In Re Davis [1947] HCA 53

High Court of Australia|1947-07-01|Before: Williams JJ

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ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Legal Practitioners - Barrister - Admission - Criminal offence prior thereto - Non- H. C. or A. disclosure to Barristers Admission Board - Jurisdiction of Court over barristers 1947.

Disbarring - " Shall" - Legal Practitioners Act 1898-1936 (N.8.W.) (No. 220 "S~

The appellant; having been approved for-admission as a barrister by the De: 5 15»

: Barristers Admission Board was in 1946 admitted as a barrister by the Latham C3. "Supreme Court of New South Wales. In 1947 that Court disbarred the MeTierhan ani appellant on the ground that in 1935 he had pleaded guilty to an indictment Bi for breaking, entering and stealing and that he had failed to disclose this fact to the Court or to the Board or to the persons from whom he obtained certificates of good fame and character. 3a Held (i) by Starke, Dixon, McTiernan and Williams JJ. (Latham CuI. dissenting), that the Supreme Court is not bound by s. 10 of the Legal Prac- fitioners Act 1898-1936 (N.S.W.) to admit to the Bar a candidate who is approved by the Board,

(ii) by the whole Court, that the power of the Supreme Court to disbar may be exercised upon a ground that is antecedent to the admission of a 7 barrister or the determination of the Board to approve him as a fit and proper person, 7 (iii) that the Supreme Court rightly held that the appellant was not a fit 'and proper person to be a barrister. Decision of the Supreme Court of New South Wales (Full Court): In re Davis, (1947) 48 S.R. (N.S.W.) 33; 64 W.N. (N.S.W.) 226, affirmed.

Apprat from the Supreme Court of New South Wales. | The Prothonotary of the Supreme Court of New South Wales _ Teported to that Court that in the year 1946 Sydney Samuel Wilton.

Section 10 of the Legal Prac- person to be made a barrister shall be

In affidavits sworn and filed by each of them respectivel: two solicitors referred to above said that they first became acquain

the University of Sydney. They lost touch with him for a ' riod but from the date of his return to Sydney at the end of 1941 up to the date of their affidavits they had been well acquainted th Davis both as a personal friend and during the three years _ immediately preceding their affidavits, professionally. Until served, ; 19th September 1947, with a copy of the rule nisi and the report the Prothonotary they were unaware that Davis had ever been arged with or convicted of any offence against the law and they not told of those matters by Davis or any other person, except one of the solicitors, on 18th September 1947, received certain mation as a result of a newspaper report. Each of the solicitors d that he gave his certificate of character from his own assessment knowledge of Davis' character during the years the solicitor d known him and from the reputation Davis had borne among heir mutual friends and acquaintances. mA The Attorney-General for the State of New South Wales deposed 4 that he first met Davis in 1932 and had met him on several occasions between that year and 1943. During 1946 and 1947 Davis had called upon the Attorney-General occasionally and he considered that he had sufficient knowledge of Davis during those two years to at he had been of good character and displayed considerable ity and industry in his professional work. professor in the Faculty of Law of the University of Sydney also deposed that in his opinion Davis, whom he had known for several years, was a person of good conduct and character, and he ered to this opinion despite the facts concerning the matters alleged against Davis and which were made known to the Professor for the first time on or about 22nd September 1947. minister of religion deposed that since 1942 his relationship Davis had developed into a close personal friendship and that that period of friendship Davis had always appeared to him trustworthy, industrious and of good fame and character. Supreme Court made the rule absolute and ordered that 1 sbarred and his name removed from the roll of barristers ; Davis (1). m that decision Davis appealed to the High Court on the nds, inter alia ; (a) that there was not any evidence to support » making 'of the order appealed from ; (b) that there was not any ce that he was not a fit and proper person to be on the roll risters at the time of his showing cause ; (c) that the Supreme in error in holding that it had been established that he

with Davis in 1932 when they were students at the Law School #- ©. oF A-

was guilty of fraud in procuring his approval by the Barristers -

Admission Board as a fit and proper person to be admitted to the Bar, or, alternatively, that the establishment of a concealment at the time of procuring such approval by Davis as facts which as a man of honour it was his duty to disclose and falling short of fraud - was sufficient to empower the Full Court of the Supreme Court of New South Wales to make the order; (d) that Davis having been - certified by the Barristers Admission Board as a fit and proper '3 person to be admitted to the Bar of New South Wales and having - been by order of the Full Court of the Supreme Court admitted to that Bar the said Full Court had no power on the evidence before it - to disbar Davis and remove his name from the roll of barristers ; (ce) that the judgment and order of the said Full Court was against - the evidence and the weight of evidence inasmuch as the fact of the crime of which Davis was admittedly guilty was not in itself suffi- _ cient to establish that he was not of good fame and character so as to be approved by the Barristers Admission Board as a fit and _ proper person to be admitted to the Bar at the time of his making application to be so approved or that the fact of such crime taken in conjunction with the failure of Davis to inform the persons certifying him to be of good fame and character or the Barristers - Admission Board thereof was not sufficient in the circumstances - appearing from the evidence.

The relevant statutory provisions, Barristers Admission Rules - and the nature of the arguments are sufficiently set forth in the Judgments hereunder.

Fuller K.C. (with him Sheppard), for the Bar Association of New 5 South Wales, to assist the Court. Cur. adv. vult.

The following written judgments were delivered : - we

Lariam C.J. This is an appeal from a rule of the Supreme - Court of New South Wales disbarring the appellant Sydney Samuel _ Wilton Davis and removing his name from the roll of barristers. The appeal is brought as of right, the appellant's income from his - profession having been more than £300 in a limited period - J) dina e: Act 1903-1946, 8. 35 (1) a (1) (Lhomas v. Incorporated Law Institute of New South Wales (1) ).

The appellant was born in 1914; his father was a man of anal means ; he was successful at school, but had to earn money in order

in at school. In 1932 he enrolled as a student in the Faculty in the University of Sydney. He passed his examinations, in 1933 there were family misfortunes and he had to give up ; work at the university and accept a position as an insurance wasser. He broke down and was in a mental hospital until

he broke and entered a house and stole about £140 worth of He was apprehended and made a full confession. He was ; for trial to Quarter Sessions, where he pleaded guilty. He was 'on a bond. He worked at Garden Island during the war bsequently resumed his legal studies and was admitted as a rin 1946. appellant qualified for admission as a barrister by pursuing e course prescribed for students-at-law : see Barristers Admission es 1928 (Betts, Louat & Hammond, Supreme Court Practice, 3rd (1939), p. 464), rule 10. Rule 12 as amended on 19th November requires persons applying to be admitted as students-at-law produce certificates from two or more qualified persons stating in their opinion the applicant is a person of good fame and . The appellant obtained such certificates from two in 1944 and presented them to the Barristers Admission He did not disclose either to the solicitors or to the Board that he had been convicted of breaking and entering. . he Practitioners Act 1898-1936 (N.S.W.) s. 4, provides the Judges (of the Supreme Court), the Attorney-General, and barristers, shall form a Board for the approval of properly fied persons to be barristers. Section 9 provides that: "No however qualified in other respects, shall be admitted unless the Board is satisfied that he is a person of good character. . . ." Section 10 is as follows : - * Every te whom the Board shall approve as a fit and proper person ade a barrister shall be admitted as a barrister by the Court day appointed for that purpose." Rule 40 of the Barristers sion Rules as amended on 19th November 1941 requires nt-at-law applying for admission as a barrister to lodge 'as to character from two or more qualified persons as

r from the same two solicitors and produced them to the

On this occasion also he abstained from informing the

of the n and a rule nisi was made calling upon the show cause why he should not be disbarred and why

y 1934. In September 1934, in conjunction with two other

H.C. or A. his name should not be removed from the roll. The Full Court,

Latham,c.J. ae _ failed to disclose that fact to the Board and the solicitors from whom

holding that it had jurisdiction to remove a barrister's name fr the roll, decided that the appellant was not a fit and proper per: to remain on the roll because he was not a person of good charact in that he had committed the criminal offence mentioned, ha

he had obtained certificates of character, and had therefore deceived the Board and those solicitors. : It was not contended on behalf of the appellant that the Supreme Court did not have jurisdiction to disbar a barrister. It was ceded that the Supreme Court had such jurisdiction, provided that the ground upon which removal of the barrister's name from roll was sought was a ground relating to matters or circumstan which occurred after the barrister's admission. It was contended, however, that the Supreme Court had no jurisdiction to disbar by reason of any facts or circumstances which had occurred befor the Board gave its approval of a candidate as a fit and prope person under s. 10 of the Legal Practitioners Act 1898-1936. Under the Charter of Justice, cl. X., (Betts, Louat and Hammond Supreme Court Practice, 3rd ed. (1939), p. 3) the Supreme Court is given jurisdiction to admit " fit and proper Persons to appeai ' act as Barristers, Advocates, Proctors, Attorneys and Solicitors. It was held in In re the Justices of the Court of Common Pleas Antigua (1) that a power to admit advocates in a colonial cot carried with it, as an incidental power, a power of suspending fr practice. In an unreported case of In re White (August 1930) Supreme Court held on the authority of the Antigua Case (1) the Court had a power of suspending barristers from practic: disbarrmg them in a proper case. The Supreme Court follows this decision in the present case. The jurisdi iction of the Court to disbar being admitted, the questi which arises is thy the Court is entitled in the exercise ol

barrister. The argument ue the appellant Gales the provision of 8.

steal that the andiines isa person of good fame and chai Decision upon the question of the good fame and character candidate is expressly by this section entrusted to the Board. - is not given to the Court. Section 10 provides that every cand approved by the Board as a fit and proper person " shall be a as a barrister by the Court on any day appointed for that p

approved by the Board. To hold the contrary appears to me to _ give no effect to the word " shall." All the judges are members of

the Board, and there is no difficulty in understanding why it is vided that upon the approval of the Board the Court shall admit candidate. The judges, as members of the Board, have con- sidered whether or not to approve the candidate before he applies to the Court. Section 10 in my opinion gives a right to be admitted a candidate who comes to the Court upon an appointed day with approval of the Board. The provision that the candidate shall be admitted is much stronger than a provision that the Court may admit, or that it shall be lawful for the Court to admit, the candidate, It has been argued that upon this interpretation the Court would 'be bound to admit a candidate notwithstanding the happening or

"the discovery of some disqualifying fact after the Board had approved

an argument from consequences, but the consequence which is feared need not arise. In the event supposed there would be nothing 0 prevent the Board withdrawing its approval and informing the accordingly before the candidate is admitted. After a is admitted the Board has no power to act in any way respect to his membership of the Bar, but, up to the moment nission, the Board has full power of giving or withholding the pproval which is an essential condition preliminary to admission, either a refusal of approval nor a giving of approval is irrevocable. Board may refuse approval, and, upon reconsideration (with without new material), give approval. So also the Board may give approval and, upon reconsideration, refuse approval, rawing the approval previously given. "The next step in the argument for the appellant is that, as the tatute vests in the Board, and not in the Court, the function of g whether a candidate is of good fame and character, Court, upon an application for removal of the name from the roll, cannot properly consider any matter or ance affecting character which is antecedent to the date of approval of the Board. The Board, it is contended, is to be 'sole judge of such matters and circumstances. In my opinion / argument is well founded in relation to admission, but the 1 upon which it is based have no relation to removal. The cited relate only to admission of barristers. They have no upon any matters relating to the disbarring of barristers, function of the Court, not of the Board.

"Accordingly, the Court is bound to admit a candidate who is H- 0: or 4.

Upon an application for removal of the name of a legal prac- Ss titioner from the roll, the question which has to be determined b the Court is whether he is a fit and proper person to remain as member of the profession. In Southern Law Society v. Westbrook (1 reference is made to the relevant authorities. In exercising this jurisdiction the Court may consider any conduct of the barrister s which is relevant to the question of whether he is a fit and prope person to continue to be a barrister. In determining this question immediately recent and more distant behaviour may be taken into account. It is not possible to draw a line at some point of time and to prevent the Court from looking behind that line. When a question arises in 1947 as to whether a person is a fit and proper person to continue as a barrister it is not irrelevant to consider facts 'g which happened in 1934, 1944, or 1946. Such facts may be mos' informative as to his character. When a considerable period of - time has elapsed past facts should be considered in the light of the - lapse of time, and weight should be given to the subsequent, - behaviour of the person concerned. In this case, however, the | applicant was not only guilty of a grave criminal offence in 1934, but in 1944, and again as recently as 1946, he induced two policitare to give him certificates of character without disclosing to them that he had been convicted of that criminal offence, and he presented to the Board certificates so obtained. It would not be reasonable - to require a candidate to disclose to the Board, or even to persons - whom he approached with a request for certificates, every wrong: doing of his life. But a conviction for housebreaking is so obviously a relevant matter when character is under consideration that the can be no room for doubt in the present case as to the duty to - disclose it both to the Board and to the persons from whom hen obtained certificates of character.

It was submitted that the appellant, by his good behaviour sin 1934, had redeemed himself, and that it was not unreasonable fo him to take the view in 1944 and 1946 that he was then a persot of good fame and character. It may be that he had by that : become a person of good fame, i.e., of good reputation among tho who then knew him. But intrinsic character is a different matter. - A man may be guilty of grave wrongdoing and may subsequently become a man of good character. If the appellant had frankly _ disclosed to the Board and to the two solicitors the fact of conviction, that disclosure would have greatly assisted him in endeavour to show that he had retrieved his character. But his failure to make such disclosure in itself, apart from the convie'

any possibility of holding that he was in 1946, or had #- ©. oF A. me in 1947, a man of good character. pai

was further argued for the appellant that even if the Court [x pe

by the Board, yet the Court ought not to have disbarred him, jatham c.. should have been content to impose a limited suspension or to ster some form of reprimand or censure. It is impossible, opinion, to say that the Court was wrong in determining to ir the candidate. He committed a very serious offence and it in circumstances when it was his duty to disclose it. order made will not prevent the appellant from applying at a date to the Board to approve him as a fit and proper person 0 be admitted to the Bar (Incorporated Law Institute of New South 'ales v. Meagher (1) .

opinion, for the reasons stated, that the Court was entitled, ising its jurisdiction with respect to removal, to consider whole conduct and character of the appellant for the purpose ul ng the question whether he was a fit and proper person

ntinue to be a barrister, and that the Court rightly held that 'not a fit and proper person to continue to be a barrister. opinion the appeal should be dismissed.

J. This is an appeal from an order of the Supreme 0 New South Wales disbarring the appellant and removing name from the roll of barristers.

is contended that the Supreme Court had no jurisdiction to ak order, The argument was founded upon Part IT. of the

| Practitioners Act 1898-1936 of New South Wales. A Board up by that Act for the approval of properly qualified persons a but no candidate, however qualified in other respects, hall be admitted as a barrister unless the Board is satisfied that n of good fame and character. And s. 10 provides

on to be made a barrister shall be idutitted as a barrister on any day appointed for that purpose.

by the Court. But it appears that he suppressed the from the Board and the Court that he had some years

The argument is that the Board's approval of the appellant as fit and proper person to be a barrister was conclusive of his rig] to be admitted and of the duty of the Court to admit him as a barrister.

But the word "shall" does not always impose an absolute imperative duty to do or omit the act prescribed. The word is" facultative: it confers a faculty or power. And, as Earl Cairn, L.C, said in Julius v. Lord Bishop of Oxford (1) in relation to th expr on, "it shall be lawful," "there may be something in nature of the thing empowered to be done, something in the objec for which it is to be done, something in the conditions under whi it is to be done, something in the title of the person or persons fo whose benefit the power is to be exercised, which may couple th power with a duty, and make it the duty of the person in whom power is reposed, to exercise that power when called upon to do so. Apart from the word "shall" there is nothing in the Legal Prae- titioners Act which suggests an imperative and absolute duty upo the Court to exercise its authority to admit persons as barriste: Indeed the interposition of the Court would be merely minist if it were under an absolute duty to admit a person as a barrister upon approval of the Board. And the Court would be without jurisdiction to refuse admission to any person approved by the Board though information was before it that such person, tho unknown to the Board, was a lunatic or a thief or otherwise di: putable or unfit to belong to the profession of a barrister.

In my opinion however, the faculty or power is reposed in t Court in the public interest. It must have the approval of th Board but upon the Court is placed, in the end, the duty and responsibility of admitting persons as barristers. The Court ha : power in reserve, seldom required, having regard to the function of the Board, but still necessary, as this case well illustrates. -

The provision of s. 23 of the Interpretation Act of 1897 of South Wales requires notice. It provides that wherever in an Act a power is conferred on any officer or person by the word " may such a word shall mean that the power may be exercised, or at discretion; but where the word "shall" confers the pow such word shall mean that the power must be exercised. _ words " any officer or person " are not very appropriate as app! to courts of law though no doubt the Commonwealth Court Conciliation and Arbitration and its judges have for the purposes 0 s. 75 (v.) of the Constitution been regarded as officers of the Comm wealth. The application, however, of the section depends on |

juired to be done. The word "shall" cannot be construed reference to its context. Here the power must be exercised. it may be exercised by a refusal of the thing required or by a of that thing. And in the present case though a candidate @ admission is approved by the Board still it is upon the Court the duty and responsibility of admission is conferred. And t duty is not, as already indicated, imperative and absolute. 'The Court in the present case might, therefore, if the facts of the appellant's conviction had not been suppressed, have rejected his on for admission. Both the Board and the Court were sled and this in itself is a sufficient ground for disbarring the pellant and removing his name from the roll of barristers. (0 express power to remove barristers from the roll has been ht to our attention, other than the limited power contained |. X. of the Charter of Justice, but I would add that the power is in the Court. Clearly, under various powers, the Court

'it is essential for the due administration of justice, as was said In re the Justices of the Court of Common Pleas at Antigua (1)

} case for there is no ground upon which this Court should with the decision of the Supreme Court removing the nt's name from its roll of barristers.

This appeal is brought as of right from an order of eme Court of New South Wales. At the beginning of the 1946 the appellant was admitted to the Bar of that State. order against which he appeals was made on 20th October It disbars him and removes his name from the roll of ers. No objection is taken to the competence of the appeal, is based upon the value in terms of money of the appellant's Is as a barrister-at-law.

ground upon which the Supreme Court disbarred him was 'Sth March 1935 he had pleaded guilty to an indictment for

ontent of the power, the nature and the purpose of the thing H-©- oF A.

breaking and entering a dwelling house and stealing articles jew allery and of clothing therein and, further, that he had fail to disclose this fact to the Court or to the Barristers Admiss Board, to which he had produced certificates of good fame character from persons who did not know that he had been convicted.

The Bar is no ordinary profession or occupation. The du and privileges of advocacy are such that, for their proper ex and effective performance, counsel must command the persoi confidence, not only of lay and professional clients, but of ot members of the Bar and of judges. It would almost seem to g without saying that conviction of a crime of dishonesty of so grave a kind as housebreaking and stealing is incompatible with t existence in a candidate for admission to the Bar of the reputati and the more enduring moral qualities denoted by the expres " good fame and character," which describe the test of his ethic fitness for the profession.

By the argument in support of the appeal, however, in the si circumstances of his case, the appellant's crime was given a diff interpretation ; it was treated rather as an aberration in the co of a life of highly commendable and very unusual effort and achiev ment by which earlier disadvantages were overcome and misfor surmounted.

ine fincas He is now eles three years of age. a working man and he was the eldest of four children. At se he showed promise and he took a high place at the State pu school and high school which he attended. But at fourteen ys of age he was compelled to leave school. He went to B ake he lived first with some relatives and afterwards with employer. He earned his living as a cook's assistant. After year or more he returned home and attended high school ag When he was sixteen he sold newspapers in the evening while continued his schooling by day. Next year he and his brot became fruit and vegetable vendors. He nevertheless obt his school leaving certificate and he then secured employment | clerk. He received a grant of assistance contributing to the ment of his University fees and at eighteen years of age he enrolled as a student in the Faculty of Law.

His difficulties had been increased by his sister's becon invalid and now his youngest brother suffered disablement serious accident. He passed, however, his first year and ent re

his second. At the same time the appellant undertook can- for industrial life insurance, work which yielded him no e. In the middle of the year, being then nineteen years of , he suffered a complete nervous breakdown beginning with loss and he was admitted to a mental hospital. There he as a patient for about eight months. At the end of that he was given leave of absence. A little over four months he had been released he committed the crime of which he was He was in his twenty-first year. Apparently he lived his mother, but she had her hands full with the two younger hildren who were invalids. The appellant says that his recollec- of the period is hazy and that he cannot remember many of the its. In wandering about, he met a young man and woman in company with them he broke and entered a flat at Bondi,

want of which he knew and had visited. After the appel- nt had failed in an attempt to get through the fanlight, the young gained entrance by manipulating the lock. They stole about wth of goods, including a fur coat and other clothing, a wireless set and an electric iron. The appellant and sold and otherwise disposed of some of these articles. questioned by the detectives the appellant at first denied his icity in the crime, which he said had been committed by some person whom he invented, but afterwards he made a full en confession. The housebreaking took place on 18th Septem- The appellant was committed for trial on 10th October. th October his mother returned him to the mental hospital.

s finally discharged from the hospital on 9th January 1935. i 35 and eased upon a bond to be of good behaviour for three years avoid the company of his two confederates. It is not clear evidence there was before the magistrates and the of Quarter Sessions. But it does not seem to have the view that the appellant's crime was to be excused or by his mental condition. The learned Chairman, however, that to his mind the appellant's demeanour was most and was possibly due to some other cause than criminality.

| discharge from the mental hospital the appellant went nd where he earned a living in various ways, as a coach,

lder's labourer, a cane-cutter (an occupation in which he

and injured his hand) and as a boarding-house keeper. 1938, he began a course in Law and Arts at the Queensland He passed his year, but he married and that. seems iterrupted his course. For the ensuing three years he

or A. earned his living as a salesman of cash registers. Then he returne

to Sydney. He was rejected for military service and he be a process worker in an aircraft factory and, later, a fitter in a naval establishment. i

In 1943 he combined his work with a resumption of his Lay course at the Sydney University. He decided to qualify for Bar and, in May 1944, he applied for admission as a student-at-law. He obtained the requisite certificates that he was of good fame and character from two solicitors whom he had known since 193: Neither of them knew that he had been convicted, though thes appellant himself thought, as it appears, that one of them was awa of the fact.

The appellant says that since 1934 he has led a life of serupulo honesty and there is no reason to believe otherwise. Indeed except for an unseemly piece of behaviour at the end of 1943 on New Year's Eve, when in an altercation between the appellant an his wife in the street a policeman intervened and took him to tl station, there is nothing known to the appellant's discredit after his conviction.

The appellant graduated with second class honours in 1945, For the purpose of his admission at the beginning of the next year, - he obtained certificates of character from the same two solicitors The Barristers Admission Board, with no further information before them, certified that the appellant had complied with the Rules for the Admission of Barristers and was eligible for admission. o

In 1947 the fact that the appellant had been convicted was discovered and, upon the report of the Prothonotary, the Supren Court made a rule nisi calling upon him to show cause why should not be disbarred and, after hearing cause, made the rul absolute.

In support of this appeal against the rule absolute three cont tions were advanced. First, it was said that the jurisdiction of Supreme Court did not enable the Court to disbar the appella upon the ground that, before his admission to the Bar he was of good fame and character or that he had been convicted or that had not disclosed the fact to the Board or the Court before admi

_ Secondly, it was contended that fe the facts he was: te t

Thirdly, on the assumption that the circumstances did the Supreme Court to disbar the appellant, an attack was m the exercise by the Supreme Court of the discretion to mal order disbarring him and removing his name from the roll of cour

the Barristers Admission Board and not the Court to decide es

Board having granted its certificate, the Court cannot go behind Davis. certificate and refuse to admit a candidate, or, having admitted pia

afterwards disbar him on grounds which are antecedent to the

'The authority of the Supreme Court to admit persons to practise

counsel comes from cl. X. of the Charter of Justice. Although much of the clause as relates to the removal of barristers from station 'on reasonable.cause is expressed in reference to prac-

rs from Great Britain and Ireland only, there has never been doubt that the Court has a general authority to suspend or e barristers from the roll (cf. In re the Justices of the Court of on Pleas at Antigua (1)). By 11 Vict. No. 57 a Board was lished for the approval of properly qualified persons to be . The Barristers Admission Board consists of the Judges, ¢ Eiitnrney. -General and two barristers to be annually elected by practising barristers. The powers and duties of the Board and

y the Rules for Admission of Barristers of 1928, as amended. v South Wales Law Almanac 1938, p. 244, and 1947, p. 186).

respects, shall be admitted as a barrister unless the Board fied d that he is a person of good fame and character. Section 's that every candidate whom the Board shall approve as

by the Court on any day appointed for that purpose.

g persons who by the Rules are to be eligible for admission rs are students-at-law who have been such students for bed period and have complied with the requirements of (4).

person intending to apply for admission as a student-at- give written notice of his application to the Secretary of (r. 11), His notice must be accompanied by certificates persons who possess one of the requisite qualifications, et out. Each such person must identify himself, give and the circumstances in which he has known the 'state in his own handwriting whether, in his opinion, ant is a person of good fame and character (r. 12).

The Board may then require such further or other evidenei to the good fame and character of any applicant as it thinks ne sary (r. 13).

When the student-at-law has in other respects qualified and: to apply for admission to the Bar he must give notice to the retary of the Board (r. 36). He must lodge with the Secrets among other things, certificates as to character from two or m qualified persons as is prescribed in the case of admission as student-at-law (r. 40).

It is then provided that, unless the Court otherwise orders,

the Board certifies that he has complied with the rules and eligible for admission (r. 41). $

A rule provides that a barrister is to be admitted only wy motion made in open Court and he must be present (r. 42).

Upon the foregoing provisions it is maintained that, the Bo: having been satisfied in 1946, as it must be taken to have be that the appellant was of good fame and character, that is conclusi of his fitness as at that date. Section 10, it is said, thereupon conferred a right upon him to admission to the Bar to which it the Court's duty to give effect.

This contention, in my opinion, gives too literal a constructi of s. 10. It would be absurd to lay hold of the word "shall" and interpret the provision as intending to place upon the Cor the imperative duty of admitting to the Bar, without regard to any other condition, a person who showed that the Board appro him as a fit and proper person. To take an imaginary instant suppose that, after the Board had certified its approval of a candi¢ for admission, he was convicted of felony, found to be lunatic, ase tained to be an alien enemy, or ordered to be deported as a pi hibited immigrant. Section 10 can scarcely be understood meaning that these disqualifications, for such they would other be considered, are to be disregarded. The provision is evident based on the assumed condition that there is no disquali circumstance and nothing to invalidate the certification by Board of its approval. The Board's approval is a judicial quasi-judicial determination and like every other ex-parte judic determination may be recalled if it has been obtained by misre] sentation, non-disclosure or other invalidating means or is even on misapprehension or error.

No. 57, 8. 3, it will be seen, 'that i in all probability it was directed 0 to insuring that a barrister was admitted by the judges in 0

d men were called at the Inns of Court and not in court be present to the mind of the draftsman and it would also een to be possible that barristers might be enrolled by the thonotary without appearance before the Court at all. In 11 . No, 57 the provision was as follows : - ' And be it enacted ut every candidate whom the said Board shall approve as a fit proper person to be made a Barrister shall be admitted .as a rrister of the said Supreme Court by the Judges in open Court on such day as shall be appointed for that purpose any law or usage the contrary notwithstanding." Consolidation has given the provision an apparently different jasis and some of the work it was intended to do has been taken ove by the Rules: see r. 42. : Bat am clearly of opinion that to treat s, 10 as it now stands 'imposing an imperative duty upon the Court without regard to ie condition to admit a candidate to the Bar once he shows Board's approval, produces such absurd and inconvenient con- juences and is so improbable an intention that some other con- on should be adopted, if one is possible. { think that another is open and that the real effect of the section is to provide jore than that, if the candidate has obtained approval of the then his admission shall be in open Court and upon some 'appointed for the purpose. Its purpose is not to entitle him sion independently of every other consideration. When gislation wishes to give a right to admission it uses the word s," as for example in ss. 11 and 12.

argument that, in 1946 the Board 'had had before it all the s as they are now known and upon full consideration had decided ove the appellant as a candidate, the Court would have been to accept the Board's decision, does not appear to me to et the conclusion that the Court's jurisdiction continues to exist.

Board is composed of the Judges, the Attorney-General and

The second contention depends in part on the facts of the and in part upon an argument that whether a man is of good and character is a question of his general reputation and not of moral standards or qualities. This latter argument is quite wro and comes from a confusion between the rule of criminal evidence | allowing an accused to prove his " good character" as part of his. defence, and the question whether a man is fit to enter one of tl four traditional professions.

As to the facts, I hope that I have stated them in a way wl brings out many considerations undeniably favourable to the appellant. He has shown industry, perseverance and coura amidst the most adverse circumstances, and has overcome mai disadvantages and obstacles encountered particularly in his early years. His mental breakdown and even his descent into criminality will evoke much human sympathy. It is always so upon moral questions, particularly when a man, whose conduct or actions have been in many respects praiseworthy, mars his life by a crime.

consequences of past wrongdoing is a very proper human feeling, it is no reason whatever for impairing in his interests the standards of a profession which plays so indispensable a part in the admi tration of justice.

Housebreaking for the purpose of theft is not a crime the effect, of which as a disclosure of character can be considered equivocal. It is not so easy to imagine explanation, extenuation or reformation sufficiently convineing or persuasive to satisfy a court that a person ne guilty of such a crime should take his place as counsel at the Ba

But a prerequisite, in any case, would be a complete realization by the party concerned of his obligation of candour to the cou in which he desired to serve as an agent of justice. The fulfilmer of that obligation of candour ee its attendant risks Maer

certificate he withheld Hine hee that he had been convicted. In those circumstances the conclusion that he is not a fit and proper person to be made a member of the Bar is confirmed. The third contention made in support of the appeal was that Supreme Court did not soundly exercise its discretion to disbar appellant. I can only say that I think that the order made inevitable. = Te For these reasons I am of opinion that the appeal must be dis- missed. : I do not think that we should order the appellant to pay the: c of the Bar Association. E

sdiction to disbar upon reasonable grounds. This jurisdiction upon cl. X. of the Charter of Justice. It is a concomitant the authority granted by the Charter of Justice to the Court to it "fit and proper persons " to the Bar (In re the Justices of

on the view that this power applies, by necessary implication, the case of barristers admitted upon local qualifications. I

_ It extends to any case in which a barrister is shown to be unfit emain a member of the profession. 'The jurisdiction of a superior can only be taken away by express words or necessary impli- In this Act, there is no express language touching the *s jurisdiction to disbar. In order to hold that the Act ailed or made any inroad into that jurisdiction, the legislative tention must be not merely implied, but necessarily implied. The function of the Board, which is constituted by the Act, is the approval of properly qualified persons to be barristers": s. 4. It is not within the Board's province to call to the Bar or to disbar. in the case of English and Irish barristers and Scotch ates, there is a prohibition against the admission of any idate to the Bar " unless the Board is satisfied that he is a on of good fame and character": s.9. Candidates are admit- by the Court. Section 10 says: " Every candidate whom the shall approve as a fit and proper person to be made a barrister hall be admitted as a barrister by the Court on any day appointed that purpose." The Act does not make the Board's approval f a candidate irrevocable, once it is given. If something to the credit of the candidate was revealed after the approval was given, 'there was any other good reason, the Board would be entitled withdraw or revoke its approval, and then the candidate would e no right to apply to the Court for admission or to have his tion granted, if made. It may be that it is imperative upon

applied for by a candidate who has a formally valid and g approval given by the Board (cf. Macdougall v. Paterson But it is an entirely different thing to say that the satis-

"1 Knapp. 267 [12 E.R. ~ (2) (1851) 11 C.B. 755, at_p. 773 3 [138 E.R. 672, at p. 679).

faction of the Board under s. 9 or its approval under s. 10 establi finally and conclusively that the candidate was up to the time his admission a person of good fame and character or a fit and proper person to be admitted as a barrister. It is not a necessary im)

or suspend from practice for conduct antecedent to admission ousted. The appellant was found guilty of the crime of breaki and entering a dwelling house and stealing therein. The Board did not know this fact when the appellant was admitted as a stude at-law, or when it approved of him as a person of good fame character and a fit and proper person to be admitted to the It was within the jurisdiction of the Court to determine wheth having regard to the nature of the crime, the circumstances of t] appellant when he committed it, the time that elapsed since committed it and his failure to disclose the crime, he was a fit a proper person to be a barrister. The Court reached a conclusi adverse to the appellant.

I find it impossible to disagree with that conclusion.

Wituiams J. I have read the judgment of my brother Pity ; and agree with the opinions therein expressed.

I only wish to add a few words with respect to the contention th: the Supreme Court has no jurisdiction to disbar a barrister for misconduct which occurred prior to the date of his admission. entirely disagree with this contention. It rests upon the presence ins. 10 of the Legal Practitioners Act of the word " shall " where it secondly occurs. Prima facie the word " shall" is used in an A in a mandatory sense, but in many cases it has been held to be directory. The Legal Practitioners Act is intituled " An Act to consolidate the enactments relating to Legal Practitioners." See: tions 9 and 10 of this Act replace ss. 2 and 3 of the Act 11 Vict. No. 57. Section 9 is in the same words as s, 2. But s. 3 was in tl following terms : - " And be it enacted, That every candidate whom the said Board shall approve as a fit and proper person to be ma a barrister, shall be admitted as a barrister of the said Supr Court by the Judges in open court on such day as shall be appoint for that purpose, any law or usage to the contrary notwithstanding. The word " shall" occurs thrice in this section. It is clear it was not intended to do more than direct the Board to approve | such candidates as it thought fit, or to direct the court to app¢ days on which their admission could be moved. It is equally cle that it was only intended to direct the manner in which candidat should be admitted, that is by the judges sitting in open

vy. Gilbert (1) Lord Hanworth M.R. referred to "The H- ©. oF A. e of treating a Consolidating Act as what it says it is 147; not as one amending the law." On the same page (1) BRE L.J. said - * The presumption with which one starts is Davis. consolidating Act is not intended to alter the law." The v shall" occurs twice in s. 10 of the Legal Practitioners Act. ' clearly used in a directory sense in reference to the Board, and é equent portion of the section does not appear to have been

to alter the meaning of the corresponding portion of s, 3

. No, 57. The words " in open court" would appear to

been omitted from the consolidation as surplusage when the

"judges" was altered to the word "court." The third

ll" would also appear to have been omitted for the same

approval of the Board of the candidate as a fit and proper to be admitted as a barrister gives that person a prima facie t to be admitted. But s. 10 is throughout directory and is not to deprive the Court of any of the jurisdiction conferred mn it by the Charter of Justice to refuse to admit the candidate _ barrister for reasonable cause or to disbar him if it is subse- tly shown that a reasonable cause existed for not acting upon approval of the Board.

At a glance

Court

Decision date

Before

Source

Judgment (121 paragraphs)