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[2024] NSWCA 84
Court of Appeal (NSW)
2024-04-19
Leeming JA, Stern JA, Tadgell J
Original judgment source is linked above.
[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.]
HEADNOTE [This headnote is not to be read as part of the judgment] The Council of the NSW Bar Association (the Council) sought a declaration that the respondent barrister, Michael Kelvyn Rollinson, was not a fit and proper person to remain on the roll of Australian legal practitioners maintained by the Court under s 22 of the Legal Profession Uniform Law (NSW). The Council also sought an order that the respondent's name be removed from the roll. The Council alternatively sought a declaration that the respondent be found guilty of professional misconduct (which did not ultimately arise for consideration). The respondent held a practising certificate as a barrister from 1995 until 30 June 2021. Notwithstanding that his practising certificate was not renewed because the respondent was unable to pay the fees, he continued to provide various legal services. In August 2021, he breached an undertaking he had given not to engage in legal services. Between 23 August 2021 and 20 October 2021, he breached the terms of an injunction restraining him from engaging in practice and advertising or representing that he was entitled to do so. In September 2021, he breached the terms of a further injunction by appearing in a matter in the Local Court. Two separate contempt proceedings were brought, culminating in findings of 16 counts of contempt. The first contempt proceeding resulted in a suspended sentence of imprisonment from 8 April 2022 for a period of three years. Sentencing proceedings for the second contempt proceeding were remanded to 13 November 2024. Although the respondent consented to the relevant relief sought by the Council, the Court had to be satisfied that he nonetheless was not a fit and proper person so as to grant such relief. The Court (Leeming JA, Stern JA and Griffiths AJA) held, allowing the application with no order as to costs: (1) In determining whether an order for removal from the roll should be made, the Court has to ask whether a practitioner is presently not fit to practise and is likely to be unfit to do so in the indefinite future. The Court must apply established principles reflecting the purpose of disciplinary proceedings, namely protecting the public and its confidence in the legal profession: [30]. A practitioner's criminal conviction(s) or mental health are both features which may bear on their fitness to remain on the roll, but each case must turn on its own facts and circumstances: [31], [40]. Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279; [1957] HCA 46; Council of the Law Society of NSW v Clarke [2022] NSWCA 57; Council of the Law Society of NSW v Green [2022] NSWCA 257, applied. Re B (a Solicitor) [1986] VR 695; RJA Cornall (in his capacity of Secretary of the Law Institute of Victoria) v JD Little (Supreme Court (Vic), Tadgell J, 11 June 1991, unrep); Legal Practitioner's Conduct Board v Trueman [2003] SASC 58; Garde-Wilson v Legal Services Board (2007) 27 VAR 125; [2007] VSC 225; Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470; considered. (2) The respondent's repeated and wilful contraventions of the Court's injunctions, spanning a period of months, as well as breaches of the conditions of his suspended sentence, demonstrated his unpreparedness to comply with the law: [42]-[45]. It would be inimical to the profession's reputation and public confidence in its integrity for his name to remain on the roll: [46]-[49] Medical evidence supported the fact that his repeated and flagrant conduct was causally affected by his poor mental health, and that this would likely deteriorate further over time: [50]-[52]. The combination of these circumstances were such that it was appropriate for the Court to grant the relief sought. New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284; Council of the New South Wales Bar Association v Siggins [2021] NSWCA 40, applied. APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; [2005] HCA 44, considered.
JUDGMENT
Summary of relevant facts
Relevant legal principles
Consideration and determination
Costs
Conclusion
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: 19 April 2024
Council of the NSW Bar Association
Rollinson
[2007] VSC 225
[2003] SASC 58
(2005) 224 CLR 322
(2001) 52 NSWLR 279
(1957) 97 CLR 279
[2005] HCA 44