NEW SOUTH WALES BAR ASSOCIATION v STEVENS

LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT 13263/02 FILE NUMBER(S) : LOWER COURT Greg James J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41214/02

Friday 2 May 2003 NEW SOUTH WALES BAR ASSOCIATION v Clarence James STEVENS (No 2) Judgment 1 HIS HONOUR: On 24 April this Court handed down judgment allowing an appeal from an order staying the decision of the New South Wales Bar Association to cancel the practising certificate of the Claimant (New South Wales Bar Association v Stevens [2003] NSWCA 95). In accordance with par [179] of that judgment the orders were not made forthwith. Today, I made the orders outlined in the judgment to take effect as and from 5.00pm on Wednesday 7 May 2003. That date was determined to accommodate proceedings in which Mr Stevens is presently appearing in this Court. 2 The application before the Court is for a stay of the orders of this Court pending an application for special leave to appeal from the judgment of this Court. A draft application for special leave to appeal and summons setting out the grounds of appeal have been handed to me by Mr Brereton, who appears for the Claimant. Those grounds set out in par [2] of the grounds of appeal: "2 The Court of Appeal was in error:- 2.1 in holding that the primary judge failed to give weight to, or take into account, issues relating to the public interest [J107, 112], and further or alternatively in holding that any such failure was in error of principle vitiating the primary judge's exercise of discretion [J118]; 2.2 in holding that it was incorrect to suggest that there was no jeopardy to the public interest if the Applicant were permitted to continue in practise until the proceedings were resolved [J140]; 2.3 in holding that the protection of the public and the maintenance of the reputation of the legal profession were entitled to determinative weight in the exercise of the discretion to grant a stay, even the assumption that the Applicant had a reasonable case on appeal [J144]; 2.4 in holding that the pendency of the strike-off proceedings was relevant to the exercise of the Court's discretion to grant a stay [J145, 175], and that where there were proceedings on foot to remove a legal practitioner from the roll, the Court should be very slow to exercise its discretion in a way which permits the practitioner to continue in practice pending the determination of such proceedings [J150], and that confidence in the legal profession was likely to be undermined if a practitioner whose right to practice was the subject of serious challenge was able to successfully call upon the court to exercise a discretion in his or her favour permitting him or her to continue in practice pending the ultimate determination [J151]; 2.5 in holding that on the question whether or not the circumstances justified cancellation of a practicing certificate under s.38FD, it was strongly arguable that the prior history of 20 years failure to lodge ay income tax returns would, notwithstanding subsequent efforts to remedy the failure and the payment of a substantial proportion of the debt, be entitled to weight [J173, 174]." 3 The principles involved in granting a stay pending an application for special leave to the High Court are well known. The authoritative judgment is that of Brennan J in Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681, esp at 685. A summary of that and other relevant authorities is contained in the judgment of Kirby J in Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306, esp at 308-309. I have considered a number of these authorities late last year in a similar application which was granted; see Minister for Local Government & Anor v South Sydney City Council (No 3) [2002] NSWCA 327. 4 A number of factors which are relevant to an application of this character are set out in those authorities and I do not need to list them here. 5 Of some significance to special leave being granted, is the first ground of appeal outlined above on which it is proposed to seek to appeal to the High Court. In this case the Court was concerned with an appeal from an interlocutory judgment on a matter of practice and procedure by a sitting judge. The reluctance of appellate courts to intervene in decisions of that character is well known. 6 However, in this case the Court held, for the reasons set out in the judgment at pars [110]-[123], that there was an error of principle in failing to give weight to the public interest considerations that ought to have been considered when determining the issue. Ground 2.1 of the grounds of appeal relates to that. 7 Mr Brereton did not elaborate on this aspect in his oral submissions at any length. His primary submissions, on this application, in addition to indicating that this was an appropriate vehicle for special leave, were twofold. 8 First, that this Court erred in holding that the public interest was entitled to determinative weight on applications of this character. There is a distinction of some significance. The reference to determinative weight occurs in par [144] of the judgment. It is not for me to explain that judgment. It will be for other others to determine whether or not what this Court decided was that the public interest was entitled to determinative weight in all such applications or whether it was entitled to determinative weight in the particular circumstances of this case. 9 I find myself in a somewhat invidious position in the sense that, to some degree at any rate, the strength of the special leave application depends on interpreting this Court's reasons. It would not be appropriate for me to engage in an exercise of such interpretation or elaboration at this stage. I would not, however, in all the circumstances, give significant weight to the prospect of special leave on that ground. 10 The other ground to which Mr Brereton gave particular attention was the fact that in determining whether or not to grant the stay in the present case, i.e. a stay pending an appeal to this Court relating to the cancellation of a practising certificate, the Court was entitled to take into account the fact that the Bar Association had moved the Court for a strike off order. Mr Brereton submitted there was no logical relevance of those proceedings for purposes of exercising a jurisdiction to grant a stay. He said that serious proceedings or a serious challenge to a person's right to practice do sometimes fail. He submitted that it is not the practice to suspend persons pending the hearing of the strike off application, save possibly in cases where there has been financial default such as cases involving trust accounts. 11 The reasons why I regarded the existence of the strike off proceedings as a relevant situation are set out in the judgment. I can see that a different view on that matter can be taken. However, I am not minded to conclude that the prospects of success in that regard are high. 12 However, on both the grounds advanced by Mr Brereton, I am not prepared to dismiss them as negligible. 13 Mr Brereton also indicated that the judgment in this Court will be of significance in future stay applications in disciplinary proceedings, including those not associated with legal practitioners and that, accordingly, the reasoning of this Court and the basis of its decision are such to warrant the grant of special leave by the High Court. 14 He also submitted this is an appropriate vehicle. There are some difficulties in this being an appropriate vehicle particularly as the practising certificate on issue expires on 30 June of this year. What, if any, the implications of the judgment may be for the continuation in practice of the Claimant after 30 June is somewhat complicated. 15 Mr P Garling SC, who appeared for the Bar Association indicated, without objection from Mr Brereton, that some bankruptcy proceedings have been instituted against Mr Stevens which will have further implications for his ability to continue in practice. What, if any, decisions will be taken in that regard are, of course, not yet known. This does have implications for the appropriateness of this case as a vehicle for determining the issues relating to the grant of a stay determined by this Court. 16 Of particular significance is that this is an application for a stay of a refusal to grant a stay. In a sense, if the subject matter of the dispute is a practising certificate that expires on 30 June and nothing else, then the High Court's jurisdiction to grant special leave to hear the appeal would be rendered nugatory if a stay is not granted. In a sense the subject matter of the proceedings no longer exists as at 30 June. 17 Notwithstanding the complication of the new steps possibly leading to the bankruptcy of Mr Stevens, it would be my judgment that one should not regard this matter as ending in some sort of finality on 30 June. If a stay were granted and these matters were to be agitated before the High Court, one would expect some kind of recognition of that fact in any decision by the Bar Association with respect to an application for a practising certificate for the future. Some such recognition has, I have been informed, occurred in the past. What particular form it may take in this case will be influenced by other considerations, particularly the creditor's petition that has been presented in the case of Mr Stevens. 18 The issues that arose when deciding on this application for a stay do raise similar considerations to those already considered by the Court, and rejected, in the application for a stay of the effect of the cancellation by the Bar Association of the practising certificate. Those considerations are set out in pars [125]-[151] of the judgment. Although they are there focused on the issue of fitness and propriety of the Claimant, nevertheless the considerations of public interest and of balance between private and public interest considerations discussed in those paragraphs appear to me to be pertinent, with some adjustments, to the considerations that arise in determining the stay application before the Court. Issues of loss to the respondent arise as does what Brennan J in Jennings Constructions referred as the balance of convenience. This is terminology which, as I have outlined in the earlier judgment, I would not adopt. 19 Such considerations as arise are such that there must be some prospects of a grant of special leave. If special leave were granted, even if granted in an expedited matter, it is difficult to see that appeal would be heard prior to the disposition of both the proceedings in this Court, that is to say both the appeal from the cancellation of the practising certificate and the strike off proceeding. 20 In those circumstances, in substance, what the present application would be doing would be to render nugatory the judgment of this Court that no stay should be granted pending the resolution of the appeal under s38B of the Legal Profession Act 1987 of this Court. Even if special leave were granted by the High Court, it seems likely, indeed, highly likely that the proceeding in this Court would be determined prior to the appeal being determined in the High Court were special leave granted. 21 In those circumstances, on balance, I am not minded to grant a stay in the terms sought. However, it may be that a judge of the High Court will take a different view. I am very conscious of the fact the authorities of the High Court indicate that intermediate appellate courts should not burden the High Court itself with applications of this character. I refer in that regard to the observations in Burgundy Royale Investments and also in Smith Kline & French Laboratories (Aust) Limited v Department of Community Services and Health (1991) 65 ALJR 360, esp at 361. 22 In my view, whilst a stay should not be granted, there should be some opportunity given to the applicant to approach the High Court. The orders will take effect at 5pm on Wednesday 7 May 2003. In order to grant the Claimant that opportunity, I would stay the effect of that order until 5pm on Friday 9 May 2003. 23 Mr Brereton has indicated that he understands - I am not suggesting it is an undertaking to the Court, but his client's undertaking inter partes - that the practising certificate will only be exercised for the purposes of the proceedings presently being conducted before Foster AJ. **********

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