COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION v
Mark Andre John PERRY
JUDGMENT
1 MASON P: The claimant seeks declarations that the opponent is guilty of professional misconduct in a number of specified instances. It also claims a declaration that the opponent is not a fit and proper person to remain on the roll of local lawyers of the Supreme Court of New South Wales, an order that his name be removed from that roll, an order restraining him from practising as a barrister in contravention of s 14(1) of the Legal Profession Act 2004 and costs. The nub of the complaint is that the opponent practised as a barrister without holding a practising certificate. The principles are discussed in Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470.
2 The opponent was first issued with a practising certificate entitling him to practise as a barrister on 3 August 2000. Certificates are renewable annually and the opponent thereafter sought and obtained annual practising certificates, the last one expiring on 30 June 2005. Since the Bar Association had not received an application for renewal, letters of advice were sent to the opponent by the Association in June and July 2005.
3 A letter of 1 July 2005 included a reminder that it was a breach of the Legal Profession Act 1987 to practise without holding a current practising certificate or to act or hold oneself out as a barrister without holding a current practising certificate.
4 The opponent was served with the process in these proceedings and he has appeared in person today. He has indicated that he is aware of the terms of the claimant's submissions. He has made a statement which has been transcribed indicating his response to the allegations made against him. He indicated there were reasons that in part may have informed his conduct but, and I make no comment either way about this, he has chosen not to elaborate them. He has indicated in effect that he does not oppose the relief that is sought.
5 The evidence shows that the opponent has engaged in practice as a barrister and also represented his entitlement to do so after 30 June 2005 notwithstanding that he had not sought or obtained a current practising certificate. The evidence is in the form of two affidavits of Mr M J Smith, a solicitor from the firm, Smith Reid, and an affidavit of Ms R McDougall, the claimant's solicitor, annexing copies of tax invoices issued by the opponent to the law firm, Vardanega Roberts, for work purporting to be done by him in the capacity as a barrister.
6 Mr Smith regularly briefed the opponent as a barrister over the period 2002 to September 2006. He first learnt that the opponent did not have a current practising certificate when informed of this by the Bar Association in September 2006. In June 2005 the opponent was briefed by Mr Smith to give advice to a client of Mr Smith, identified as "AF", who wished to claim under the Family Provision Act 1982. There were conferences in the matter in which the opponent gave legal advice on 4 August 2005 and 1 September 2005. The opponent rendered a memorandum of fees to the solicitor on 1 September 2005. He charged for his services at the conferences at the rate of $300 per hour. The opponent was paid on about 15 September 2005.
7 In September 2005 the opponent was briefed by Mr Smith to give advice to another client, identified as "SI P/L", who was involved in a commercial dispute. Advice in conference was provided by the opponent in September 2005. The opponent rendered a memorandum of fees to the solicitor on 19 September 2005 charging his services at the above rate. The memorandum was paid in part.
8 The two memoranda of fees mentioned above were rendered in the opponent's name without any attribution as to his professional status. Nevertheless, the services were provided in the capacity of a barrister and the solicitor obviously understood that they had been provided on this basis.
9 In July 2005 the opponent was briefed by Mr Smith to advise and appear for two clients identified as "SCB" and "FF P/L" who were defendants in proceedings in the District Court. As the matter developed, the opponent was briefed to draw and settle pleadings, settle correspondence and give advice as to matters concerning the litigation. The opponent appeared in the District Court at a status conference and on 10 November 2005 signed short minutes of order as "counsel for the defendant".
10 The opponent issued two memoranda of fees, one dated 24 February 2006 in the sum of $2695 for conferences and court appearances between 28 August 2005 and 9 December 2005, the other dated 3 May 2006 in a sum of $2365 for conferences, drafting pleadings, court appearances and a memorandum of advice for the period February to May 2006. These memoranda are headed "Mark Perry Barrister". The memoranda are addressed to the client c/- Smith Reid and were subsequently paid, according to the client.
11 The opponent was briefed by Mr Smith to give advice to another client in a lease matter. He attended Mr Smith's office for a conference in November 2005 for which he subsequently rendered a memorandum of fees that Mr Smith paid from his office account. That memorandum of fees is headed "Mark Smith Barrister".
12 Ms McDougall wrote to Vardanega Roberts asking them to produce any tax invoices issued by the opponent for the period 1 July 2005 to 18 September 2006 for work purporting to be done by the opponent in his capacity as a barrister. Nine invoices were forwarded spanning a period from 12 September 2005 to 9 June 2006. They all relate to work done as a barrister during the period in which the opponent has not held a practising certificate. The work includes participation in conciliation and arbitration conferences or an arbitration conference at the Workers Compensation Commission and drafting court process. Most of the memoranda describe the opponent as a barrister or barrister at law; all appear to have been paid.
13 The evidence supports the detailed declarations that the opponent proposes to be made in the amended summons. All of the work done by the opponent was done in New South Wales. Each of the tax invoices or memoranda of fees referred to above shows the opponent's address as either a post office box at Rozelle or a residence at Rozelle.
14 On 11 September 2006 the Bar Association wrote to the opponent advising him that information had been provided to it suggesting that he had been practising without being the holder of a practising certificate. The opponent's attention was drawn to ss14-16 of the Legal Profession Act 2004. The letter sought an undertaking.
15 The opponent replied by email dated 18 September 2006 acknowledging receipt of the letter and confirming that he undertook not to engage in legal practice in New South Wales or to represent himself as a barrister unless and until he has obtained a practising certificate.
16 The Legal Profession Act 2004 commenced on 1 October 2005 replacing the Legal Profession Act 1987. The opponent is on the roll of local lawyers under the 2004 Act and is taken to have been admitted under that Act on the day on which he was admitted as a legal practitioner under the 1987 Act (see the 2004 Act, sch 9, cll 5 and 6).
17 The opponent's obligation to have applied for a practising certificate for the twelve month period commencing on 1 July 2005 arose under the 1987 Act. Section 25 of the 1987 Act relevantly provides:
25. Requirement for practising certificate: