The New South Wales Bar Association has made an urgent application before me, as the Common Law Duty Judge, by summons filed in court at 2 pm this afternoon, without objection from the defendant, Mr Rollinson. Given the hour, I propose to state my reasons for acceding to the orders sought by the Bar Association, as I have already indicated to the parties, as succinctly as I can.
Mr Rollinson is a barrister by profession and has practised at the New South Wales Bar for some years. In circumstances which I need not detail in these reasons, he had difficulty complying with the Bar's requirements for a practising certificate renewal at the end of 30 June 2021.
In circumstances which are fully described in the judgment of my colleague Wilson J in Council of the New South Wales Bar Association v Rollinson [2021] NSWSC 1090, her Honour made orders pursuant to s 447(3) of the Legal Profession Uniform Law 2014 (NSW) preventing or prohibiting Mr Rollinson from continuing to engage in legal practice in New South Wales. Other related orders were made reflecting the provisions of s 447.
Initially the proceedings before me were conceived of as interlocutory relief in support of a motion charging Mr Rollinson with criminal contempt for his alleged failure to comply with the injunction made by Wilson J. For reasons explained by Ms Richardson of learned senior counsel, who appears for the Bar Council, better was thought of that approach having regard to the decision of the Court of Appeal in New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 182G-183G (Kirby P), and 199F-201B (Mahoney JA). It was there decided that contempt proceedings which were criminal in nature could not be mixed with proceedings for an injunction to restrain future conduct which were civil in nature. The relief sought by the Bar Council has not changed and no question of unfairness arises from the procedural regularisation.
Even though in some respects the relief, if granted, will have a final effect, given the genesis of this application it is accepted by Ms Richardson - and it is certainly the understanding of Mr Rollinson - that the orders sought from me are effectively interlocutory orders or at least orders made on an ancillary basis, given a number of considerations not the least of which is that effectively the relief sought before me is probably in substance covered by the orders pronounced by Wilson J.
In a nutshell, the evidence before me, applying the standard applicable to an application for interlocutory relief of this kind, proves to that standard that Mr Rollinson has continued to perform activities consistent with engaging in legal practice and holding himself out as being engaged in legal practice, at least to other members of the legal profession including solicitors. I will detail some of the evidence in a moment.
The nub of the matter before me, and the reason for the degree of urgency, is that evidence has come to light and into the hands of the Bar Council which indicates that Mr Rollinson intends to appear in a matter in which he had been formerly briefed in the Local Court at Wollongong tomorrow. He intends to appear for a judgment creditor to resist an application for an adjournment brought by the judgment debtor.
There are other matters indicated in the evidence. But focusing upon the urgent matter, it is quite apparent that on a number of occasions that Mr Rollinson has, as I have said, engaged in conduct consistent with the conduct of legal practice as a barrister. Although I was taken through all of the evidence by Ms Richardson, with her characteristic thoroughness and efficiency, it suffices to give some indications of what the evidence proves for present purposes.
In relation to the matter listed before the Wollongong Local Court tomorrow, on 8 September 2021 Mr Rollinson wrote to the solicitor for the judgment debtors concerning the hearing that has been set down for tomorrow. The content of the letter is not as significant as its structure. First, it was sent by Mr Rollinson by email using an email address associated with Latham Chambers at 67 Castlereagh Street, whence he practised. The format of the letter is typical of legal letters exchanged between practitioners, and it was on his professional letterhead "Michael Rollinson, Barrister, Latham Chambers." There has been other correspondence and other discussions between Mr Rollinson and that solicitor.
On Monday of this week, 13 September, Mr Rollinson sent an email to Mr Stewart, the solicitor, expressing surprise at the foreshadowed application for adjournment, setting out the reasons why it was inappropriate and pointing out that the evidence served in support of it was inadequate in certain material respects, in Mr Rollinson's opinion. The letter concluded with this paragraph:
"The respondent will seek the costs of any adjournment granted (which is not consented to) on an indemnity basis and immediately payable."
Such a letter, of course, is the type of letter one practitioner might justifiably write to another, objecting to a proposed adjournment for reasons which the first practitioner conceived of as inadequate.
When these matters came to the attention of the Council of the Bar Association, through the executive director it instructed its solicitors to take proceedings including for contempt of court by way of motion, which is the usual way to proceed, in the proceedings that had been before Wilson J. The motion was duly drafted together with supporting evidence. That material was served upon Mr Rollinson late yesterday afternoon. After Mr Rollinson said he could not access electronically some of the evidence, hard copies were sent to him at his request.
As I have said, that notice of motion included a claim for the relief sought in the summons that was filed before me. Mr Rollinson was no doubt, by the receipt of that notice of motion, reminded of - I am sure he had not forgotten - the obligations he owed under the orders made by Wilson J.
Notwithstanding that consideration, he emailed the Local Court at 11:14 am, today attaching for filing on behalf of the respondent to the motion an affidavit by him, yet unaffirmed. He attached to his email a republication - I would put it - of respondents' written submissions filed in March 2021, at the foot of which he described himself, as he was then entitled to do, as counsel for the judgment creditors. He also attached further brief submissions signed by him, set out in a legal format but, in fairness, not designating himself as counsel or as a barrister.
Having said that, however, the unaffirmed affidavit described his profession as barrister, gave his address, not as his home address but as the professional address of the chambers from which he formerly practised, and stated in the first paragraph, "I represent the judgment creditors on a direct access basis," language which a reasonably informed reader would understand as being a reference to a barrister who has been briefed by a client without the intervention of an instructing solicitor. It all has the flavour of a person who is engaging in legal practice, and Mr Rollinson candidly, as is his obligation, accepts that he proposed to appear before the Local Court tomorrow to represent the judgment creditors.
There are other matters. For instance, the evidence before me also demonstrates that, after 30 June, while a judgment of the Court of Appeal was reserved, he communicated with the Registrar submitting further submissions in a matter in which he had appeared as junior counsel. That letter was dated 23 August 2021, which was soon after the orders were made by Wilson J. And on 7 September 2021, he wrote to the Crown Solicitor's Office, who had represented the State of New South Wales in the appeal, setting out his views as the unsuccessful counsel, not for the State, but for the losing party, as to the errors made by their Honours and the potential for a special leave application. All of this also creates a picture of a person who is continuing to engage in legal practice as a barrister.
Mr Rollinson, who did not put on evidence or seek to give sworn testimony - I do not criticise him for that given the prospect of contempt proceedings - told me from the virtual bar table that he had no intention of misleading the Local Court as to his professional standing. I am prepared to accept that at face value. At the same time, his subjective intent in this matter is not determinative.
He also made it clear to me that he did hope to appear before the Local Court tomorrow, and sought to give an assurance that he would make it clear to the Local Court that he was not entitled to appear professionally but that he was seeking leave to appear on behalf of a former client. I must say, I found that proposal entirely unsatisfactory having regard to the orders made by Wilson J. It seems to me that having regard to the matters to which I have referred in this judgment so far, that there could be no doubt in the mind of anyone in the Local Court, as it were, that Mr Rollinson was appearing in a professional capacity even if only on a de facto basis, were it allowed to occur.
Given the orders made by Wilson J, and given the evidence to which I have referred, I indicated to the parties that I proposed to make the orders sought.
Amongst the orders sought is a deactivation of the email address from Latham Chambers which Mr Rollinson has continued to use. He sought some indulgence in respect of that, for a period of five days to enable him to re-organise an email address. He did not seek to dissuade me from making the order at all, and I am prepared to accede to that application.
It also occurred to me that, given the shadow of the imminent commencement of criminal contempt proceedings, that even though no sworn testimony was given, some of the statements made by Mr Rollinson could be admissions contrary to his interest in that context. I make no judgment about that. And in the circumstances, I have raised with the parties the prospect of providing him with a certificate under s 128 of the Evidence Act 1995 (NSW) in relation to the statements he made from the bar table, particularly those attempting to persuade me that I should not preclude him from seeking leave to appear in the Local Court tomorrow.
Ms Richardson advanced cogent arguments as to why s 128 was not engaged in circumstances where Mr Rollinson did not give evidence and took no objection to the statements that he made. I acknowledge the force of those submissions; however, it seems to me, given the importance of the privilege against self-incrimination and the possible consequences of the outcome of contempt proceedings, that I should give such a certificate to him in respect of the statements he made before me this afternoon.
I also adjourned for a short time to allow Mr Rollinson the opportunity to arrange for someone else to appear for the judgment creditor tomorrow so his former client would not be left in the lurch.
I will make orders in accordance with the short minutes of order prepared by Ms Richardson.
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Decision last updated: 14 October 2021