Council of the New South Wales Bar Association v Siggins

Catchwords

[1999] HCA 26 APLA Limited v Legal Services Commissioner of New South Wales (2005) 224 CLR 322[2005] HCA 44 Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106[2012] HCA 12 Briginshaw v Briginshaw (1938) 60 CLR 336[1938] HCA 34 Butler v Attorney-General for the State of Victoria (1961) 106 CLR 268[1961] HCA 32 Clubb v EdwardsPreston v Avery (2019) 267 CLR 171[2019] HCA 11 Cole v Whitfield (1988) 165 CLR 360[2008] NSWCA 135 Council of the New South Wales Bar Association v Siggins [2019] NSWCA 258 Croome v The State of Tasmania (1997) 191 CLR 119[1997] HCA 5 Cunliffe v The Commonwealth (1994) 182 CLR 272[1994] HCA 44 De Pardo v Legal Practitioners Complaints Committee (2000) 97 FCR 575[2000] FCA 335 Gratwick v Johnson (1945) 70 CLR 1[1945] HCA 7 Henry v Boehm (1973) 128 CLR 482[1973] HCA 32 In re The Judiciary Act 1903-1920 and In re The Navigation Act 1912-1920 (1921) 29 CLR 257[1921] HCA 20 Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563[1995] HCA 68 Law Society of New South Wales v McNamara (1980) 47 NSWLR 72 Legal Profession Board of Tasmania v Haque (2015) 23 Tas R 434

Judgment (49 paragraphs)

[1]

1992] HCA 45 Berger v Council of the Law Society of New South Wales [2019] NSWCA 119 Betfair Pty Limited v Racing New South Wales (2012) 249 CLR 217; [2012] HCA 12 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Butler v Attorney-General for the State of Victoria (1961) 106 CLR 268; [1961] HCA 32 Clubb v Edwards; Preston v Avery (2019) 267 CLR 171; [2019] HCA 11 Cole v Whitfield (1988) 165 CLR 360; [1988] HCA 18 Council of the Law Society of New South Wales v Jafari [2020] NSWCA 53 Council of the New South Wales Bar Association v Power (2008) 71 NSWLR 451; [2008] NSWCA 135 Council of the New South Wales Bar Association v Siggins [2019] NSWCA 258 Croome v The State of Tasmania (1997) 191 CLR 119; [1997] HCA 5 Cunliffe v The Commonwealth (1994) 182 CLR 272; [1994] HCA 44 De Pardo v Legal Practitioners Complaints Committee (2000) 97 FCR 575; [2000] FCA 335 Gratwick v Johnson (1945) 70 CLR 1; [1945] HCA 7 Henry v Boehm (1973) 128 CLR 482; [1973] HCA 32 In re The Judiciary Act 1903-1920 and In re The Navigation Act 1912-1920 (1921) 29 CLR 257; [1921] HCA 20 Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; [1995] HCA 68 Law Society of New South Wales v McNamara (1980) 47 NSWLR 72 Legal Profession Board of Tasmania v Haque (2015) 23 Tas R 434; [2015] TASSC 5 McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34 Mobil Oil Australia Pty Limited v The State of Victoria (2002) 211 CLR 1; [2002] HCA 27 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; [1992] HCA 46 New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 NSW Bar Association v Meakes [2006] NSWCA 340 Palmer v Western Australia [2021] HCA 5 Prothonotary v Comeskey [2018] NSWCA 18 Prothonotary v Holt [2008] NSWCA 136 Prothonotary v Montenegro [2015] NSWCA 409 Prothonotary of the Supreme Court of New South Wales v Nikolaidis [2010] NSWCA 73 Street v Queensland Bar Association (1989) 168 CLR 461; [1989] HCA 53 Telstra Corporation Ltd v Worthing (1999) 197 CLR 61; [1999] HCA 12 Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2 Category: Principal judgment Parties: Council of New South Wales Bar Association (applicant in proceedings 2019/94353 and respondent in proceedings 2019/195328) Julian Phillip Siggins (respondent in proceedings 2019/94353 and applicant in proceedings 2019/195328) Representation: Counsel: E Cheeseman SC; D Habashy (Council of the New South Wales Bar Association) In person (Julian Phillip Siggins) Solicitors: Norton Rose Fulbright (Council of the New South Wales Bar Association) File Number(s): 2019/195328; 2019/94353 Publication restriction: Nil

[2]

[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.]

[3]

HEADNOTE [This headnote is not to be read as part of the judgment] Mr Siggins was admitted as a lawyer in New South Wales in 2007. He intended to practise as a barrister. To be eligible to practise as a barrister in NSW, it was necessary to pass the NSW Bar exams and attend the Bar Practice Course. In 2008 and 2009, Mr Siggins sat, but did not pass, the NSW Bar exams. Between 2008 and 2017 Mr Siggins practised as a barrister in NSW. In 2008 and 2009 Mr Siggins obtained an annual practising certificate issued by the Law Society of Tasmania. Between 2010 and 2017 Mr Siggins obtained an annual practising certificate issued by the Queensland Bar Association. In each of the six years between 2011 and 2017 when Mr Siggins was living in Sydney and practising as a barrister in NSW, he made annual applications to the Bar Association of Queensland for a practising certificate. In each of those applications Mr Siggins represented that his principal place of practice for the next 12 months would be Queensland. The Council of the New South Wales Bar Association commenced proceedings in the inherent jurisdiction of the Court contending that, between late 2008 and mid-2017, Mr Siggins' principal place of practice as a barrister was NSW and that each time he applied for a practising certificate from another jurisdiction he intended to continue practising principally in NSW. The Bar Council alleged that Mr Siggins repeatedly and dishonestly misrepresented the true position about his proposed place of practice for the following 12 months to those regulatory authorities. The Bar Council sought a declaration that Mr Siggins was not a fit and proper person to remain on the roll of Australian lawyers maintained by the Supreme Court of NSW and an order for the removal of his name from the roll. In separate proceedings heard at the same time, Mr Siggins sought a declaration that sections of the Legal Profession Uniform Law (NSW) and the Legal Profession Acts of NSW, Queensland and Tasmania were invalid as being contrary to ss 92, 109 and/or 117 of the Commonwealth Constitution. The Court held, declaring that Mr Siggins is not a fit and proper person to remain on the roll and removing his name from the roll:

The evidence did not establish to the requisite standard that Mr Siggins was dishonest in the representations he made to the Law Society of Tasmania in 2008 and 2009, nor was it proven that any representation he made to the Bar Association of Queensland before mid-2011 was dishonest: [46], [49], [53], [62], [70], [186].

[4]

Judgment

THE COURT: Julian Phillip Siggins was admitted as a lawyer in New South Wales in 2007. He hoped to practise as a barrister. In order to obtain a barrister's practising certificate in New South Wales, he was required to pass the Bar exams set by the New South Wales Bar Association. Those exams test a wide range of knowledge of ethics, substantive law and practice and procedure. They carry a pass mark of 75%.
Mr Siggins sat the Bar exams twice, in 2008 and 2009, but failed both times. In the meantime, and in the years following his second failed attempt, he took steps each year to obtain a practising certificate from another jurisdiction, first Tasmania and then Queensland. For six years between 2011 and 2017 he practised as a barrister from chambers in New South Wales holding a Queensland practising certificate. Each application to the Bar Association of Queensland during that period included a representation by Mr Siggins to the effect that Queensland would be his principal place of practice for the next 12 months. He now practises as a barrister in Victoria.
The Council of the New South Wales Bar Association contends that, between late 2008 and mid-2017, Mr Siggins' principal place of practice was New South Wales and that each time he applied for a practising certificate from another jurisdiction during that time, he intended to continue practising principally in New South Wales for the term of the relevant practising certificate. The Bar Council alleges that Mr Siggins repeatedly misrepresented the true position to regulatory authorities, dishonestly so. By these proceedings, the Bar Council seeks a declaration that Mr Siggins is not a fit and proper person to remain on the roll of Australian lawyers maintained by the Supreme Court of New South Wales and an order for the removal of his name from the roll.

[5]

Issues in the proceedings

The Bar Council's amended summons specifies 12 separate representations alleged to have been false to the knowledge of Mr Siggins at the time he made them (identified as A-L in the amended summons). There is also an allegation of failure to comply with statutory obligations as to practising certificates. The particulars of those allegations are that Mr Siggins: 1. dishonestly represented to the Law Society of Tasmania: 1. in correspondence dated 26 November 2008 and 16 January 2009 that Tasmania was his principal place of practice as at those respective dates; and 2. in a practising certificate application dated 22 May 2009 that Tasmania was his expected principal place of practice for the year ended 30 June 2010; 1. dishonestly represented to the Bar Association of Queensland in practising certificate applications dated 24 March 2010, 18 June 2010, 30 June 2011, 28 May 2012, 27 May 2013, 3 June 2014, 20 May 2015, 20 May 2016 and 23 May 2017 that Queensland was his intended principal place of practice during the prospective periods covered by those applications; and 2. contravened s 45(6) of the Legal Profession Act 2004 (NSW) from 1 July 2009 to 30 June 2015 and cl 5 of Sch 3 to the Legal Profession Uniform Law (NSW) from 1 July 2015 to 30 June 2017, by failing to apply for a New South Wales practising certificate throughout that period.
Although the allegations date back to 2008, the Bar Council's submissions focused primarily on the period from June 2011. The Council submitted in its written submissions that inferences of dishonesty are "most readily drawn" in respect of the seven representations made to the Bar Association of Queensland between then and May 2017. It was submitted that, if the Court is satisfied that Mr Siggins knowingly misrepresented the true position when making those representations, that finding would warrant an order that his name be removed from the roll.
There is no contest as to the content of the relevant representations, all of which are in writing. The central issues in the proceedings are whether the representations were made dishonestly and, if so, whether a declaration of unfitness and an order for the removal of Mr Siggins' name from the roll should be made.
Mr Siggins' written submissions did not engage with the substance of the Bar Council's case on those issues. He responded to the Council's 12 volumes of evidence and 29 pages of written submissions (excluding detailed annexures summarising the documentary evidence) with a glib three-page submission in which he contended that, in the application of certain provisions of the Legal Profession Uniform Law, he has no case to answer.

[6]

Dishonesty

The representations of Mr Siggins relied on by the Bar Council are identified in [4]. In respect of each of those representations the Bar Council pleaded that each of them "was, to the respondent's knowledge, false". This is an allegation of fraud and is a form of dishonesty (as to which see Berger v Council of the Law Society of New South Wales [2019] NSWCA 119 at [239] to [242]) and hence we have described it as such. In that regard, although the standard of proof is to the civil standard, the nature of the proceedings, being disciplinary proceedings, and the subject matter as well as the gravity of the allegation, being dishonesty, have been taken into account in our consideration of whether the Bar Council's allegations have been established (Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362; [1938] HCA 34; Evidence Act 1995 (NSW), s 140(2)).
The first two of the dishonest representations alleged by the Bar Council concern an existing state of affairs namely whether, at the time of the representation, Mr Siggins' principal place of practice was Tasmania. It follows that, to establish its case in relation to those representations, the Bar Council has to establish that Mr Siggins intended to convey that representation, that it was false and he knew it was false (Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; [1995] HCA 68 at 578-579). The other eight dishonest representations concern a statement of Mr Siggins' future intentions, or his current belief as to his future intentions, namely what was his intended or proposed principal place of practice in the immediate proceeding period. To establish its case in relation to such a representation, the Bar Council had to demonstrate that he intended to convey that representation and that it did not represent his actual belief or intention as to his future place of practice. In that regard, while it is relevant to consider whether Mr Siggins had any reasonable basis for believing each year that in the following year he would practise principally in Tasmania or Queensland as the case may be, that is only to be considered as a basis for inferring what his actual belief or intention was at the relevant time. An absence of reasonable basis for a belief is not synonymous with the state of mind pleaded by the Bar Council.
It is also necessary to note that the Bar Council did not make any allegation about Mr Siggins' state of mind when he allegedly breached the statutory provisions noted in [4(c)]. The text of those provisions is set out below. In summary, the Bar Council's allegations involve breaches of provisions that impose an obligation on legal practitioners to obtain local practising certificates in certain circumstances. A failure to comply with those provisions does not constitute an offence and no mental element appears to be required to demonstrate they were contravened (other than the holding of a reasonable expectation as to the place of practice in the following financial year). Nowhere in its pleading or submissions did the Bar Council identify whether the alleged contravention was either wilful, reckless, negligent or inadvertent. In those circumstances we have not sought to do so either. In the end result, our findings in relation to the breaches of those provisions do not add much to our assessment of Mr Siggins' fitness to practise.

[7]

Summary of the evidence

While the Bar Council's submissions invited the Court to focus on Mr Siggins' conduct from mid-2011, the assessment of that conduct is very much informed by preceding events. For that reason, it is helpful to consider all of the relevant circumstances in chronological order. Some parts of the summary that follows are drawn almost verbatim from the chronology provided by the Bar Council.

[8]

Completion of law degree and the move back South

Mr Siggins was born in Victoria. He moved to Sydney in 1999. He completed a Bachelor of Laws at the University of Western Sydney between 2003 and 2006, graduating in April 2007. He was about 35 when he began his law degree, having previously worked in advertising.
Mr Siggins gave evidence that he moved to Tasmania at the end of 2006, at the completion of his studies but before graduation. He and his wife acquired real property in Tasmania before and during 2007. In July 2007, Mr Siggins completed the practical legal training component for admission as an Australian lawyer at the New South Wales College of Law. He said he completed that course online apart from a two-week campus component during which he stayed with friends in Sydney. He was admitted as a lawyer of the Supreme Court of New South Wales and had his name entered on the roll on 24 August 2007. On 27 August 2007, Mr Siggins obtained an "employee practising certificate" from the Law Institute of Victoria. He gave evidence that he was working for a criminal firm in Victoria at that time.
Mr Siggins' evidence that he spent his time in Tasmania and Melbourne during the year or so following the completion of his studies is not directly contradicted by any evidence in the Bar Council's case and is not inherently implausible. There is no reason to disbelieve that evidence.

[9]

First attempt to pass the New South Wales Bar exams

As already noted, in order to obtain a practicing certificate issued by the New South Wales Bar Association, Mr Siggins needed to pass the Bar exams. In November 2007, while still working in Melbourne, he applied to sit the Bar exams the following February.
The exams were fixed for the Monday, Wednesday and Friday of the week commencing 18 February 2008. Mr Siggins sat the first two exams but did not sit the third. He failed the two he sat, by a significant margin. Mr Siggins accepted in cross-examination that, when he enrolled to sit the exams, it was his hope or intention to practise in New South Wales. However, he said that changed when his mother became ill and moved to Tasmania in the period between when he applied to sit the exams and when he sat them. He said by the time the exams came around he had formed the view that he would more likely stay at the Bar in Tasmania. He said he nonetheless considered that "the information [from sitting the Bar exams] would be useful moving forward".
Mr Siggins agreed in cross-examination that he had not previously mentioned his mother in his explanation as to where he practised from time to time. He explained that he had no intention of calling her as a witness, saying that he was not going to "put her through this".
Whether that is the reason Mr Siggins chose not to sit the third Bar exam in February 2008 is another matter. It was put to Mr Siggins in cross-examination that he did not sit that exam because he knew (without needing to await the results) that he had probably failed the first two. That seems more probable than his explanation that he sat two of the exams, but not the third, merely for "information". However, it is not possible to reach a firm conclusion on that issue.

[10]

Tasmanian practising certificate issued in April 2008

On 11 March 2008, less than a month after failing the Bar exams, Mr Siggins was admitted as a barrister and solicitor of the Supreme Court of Tasmania. On 15 April 2008, he applied to the Law Society of Tasmania for a barrister's practising certificate. The evidence is silent as to whether he had obtained any practising certificate before that date other than the "employee practising certificate" obtained from the Law Institute of Victoria on 27 August 2007.
In his application to the Law Society of Tasmania, Mr Siggins gave an address in Deloraine, Tasmania as his "intended practice details". He gave evidence at the hearing that the address he had nominated was the residential address where his mother was living at the time. Despite the reason he gave for not sitting the third exam in Sydney (his mother's ill health), Mr Siggins was not living in Tasmania when he completed that application. He said, "we were still in Melbourne at that stage". Mr Siggins owned another property in Tasmania which he said was being rented out while he was working in Melbourne.
On 28 April 2008 the Law Society of Tasmania issued a practising certificate to Mr Siggins that was valid until 31 December 2008. He was not required to sit any examinations or undertake any courses in order to obtain that practising certificate.
In August 2008, Mr Siggins' name was entered into the Register of Practitioners in the High Court of Australia.
Mr Siggins affirmed in his affidavit in these proceedings that, from the time he first obtained a Tasmanian practising certificate in April 2008 until 24 March 2010, when he surrendered that practising certificate, he considered his principal place of practice to be located in Tasmania. He accepted that he did not take chambers in Tasmania during that time; he was practising from home.
In mid-2008, Mr Siggins decided to relocate to Sydney. His affidavit in the proceedings did not address that decision. In correspondence created at the time he explained that his father-in-law offered to assist him financially if he could find a place in chambers in Sydney to obtain some mentoring. He agreed in cross-examination that, at that time, he was aware of the provisions of Part 2.4, div 11 of the Legal Profession Act 2004 (NSW) (now repealed), which enabled an interstate barrister to practise temporarily in New South Wales.

[11]

Complaint in New South Wales

Mr Siggins came to the attention of the New South Wales Bar Association on 10 November 2008 when the Legal Services Commission of New South Wales wrote to the Director of Professional Conduct at the Bar Association referring a complaint against Mr Siggins arising out of a matter in which he had appeared in the New South Wales Administrative Decisions Tribunal on 17 October 2008. It may be noted that, after giving evidence to the Court that he was informally supervised during his time as a floater at Chalfont Chambers and that he appeared unled only for mentions, Mr Siggins was forced to agree that the complaint related to a hearing in which he had appeared unled (within only months of coming to Sydney supposedly for mentoring).
The letter from the Legal Services Commissioner referring the complaint noted that inquiries had revealed Mr Siggins did not hold a practising certificate in New South Wales. A few days after receiving the complaint, Ms Helen Barrett of the New South Wales Bar Association contacted the clerk of Chalfont Chambers to enquire whether Mr Siggins was a member of that floor. She was told that he was and that he had become a member approximately a month earlier.
The receipt of that information prompted correspondence between the New South Wales Bar Association and the Law Society of Tasmania concerning Mr Siggins' principal place of practice. On 13 November 2008 the Law Society of Tasmania wrote to Mr Siggins seeking that information. In cross-examination, Mr Siggins accepted that he appreciated that the letter raised an important issue in relation to his practising certificate. Mr Siggins' response to that letter is addressed below.

[12]

Meetings with Mr Selth

The following week, on 20 November 2008, a meeting was arranged between Mr Siggins and the late Mr Selth, who was at that time Executive Director of the New South Wales Bar Association.
It is necessary to explain something about the status of Mr Selth's evidence. Mr Selth was the Executive Director of the Bar Association for almost 20 years. He swore two affidavits in the proceedings which were served on Mr Siggins. At some point, Mr Siggins was informed that Mr Selth was suffering from a terminal illness and arrangements were made for any evidence by way of cross-examination to be taken on commission by Basten JA in advance of the hearing. However, Mr Siggins subsequently informed the Bar Council that, having reviewed Mr Selth's affidavits, he no longer required him for cross-examination. Mr Selth died before the hearing. His affidavits were read without objection. In the circumstances, it is appropriate to proceed on the basis that his evidence is unchallenged and may readily be accepted.
Mr Selth stated in his affidavit that he arranged the meeting by telephone, asking Mr Siggins to come to see him. He said the head of Chalfont Chambers attended the meeting with Mr Siggins, although Mr Selth was not expecting him. Mr Selth's notes of the meeting record that he told Mr Siggins he was not at that time concerned with the complaint that had been referred by the Legal Services Commissioner.
Mr Selth said in his affidavit that he recalled saying at an early point in the meeting "what are you doing in my sandpit without a ticket?" He said the conversation then included words to the following effect: "Mr Siggins: This is just one-off. I am still trying to work out whether to practise in New South Wales or in Tasmania. Mr Selth: You cannot have New South Wales as your principal place of practice without a New South Wales practising certificate. Your Tasmanian practising certificate allows you to practise in New South Wales, but your principal place of practice cannot be New South Wales. If New South Wales is to be your principal place of practice you need to sit the Bar exams here and obtain a New South Wales practising certificate. Also, new legislation will soon come into force in Tasmania which will require you to declare your principal place of practice."
That account is consistent with Mr Selth's handwritten notes made at around the time of the meeting.

[13]

Particular A: 26 November 2008 representation to the Tasmanian Law Society

The first representation relied upon by the Bar Council as a dishonest representation was contained in a letter dated 26 November 2008 sent by Mr Siggins to the Tasmanian Law Society following that meeting. The letter provided Mr Siggins' response to the Tasmanian Law Society's earlier request for information as to his principal place of practice. Mr Siggins' letter opened with the following statement: "With reference to your inquiry my principal place of practice remains in the State of Tasmania as stated in my email of 30 September 2008."
Mr Siggins proceeded to give a lengthy account of his connections with Tasmania. He said he had been practising only temporarily at Chalfont Chambers. He implied that he had only registered for the New South Wales Bar exams in order to obtain the examination materials, which he considered would be "extremely useful" for his practice generally. He said at the time of sending for those materials he had "no intention of practising in New South Wales" and that he "deliberately did not sit all of the NSW exams" for that reason. That account of course was at odds with his evidence in this Court summarised above.
Mr Siggins gave evidence that he had "CC'd" that letter to Mr Selth. He denied having any further meeting with Mr Selth after the meeting of 20 November 2008. Mr Selth's records (the reliability of which should be accepted) indicate that there was a second meeting. In an internal email dated 26 November 2008 sent by Mr Selth to other officers of the Bar Association, Mr Selth stated: "[Mr] Siggons (sic) and Alun Hill came to see me again today about the difficulty Siggons has with his Tasmanian PC. Siggons and Hill have decided that Siggons will return to his practice in Tasmania - and sit our exams and attend our [Bar Practice Course] in the second half of next year."
The email noted that Mr Siggins would "continue as a 'floater' at Chalfont". It may be seen that the picture Mr Siggins was presenting to Mr Selth was quite different from the picture he was presenting to the Law Society of Tasmania. The indication that he would attempt the exams again the following year was completely inconsistent with his assertion to the Tasmanian authority that he had no intention of practising in New South Wales.
In cross-examination at the hearing, Mr Siggins appears to have conflated the two meetings with Mr Selth. He stated that, upon being informed of the New South Wales Bar Association's confusion as to his principal place of practice, he contacted Mr Selth. He said he told Mr Selth that he was "a Tasmanian barrister" and explained the background set out in the letter, "in order to clear up any misconceptions that may have arisen while being temporarily in Sydney." The suggestion was that there was never any doubt in Mr Siggins' mind that he was a Tasmanian barrister visiting Sydney temporarily to acquire experience and that he never suggested otherwise to Mr Selth.

[14]

Renewal of Tasmanian practising certificate until 30 June 2009

On 5 December 2008, Mr Siggins applied to the Law Society of Tasmania to renew his Tasmanian practising certificate. The residential address, practice address and postal address provided in that application were all addresses in Deloraine. Mr Siggins agreed in cross-examination that, after returning to Tasmania (which he puts at early 2009), he continued to use the Chalfont Chambers letterhead and did not include any Tasmanian address on his letterhead. He also agreed that he used the New South Wales Bar Association's professional standards scheme disclaimer. He also used the form of costs agreement required by New South Wales legislation, not the Tasmanian legislation. There may be cause for scepticism as to Mr Siggins' level of commitment to practising in Tasmania at that time but there is no cogent evidence to establish that the Tasmanian practising certificate was a complete ruse.

[15]

Particular B: 16 January 2009 representation to the Tasmanian Law Society

The second representation relied upon by the Bar Council as a dishonest representation was made in a further letter dated 16 January 2009. The Law Society of Tasmania issued a further practising certificate to Mr Siggins for the period 1 January 2009 to 30 June 2009. However, by 15 January 2009, he had still not received it. He called to chase it up. The issue of his "whereabouts" was evidently raised again. On 16 January 2009, Mr Siggins sent a letter to the Law Society of Tasmania responding to the "confusion" as to his whereabouts by referring to his letter of 26 November 2008 and confirming that he was on holidays and was in the process of organising his return to Tasmania. The letter included the following statement: "Accordingly, I expect to be in Deloraine on or about Saturday 30 January next whereupon, I will resume practice from my principal place of residence which was and still is 37 Tower Hill Street Deloraine." (Emphasis added.)
The Bar Council contends that this statement was dishonest in the sense discussed above. For the reasons given in respect of the letter dated 26 November 2008, the evidence does not establish to the required standard of proof that the reiteration of the position stated in the November letter as to his then principal place of practice was dishonest as at 16 January 2009.

[16]

Particular C: 22 May 2009 application to the Tasmanian Law Society

The third representation relied upon by the Bar Council as a dishonest representation was made in an application for renewal of the Tasmanian practising certificate. On 11 May 2009, Mr Siggins applied to sit the New South Wales Bar exams in July of that year. Later that month, on 22 May 2009, he applied to the Law Society of Tasmania to renew his practising certificate for the period ending 30 June 2010. The application form included his former practice address in Deloraine but that was changed by hand on the completed form to an address in Devonport. Mr Siggins also gave a residential address in Devonport. The form included the following section for completion by the applicant: "3. Eligibility to Apply for a Practising Certificate (See section 48 of the Legal Profession Act 2007. (Note 1) I am eligible to apply for a practising certificate under the Legal Profession Act 2007 on the basis indicated: � Tasmania � Another State or Territory (specify) � Outside Australia; or

[17]

(a) I reasonably expect to be engaged in legal practice solely or principally in the following jurisdiction during the currency of the certificate being applied for: (b) My place of residence in Australia is in: � Tasmania � Another State or Territory (specify) � Outside Australia"

[18]

In each paragraph, Mr Siggins ticked "Tasmania".

The Bar Council contends that the representation that Tasmania would be Mr Siggins' principal place of practice for the intended period of the practising certificate was dishonest.
Mr Siggins gave evidence that he was practising in Devonport during 2009. The Bar Council went to considerable lengths to obtain documents in an attempt to establish where Mr Siggins was living and appearing as a barrister throughout the lengthy period the subject of these proceedings. The records it obtained are not complete, but they paint a picture. They were conveniently summarised in schedules attached to the Bar Council's written submissions.
One of the schedules provides a table showing the apparent geographical location of matters on which Mr Siggins worked in the period 2008 to 2017 to the extent disclosed by the material the Council has been able to obtain. The material summarised in that table provides slender support for the assertion that Mr Siggins was practising in Devonport throughout 2009. There are records of only four appearances in Tasmania during that year. In the same year there are many records of appearances in New South Wales including records of what appear to have been substantial hearings in the Federal Magistrate's Court in rural centres in New South Wales. On balance, however, the evidence is not of sufficient cogency to sustain a finding that the representation made in the 22 May 2009 application for a Tasmanian practising certificate was dishonest. As already noted, the representation concerned Mr Siggins' state of mind in May 2009 about his place of practice for the period 30 June 2009 to 30 June 2010. The fact that he appeared in some matters in Tasmania in that period but more matters in New South Wales does not demonstrate that as at May 2009 he did not intend principally to practise in Tasmania for that period. Barristers may hope to get briefs in one place and end up receiving them from somewhere else. We are not satisfied to the requisite standard that Mr Siggins' application for renewal in May 2009 falsely stated his intention or belief as to his principal place of practice for the forthcoming financial year.

[19]

Second attempt to pass the NSW Bar exams

In July 2009, Mr Siggins attempted the New South Wales Bar exams for the second time. He failed all three exams. He received notice of that result on 13 August 2009. Based on his conversations with Mr Selth in late 2008, it may comfortably be inferred that Mr Siggins appreciated that, as a consequence of failing the exams again, he could not participate in the New South Wales Bar Practice Course and would not be granted a barrister's practising certificate in New South Wales at that time.

[20]

Queensland Practice Course

On 11 January 2010, Mr Siggins commenced the Queensland "Practice Training Course at the Bar Practice Centre". He completed that course on 19 February 2010. His affidavit in these proceedings did not explain his apparent decision to turn his attention to Queensland as a place to practise as a barrister. In cross-examination, when asked "why Queensland?", Mr Siggins said: "Well, I'd, I'd half grown up there. My mother moved, was a teacher there for a, for a long time. My brother lived up in, up in Queensland and so I had some family connections to Queensland before my mother moved, moved down to Tasmania, but she was made redundant in the 90s under the Victorian Kennett scheme as a teacher and could only teach in Queensland. So I, I had a, I had a base there and I moved there from Tasmania because I just wasn't getting any work in Tasmania. I was, it, going, going idly by."
Although Mr Siggins denied it, the obvious, more likely explanation is the fact that there was at that time no requirement to sit any examinations for admission as a barrister in Queensland.

[21]

Particular D: 24 March 2010 application to the Bar Association of Queensland

The fourth representation relied upon by the Bar Council as a dishonest representation was made in Mr Siggins' first application for a practising certificate from Queensland. On 24 March 2010, having completed the Queensland practice course, Mr Siggins applied to the Bar Association of Queensland for a practising certificate for the period ending 30 June 2010. In response to a multiple-choice question on the application form, "which of the following most describes your profession for the next twelve months?", he ticked "practising principally as a barrister at the private bar in Queensland". An alternative choice was "other - please specify" but that was not ticked. In answer to a further question, "will practising as a barrister be your principal endeavour?", he responded "yes". Mr Siggins said in his affidavit that, at that time, he intended to practise in Queensland.
In light of subsequent events, the truthfulness of the representation that practising principally as a barrister at the private Bar in Queensland best described Mr Siggins' future practice at that time may be doubted. However, it is not possible to reach a firm conclusion on that issue.
Mr Siggins wrote to the Law Society of Tasmania the same day noting that he was making an application for admission to the private Bar in Queensland and wished to surrender his Tasmanian practising certificate. Two days later, the Law Society of Tasmania confirmed to the Bar Association of Queensland that Mr Siggins had surrendered his Tasmanian practising certificate.
On 30 March 2010, Ms Barrett of the New South Wales Bar Association contacted Chalfont Chambers and was told that Mr Siggins was a member of those chambers. However, the evidence does not establish whether that was merely as a door tenant or whether Mr Siggins was based in Sydney at that time.
On 31 March 2010 the Bar Association of Queensland issued a practising certificate to Mr Siggins which was valid until 30 June 2010. That practising certificate was subject to a condition that Mr Siggins undertake pupillage until 31 March 2011.
Mr Siggins stated in his affidavit that, for most of 2010, he and his wife lived in Brisbane. The records obtained by the Bar Council record only four matters in Queensland during that calendar year and many more in New South Wales. However, he undertook the Queensland practice course and it appears he subsequently satisfied the Bar Association of Queensland that he had completed his pupillage, evidently on the basis of information received from his pupil master. On balance, while there is a basis for scepticism, the evidence is not of sufficient cogency to sustain a finding that the representation made on 24 March 2010 that Mr Siggins would be practising principally as a barrister at the private Bar in Queensland until 30 June 2010 was dishonest.

[22]

Particular E: 18 June 2010 application to the Bar Association of Queensland

The fifth representation relied upon by the Bar Council as a dishonest representation was made in Mr Siggins' application for renewal of the Queensland practising certificate. On 18 June 2010, Mr Siggins applied to have the Queensland practising certificate renewed for the period ending 30 June 2011. Again, the application form asked, "which of the following most describes your profession for the next twelve months?" Mr Siggins again ticked "Practising principally as a barrister at the private bar in Queensland." A further practising certificate was issued, subject to the same pupillage condition as before.
As already noted, there are records of only four appearances in Queensland for the 2010 calendar year, the last being in August of that year. On 25 October 2010 Mr Siggins applied to join 7 Windeyer Chambers in Sydney commencing in February 2011. Mr Siggins said in his affidavit that, on 27 October 2010, he contacted Mr Selth concerning the possibility of taking the room in Windeyer Chambers. He said he informed Mr Selth that he had failed the Bar exams in 2009 but that he had since completed the Queensland Bar Practice Course and now held a Queensland barrister's practising certificate. According to Mr Siggins' affidavit, Mr Selth said to him: "once you have an unconditional practising certificate, I will give you an unconditional New South Wales barrister's certificate if you want one".
Mr Siggins said he then asked Mr Selth whether he would have to re-sit the Bar exams prior to being granted a New South Wales barrister's certificate. He said he explained that, if he was required to sit the exams again, he would sit them before moving to Sydney as he could not afford to move again. Mr Siggins asserts that Mr Selth replied: "as you have now completed the Queensland Bar Practice Course, I won't require you to sit the exams".
Mr Siggins stated in his affidavit that, "on that assurance", he informed Mr Selth that he expected to have an unconditional practising certificate by March or April 2011 and would move down to Sydney around February or March.
In an affidavit affirmed 18 November 2019, Mr Selth stated that he did not have a conversation with Mr Siggins to that effect. He said the statements attributed to him by Mr Siggins were contrary to the views he held at the time and that he was certain he never gave Mr Siggins "any comfort about obtaining an unconditional practising certificate without passing the New South Wales Bar examinations."

[23]

Application for a NSW practising certificate based on the Queensland certificate

From at least February 2011, Mr Siggins was living in Sydney. It is common ground that, from that time until August 2017, his place of residence was always Sydney. Mr Siggins commenced practice from 7 Windeyer Chambers in Sydney in February 2011. His wife started working as a clerk at Chalfont Chambers from at least that time, where she remained until October 2013. Mr Siggins moved to Chalfont Chambers in May 2011 where he remained until mid to late 2017, when he moved to Victoria.
On 2 May 2011, Mr Siggins wrote to the Bar Association of Queensland advising that his period of pupillage had ended and requesting an unconditional practising certificate. An unconditional practising certificate was issued that day, effective until 30 June 2011.
On 8 June 2011 Mr Siggins wrote to the Bar Association of Queensland informing the Association that his practice was "likely to become more and more Sydney focused in the 2011 - 2012 practising year". He requested a certificate of fitness for admission to the New South Wales Bar. He stated (implausibly) that he had been advised by the New South Wales Bar Association to let his Queensland practising certificate lapse.
On 21 June 2011 Mr Siggins applied to the New South Wales Bar Association for a practising certificate for the period 1 July 2011 to 30 June 2012. In that application, he declared that practising as a barrister in another state or territory best described his current profession and that practising as a barrister in New South Wales would be his principal endeavour.

[24]

Requirement to sit the NSW Bar exams for a third time

On 27 June 2011 Mr Siggins was issued with a New South Wales practising certificate for the following financial year. However, contrary to what Mr Siggins asserts was his understanding based on alleged conversations with Mr Selth, the Bar Association imposed a condition that, no later than 31 March 2012, Mr Siggins undertake and pass to a standard of 75% the three exams conducted by the New South Wales Bar Association (which he had by then failed twice).

[25]

Particular F: 30 June 2011 application to the Queensland Bar Association

The sixth representation relied upon by the Bar Council as a dishonest representation was made in a further application to the Bar Association of Queensland. Following receipt of the news that he would have to sit the New South Wales Bar exams again, and contrary to his earlier indication that his practice was "likely to become more and more Sydney focused in the 2011 - 2012 practising year", Mr Siggins instead applied to the Queensland Bar Association for a practising certificate for the period ending 30 June 2012. In that application, contrary to his application to the New South Wales Bar Association only nine days earlier, Mr Siggins nominated "practising principally as a barrister at the private Bar in Queensland" as the occupation that most described his profession for the next 12 months. He nominated a practice address in Brisbane. Mr Siggins agreed in cross-examination that he never actually sat at that address as it was in fact a "virtual office" (T115).
The Bar Association of Queensland issued Mr Siggins with an unconditional practising certificate. The following day, on 5 July 2011, Mr Siggins wrote to the New South Wales Bar Association asking them to delay the issue of his New South Wales practising certificate until he had had an opportunity to take advice concerning the requirement that he sit the Bar exams. The letter noted that, in the meantime, Mr Siggins had renewed his unconditional Queensland practising certificate.
Mr Siggins was cross-examined at length as to his apparent change of heart in first applying for a practising certificate in New South Wales on the basis of a representation that New South Wales would be his principal place of practice for the next twelve months and then, when told of a requirement to sit the New South Wales Bar exams again, applying instead to Queensland on the basis of a representation that Queensland would be his principal place of practice. Mr Siggins provided no satisfactory explanation for that abrupt change in position. He came close to acknowledging that he had questioned the decision in his own mind in the following answer: "I had a conversation with Ms Barrett and she said, 'It's going to be some time, you may wish to renew your Queensland one.' And I said, 'Well, how, how can I, how can I do this in good faith?' So it was all a very confusing time as to what was going on, but I knew that I would be out of practice by 30th of, 30 June, I had to close up shop if I didn't have a practising certificate."

[26]

Particulars G to L: repeated renewal of Queensland practising certificates

Mr Siggins did not sit the New South Wales Bar exams for a third time. Instead, in May or June of each of the following six years, he applied to renew his Queensland practising certificate, declaring in each application that practising principally as a barrister at the private Bar in Queensland most described his profession for the next 12 months. In each of those years, until 2017, he was issued with an unconditional practising certificate valid until 30 June the following year, the final Queensland practising certificate being valid until 30 June 2017. Those are the remaining six representations relied upon by the Bar Council as dishonest representations.

[27]

The Queensland Bar Association seeks information

Mr Siggins made his final application to the Queensland Bar Association on 23 May 2017 for a practising certificate for the period from 1 July 2017 to 30 June 2018. At that point, the Queensland Bar Association responded by asking Mr Siggins to provide a written response to certain questions regarding his eligibility for a Queensland practising certificate having regard to the "principal place of practice" requirements in Queensland. Mr Siggins responded on 30 May 2017 that he had work commitments that day but would provide a response as soon as possible. That night Mr Siggins wrote to his professional indemnity insurer asking whether there would be any further payment due if he applied for a New South Wales practising certificate.
On 7 June 2017 Mr Siggins applied to the New South Wales Bar Association for a barrister's practising certificate for the period from 1 July 2017 to 30 June 2018. In that application, he declared that practising as a barrister in another state or territory best described his current profession and that practising as a barrister in New South Wales would be his principal endeavour.

[28]

The NSW Bar Council seeks information

On 24 July 2017, Mr Tolhurst of the New South Wales Bar Association wrote to Mr Siggins informing him that information received by the Bar Council suggested that at all relevant times since at least 2010 his principal place of practice had been New South Wales. The letter sought information regarding Mr Siggins' principal place of practice in previous years and sought a response by 7 August 2017. Mr Siggins sought an extension of time for his response but that was refused and he was asked to provide such information as he was able to provide, to identify material he did not have and to provide any further material when he received it. He was also invited to make submissions as to whether he was a fit and proper person to hold a practising certificate.

[29]

Move to Victoria

On 7 August 2017, Mr Siggins wrote to Ms Barrett of the New South Wales Bar Association stating that he was unable to comply with the deadline. The letter concluded "I therefore withdraw my application for a 2017/18 practising certificate". Later the same day he wrote to the Bar Association of Queensland requesting that the certificate of good standing provided to him on 7 June 2017 be amended so as to address the Victorian Bar (rather than the New South Wales Bar).
On 9 August 2017 Mr Siggins wrote to his insurer stating that, for personal reasons, he had decided to return to his family and relocate to Victoria. On 14 August 2017 Mr Siggins applied for a practising certificate from the Victorian Bar. He gave evidence in his affidavit that he moved to Victoria at around that time.

[30]

Commencement of proceedings

On 17 September 2018, the solicitor for the New South Wales Bar Association wrote to Mr Siggins inviting him to provide as much of the information requested in its letter of 24 July 2017 as he was able to. That request was repeated on 3 December 2018 but there was no response. The Bar Council's proceedings were commenced on 26 March 2019.

[31]

Six years of practice in NSW with a Queensland practising certificate

As already noted, the Bar Council focused on Mr Siggins' conduct in 2011 and following. Mr Siggins accepts that, in seven practising certificate applications from that time, he represented to the Bar Association of Queensland that his intended principal place of practice for the prospective periods covered by those applications was Queensland (applications dated 30 June 2011, 28 May 2012, 27 May 2013, 3 June 2014, 20 May 2015, 20 May 2016 and 23 May 2017).
It follows from what is noted at the outset of this judgment that to establish its case in relation to those representations, the Bar Council must demonstrate that Mr Siggins intended to convey the effect of the representation each time, which he clearly did, and that each representation was knowingly false in that it did not represent his actual belief or intention as to his future place of practice as at the time it was made. As already noted, by 30 June 2011 Mr Siggins was residing in New South Wales, had chambers in New South Wales and his wife worked in New South Wales at different chambers.
The Bar Council came to court understanding that Mr Siggins admitted that, in each of the relevant years, his principal place of practice was in fact New South Wales: Notice to Admit, Court Book 3 Tab 9, Notice Disputing Facts Court Book 8 tabs 175 and 179; Council of the New South Wales Bar Association v Siggins [2019] NSWCA 258 at [7] (White JA).
However, in his evidence in the proceedings, Mr Siggins sought to qualify that admission. For example, in the notice to admit facts he admitted that, in the year 1 July 2011 to 30 June 2012, his principal place of practice as a barrister was in New South Wales. In response to questioning from the Court, he said that admission was qualified by being confined to Commonwealth matters. Mr Siggins said that it was his understanding at that time that he could practise in any Federal Court as a barrister due to his admission as a practitioner in the High Court. He said he had had that understanding since having his name entered on the High Court Register in 2008 because it was on his High Court admission certificate that he was entitled to practise in any Federal Court.
The cross-examiner confronted Mr Siggins with the fact that he had made the admission in unqualified terms in the context of resisting the production of documents. Where documents were sought by the Bar Council as to Mr Siggins' place of practice, he repeatedly responded "conduct admitted/production not relevant to any fact in issue." Senior Counsel for the Bar Council put to Mr Siggins on that basis that he in fact had conceded that his principal place of practice was New South Wales for the entirety of the period from 1 July 2011 to 30 June 2017 inclusive. Mr Siggins did not accept that proposition. He said, "No, because I'm, I'm accepting that it's in New South Wales and not in Commonwealth jurisdictions located in New South Wales." The answer is non-sensical but the argument appears to be that, whilst residing and practising in NSW, he only practised in Federal matters conducted in NSW. That is contradicted by the evidence summarised in the table referred to above.

[32]

Contravention of the legal profession legislation

As already noted, the Bar Council relies on a separate allegation that, by failing to obtain a New South Wales practising certificate, Mr Siggins contravened provisions of the legal profession legislation: s 45(6) of the Legal Profession Act 2004; cl 5, Sch 3 to the Legal Profession Uniform Law. The evidence relied upon in support of that contention is the same as the evidence relied upon to establish the contraventions for the period from mid-February 2011 to mid-July 2017.
The period of contravention alleged by the Bar Council is governed by two legislative regimes. Each imposed a requirement to the same effect, namely, that a practitioner who expected to practise "solely or principally" in New South Wales in the following financial year had to obtain a New South Wales practising certificate.
Until 30 June 2015, the position was governed by the Legal Profession Act 2004. Section 45 of that Act provided: 45 Application for grant of local practising certificate (1) Applications generally An Australian lawyer may apply to the appropriate Council for the grant or renewal of a local practising certificate if eligible to do so under this section. (2) General eligibility to make application An Australian lawyer is eligible to apply for the grant or renewal of a local practising certificate if the lawyer complies with any regulations and legal profession rules relating to eligibility for the practising certificate and if: (a) in the case of a lawyer who is not an Australian legal practitioner at the time of making the application: (i) the lawyer reasonably expects to be engaged in legal practice solely or principally in this jurisdiction during the currency of the certificate or renewal applied for, or (ii) if subparagraph (i) does not apply to the lawyer or it is not reasonably practicable to determine whether it applies to the lawyer - the lawyer's place of residence in Australia is this jurisdiction or the lawyer does not have a place of residence in Australia, or (b) in the case of a lawyer who is an Australian legal practitioner at the time of making the application: (i) the jurisdiction in which the lawyer engages in legal practice solely or principally is this jurisdiction, or (ii) the lawyer holds a current local practising certificate and engages in legal practice in another jurisdiction under an arrangement that is of a temporary nature, or (iii) the lawyer reasonably expects to be engaged in legal practice solely or principally in this jurisdiction during the currency of the certificate or renewal applied for, or (iv) if subparagraphs (i), (ii) and (iii) do not apply to the lawyer or it is not reasonably practicable to determine whether subparagraph (i), (ii) or (iii) applies to the lawyer - the lawyer's place of residence in Australia is this jurisdiction or the lawyer does not have a place of residence in Australia. (3) Determination of place of legal practice in Australia For the purposes of subsection (2) (b), the jurisdiction in which an Australian lawyer engages in legal practice solely or principally is to be decided by reference to the lawyer's legal practice during the certificate period current at the time: (a) the application is made, or (b) in the case of a late application - the application should have been made. (4) Circumstances in which application cannot be made (more than one Australian practising certificate) An Australian lawyer is not eligible to apply for the grant or renewal of a local practising certificate in respect of a financial year if the lawyer would also be the holder of another Australian practising certificate for that year, but this subsection does not limit the factors determining ineligibility to apply for the grant or renewal of a local practising certificate. (5) Application must not be made by ineligible lawyer An Australian lawyer must not apply for the grant or renewal of a local practising certificate if the lawyer is not eligible to make the application. (6) Circumstances in which application must be made An Australian legal practitioner who: (a) engages in legal practice solely or principally in this jurisdiction during a financial year, and (b) reasonably expects to engage in legal practice solely or principally in this jurisdiction in the following financial year, must apply for the grant or renewal of a local practising certificate in respect of the following financial year. (7) Subsection (6) does not apply to an interstate legal practitioner who applied for the grant or renewal of an interstate practising certificate on the basis that the practitioner reasonably expected to engage in legal practice solely or principally in this jurisdiction under an arrangement that is of a temporary nature. (8) The exemption provided by subsection (7) ceases to operate at the end of the period prescribed by the regulations for the purposes of this subsection. (9) Application for local practising certificate by lawyer who practises in Australia and overseas A reference in this section to engaging in legal practice principally in this or any other jurisdiction applies only to legal practice in Australia. Accordingly, an Australian lawyer who is engaged or expects to be engaged in legal practice principally in a foreign country is nevertheless eligible to apply for the grant or renewal of a local practising certificate if the lawyer otherwise meets the requirements of this section. Note - The purpose of this subsection is to deal with a case where a person practises both in Australia and overseas. In that case, overseas practice is to be disregarded (even if it forms the principal portion of the person's overall practice), so that eligibility is determined by reference to the person's practice in Australia. (10) Application for local practising certificate by lawyer of prescribed class An Australian lawyer is also eligible to apply for the grant or renewal of a local practising certificate if the lawyer is of a class or description prescribed by the regulations. The regulations may provide that a Council has a discretion as to whether or not to grant or renew a local practising certificate to a person in his or her capacity as an Australian lawyer of that class or description. Note - The purpose of this subsection is to enable regulations to be made conferring eligibility on an Australian lawyer who is not otherwise eligible to apply for a local practising certificate. Regulations could be made conferring eligibility, for example, on an Australian lawyer who practises exclusively overseas, or an Australian lawyer who holds a public office of a specified kind.

[33]

Other findings contended for by the Bar Council

The Bar Council submitted that, if the allegations of dishonest conduct are established for part or all of the period alleged, it would follow that Mr Siggins' communications in a number of other contexts over the years in question were also misleading, including to professional indemnity insurers and various explanations which he proffered at various times to the relevant authorities in other jurisdictions.
It may be accepted that the finding of dishonesty in respect of the seven critical representations has implications for other conduct of Mr Siggins during the relevant period. Further, it may be accepted that some of the representations made incidentally throughout the period of the conduct relied upon by the Bar Council in its amended summons warrant scepticism, to say the least. The course invited by the Bar Council must nonetheless be emphatically rejected. Disciplinary proceedings carry serious consequences for legal practitioners. It is not appropriate to depart from the conduct particularised in the amended summons.

[34]

Constitutional argument

As already noted, Mr Siggins filed an originating application in the Federal Court on 1 May 2019 seeking declarations that "any and all of" s 45(6) of the Legal Profession Act 2004, cl 5, Sch 3 to the Legal Profession Uniform Law (NSW), ss 42(2)(b)(i) and 42(2)(b)(iii) of the Legal Profession Act 2007 (Qld) and ss 48(2)(b)(i) and 48(2)(b)(iii) of the Legal Profession Act 2007 (Tas) "are contrary to ss 92 and/117 of the Constitution and therefore invalid". Mr Siggins' proceedings were cross‑vested to this Court and were heard together with the Bar Council's proceedings.
On or about 23 December 2019, Mr Siggins served each of the Attorneys‑General for the Commonwealth, the States and the Territories with notices under s 78B of the Judiciary Act 1903 (Cth). Those notices reveal five bases for his challenge to these provisions. The first is that the above provisions exceed the legislative power of the Parliament of NSW "by virtue of the nature of [their] extra-territorial operation". The second is that these provisions are inconsistent with certain provisions of the Judiciary Act 1903 (Cth) and the Family Law Act 1975 (Cth) which are said to govern rights to practise in federal courts so as to engage s 109 of the Constitution. Third, these provisions are said to be contrary to the s 117 of the Constitution. Fourth these provisions are said to be contrary to s 92 of the Constitution. Fifth, Mr Siggins contends that these provisions are inconsistent with Chapter III of the Constitution as they are said to "compromise … the institutional integrity of Federal and State Courts".

[35]

Challenge to Queensland and Tasmanian Statutes

We will address the challenge to the Queensland and Tasmanian provisions first.
From March 2008 to March 2010 Mr Siggins held a barrister's practising certificate issued under the Legal Profession Act 2007 (Tas). During that period, s 48 of the Legal Profession Act 2007 (Tas) was in a similar form to s 45 of the Legal Profession Act 2004 which is set out above. In particular, ss 48(2)(b)(i) and (iii) relevantly provided that an "Australian legal practitioner" was eligible to apply for the grant or renewal of a local practising certificate if, at the time of the application, they engaged in legal practice solely or principally in Tasmania (s 48(2)(b)(i)) or reasonably expected to be engaged in legal practice solely or principally in Tasmania during the currency of the certificate applied for. This provision is to be read with ss 48(5) and 48(6). Section 48(5) prohibited an "Australian lawyer" from applying for the grant or renewal of a local practising certificate if they were not "eligible to make the application". Conversely, s 48(6) obliged an Australian legal practitioner who engaged in legal practice solely or principally in Tasmania during a financial year, and reasonably expected to do so in the following year, to apply for a "local practising certificate" for that period. At all relevant times Mr Siggins was an "Australian lawyer" and, for the period in which he held a practising certificate, he was an "Australian legal practitioner".
From March 2010 to 2017, Mr Siggins held a Queensland barrister's practising certificate. During that period, s 49 of the Legal Profession Act 2007 (Qld) was not relevantly different to s 48 of the Legal Profession Act 2007 (Tas). We are assuming that it is the validity of that provision that Mr Siggins seeks to challenge rather than s 42, referred to in his originating process, which relates to the payment of fees.
It will be clear from the discussion of the Bar Council's case above that no aspect of the Bar Council's complaint against Mr Siggins involves an allegation of a breach of any of the above provisions of the Legal Profession Act 2007 (Tas) or the Legal Profession Act 2007 (Qld) (the "impugned Tasmanian and Queensland provisions"). Further, no issue in relation to their validity or application to Mr Siggins arises on the Bar Council's complaint. In particular, it is not an answer to a complaint that Mr Siggins dishonestly completed an answer in an application that the relevant question related to a legislative requirement that may have been invalid. Further, there is nothing to suggest that the relevant authorities in either State are investigating him or pursuing any complaint against him, much less any complaint which has any connection to the validity of those provisions or their application to him. None of those entities has been made a party to the proceedings, nor has the State of Queensland or Tasmania.

[36]

The New South Wales Provisions

Section 45(6) of the Legal Profession Act 2004 and cl 5 of Sch 3 to the Legal Profession Uniform Law are set out above (the "impugned NSW provisions"). As noted, s 45 was not relevantly different from s 48 of the Legal Profession Act 2007 (Tas). The operation of cl 5 of Sch 3 to the Legal Profession Uniform Law is not relevantly different in that it imposed a requirement on a legal practitioner whose sole or principal place of practice or intended practice is in NSW, to obtain a local practising certificate. On the above findings Mr Siggins was in breach of those provisions during the period May 2012 to June 2016.
To the extent that Mr Siggins challenges the validity of the impugned NSW provisions or their application to him he will, if successful, defeat so much of the Bar Council's complaint that alleges a breach of those provisions. It follows that there is a relevant controversy between him and the Bar Council concerning the validity or application of those provisions. Accordingly, we will address each of the contentions in his s 78B notice in turn.

[37]

Alleged Extra-Territorial Operation

The legislative power of the States to make orders for peace, order and good government includes the power to make laws that operate extra-territorially (Australia Act 1986 (Cth), s 2(1)). Such legislation must have a "relevant territorial connection" with New South Wales with the "test of relevance … applied liberally [such that] even a remote or general connection" is sufficient (Mobil Oil Australia Pty Limited v The State of Victoria (2002) 211 CLR 1; [2002] HCA 27 at [9] per Gleeson CJ; [48] per Gaudron, Gummow and Hayne JJ; APLA Limited v Legal Services Commissioner of New South Wales (2005) 224 CLR 322; [2005] HCA 44 at [158] per Gummow J, [465] per Callinan J; "APLA"). Hence, in APLA a prohibition on advertising by New South Wales legal practitioners in relation to personal injury cases imposed by New South Wales legislation was held valid to the extent it applied outside of New South Wales because it related to the performance of legal services within New South Wales (APLA at [466] per Callinan J).
Although the impugned NSW provisions might operate on persons who reside outside of NSW, it is difficult to see how they have any extra‑territorial effect given that they are directed to the conduct of the legal profession within NSW, including courts located within NSW. However, even if they can be considered as having extra‑territorial effect, their connection to NSW is "direct and close" (APLA at [466] per Callinan J) and more than sufficient to fall within the legislative competence of the Parliament of NSW.

[38]

Section 117

In relation to the three constitutional provisions relied upon, s 117 does not operate to invalidate a law but instead provides an immunity to someone who falls within its provisions (Street v Queensland Bar Association (1989) 168 CLR 461; [1989] HCA 53; "Street"). Section 109 provides that a State law is only invalid to the extent that it is inconsistent with a Commonwealth law. Section 109 only suspends the State law's operation for so long as the inconsistency remains (Butler v Attorney-General for the State of Victoria (1961) 106 CLR 268; [1961] HCA 32). Section 92 operates to invalidate a law that is inconsistent with its terms, although other parts of the law may be severed. Accordingly, Mr Siggins' argument invoking s 117 should be considered prior to considering s 92 (Street at 503 per Brennan J). The argument under s 109 should be considered after those provisions because it assumes that the State law is otherwise valid.
Section 117 of the Constitution provides: 117 Rights of residents in States A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.
Mr Siggins' attempts to invoke s 117 in relation to the above provisions can be addressed by reference to the decision in Street. The plaintiff in Street was a resident of Sydney practicing at the NSW Bar who sought to be admitted to the Queensland Bar. He challenged the application of the Rules of Admission which required, as a condition of being able to practise in Queensland, that he file an affidavit stating that he had ceased to practise outside of Queensland, and resided in Queensland (at 480). Those rules were later amended to only require that he file an affidavit stating that he intended to practise principally in Queensland (at 494). The High Court unanimously held that these provisions in their original, and amended, form were inapplicable to the plaintiff's application for registration by the operation of s 117 (at 494-495 per Mason CJ, 520-521 per Brennan J, 532 per Deane J, 550 per Dawson J, 564 per Toohey J, 574-575 per Gaudron J and 589 per McHugh J).
Although there are differences between the separate judgments delivered in Street, those differences are not material to a determination of Mr Siggins' contentions. Five points about Street should be noted. The first has already been stated, namely, that Street confirmed that s 117 does not render a State law invalid. Instead, it only operates to render the State law imposing the relevant disability or discrimination inapplicable to the individual who invokes the provision (Street at 486 per Mason CJ, 503 per Brennan J, 528 per Deane J, 543 per Dawson J, 555 per Toohey J, 570-571 per Gaudron J, 581 per McHugh J).

[39]

Section 92

In Cole v Whitfield (1988) 165 CLR 360; [1988] HCA 18 ("Cole"), the High Court held that s 92 of the Constitution prohibits discrimination against interstate trade which is of a protectionist character (at 408). The prohibition extends to laws which might not discriminate against interstate trade on their face but nevertheless by their substantial effect discriminate against interstate trade and have a protectionist character.
Section 48(6) of the Legal Profession Act 2004 and cl 5 of Sch 3 to the Legal Profession Uniform Law regulate the conduct of legal practices within NSW and specifically those persons whose place of practice is NSW. We will assume, without deciding, that the conduct of a legal practice is trade and commerce for the purposes of s 92 (see Street at 537 per Dawson J) and also that s 48(6) is at least capable of operating on interstate trade and commerce by its application to a legal practitioner based in another State, who nevertheless has their principal place of practice within NSW. Solicitors located in border towns may be an example of the latter. Accepting those two assumptions, it is theoretically conceivable that a regulatory scheme for practising certificates could impose discriminatory burdens on that form of trade which could be characterised as protectionist in nature. However, the onus rests on those who assert invalidity to demonstrate that, as a matter of substance, the scheme is discriminatory in a protectionist sense (see Betfair Pty Limited v Racing New South Wales (2012) 249 CLR 217; [2012] HCA 12 at [31]). In this case, there was no attempt whatsoever to demonstrate that there was any discriminatory aspect to the operation of s 48(6), much less that it was of a protectionist character.
This does not exhaust the potential operation of s 92 which also refers to intercourse. The concept of "intercourse" in s 92 extends beyond movement across State borders to include interstate communications (see Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106; [1992] HCA 45 at 191 per Dawson J) including the provision of advice by professionals (see Cunliffe v The Commonwealth (1994) 182 CLR 272; [1994] HCA 44 at 308 per Mason CJ; "Cunliffe").
Cole differentiated between that part of s 92 which refers to trade and commerce and that which refers to intercourse, describing the latter as a "guarantee of personal freedom 'to pass to and from among the States without burden, hindrance or restriction'" (Cole at 393, citing Gratwick v Johnson (1945) 70 CLR 1; [1945] HCA 7 at 17). Cole otherwise restricted this "freedom" to a "confined area only" (at 406).

[40]

Inconsistency

Mr Siggins also contended that the impugned NSW provisions were inconsistent with various provisions of the Judiciary Act 1903 (Cth), specifically ss 39(2), 39B, 55A, 55B, 55D, 78 and 86(1)(ga), as well as s 122 of the Family Law Act 1975 (Cth).
The test for applying s 109 binding on this Court is set out in the following passage from Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2 at [31]-[34] (per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ): "[31] In Victoria v The Commonwealth ('The Kakariki'), Dixon J referred to two approaches which might be taken to the question whether an inconsistency might be said to arise between State and Commonwealth laws. They were subsequently adopted by the Court in Telstra Corporation Ltd v Worthing, Dickson v The Queen and Jemena Asset Management (3) Pty Ltd v Coinvest Ltd. [32] The first approach has regard to when a State law would 'alter, impair or detract from' the operation of the Commonwealth law. This effect is often referred to as a 'direct inconsistency'. Notions of 'altering', 'impairing' or 'detracting from' the operation of a Commonwealth law have in common the idea that a State law may be said to conflict with a Commonwealth law if the State law in its operation and effect would undermine the Commonwealth law. [33] The second approach is to consider whether a law of the Commonwealth is to be read as expressing an intention to say 'completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed'. This is usually referred to as an 'indirect inconsistency'. A Commonwealth law which expresses an intention of this kind is said to 'cover the field' or, perhaps more accurately, to 'cover the subject matter' with which it deals. A Commonwealth law of this kind leaves no room for the operation of a State or Territory law dealing with the same subject matter. There can be no question of those laws having a concurrent operation with the Commonwealth law. [34] The question whether a State or Territory law is inconsistent with a Commonwealth law is to be determined as a matter of construction. In a case where it is alleged that a State or Territory law is directly inconsistent with a Commonwealth law it will be necessary to have regard to both laws and their operation. Where an indirect inconsistency is said to arise, the primary focus will be on the Commonwealth law in order to determine whether it is intended to be exhaustive or exclusive with respect to an identified subject matter." (Footnotes omitted.)

[41]

Integrity of Federal and State Courts

As noted, Mr Siggins contends that the impugned NSW provisions are inconsistent with Chapter III of the Constitution as they are said to "compromise the institutional integrity of Federal and State Courts". This argument was not developed. It appears to be a variation on an argument that was rejected in APLA (at [35] per Gleeson CJ and Heydon J, [86] per McHugh J, [344] per Kirby J, [384] per Hayne J and [473] per Callinan J). Given the interaction between Part VIIIA of the Judiciary Act and the State systems of regulation of legal practitioners, including by the grant and refusal of practising certificates, it is untenable.

[42]

Conclusion

It follows that all of Mr Siggins' bases of challenge to the validity of the impugned NSW provisions, or their application to him, fail. His proceedings must be dismissed.

[43]

Whether the Court's findings warrant removal of name from the roll

As submitted by the Bar Council, the ultimate issue is whether the practitioner is shown, at the time of the hearing, not to be a fit and proper person to be a legal practitioner of the Supreme Court: Council of the Law Society of New South Wales v Jafari [2020] NSWCA 53 at [31] (per Bell P with whom White JA and Emmett AJA agreed). Mr Siggins did not address any substantive submissions to that issue.

[44]

The decision in Haque

The Bar Council drew the Court's attention to a decision of the Supreme Court of Tasmania (Blow CJ) in Legal Profession Board of Tasmania v Haque (2015) 23 Tas R 434; [2015] TASSC 5 ("Haque"), in which a practitioner misrepresented his expected principal place of practice in four practising certificate applications submitted to the Law Society of Tasmania. The Court declined to order that Mr Haque's name be removed from the roll in that case. The Bar Council submitted that the circumstances of that case were very different from those of the present case. We agree. Mr Haque was not practising as a lawyer anywhere during the periods covered by his four practising certificates in Tasmania; he was not attempting to make any personal gain or circumvent a requirement for practice in another state; his misstatements did not prejudice the interests of any member of the public and the evidence was that he had made many trips to Tasmania and many enquiries about practising there, which the Court relied upon to find that he hoped he would practise in Tasmania one day.

[45]

Expectations of a barrister: honesty and integrity

It should go without saying that qualities of honesty, integrity and a preparedness to comply with the law are essential requirements for being a fit and proper person to be a legal practitioner. If authority were needed for that proposition, it may be found (at least) in the decisions cited in the Bar Council Council's written submissions, Prothonotary v Montenegro [2015] NSWCA 409 at [66] (Meagher and Leeming JJA and Emmett AJA); Prothonotary v Holt [2008] NSWCA 136 at [15] (Gzell J, with whom Tobias and McColl JJA agreed); New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at [19] (Spigelman CJ, with whom Mason P and Handley JA agreed).
Applications for admission do not carry a lower standard of honesty. In Prothonotary v Comeskey [2018] NSWCA 18 dishonest statements and omissions to an admission authority were held to warrant removal from the roll.

[46]

Seriousness of the allegations

The Bar Council relied on a number of features of the present case to warrant the conclusion that Mr Siggins' name should be removed from the roll. We will address each of those submitted features in turn.
First, it was submitted that the misrepresentations were dishonest rather than inadvertent and were made multiple times over a period of years. We agree. That is a significant factor warranting Mr Siggins' removal from the roll.
Secondly, the Bar Council noted that the misrepresentations to the Bar Association of Queensland were accompanied by statutory declarations attesting that the information in the application was true. We find that the requirement for a statutory declaration brought home to Mr Siggins the solemnity of the representations.
Thirdly, the Bar Council submitted that, since at least his meeting with Mr Selth on 20 November 2008, Mr Siggins must have been acutely conscious of the requirements relating to "principal place of practice". However, that awareness does not exclude the possibility that Mr Siggins held a genuine (if misconceived) belief for a period of time that he could legitimately take advantage of the possibility of obtaining a practising certificate in Queensland and then relying on his admission in Queensland as the basis for an entitlement to practise in New South Wales. There may be a basis for suspecting that Mr Siggins appreciated that the Bar Council might take a different view. However, for the reasons already explained, we are not satisfied that the evidence establishes that the representations made before June 2011 were made dishonestly.
In our view, the point after which Mr Siggins appreciated that he was dishonestly misrepresenting his place of practice was after he received notice on 27 June 2011 of the fact that he would still be required to pass the Bar exams notwithstanding his provision of a certificate of fitness from the Bar Association of Queensland. After that point, Mr Siggins can have been in no doubt as to the fact that he needed either to pass the exams or stop practising in New South Wales. He did neither, choosing instead to circumvent the system by making knowingly false, and thus dishonest, representations.
The fourth matter relied upon by the Bar Council was the fact that Mr Siggins' misrepresentations were made to regulatory authorities in response to specific questions in practising certificate applications and queries raised directly in relation to his principal place of practice. We find that the representations were more serious for having been made "in the face of requests" and "in the face of reminders" of the requirements relating to the principal place of practice: cf Comeskey at [61] (Macfarlan JA with whom Simpson JA agreed).

[47]

Current indications of lack of fitness

There are a number of aspects in respect of which the Bar Council contends that Mr Siggins' conduct is incompatible with the characteristics of honesty and integrity required of a barrister. The matters specified were directed to establishing that the "deficiencies in character" revealed by the dishonest conduct continue and have not been addressed by Mr Siggins. We agree with the Bar Council's submission that Mr Siggins' conduct is incompatible with the characteristics of honesty and integrity required of a barrister and that he is currently unfit to practise as a barrister.
First, Mr Siggins has never conceded any wrongdoing. Secondly, Mr Siggins maintains his denial of wrongdoing and demonstrates no remorse or contrition. Thirdly, Mr Siggins' approach to these proceedings created the need for extensive factual investigations which included the need to obtain volumes of material from third parties in order to harness the body of evidence required to establish a circumstantial case of dishonesty when the true position was known to Mr Siggins at all times. In this context, the remarks of Hutley JA in Law Society of New South Wales v McNamara (1980) 47 NSWLR 72 at 78 are apposite: "The assumption which seems sometimes to have been made that the accused cannot be expected to tell the truth to his own detriment in criminal proceedings has no place in proceedings before the Statutory Committee, which is not punitive but for the benefit of the public."
The evidence in the proceedings included no evidence from any person with whom Mr Siggins has practised since mid-2007 suggesting that his character and conduct have changed: cf Montenegro at [81].
Finally, the Bar Council submitted that, throughout the proceedings, Mr Siggins has repeatedly resisted the production of documents centrally relevant to the case without any meritorious basis for doing so. In support of that contention, the Bar Council relied upon the contents of the affidavit of Rebecca Whittle sworn 4 March 2020 at [5]. Ms Whittle's affidavit annexed the Notice to Produce and Subpoena to Produce served by the Bar Council on Mr Siggins and lists the documents produced by him in response. Paragraph [5] of Ms Whittle's affidavit asserts in conclusory terms that it is apparent from that material that the documents ultimately produced by Mr Siggins were produced "in a piecemeal fashion and across a protracted period of time".

[48]

Conclusion

In all the circumstances, we are satisfied that the orders sought by the Bar Council should be made. In the Bar Council's proceedings (2019/94353), the Court: 1. declares that Julian Phillip Siggins is not a fit and proper person to remain on the roll of Australian lawyers maintained by the Supreme Court in accordance with s 22 of the Legal Profession Uniform Law (NSW); 2. orders that the name Julian Phillip Siggins be removed from the roll; and 3. orders that Mr Siggins pay the Council of the New South Wales Bar Association's costs of the proceedings.
In the proceedings commenced by Mr Siggins in the Federal Court that were cross-vested to this Court (2019/195328), the Court orders that: 1. the proceedings be dismissed; and 2. Mr Siggins pay the Council of the New South Wales Bar Association's costs of the proceedings.

[49]

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: 25 March 2021

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