HER HONOUR: By summons filed electronically with the Court on 6 August 2021, the Council of the New South Wales Bar Association seeks injunctive orders against the defendant, Michael Rollinson. Those orders are sought pursuant to Part 9.6 of the Legal Profession Uniform Law (NSW) No 16a of 2014.
In support of the summons, the Bar Council has read an affidavit of Andreas Heger sworn on 5 August 2021, producing exhibit AH-1, and a further affidavit of the same deponent sworn on 12 August 2021 and producing exhibit AH-2.
Mr Rollinson has appeared before the Court but principally to confirm the submitting appearance which he filed on 10 August 2021. He has given the Court some information about the circumstances in which certain events occurred, and I will return to that shortly.
Turning, firstly, to the evidence.
The deponent of the affidavits upon which the Bar Council relies is the Executive Director of the NSW Bar Association, and he is authorised to make an affidavit on behalf of the Council of the NSW Bar Association ("Bar Council").
Mr Heger, in his affidavit of 5 August 2021 set out the background circumstances which applied to the application by the Bar Council for the injunction against Mr Rollinson.
In short, the background to these events is the failure of the defendant to fully renew his practising certificate as a barrister in New South Wales, such failure to renew having the effect that he, as at the end of the practice year 30 June 2021, ceased to hold a current practising certificate and was, as a consequence, unable to practise as a barrister in this jurisdiction or to hold himself out to be a barrister in this jurisdiction. Mr Heger has provided evidence of the circumstances surrounding those events.
On 2 June this year Mr Rollinson informed the Bar's Certification Officer that he had completed his practising certificate renewal form online but was at that time unable to pay the full fees which were required to be paid to permit renewal of his practising certificate.
On 29 June 2021 Mr Rollinson was informed by the Bar that his renewal application had been submitted and he would receive a practising certificate in due course. That is an automated email which would be familiar to anyone who has sought to renew a practising certificate through the Bar Association online.
At that time the defendant still had not paid the full and necessary fees and, as a consequence, the practising certificate which he had held up until the end of the financial year lapsed at midnight on 30 June 2021.
In view of the failure of the defendant to pay the fee prior to the lapse of his existing practising certificate, the Bar's Certification Officer emailed Mr Rollinson 2 July 2020 indicating that the Bar could not issue a practising certificate and notifying Mr Rollinson very clearly that he would contravene the Legal Profession Uniform Law if he practised or held himself out to be a barrister.
The Certification Officer further contacted Mr Rollinson on 8 July 2021 requesting bank details so that the part payment could be refunded, it (I infer) being inappropriate to retain the fee in circumstances where the full fee had not been paid and the practising certificate for the 2021/2022 financial year had not been and could not be issued.
By an email of 22 July 2021 to the Certification Officer the defendant provided an executed statutory declaration of 20 July. He indicated that he had paid the practising certificate and membership fees by electronic funds transfer that day. The statutory declaration disclosed that Mr Rollinson had in fact been briefed and engaged in work as a barrister from time to time in some 12 matters in which he had held the brief prior to the lapse of his practising certificate. Mr Rollinson said that he had continued to act in those matters as he had formerly acted as counsel and it would not be feasible for him to cease to work on those matters. He had, since the lapse of his certificate, performed such work as drafting submissions and preparing advices.
Because of that disclosure, very properly, made by the defendant, the Bar Association's Director of Professional Conduct wrote to the defendant requesting that he provide some further information concerning those matters raised in the disclosure and also give an undertaking that he would not engage in any legal practice or in any way hold himself out as a barrister entitled to practise until such time as his certificate might be properly renewed.
The Director sent Mr Rollinson a further letter on 23 July 2021, noting that the late fee that applied to all applications for renewal received after the end of the financial year had not been paid. Mr Rollinson responded by letter of 23 July 2021 providing an undertaking, importantly, not to engage in practice or represent that he was entitled to practise until such time as his practising certificate was properly renewed.
By a further letter of 26 July 2021 to the Director the defendant provided details of the work that he had engaged in after the lapse of his practising certificate. He was subsequently advised by the Bar that the matter had been referred to the Professional Conduct Committee for its consideration.
In the interim and, to some extent separately to those events, the President of the Court of Appeal, Bell P, had cause to make an enquiry as to whether the defendant was in fact a barrister with a practising certificate. That enquiry was made, it seems, as a consequence of information provided to his Honour by other judges of the Court of Appeal as to certain conduct of the defendant.
The President made the enquiry as to whether Mr Rollinson held a current practising certificate and did that by an email of 28 July 2021 to the Bar. The Certification Officer, by return email, advised the President that the defendant did not hold a current practising certificate and enquired of the President as to whether the defendant had appeared in court at any stage after 30 June and, if so, for details of the nature of the proceedings.
The President was further advised by the Certification Officer by an email on 29 July 2021 that the Director and the Certification Officer had advised the defendant that he must not practise until he was issued with a practising certificate.
Subsequently, the President provided the Bar with the information which it had sought, in an email of 30 July 2021, from his associate, outlining the defendant's conduct with respect to a matter of Stanizzo v The State of New South Wales [2020] NSWSC 717 which was then before the Court of Appeal with judgment having been reserved. The conduct of which the President complained was the defendant's persistence in seeking to submit further written submissions after the conclusion of the hearing in that matter and after the Court of Appeal had reserved.
Those submissions were provided, notwithstanding the fact that the Court of Appeal had declined to give leave to file further submissions and where, in clear terms from the Registrar of the Court, had made it plain that to seek to provide such submissions was inappropriate and should not occur. Notwithstanding that information, Mr Rollinson provided further written submissions, and sought to do so more than once.
The correspondence to which I have referred is all part of exhibit AH-1 and I have read each of the emails, letters and statutory declarations and other documentary evidence produced in exhibit AH-1.
The matter came before the Common Law Duty Judge, Button J, 6 August 2021 and information as to those proceedings has been provided by Andreas Heger in his affidavit of 12 August, affirmed on that date. That affidavit from Mr Heger also produces exhibit AH-2, which includes a quantity of documentation largely relevant to proceedings that were before Button J, although not exclusively so.
Because of what seemed to be the defendant's acts in continuing to practise as a barrister or to hold himself out as a barrister after the end of the financial year, after such time as the defendant had given the Bar an undertaking not to do so, and in circumstances where it appeared from correspondence from the President of the Court of Appeal that the defendant had or may have breached his undertaking to the Bar, action was taken in this Court.
The matter was returnable before Button J as Duty Judge. His Honour dealt with the matter at the end of what seems to have been an extremely busy Duty list on 6 August, with Ms Richardson SC appearing by AVL and Mr Rollinson appearing on his own behalf via telephone.
Before Button J the parties agreed to consent orders and consent orders were made by his Honour on 6 August. His Honour made timetabling orders in terms of filing and service of any evidence relevant to the application by the Bar, and His Honour noted the following, that is:
"On a without admissions basis, the defendant undertakes to the Court until the plaintiff's summons is heard and determined to not engage in legal practice in New South Wales, not to advertise or represent or do anything that states or implies that he is entitled to engage in legal practice in New South Wales, and to take steps during the week commencing 9 August 2021 to ensure that his name and contact information are removed from and do not appear on the website of Latham Chambers".
Those orders were sealed that day.
Subsequent to his Honour making those orders, Mr Heger deposes that the Bar Association received further correspondence from Bell P, noting an attempt by the defendant to file further submissions to the Court of Appeal without leave and in spite of previous correspondence from the Court advising him that it would be inappropriate to do so and that leave to do so had not been granted. That correspondence is part of the material exhibit AH-2, which Mr Heger produces in evidence to the Court.
There was then some further communication between the Bar and Bell P as to the circumstances of the attempt to file additional submissions.
Mr Heger further deposes, on a different topic that, as at 12 August 2021, when he conducted a search of Latham Chambers' website, Mr Rollinson's web page had been removed, consistent with his undertaking to Button J on 6 August 2021. He does not now appear on the chambers website as a barrister of those chambers.
That is the evidence upon which the Bar Council relies in support of its application for an injunction pursuant to s 447 of the Legal Profession Uniform Law restraining Mr Rollinson from engaging in legal practice or holding himself out as a barrister at such time as he does not have a practising certificate issued to him.
Mr Rollinson, as I have indicated, filed a submitting appearance on 10 August 2021. He has not sought to tender any evidence to the Court. He has advised the Court of the circumstances surrounding the failure to fully renew his practising certificate such that no practising certificate was issued to him. He says he has taken all necessary steps as at the present date to complete a renewal application, including lodging a fresh application for the issue of a practising certificate and paying of all fees including the late fee.
Mr Rollinson tells the Court that he did not intend to breach the undertaking of Button J and, insofar as it might be perceived that he did so, although he does not concede that he did, he extends his regrets to the Court for those circumstances which led to that perception potentially arising.
In her very helpful submissions, Ms Richardson referred the Court to the decision of the Victorian Legal Services Board v Jensen [2018] VSC 740. That was a case similarly where an injunction was sought and granted by the Victorian Supreme Court pursuant to s 447 to restrain a barrister from practising.
I have had regard to that decision, which is itself helpful, and indeed to Ms Richardson's written and oral submissions.
The Uniform Law plainly has, as an objective, to ensure that in the interests of the administration of justice legal work is carried out only by those persons who are properly qualified to do so, and to protect clients of legal practices by ensuring that persons carrying out legal work are entitled to do so.
There are really two legs to that, "properly qualified" and "entitled to practice".
A person can be properly qualified to practise by appropriate qualifications and experience but still not be entitled to practise because of the failure to obtain a current practising certificate.
Section 10 of the Uniform Law prohibits persons who are not a qualified entity from engaging in legal practice, and the defendant ceased to meet the definition of "a qualified entity" when his practising certificate lapsed at the conclusion of the financial year.
Section 11 prohibits any person who is not a qualified entity from advertising or representing him or herself as an entity entitled to engage in legal practice.
Those restrictions are necessary not just to ensure that the administration of justice is protected but also to protect those who seek the advice of members of the profession.
Without a practising certificate, for which all fees have been paid, a person is not a qualified entity. If a person is not a qualified entity, then recourse from any aggrieved client could not be had to appropriate insurance schemes, and that is part of the reason why a person must not just be qualified but also entitled to practise through the issue of a current practising certificate.
This Court has the power under s 447 of the Uniform Law to issue an injunction.
Section 447 provides that:
447 Injunctions to restrain contraventions of Law or Uniform Rules
(1) This section applies if a person has contravened, is contravening, or is likely to contravene this Law or the Uniform Rules.
(2) The designated local regulatory authority may apply to the Supreme Court for an injunction.
(3) On application under subsection (2), the Supreme Court may grant an injunction restraining the person from contravening this Law or the Uniform Rules (including by requiring the person to do something).
(4) The Supreme Court may grant the injunction -
(a) whether or not it appears to the Court that the person intends to contravene this Law or the Uniform Rules, contravene this Law or the Uniform Rules again or continue to contravene this Law or the Uniform Rules; and
(b) whether or not the person has previously contravened this Law or the Uniform Rules; and
(c) whether or not there is a likelihood of substantial damage to anyone else if the person contravenes this Law or the Uniform Rules; and
(d) whether or not proceedings for a contravention of this Law or the Uniform Rules have begun or are about to begin.
(5) The Supreme Court may grant an interim injunction restraining the person from contravening this Law or the Uniform Rules (including requiring the person to do something) before deciding an application for an injunction under this section.
The Bar Council submits that the Court should grant an injunction pursuant to s 447(2) in the terms sought in the Summons because of the conduct which it appears the defendant has engaged in after the lapse of his practising certificate, that is, after 30 June 2021.
The Bar points out that on 22 July 2021 Mr Rollinson advised the Bar by a statutory declaration of 20 July that he had continued to undertake work as counsel in relation to a number of matters after the lapse of his practising certificate.
Given that the defendant had been very promptly notified by the Bar, as early as 2 July 2021, that any legal work undertaken by him as counsel would constitute a contravention of the Uniform Law, that work undertaken by him was undertaken in knowing contravention of the Law. That is even more certainly so of work undertaken after 22 July, the date upon which the Bar reiterated its strong advice that he must not practise as counsel or hold himself out to be a barrister in the absence of having a current practising certificate.
The information from the President of the Court of Appeal leads me to conclude that, notwithstanding that duly repeated advice from the Bar and the stern terms in which it was tendered to the defendant, he did continue to engage in legal practice. It would appear that that was in contravention of the undertaking to the Bar, given by him in correspondence to the Bar on 23 July 2021.
There is a contention of course that the defendant has also breached an undertaking given to Button J on 6 August 2021 when the matter was in the Duty List, but it is not necessary for the purposes of these injunctive proceedings to make any findings about that, and I note that Mr Rollinson has told the Court this morning that he had no intention of breaching that undertaking and did not understand that he had done so. I make no findings with respect to that matter. As I have indicated, it is not necessary to do so.
For present purposes, the evidence adduced by the Bar Council makes it clear to the necessary standard that the defendant has contravened the Legal Profession Uniform Law. He has, at such a time as he did not hold a current practising certificate, undertaken work as a barrister on behalf of a number of clients and that work has included, it seems, the provision of submissions to a Court. The fact that he has contravened the Law is sufficient to enliven the power of the Court to issue the injunction to restrain any further contravention of the Legal Profession Uniform Law.
Whilst I accept Mr Rollinson's assurance to the Court that he has no intention of contravening the Uniform Law in the future, I still think it is necessary and prudent to grant the application sought by the Bar Council. Principally that is because of the great importance to the community that only those persons who are both qualified and entitled to practise as a member of the legal profession are permitted to do so.
Presently Mr Rollinson does not hold a current practising certificate notwithstanding, as I understand it, that he has now paid all necessary fees and completed all necessary documentation. Until a valid certificate issues, he is a person who is not entitled to practise as a lawyer and, given what seems to have been a breach of an earlier undertaking to the Bar, it is, in my view, necessary to make the injunction to ensure that the community is protected from a person not entitled to practise in fact practising or holding himself out to be entitled to practise.
For those reasons, I propose to make the orders which the Bar Council seeks.
The Court makes these orders:
(1) Pursuant to s 447(3) of the Legal Profession Uniform Law 2014 an injunction is to operate during the period in which the defendant does not hold a current practising certificate including:
(a) restraining the defendant from engaging in legal practice in New South Wales;
(b) restraining him from advertising or representing or doing anything that states or implies that he is entitled to engage in legal practice in New South Wales, and
(c) restraining the defendant from republishing his name and contact information on the website of Latham Chambers at www.lathamchambers.com.au.
Costs
The Bar Council has indicated that it seeks its costs of these proceedings.
Mr Rollinson's submitting appearance did not extend to any order for costs and it will be appropriate for the Court to hear submissions on that issue.
I will make some timetabling orders for the service and filing of any evidence and written submissions in support of costs.
Additionally, the Court makes the following orders:
(2) Costs are reserved.
(3) The plaintiff is to file and serve any evidence and written submissions in support of its application for costs by close of business on 30 August 2021.
(4) The defendant is to file and serve any evidence and written submissions on the question of costs by 13 September 2021, close of business on that day.
(5) The application for Costs is to be determined on the papers and parties advised in due course.
[2]
Amendments
03 September 2021 - Typographical errors corrected - Coversheet and paragraphs [7], [14], [15], [19], [38], [42], [47], [51] and [52]
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Decision last updated: 03 September 2021