he described himself as "the Barrister" and described legal services to be provided by him. Between 12 September 2013 and 14 October 2013 inclusive, Mr Dwyer conferred with Mr Atkinson by telephone, conferred with an expert witness together with Mr Atkinson, conferred with the clients and Mr Atkinson and advised in relation to the issues in the proceedings and the prospects of success.
13. The facts briefly summarised above lead inevitably to the conclusion that Mr Dwyer conducted himself in relation to those matters as a barrister. In each of the matters, other than relating to Mr and Mrs Dykes and Mr Solis (assuming that Mr Solis was a client and not a solicitor, as to which the evidence is not clear), Mr Dwyer accepted instructions from a solicitor. Mr Dwyer described himself as a barrister in communications with the solicitors in relation to most of those matters. He also corresponded by email using the address "chris.dwyer@counsel.net.au", and that email address appeared on invoices issued by Mr Dwyer in each of the matters except in Pavert v Reward Homes Pty Ltd (in which no invoice was issued).
14. In all of the circumstances, I consider that Mr Dwyer contravened s 14(1) of the Legal Profession Act in relation to each of the seven matters. Since he had consciously surrendered his practising certificate, the conclusion is inevitable that he knowingly engaged in legal practice in relation to those matters in breach of that subsection.

Contravention of s 14(4)

1. Section 14(4) of the Legal Profession Act relevantly provided that a person was not entitled to recover any amount in respect of anything that the person did in contravention of s 14(1). The evidence before the Court leads to the conclusion that Mr Dwyer received the following amounts in respect of work done by him by way of engaging in legal practice as described above:

• Lord v McMahon: a total amount of $13,860, including GST, in respect of three invoices;
• Enviro Pak Pty Ltd v Green Pak Pty Ltd: $2,860, including GST;
• The Dykes Matter: $990, including GST;
• Hills Commercial Pty Ltd v Muccillo: Mr Dwyer issued an invoice of $2,200 including GST on 11 July 2013, and in a letter to St George Bank dated 23 September 2013, Mr Dwyer stated that a deposit of $2,372.72 into his bank account on 12 July 2013 included payment of that invoice;
• The Solis Matter: Mr Dwyer issued an invoice of $900 including GST on 9 August 2013, and in a letter to St George Bank dated 23 September 2013, Mr Dwyer stated that a deposit of $900 into his bank account on 21 August 2013 included payment of that invoice;
• Independent Waterproofing Pty Ltd ats Bakkante Constructions Pty Ltd: $1,430, including GST, in respect of two invoices.

1. The facts summarised above lead inevitably to the conclusion that Mr Dwyer recovered the amounts described in respect of work engaged in by him in legal practice. Accordingly, Mr Dwyer contravened s 14(4) of the Legal Profession Act in those respects.

Contravention of s 15(1)

1. Section 15(1) of the Legal Profession Act relevantly provided that a person must not represent or advertise that the person is entitled to engage in legal practice unless the person is an Australian legal practitioner. Between 18 March 2013 and 14 October 2013, Mr Dwyer was not an Australian legal practitioner. Nevertheless, during that time, he repeatedly represented and advertised that he was entitled to engage in legal practice, as indicated above.
2. Mr Dwyer regularly used the word "Barrister" or "Barrister-at-Law" on writing paper and email signature blocks. In particular, Mr Dwyer used those words in emails and letters of advice in relation to the matter of Lord v McMahon, which were sent to Mr Henniker from June to October 2013, and in emails and letters to Michael Atkinson & Associates reporting on the outcome of directions hearings in the matter of Independent Waterproofing Pty Ltd ats Bakkante Constructions Pty Ltd.
3. The Council additionally relies on the fact that Mr Dwyer accepted a brief to appear and appeared in the Supreme Court in the matter of Independent Waterproofing Pty Ltd ats Bakkante Constructions Pty Ltd, that he accepted a brief to appear in the matter of Pavert v Reward Homes Pty Ltd and that he issued a fees agreement to Mr Atkinson in relation to that latter matter, in which he described himself as "the Barrister". He used the word "Barrister" or "Barrister-at-Law", as well as images of people robed as barristers, on the website "sydneymediator.com.au". Finally, he used the word "counsel" in his email address chris.dwyer@counsel.net.au, which appeared on invoices issued by him to Mr Henniker and Mr Atkinson.
4. The facts summarised above lead inevitably to the conclusion that Mr Dwyer represented and advertised that he was entitled to engage in legal practice. He was not, at the relevant time, an Australian legal practitioner and, accordingly, he contravened s 15(1) of the Legal Profession Act.

Misleading the Council

1. High standards are expected of legal practitioners. In particular, honesty and integrity are central prerequisites to a right to practise law. [12] For example, an applicant for admission as a legal practitioner must be candid and act with utmost good faith in making comprehensive disclosure of issues relevant to any matter that might reasonably be regarded as touching on the applicant's fitness to become a legal practitioner. [13] Further, conduct may be contrary to the standard of conduct expected of members of a profession closely involved in the due administration of justice irrespective of whether it occurs in the course of professional practice. [14]
2. It follows that a person who, in dealings with the Council in relation to that person's position and conduct as a legal practitioner, engages in conduct that is knowingly deceptive or misleading, is not a fit and proper person to remain on the Supreme Court Roll. Such conduct is certainly capable of constituting professional misconduct, both under the statutory definitions and under the general law. A person who consciously misleads or deceives the Council in such circumstances is not a person of good fame and character.
3. The Council relies on six separate occasions during the period from March 2013 to February 2014 on which, it says, Mr Dwyer misled the Council.
4. First, on 18 March 2013, Mr Dwyer sent an email to the Council in which he said that he had not practised in New South Wales since approximately November 2012. By the email, he formally surrendered his practising certificate, with immediate effect. However, while Mr Dwyer had been living and working in Brisbane since August 2012, as he also said in his email, he had in fact engaged in legal practice in New South Wales during February 2013 in relation to the matter of Lord v McMahon. In February 2013, Mr Dwyer had reviewed an expert report and advised in relation to correspondence to be sent on behalf of the clients, foreshadowing the commencement of proceedings. That work was done on the instructions of Mr Henniker, a New South Wales solicitor, who had briefed Mr Dwyer before he moved to Brisbane. In addition, an invoice issued by Mr Dwyer in relation to Enviro Pak Pty Ltd v Green Pak Pty Ltd indicated that he had engaged in legal practice in relation to that matter on instructions from a New South Wales solicitor during the period from 22 February 2013 to 12 March 2013.
5. Secondly, on 6 November 2013, in an application for a practising certificate, Mr Dwyer stated that he had been unemployed since 10 May 2013. However, having regard to the facts summarised above, Mr Dwyer had been engaging in legal practice as a barrister in the period after 10 May 2013. It is not possible to accept that, when Mr Dwyer signed the application on 6 November 2013, he rationally believed that the statement that he had been unemployed since 10 May 2013 was true. Further, in answer to a question in the application form whether he was aware of facts or circumstances that might affect his fitness to become or remain a legal practitioner, he disclosed only that: Although I have not been officially notified by the NSW Bar Association, I understand that an investigation is being carried out to ascertain whether or not I have breached the Legal Profession Act and or the Bar Rules. I assume the investigation is to determine whether or not I have carried out the work of a legal practitioner whilst not being in possession of a current Practising Certificate. In circumstances where Mr Dwyer must have been aware that he had in fact carried out the work of a legal practitioner in the respects outlined above without holding a practising certificate since 18 March 2013, the statement was, at best, misleading.
6. Thirdly, on 25 November 2013, Mr Dwyer provided a statutory declaration to the Council in response to a request for information made under s 46(5) of the Legal Profession Act, in which he declared that there were no matters in the period after 18 March 2013, other than the matter of Lord v McMahon in which he had appeared, given advice to a solicitor, given advice to a client directly in a legal matter, conferred with a solicitor, conferred with a client, or charged or received fees for work performed. However, during the period after 18 March 2013, Mr Dwyer had in fact undertaken the work of appearing in the Supreme Court in the matter of Independent Waterproofing Pty Ltd ats Bakkante Constructions Pty Ltd, giving advice directly to the client in relation to the Dykes Matter, conferring with a solicitor in the matter of Enviro Pak Pty Ltd v Green Pak Pty Ltd and conferring with and providing legal advice to the solicitor and clients in relation to Pavert v Reward Homes Pty Ltd. Mr Dwyer had also charged and received fees as summarised above. Mr Dwyer had performed that work and received fees only a short time before making the statutory declaration. He must be taken to have been aware of all of those matters when he made the declaration. It is therefore difficult to avoid the conclusion that the statutory declaration was deliberately false.
7. Fourthly, on 3 December 2013, the Council invited Mr Dwyer to make submissions with respect to certain adverse findings that the Council considered may be open on the basis of information that it had received in connection with his application for a practising certificate. The potential adverse findings included a finding that he had engaged in legal practice after 18 March 2013 in relation to Lord v McMahon. On 20 December 2013, in response to the invitation, Mr Dwyer dealt with the work that he had undertaken in relation to the matter of Lord v McMahon. However, he did not disclose the other work described above. Although the Council's invitation did not request Mr Dwyer's response to canvass any other matter in which he may have engaged in legal practice, when considered in the context of the misleading statements and omissions in the application for a practising certificate made on 6 November 2013 and the false statutory declaration made on 25 November 2013, the failure to mention the other work in Mr Dwyer's response of 20 December 2013 exhibits a significant lack of candour on his part.
8. Fifthly, on 21 November 2013, the Council resolved to make a complaint against Mr Dwyer pursuant to s 501 of the Legal Profession Act. That complaint was modified on 5 December 2013. The substance of Ground 1 of the complaint was that Mr Dwyer had engaged in legal practice in contravention of s 14(1) of the Legal Profession Act in the period from 19 March 2013 to 11 October 2013 inclusive. In a submission made on 10 January 2014 in response to the complaint, Mr Dwyer said the following: I note [that] the period in which it is stated that I engaged in legal practice is of seven months['] duration. It is therefore important to note that during this period I did not engage in legal practice on a continuous basis. Apart from working on Mrs Lord's matter as required, I did not seek work as a legal practitioner, nor did I hold myself out as a legal practitioner. In fact, during this period I spent a large amount of time seeking employment as either in-house counsel or employed solicitor as I did not want to return to the bar at that time. That submission did not disclose the work that Mr Dwyer had undertaken in the other matters as described above. To that extent, the submission was false. For the reasons indicated above, there is no reason to doubt that the statement was deliberately false.
9. Finally, on 7 January 2014, the Council issued a further request for information under s 46(5) of the Legal Profession Act, which request followed Mr Dwyer's response of 20 December 2013 to the Council's earlier letter of 3 December 2013. The 7 January 2014 request was prompted by the Council's discovery, in St George bank statements provided by Mr Dwyer together with his response of 20 December 2013, of deposits that appeared to relate to legal work in matters other than Lord v McMahon.
10. On 16 January 2014, in response to the 7 January 2014 request, Mr Dwyer disclosed to the Council work that he had undertaken in relation to matters other than Lord v McMahon, except for Hills Commercial Pty Ltd v Muccillo and the Solis Matter. Following that disclosure, Mr Dwyer produced to the Council, in response to a notice under s 660(1) of the Legal Profession Act, a copy of a letter bearing the date 23 September 2013 allegedly sent by him to St George Bank. The copy of the letter produced by Mr Dwyer to the Council differed in significant respects from the letter of that date that he had in fact sent to St George Bank. Those differences were revealed when St George Bank subsequently provided to the Council a copy of the letter that it had received from Mr Dwyer. Significantly, in the copy of the letter produced by St George Bank, Mr Dwyer said that, in May 2013, he had: … returned [from Brisbane] to Sydney and my family and recommenced my career as a self-employed barrister. [emphasis added] The words emphasised were omitted from the copy of the letter produced to the Council by Mr Dwyer. The letter produced by St George Bank also included details of legal work that Mr Dwyer had performed in relation to Hills Commercial Pty Ltd v Muccillo and the Solis Matter. Those matters, which had not previously been disclosed to the Council, were omitted from the copy of the letter produced by Mr Dwyer to the Council.
11. Mr Dwyer has proffered no explanation for the differences between the version of the letter that he produced to the Council and the version of the letter produced to the Council by St George Bank. The only inference that can be drawn is that Mr Dwyer took deliberate steps to mislead the Council by producing to it a version of the letter that did not refer to matters of which the Council was not already aware. Mr Dwyer must be taken to have represented to the Council, falsely, that the copy of the letter produced to the Council was, in fact, a copy of the letter written to St George Bank.

Conclusion

1. A practitioner who purports to practise, or to hold himself or herself out as entitled to practise, without being the holder of a practising certificate, may be guilty of professional misconduct under the general law by that fact alone. [15] Mr Dwyer engaged in legal practice over a period of approximately seven months after the surrender of his practising certificate. He did so in relation to seven different matters on instructions from five different solicitors. His conduct in engaging in legal practice without holding a practising certificate was exacerbated by his recovery of fees in relation to six of those seven matters. The total amount of fees recovered in relation to the six matters was $22,240, including GST.
2. Mr Dwyer's conduct was further exacerbated by his representing and advertising, falsely, an entitlement to engage in legal practice and by his correspondence and dealings with solicitors and clients in relation to the seven matters. It was also further exacerbated by his appearance in the Supreme Court of New South Wales without disclosing that he was not entitled to appear.
3. In addition, Mr Dwyer misled the Council in relation to his conduct on different occasions, including occasions that involved a failure to disclose information in connection with his application for a practising certificate. Significantly, he made a false statutory declaration and must be taken to have made that declaration knowingly. His conduct in falsely representing that the copy of the letter to St George Bank that he provided to the Council was a true copy was tantamount to fraudulent.
4. Mr Dwyer's conduct in contravening the Legal Profession Act and in misleading the Council is conduct that would be regarded as disgraceful and dishonourable by his peers. Engaging in legal practice without a practising certificate undermines the system of regulation of Australian legal practitioners, the principal objective of which is to protect the public. The conclusion is inevitable that Mr Dwyer knowingly endeavoured to circumvent that system, exposing his clients to unacceptable risks. Mr Dwyer's conduct strikes at the heart of the obligation of candour that is expected of a legal practitioner.
5. Mr Dwyer's conduct demonstrates a disregard for the law and a pattern of dishonesty. It is not the conduct of a person who is a fit and proper person to remain on the Supreme Court Roll. The only conclusion open to the Court is that Mr Dwyer is not a fit and proper person to remain on the Supreme Court Roll and his name should be removed.
6. In circumstances where Mr Dwyer consents to the declarations sought by the Council, it is appropriate to make such declarations in order to reassure the public that acting as a barrister without a practising certificate will not be tolerated. [16] The Council also initially asked for an order, pursuant to s 720 of the Legal Profession Act, restraining Mr Dwyer from engaging in legal practice contrary to s 14 of the Legal Profession Act. However, that prayer for relief was not pressed by the Council, apparently because Mr Dwyer had given an undertaking not to engage in such legal practice.
7. While Mr Dwyer did not consent to an order for costs, it is appropriate that he be ordered to pay the Council's costs of these proceedings. He did not oppose that order.
8. In the circumstances, the Court should make the following orders: 1. A declaration that Christopher Charles Dwyer is guilty of professional misconduct. 2. A declaration that Christopher Charles Dwyer is not a fit and proper person to remain on the roll of persons admitted as lawyers maintained by the Court pursuant to s 22 of the Legal Profession Uniform Law (NSW) 2014 (Supreme Court Roll). 3. A declaration that Christopher Charles Dwyer is not a person of good fame and character. 4. An order that the name of Christopher Charles Dwyer be removed from the Supreme Court Roll. 5. An order that Christopher Charles Dwyer pay the applicant's costs of and incidental to these proceedings.

Endnotes

1. See Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 at [27] and the authorities cited therein.
2. The position is preserved under the Uniform Law and the Uniform Law Application Act: s 14(b) of the Uniform Law provides that a "designated local regulatory authority" (which includes the Bar Council, by force of s 11(1) of the Uniform Law Application Act) may institute proceedings for the contravention of a provision of Pt 2.1 of the Uniform Law (which Part includes the prohibition, in s 10, on an individual's engaging in legal practice unless he or she is an Australian legal practitioner); moreover, s 35 of the Uniform Law Application Act provides that a local regulatory authority may appear by barrister or solicitor before, and be heard by, any court in any matter affecting it, in which it is concerned or interested.
3. The Council of the NSW Bar Association v Franklin (No 2) [2014] NSWCA 428 at [16].
4. See A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; 216 CLR 453 at [15].
5. Ibid.
6. See New South Wales Bar Association v Cummins [2001] NSWCA 284; 52 NSWLR 279 at [36]-[56].
7. In s 497(1), the term was relevantly defined as including "unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence", and conduct of an Australian legal practitioner that "would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice".
8. A Solicitor v Council of the Law Society of New South Wales at [21].
9. See Council of the Law Society of New South Wales v Australian Injury Helpline Ltd [2008] NSWSC 627; 71 NSWLR 715 at [52]-[55]; see also (in an earlier statutory context) Kekatos v Council of the Law Society of New South Wales [1999] NSWCA 288 at [12]-[17].
10. The Council of the New South Wales Bar Association v Davison [2006] NSWSC 65 at [141].
11. See ibid.
12. Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2006] NSWSC 1338 at [57]; see also New South Wales Bar Association v Cummins at [19].
13. Jackson v Legal Profession Admission Board at [59].
14. The Council of the New South Wales Bar Association v Franklin (No 2) at [34].
15. Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407 at [101].
16. New South Wales Bar Association v Cummins at [32] and [68]-[69]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 September 2015