OR:
I have not done anything likely to affect adversely my good fame and character and am not aware of any circumstances that might affect my fitness to remain a legal practitioner unless the Bar Council considers that my good fame and character or my fitness may be affected adversely by the circumstances in the attached "Disclosure" signed by me or referred to above."
41 In his application for a renewal of the Practicing Certificate for the 2000/2001 years, the Opponent ticked the latter box. In his attached "Disclosure" dated 22 June 2001, he said:
"If the disclosure is required to be made only in respect of matters which have occurred and have been determined, I have nothing to disclose. Insofar as the question refers to any circumstance that might affect my fitness to remain a legal practitioner I have assumed "might" to mean "a theoretical possibility", as distinct from probability."
42 The Opponent went on to disclose the fact that he was Chairman of a group of companies involved in agricultural projects in Queensland, with respect to the activities of which he had given personal guarantees. There were proceedings with respect to matters arising from arrangements made with creditors and one creditor was pursuing the guarantees. With respect to taxation matters, the only comment was as follows:
"There are presently disputes with the Australian Taxation Office in relation to the deductibility of expenditure associated with the agricultural project. Conceivably, as a director, in the event of any hearing occurring, comments may be made about my involvement."
43 The Opponent added:
"There are professionals who advised us and others who continue to advise us. So far as they are concerned, I ought to have nothing adverse arising from any of the matters."
44 The first conviction occurred on 11 July 2001, i.e. after the date of the Disclosure made as part of his application for renewal of a Practicing Certificate for the 2000/2001 year. However, as noted above, s38FB(4) and Reg 69D(3)(a) imposed an obligation to disclose the conviction of 11 July within seven days after 27 July 2001. It was common ground that no such disclosure occurred. There was, accordingly, a failure to notify a matter within s38FD(1) of the Legal Profession Act 1987, enlivening the power of the Council to cancel the practising certificate.
45 The next relevant event was the application by the Opponent for a renewal of his Practising Certificate for the 2001/2002 year. The Application was a statutory declaration declaring that the information and particulars in the application "are true in substance and in fact".
46 The standard Practising Certificate Renewal form again contained the following question:
"Have you been found guilty of any offence other than an indictable offence, whether committed in New South Wales or outside New South Wales, since being admitted in New South Wales, other than as previously disclosed to the Bar Association?"
47 The Opponent answered "Yes" to this question. The form itself noted in this regard:
"If the answer to this question is yes you may be required to furnish to the Bar Council such further information as it may require relating to the finding of guilt or the commission of the offence."
48 The form again contained the "EITHER/OR" choice with respect to identifying matters "likely to affect adversely my good fame and character". Again the Opponent ticked the box which referred to an attached "Disclosure" statement.
49 Disclosure occurred by letter dated 20 June 2002, the same date as the application for renewal for Practicing Certificate. The Opponent repeated the statement of his letter of the previous year that:
"I refer to the disclosure required in the Application for Practising Certificate. If the disclosure is required to be made only in respect of matters which have occurred and have been determined, I have nothing to disclose. Insofar as the question refers to any circumstances that might affect my fitness to remain a legal practitioner, I have assumed "might" to mean "a theoretical possibility" as distinct from probability."
50 It should be noted that at this stage the conviction had occurred on 11 July 2001 and had been "determined" probably in whatever sense the Opponent was intending to use that term. Nevertheless, disclosure of the fact of conviction had occurred by ticking the "Yes" box on the standard form.
51 The Opponent went on again to refer to the difficulties involved with the unsuccessful agricultural projects in Queensland. The reference to the involvement of the Australian Taxation Office was, however, more elaborate than on the previous occasion. The Opponent said in his letter:
"There are presently disputes with the Australian Taxation Office in relation, inter alia, to the deductibility of expenditure associated with the agricultural project. The Australian Taxation Office has proceedings issued in the Supreme Court of New South Wales. Having regard to the nature of the entitlement of the Australian Taxation Office to obtain a judgment in reliance upon an assessment, it has the capacity to obtain a judgment against me which I would not be immediately able to meet. I continue to try to resolve the matter with the representatives of the ATO through my legal representatives, and personally. Any resolution, from my point of view, is incumbent upon there being no judgment entered, a position about which the ATO seems to vacillate.
I have sought to defer lodgement of my tax returns for as long as possible because of the way in which the dispute remains unknown. That meant that in July 2001 I received a prosecution notice in respect of failure to lodge the tax return but in respect of which the return was then lodged and no fine was payable (the circumstance being the only offence known to have been committed by me, ever)."
52 The letter concluded:
"The professional advice I have is that there is a theoretical possibility of the ATO wanting to obtain judgment against me and wanting to enforce that judgment, even by way of bankruptcy. Issues of bad faith on their part have already been raised, insofar as I have a perception, and have been separately advised, that such conduct on their part would appear to be a manifestation of that, were such a course pursued."
53 The Bar Association replied to the notification of 20 June 2002 by letter of 25 June 2002 which is not in the papers before the Court. It is, however, referred to in the following way in a Notice of 12 July 2002 issued to the Opponent by the Bar Association pursuant to s38FC(2) of the Legal Profession Act 1987. The Notice states:
"I refer to your letter to the Executive Director of 20 June 2002 and Ms Gibson's letter to you of 25 June 2002. It appears that the only matter you are required to notify is the tax offence to which you refer on page two of your letter.
54 Also on 12 July 2002 the Bar Association issued a Notice under s38FI of the Legal Profession Act. That section authorises the Council to require a legal practitioner to provide information, to produce documents or otherwise to assist an investigation. In the Notice served on the Opponent the Council sought details of the finding of guilt and the date on which the income tax return was lodged, together with statements as to whether tax had been assessed and paid. The Notice went further by seeking information on the Opponent's taxation affairs including details of any other offences and, relevantly:
"Details relating to the lodgement of tax returns for the years ending 30 June 1995 to date including showing the dates by which returns were due, the dates of lodgement of those returns, the period of time for which they were overdue, the amount of tax assessed for each return, amounts paid in respect of each assessment and the dates on which payments were made;
…
Details relating to the lodgement of Business Activity Statement and Instalment Activity Statements and the payments made."
55 In a response dated 16 September 2002, to the Notice under s38FI the Opponent provided the following information:
"(a) 2001 Offence
1 By Notice, I was required to furnish the Tax returns for 30 June, 1999 and 30 June, 2000 years by 22 May, 2001. The omission to have so furnished those returns led to my conviction before the Magistrate, Ms Sweeney, on an ex parte hearing.
The order, as subsequently served upon me on 24 July 2001, required that I furnish the returns on or before 11 September, 2001. There was no Notice of Penalty served on me or received by me, ever but apparently I was fined $1500 and costs of $133.
2 I had believed that the returns had been lodged prior to 11 July, 2001, because they were received by me in final form under cover of letter dated 3 July, 2001 and were signed. Some time after 7 September, 2001 I found they had not been lodged when my solicitors forwarded me a letter from the AGS which referred to the returns being outstanding and due by 11 September 2001. A further copy of the returns was signed and lodged electronically on 12 September, 2001, being the same form as had been received in July, 2001.
Tax had been assessed and part has been paid. Subject to what is subsequently said on that subject. I presently have an outstanding lability to the ATO of $1.4 million.
3 I did not notify the Bar Association of the offence because I had believed there was no penalty and believed that the terms of the order had already been complied with, such that there was no notifiable offence. When I later again forwarded the return in September, I did not turn my mind to the possible commission of a notifiable offence. It was only when the renewal of my Practising Certificate arose that I considered the possibility of a notifiable matter.
It was only subsequent to speaking with Ms Barrett that I was prompted to make further enquiries of the Court and found the altered position, namely that a fine and a costs order had been made.
I never received any Notice of Penalty, probably because if it were forwarded to the address in the Order, it would not have been received. I was living in a rented unit at that address in May and June 2001 but never referred to it as my usual residence nor was it an address ever provided to the ATO by me."
56 On 27 August the Bar Association had also written to the Opponent seeking information additional to that sought in the Notices. That letter said:
"1 Explain with precision precisely what connection there is between your liability as a guarantor for the unsuccessful agricultural projects in Queensland on the one hand and the disputes you are involved in with the Australian Taxation Office in relation to the deductibility of expenditure associated with that agricultural project.
2 Explain why it is that you apparently chose to defer lodgement of tax returns 'for as long as possible because of the way in which the dispute remains unknown'. In particular, did you refrain from lodging tax returns on professional advice? For what years did you not lodge tax returns on the date prescribed by the legislation. Was the reason for any late lodgement of tax returns the same for each occasion?"
57 In response to this inquiry the Opponent said in his communication of 16 September:
"1 There is no direct connection between my liability as a guarantor for the unsuccessful agricultural projects in Queensland, on the one hand, and the disputes I am involved in with the ATO. The indirect connection arises from the fact that my liabilities significantly exceed my assets. I would prefer not to be made bankrupt by any creditor. Accordingly, I have been seeking time to pay in relation to established liabilities. If I am ultimately found to be liable for a significant sum under the guarantees, it may be beyond me to meet the debts but that is at present an unknown.
2 The phraseology was, upon reflection, inaccurately expressed or some words ought to have been added so it read 'because of a desire to know the ATO's attitude towards any allowance for deductions in agricultural projects prior to lodgement of the returns'.
The position was that in each of those years, investments had been made in agricultural projects. Prior to those investments being made, Private Binding Rulings had been sought from the ATO and efforts had been made to have those Rulings expedited. Notwithstanding that, they had not been determined. Subsequently, the ATO introduced a regime of Product Rulings. The ATO gave Product Rulings in relation to the relevant agricultural projects. There still remained an issue as to the degree to which they might then have allowed deductions for the earlier years. Because I was a director (non-executive director and chairman) the initial advice of my professionals was to hold off lodgement of returns for as long as possible. The claimed deductions may not have been allowed in whole or in part. I did not want penalties imposed if they could be avoided nor did I want to lodge amended returns if that could be avoided. At that time it was the fifth year in which I had been trying to resolve all matters I had in dispute with the ATO. Then, the professional advice given by my accountants and by the separate accountants used by my wife determined in June, 2001 was that it was appropriate to lodge the returns forthwith and make any amendments later, if necessary.
That covered the reason for late lodgement for the 1999 and 2000 financial years.
There was separate late lodgement of returns for the period from 1977 to either 1993 or 1994.
The late lodgement of the returns was on professional advice first given in 1986, and maintained thereafter. The advice was from my then accountants and from other accountants who they consulted. I had fallen behind in the lodgement of returns. The reason for the late lodgement was to ensure that when returns were finally submitted, they would then also include the current return. In fact, before they were lodged, Final Notices were received and they were lodged for two periods."
58 By way of further disclosure the Opponent said in this Response:
"1 On 4 September, 2002, I was convicted by the Magistrate Mr Garbett for having failed to give information to the Australian Taxation Office in the time provided pursuant to a Notice. The material had been provided in a manner acceptable to the ATO before the determination although not in the form sought in the Notice. I was fined $550 with court costs of $98.90. It is probable, but not yet finalised, that there will be a challenge to that determination. A copy of the Summons and Notice of Penalty is enclosed.
2 On 27 August, 2002, by consent, the ATO entered judgment against me in the Supreme Court proceedings in the sum of approximately $1.4 million. At the time of the judgment being entered, application to pay the judgment sum by instalments was sought. That request has been followed up but, to date, no response has been received."
59 A Draft Report of the Bar Association's Professional Conduct Committee is dated 23 September 2002. It consists of pars [1]-[33] of the Final Report to which more detailed reference will be made below. It culminated in an Interim Conclusion and Interim Recommendations proposing that the Council cancel the Opponent's practising certificate pursuant to each of s38FC(1)(b) and s38FD(1). It also proposed that the Council resolve to commence proceedings in the inherent jurisdiction of this Court to have the Opponent's name removed from the Roll of Practitioners.
60 The Opponent was invited to comment on the Draft Report and Recommendations and did so by letter of 4 October 2002. The letter of the Bar Association also requested, pursuant to s38FD(2), a statement with respect to the conviction of a tax offence of 4 September 2002.
61 The Draft Report of the Professional Conduct Committee referred to the "Disclosure" letter of 20 June 2002, which I have quoted above, and said:
"9 For reasons which will be explained later in this report, it is clear beyond doubt that the Barrister's disclosure to the Bar Association in the above letter was materially false and incomplete in that it failed to disclose the non-lodgement of tax returns for 20 years and the fact that the barrister then had an outstanding tax liability of more than $1.6m. There can be no other conclusion than that it was a deliberate attempt by the Barrister to keep from the Bar Association matters which obviously adversely affected his good fame and character.
10 It should not be overlooked that at the time the Barrister made his disclosure to the Bar Association, the decision in New South Wales Bar Association v Cummins had been delivered and had received wide publicity, both in the general community and within the profession.
…
29 The Barrister's original notification on his application for renewal of practising certificate was false and incomplete and must have been designed to keep the true facts from the Bar Council."
62 In his Response of 4 October 2002 the Opponent said:
"15 My immediate attention is drawn to the opinion expressed in paragraphs 9-10 and 29 of the Draft Report that the Disclosure Statement attached to my Practising Certificate Application dated 19 June 2002 was deliberately false, incomplete and designed to conceal the true facts from the Association.
16 It was not my intention to make a false or incomplete disclosure or to conceal facts from the Association.
17 My disclosure statement may well have been affected by inhibitions arising from the facts that: (a) I do not view the state of my taxation affairs with pride; and (b) on the contrary, they have been a source of despair to me, particularly as I have endeavoured without success, over several years, to reach a settlement with the ATO.
18 It does not follow, I hope, that I have been guilty of misleading conduct in my Disclosure Statement. I disclosed in it: (a) the existence of the ATO's then pending proceedings against me in the Supreme Court of NSW; (b) the fact that I could not immediately meet a judgment such as that sought against me; and (c) the fact that the ATO had raised issues of bad faith against me. Those disclosures were bound to lead, as they did, to further inquiries by the Association.
19 I invite the Committee to reconsider its preliminary view that I have been guilty of misleading conduct."
63 In his letter the Opponent went to on refer to the "central focus of the Draft Report" being "not unnaturally" the failure to lodge returns for the years ending 30 June 1976 for a period of twenty years. He observed that the Draft Report did not note that he did lodge returns for the years of default in 1996 and that the ATO accepted that "the returns were voluntarily lodged". The Opponent observed:
"23 The fact that the substantial returns were voluntarily lodged is significant because: (a) it illustrates a desire on my part to meet my tax obligations, albeit belatedly; (b) it demonstrates that paragraph 27 of the Draft Report is incorrect in recording that I only lodged returns "when required to do so by demands by the Taxation Office'; and (c) it distinguishes my case from that of NSW Bar Association v Cummins (2001) 52 NSWLR 27, where (as appears in paragraph 15 on page 282) Mr Cummins did not lodge any tax returns or retain accountants for the purpose of lodging tax returns until after contact had been made with him by an officer of the ATO.
24 The timing of my voluntary lodgement of returns, in 1996, is also significant because: (a) it occurred before the current controversy about non-compliant barristers publicly erupted in 2001; and (b) it represented the culmination of my efforts, over several years, to have my tax affairs put in order by accountants I had retained in or about 1983 for that purpose."
64 The Opponent went on to refer to those parts of the Report which highlighted his explanation of a failure to lodge returns in a context of having received professional advice and also pars [25] and [26] of the Draft Report which stated:
"25 The Barrister has offered no rational explanation for his failure to lodge tax returns from 1975 until 1996, other than his statement to the following effect:
'The late lodgement of the returns was on professional advice first given in 1986 and maintained thereafter …'
26 That explanation if it be an explanation, firstly does not deal at all with the period 1975 until 1986 and secondly, insofar as it seems to suggest that the responsibility for the decision to not lodge returns rests with some professional advisor is simply unacceptable."
65 With respect to these observations the Opponent said:
"27 Having entrusted my affairs to them in or about 1983, and having become dependent upon them to prepare my accounts and returns, they appear to have achieved nothing, and apparently failed to communicate effectively with the ATO, until 1995 despite the fact that I paid them each year to prepare and maintain my accounts and relied upon their assurances that, despite the non-lodgement of returns, they were confident that they would be able, always within a short time frame, to negotiate a solution with the ATO.
28 I naively left my affairs with them because I believed that, with several barristers as clients, they had the expertise and experience to achieve what they promised; I had given them all my primary records in the belief that they were preparing and maintaining accounts; and I did not want to disrupt what I, with misplaced optimism, believed to be the most practical course to a solution acceptable to the ATO and myself. Once they had the primary records, and had apparently done so much, I considered myself 'locked in' until all the returns were completed."
66 Mr P R Garling SC, who appeared for the Bar Association relied on these paragraphs as an admission that the Opponent's failure to lodge tax returns, between 1983 and 1995 was a deliberate strategy adopted for purposes of negotiation with the ATO.
67 The Opponent also elaborated on the circumstances relating to his failure to lodge returns at some length, indicating the various accountants with which he had dealt over the period of time. He also attached a statement by one of those accountants, Mr Donald Allum, who noted that the affairs of the Opponent and his wife, to whom he referred as "Clarrie" and "Thalia", had been handled by a former partner. Mr Allum said:
"In early 1995, probably mid-January, I recall Clarrie and Thalia Stephens make an express appointment with me in my office at Parramatta. Their complaint was that their tax returns for Clarrie were still not brought up to date or filed, they had absolutely no confidence in Warwick, but were committed to having the work completed because all of the primary material had been provided to the practice and apparently so much of the work had been done. There was a certain amount of heat in the discussion. They expressly wanted me to take over the work, ensure Warwick had nothing more to do with it an ensure that whatever had to be done was done. In the past I was aware that there had been delays in Clarrie responding to requests for information but it was made clear to me in the course of that conversation that all of the records and materials that were available had been provided and that it was to be finished as soon as possible. …
Shortly afterwards, still in early 1995, a further meeting was held with Clarrie and Thalia. By that time I had been able to make an initial evaluation of the work which had been done and was required to be done. I also found out the approach that had been intended by Warwick. I understood from Warwick that the appropriate course was for all returns to be prepared and lodged, at the same time. I do not remember any other part of the proposed strategy or advice."
68 On the basis of a detailed outline of his contact with his accountants, the Opponent submitted to the Bar Council in his letter:
"32 I understand that I must accept personal responsibility for the non-lodgement of my tax returns and I was negligent in the conduct of my personal affairs - I do not suggest otherwise - but, although I was negligent in dealing with my accountants, I did not wholly disregard my obligations and, on the contrary, sought (albeit belatedly) to fulfil them."
69 By letter of 8 October 2002 the Bar Association advised the Opponent of its procedures in the following way:
"A professional conduct committee's report, after the barrister has been given an opportunity to comment on the draft report, is considered by the full Bar Council. The barrister's responses to the Committee's inquiries is available to all Bar Councillors. The usual course is for the Bar Council to make its decision on the basis of that material.
It is not the Bar Council's practice to provide a barrister with a copy of its final report before that report is submitted to the Bar Council. However, a copy of the report as settled by the Council is made available to the barrister."
70 This evidence was, in my opinion, sufficient for the Court to regard the Committee Report as an indication of the Bar Council's reasons for purposes of an interlocutory application. It is not, however, sufficient to treat the Report as if it were a complete statement of reasons under s38FC(6) or s38FD(2).
71 As noted above, in its communication to the Opponent of 24 September 2002 the Bar Association sought a statement under s38FB(2) and also served a further Notice under s38FI of the Act. These related to his conviction of a tax offence on 4 September 2002. The Opponent replied to these Notices under cover of letter of 9 October 2002. He noted that the transcript of the local court proceedings on that date was not yet available to him and that that conviction was the subject of an appeal. He also submitted that the conviction arose out of circumstances in which the ATO had accepted that the Opponent had complied with the relevant Notice that gave rise to the offence, although he had done so belatedly. He further said that in the context of the negotiations then underway between himself and the ATO he had believed mistakenly that he was not obliged to comply with that relevant Notice.
72 By further letter of 10 October 2002 the Opponent informed the Bar Association of the negotiations he had conducted with the ATO from 1996 concerning the possibility of him meeting his remaining obligations for income tax.
73 On 9 October 2002 the Professional Conduct Committee completed a report which repeated, as pars [1]-[33], its Draft Report. That Report consisted of extracts from documents including the responses on the part of the Opponent. It is pertinent here to note certain paragraphs of the Draft Report in addition to those set out above:
"2 He did not lodge any returns in the time prescribed for income tax for the years of income 1976 to 1996, inclusive (a period of 20 years). At the present time he is indebted to the Australian Taxation Office in an amount exceeding $1.6 million.
3 Prima facie, those facts alone, unless explicable by some extraordinary circumstances, compels the conclusion that the Barrister is not a fit and proper person to practise as a legal practitioner.
…
27 It is clear that the Barrister, for more than twenty years, failed to lodge any returns at all. Thereafter, and only when required to do so by demands from the Taxation Office, he lodged returns and is now, as would be inevitable, substantially in default of his income tax obligations. That state of affairs arises as a direct consequence of the Barrister's failure to lodge tax returns.
28 The Barrister has not accepted that position and has defended, for a number of years, recovery proceedings by the Australian Taxation Office on grounds which, if not spurious, are, at the very best, obscure.
29 The Barrister's original notification on his application for renewal of practising certificate was false and incomplete and must have been designed to keep the true facts from the Bar Council.
30 The Barrister's most recent conviction (on 4 September 2002) would seem to be as a result of a deliberate attempt by him to thwart the Australian Taxation Office from recovering its debt. This conduct is but the last step in a continuous course of conduct that began in 1975.
32 In the Barrister's favour it should be noted that he did lodge returns in 1996 albeit as a result of Notices served by the Australian Taxation Office.
33 It is also acknowledged and accepted that the Barrister has made significant contributions to the Bar over his career."
74 The Final Report went on to consider the Opponent's responses to the Draft Report. It also noted that he would respond to the Notices relating to the conviction of 4 September 2002 on 9 October and that any such response would be provided for the Bar Council to consider in conjunction with the Report.
75 The Committee noted the Opponent's statements as to the payments he had in fact made and that the remaining amount owing related to penalty tax, interests and costs. The Report concluded:
"46 All of the above facts are accepted. However, the simple fact is that the Barrister is indebted to the Australian Taxation Office for the best part of $1 million. Whether or not that debt can properly be described as relating primarily to interest, penalty tax and costs (a doubtful legal proposition) begs the question as to why the Barrister came to be liable for such interest, penalties and costs in the first place.
47 For reasons set out later in this document, nothing the Barrister has said explains in any satisfactory manner why it is that he did not lodge tax returns nor pay any tax for at least 20 years."
76 With respect to the submission of the Opponent made about the comment in par [29] of the Draft Report quoted above, to the effect that the Disclosure Statement in the Practising Certificate Application of 19 June 2002 was deliberately false, incomplete and designed to conceal the true facts from the Association, the Report noted the submission and said:
"49 The explanation put forward by the Barrister does not cause the Committee to change is preliminary view. The fact remains the Disclosure Statement should have disclosed all matters which the Barrister now appears to accept are relevant to the question of whether he is a fit and proper person to practise as a Barrister. They did not. He has offered no explanation for that failure other than to observe that in his opinion it was inevitable that the true facts would be uncovered upon investigation. That may or may not be the case, but it is no excuse for the Barrister's lack of candour when dealing with the Bar Association."
77 With respect to the Opponent's submission that he had voluntarily paid his tax the Report said:
"51 The Barrister, in this part of his response, makes two points. The first is that he lodged returns in 1996 voluntarily and not in response to any notice issued by the Australian Taxation Office.
52 Strictly speaking, this is true. The Barrister was not under any compulsion of any particular notice at the time he lodge the returns in 1996.
53 However, on a careful analysis of the true facts as disclosed by the Barrister himself, the Barrister's statement is disingenuous, to say the least. The fact is he received a notice from the Australian Taxation Office on 7 September 1995, which was subsequently withdrawn by the Australian Taxation Office and replaced by later notices, which required lodgement by 15 May 1996.
54 Accordingly, this fact does not cause the Committee to depart from its provisional opinion. It is clear on the facts that the Barrister only lodged tax returns when it was obvious that the Australian Taxation Office had 'caught up with him'.
55 To suggest that such lodgement was 'voluntary' in those circumstances is simply an irrelevant observation.
…
57 On its own, however, that fact has not changed the Committee's preliminary views. The fact remains that he did nothing at all from 1975 or 1976 until 1983.
58 The Barrister provides a lengthy explanation supported by a statutory declaration by his former accountant to the effect that from 1983 onwards he was relying on his accountant to prepare and lodge tax returns which did not happen until 1996, apparently because his accountant believed that the best way to deal with the matter was to lodge all returns at the one time and then 'negotiate' with the Australian Taxation Office.
59 He says that whilst he cannot recall why he did not lodge tax returns up to 1983, he puts forward a series of family tragedies around the period 1973 to 1977.
60 He then says that from 1983 until 1996 the matter rested with his accountant.
61 It is accepted that from 1983 onwards the Barrister was dealing with an accountant, but the Committee does not accept that such an explanation excuses or even really explains the conduct. It does not change the Committee's view of the conduct. The fact is that the Barrister's only explanation is that he was relying on advice from his accountant that the best way to deal with the Australian Taxation Office was to lodge all returns at once and thereafter attempt to negotiate with the ATO. Such an approach to one's legal obligation is simply unacceptable. Moreover, the Barrister's real complaint seems to be that he lost the benefit of an 'amnesty' put in place by the Deputy Commissioner once again as a result of his accountant's default. If this is the case, then it is clear that the Barrister's conduct would never have come to notice. However, it does not, in the Committee's view, have any effect on the seriousness of the conduct itself."
78 Other submissions were dealt with, including the personal position of the Opponent.
79 The Committee nevertheless recommended that the Council should proceed to adopt resolutions on each of three bases:
· First, that it should resolve that pursuant to s38FC(1)(b) that each of the offences of 11 July 2002 and 4 September 2002 were committed in circumstances that show he was not a fit and proper person to hold a Practising Certificate and that the Practising Certificate should be cancelled.
· Secondly, that the Council should resolve pursuant to s38FD(1) that the failure to notify the Bar Council of the 11 July 2001 conviction occurred without reasonable excuse and on that basis the Practising Certificate should be cancelled.
· Thirdly, the Council should resolve to commence proceedings in inherent jurisdiction of this Court to remove the Opponent's name from the Roll of Practitioners.
80 As advised to the Opponent by letter of 11 October 2002, the Bar Council considered the Report of the Professional Conduct Committee at a meeting on 10 October 2002 together with the further statements provided to the Bar Council by the Opponent. The letter said that the Council had not had the opportunity to consider the information provided in his letter of 9 October 2002 with respect to the conviction on 4 September 2002. Accordingly, it did not determine that matter.
81 The Bar Council adopted the resolutions pursuant to s38FC and s38FD proposed by the Committee, save insofar as the proposed resolution pursuant to s38FC(1)(b) relied on the conviction of 4 September 2002.
82 With respect to the proposal that the Council institute proceedings in the inherent jurisdiction of the Court to remove the Opponent's name from the Roll, the Council resolved to ask the Opponent to show cause why it should not do so and indicated a number of matters that the Opponent should consider in any response to the Council in this regard. The Opponent subsequently made submissions to the Council. The Council later resolved to proceed with such an application.