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[2026] NSWCA 91
plaintiff. The Court declared that Fox was not a fit and proper person to remain on the Roll of Australian Lawyers, ordered his name removed, ordered him to pay the applicant’s costs, and granted liberty to...
The Court independently examined the evidence despite Fox’s consent to removal. It found that his repeated conduct involving child abuse material, the fact that the conduct ended only with his arrest, and the absence of evidence of rehabilitation meant that he was not fit to remain on the Roll and was likely to remain unfit for an indefinite period. The Court ordered removal and costs. It did not decide that costs must be paid by instalments, but allowed Fox to apply later for that arrangement.
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2,229 words · generated 08/10/2026
The Prothonotary of the Supreme Court of New South Wales brought an application seeking removal of Ian Russell Bradfield Fox’s name from the Roll of Australian Lawyers. The summons was filed on 8 December 2025. The application followed Fox’s 2024 conviction for criminal conduct involving the solicitation and transmission of child abuse material, for which he received a term of imprisonment ([1], [16]).
2 cited instruments linked from this judgment.
Fox had been admitted as a lawyer in the Australian Capital Territory in February 1984 and in New South Wales in July 1984. He had held a New South Wales practising certificate until October 2023 and had worked at several law firms, becoming a partner at Eakin McCaffery Cox in August 2018 ([5]-[6]).
The Court’s factual account was based principally on facts deemed admitted under r 17.3(2) of the Uniform Civil Procedure Rules 2005 (NSW), after Fox did not serve a notice disputing the applicant’s notice to admit facts. The Court described that procedure as appropriate and previously approved ([4]). It also relied on an affidavit from a solicitor acting for the applicant ([4]).
The material described a search of Fox’s residence on 15 December 2022. Police seized his iPhone and observed textual child abuse material on a laptop. The judgment records that police recovered extensive WhatsApp chats, including messages in which Fox repeatedly solicited child abuse material and, on some occasions, transmitted it ([7]-[10]). It also describes communications through Facebook Messenger, including transmission of videos depicting child abuse material ([12]-[15]).
On 7 May 2024, Fox was convicted in the District Court of New South Wales of two offences under s 474.22(1) of the Criminal Code (Cth), involving transmission and solicitation of child abuse material using a carriage service. A further access charge was taken into account on sentence. The sentence was 19 months’ imprisonment, commencing on 27 March 2024 and partially suspended upon entry into a self-recognizance under s 20(1)(b) of the Crimes Act 1914 (Cth) ([16]).
Fox did not file an appearance in the removal proceeding. However, in February 2026 he told the applicant’s solicitor that he consented to the removal orders, but not to the costs orders. In May 2026 he filed submissions and an affidavit about costs. The matter was determined on the papers ([2]).
The Court ordered that Fox was not a fit and proper person to remain on the Roll, removed his name, ordered him to pay the applicant’s costs, and granted him liberty to apply on 14 days’ notice for an order allowing costs to be paid in instalments ([33]).
The starting point was the Court’s responsibility to make its own assessment. Fox’s consent did not decide the application. The Court stated that it had to be independently satisfied that he was presently unfit to practise and likely to remain unfit for the indefinite future before ordering removal ([3]). That approach reflected the principle that fitness is assessed at the time of the hearing ([18]) and that removal is appropriate where it is not apparent whether, or when, the practitioner may be suitable for reinstatement ([19]).
The Court placed the proceeding within the protective purpose of professional discipline. It relied on the principle that such proceedings protect the public and confidence in the legal profession, rather than punish the individual ([20]). The judgment also referred to public accountability and deterrence as aspects of that purpose ([20]). Those purposes informed the need for a full examination of the conduct, even though Fox did not contest the removal relief ([3], [20], [30]).
The Court did not treat the fact of conviction as automatically decisive. It stated that conviction and sentence are not necessarily sufficient, by themselves, to disqualify a person from the profession. The Court must consider the detailed subjective and objective circumstances of the offending ([21]). The decision records consideration of the period and nature of the conduct, the material, the communications with other users, and the lack of evidence from Fox about his fitness or rehabilitation ([7]-[16], [22]-[24]).
The Court characterised the conduct as extending over 11 months and not as an isolated lapse that could be explained by particular circumstances. It emphasised that the conduct involved viewing and sharing explicit material and communications with others about that material ([23]). The Court said that conduct of this kind creates demand for child abuse material, which encourages abuse and can lead to serious psychological or physical damage to children ([23]). It also found that the moral turpitude involved had a tendency to bring the profession into disrepute and undermine public confidence in the profession’s moral integrity ([23]).
The absence of evidence from Fox was relevant to the Court’s assessment. The Court said that when a practitioner does not provide evidence about fitness matters within the practitioner’s knowledge, inferences from proved facts can be drawn more safely. It also meant that Fox had not provided an explanation capable of mitigating the objective seriousness of the offences ([22]). The Court then observed that the conduct ended only when he was arrested and that there was no evidence from which to infer rehabilitation or identify when it might occur ([24]). On the evidence before it, the Court was satisfied that removal was appropriate ([25]).
The costs reasoning was separate. Costs ordinarily followed the event in proceedings of this kind because the proceeding was a necessary and inevitable consequence of the practitioner’s conduct. The applicant’s consent to removal did not eliminate the need for the Court to examine the conduct or provide a reason, by itself, to limit or qualify the costs order ([30]). The respondent’s financial evidence was relevant to a possible instalment arrangement, but the Court considered that question dependent on the eventual amount of costs, enforcement choices, proposals for payment and his financial position when enforcement was sought ([27]-[32]).
The judgment presents its legal reasoning as an application of existing principles, rather than announcing a new general test. It relies on earlier authorities for the central question of fitness, the timing of that assessment, the threshold for removal, the protective purpose of discipline, the relevance of the circumstances of offending, and the usual costs approach ([18]-[22], [30]-[31]).
Before this decision, as described by the Court, the applicable framework already required an individualised assessment. A conviction for a serious offence was not automatically determinative; the Court had to examine the specific conduct and surrounding circumstances ([21]). Removal was tied to an assessment that unfitness was likely to continue for an indefinite future, not merely to the existence of a conviction or sentence ([19]).
The decision applies that framework to the particular evidence before it. The Court treated the repeated conduct, its duration, the material involved, its effect on public confidence, the conduct ending with arrest, and the absence of evidence about rehabilitation as cumulatively significant ([23]-[25]). It did not state that every conviction involving child abuse material necessarily requires removal. Indeed, it recited the principle that convictions of this kind are not, without more, prima facie evidence of unfitness ([21]).
For costs, the judgment reaffirmed that costs ordinarily follow the event in removal proceedings, including where a practitioner consents to removal ([30]). It also distinguished the entitlement to a costs order from the question of how that order might be paid. The Court made the costs order but reserved the instalment issue for a later application, to be assessed in light of relevant financial and enforcement circumstances ([31]-[33]).
Accordingly, the “after” position shown by this judgment is a fact-specific application and reaffirmation of the cited principles. The judgment does not purport to amend the statutory framework or replace the earlier tests it cites.
At [3], the Court said it had to be “independently satisfied” of present and continuing unfitness despite Fox’s consent. In plain English, a practitioner cannot determine a removal application simply by agreeing to the orders. The Court remains responsible for deciding whether removal is justified.
At [18], the Court identified the question as whether the practitioner is fit and proper to remain in the profession. At [19], it explained that removal is appropriate where unfitness is likely to continue for an indefinite future and it is not apparent whether or when reinstatement may be suitable. Together, these passages distinguish present fitness from the possibility of rehabilitation at some uncertain later time.
At [20], the Court stated that the purpose of disciplinary proceedings is “the protection of the public and its confidence in the legal profession, not the punishment of the individual.” This describes the function of the proceeding. The question was not whether Fox should receive an additional punishment for the criminal conduct, but whether his continued membership of the profession was consistent with public protection and confidence.
At [21], the Court explained that conviction alone is not necessarily sufficient to disqualify a practitioner. The circumstances of the offending matter. For this case, the judgment then assessed the duration and nature of the conduct, including its repeated character and the respondent’s communications with others ([23]).
At [22], the Court addressed the absence of evidence from Fox about his fitness. It said that the absence of an explanation allowed inferences from proved facts to be drawn more safely, and meant there was no evidence to mitigate the objective seriousness of the offences. This was a point about the material available to the Court, not a statement that every respondent’s silence must produce the same result.
At [24], the Court said the conduct ended only on arrest and that there was no reason on the evidence to think Fox had been rehabilitated. It was not possible to say if or when rehabilitation might make readmission appropriate. In plain terms, the evidence did not establish a basis for identifying a foreseeable point at which Fox might again meet the relevant standard.
At [30], the Court explained why consent did not displace the usual costs approach. Even where removal is consented to, the Court must still examine the conduct, and the applicant necessarily incurs costs in bringing the proceeding. At [32], the Court left instalments open because the answer depended on later information, including the costs amount and Fox’s financial position when enforcement was sought.
The decision is relevant to removal proceedings where a legal practitioner’s criminal conduct raises a question about present fitness and whether unfitness is likely to persist indefinitely. Its reasoning is especially connected to conduct involving child abuse material, but the Court did not frame its decision as an automatic rule for all convictions of that kind ([21], [23]-[25]).
The factual features that mattered here included a course of conduct over 11 months, repeated solicitation, transmission and viewing of material, communications with other users, and conduct that ended only upon arrest ([10]-[16], [23]-[24]). The Court also considered the absence of an explanation or evidence bearing on rehabilitation ([22], [24]).
The decision also bears on proceedings where a practitioner consents to removal. Consent does not eliminate the need for independent judicial assessment, nor does it by itself displace costs following the event ([3], [30]). A separate issue may arise where the practitioner accepts liability for costs but asks to pay over time. The judgment indicates that the amount, enforcement position, payment proposals and financial circumstances may matter to that question ([31]-[32]).
The judgment does not establish that every case with one or more of these features must have the same outcome. It applied the governing principles to the specific facts and evidence before it.
The judgment was delivered on 20 May 2026. The text supplied contains no decisions by later courts treating this judgment, so no subsequent application, distinction or criticism can be identified from this source.
The authorities discussed in the judgment are earlier cases, not later treatment of Fox. The Court cited, among others, A Solicitor, Zhukovska, Einfeld, Green, Hislop and Livanes for principles or procedural approaches it applied ([4], [18]-[22], [30]-[31]). Those citations show the doctrinal sources the Court relied upon, but do not establish how any later court has treated the decision in Fox.
The Court did not determine whether costs should ultimately be paid in instalments. It granted liberty to apply on 14 days’ notice, leaving that issue to be considered in light of the amount of costs as agreed or assessed, enforcement choices, payment proposals and Fox’s financial position at the time enforcement was sought ([31]-[33]).
The judgment also did not decide whether, or at what time, Fox might be rehabilitated sufficiently for readmission. It said that the available evidence did not make it possible to say if or when rehabilitation would occur ([24]). The orders remove his name from the Roll, but the judgment does not specify any future reinstatement process beyond referring generally to possible suitability for reinstatement ([19], [24]).
Finally, the Court’s reasons are expressly tied to the facts and evidence before it. They do not establish a categorical rule that a particular criminal conviction, standing alone, requires removal. The judgment instead reiterates that the detailed circumstances of offending and the practitioner’s fitness at the time of hearing matter ([18]-[21]).
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Prothonotary of the Supreme Court of New South Wales v Fox [2026] NSWCA 91
Hearing dates: On the papers
Date of orders: 20 May 2026
Decision date: 20 May 2026
Before: Ward P, Stern JA, Ball JA
Decision: (1) Declare that the respondent is not a fit and proper person to remain on the Roll of Australian Lawyers;
(2) Order that the name of the respondent be removed from the Roll of Australian Lawyers;
(3) Order that the respondent pay the costs of the applicant in this proceeding;
(4) Grant liberty to the respondent to apply on 14 days’ notice for an order that the costs payable in accordance with order (3) be paid in instalments.
Catchwords: LEGAL PRACTITIONERS – disciplinary proceedings – respondent convicted of offences involving solicitation and transmission of child abuse material – application for removal of the respondent’s name from the Roll of Australian Lawyers – orders not opposed
COSTS – application for removal of respondent’s name from the Roll of Australian Lawyers – whether costs should follow the event where the respondent did not oppose the relief sought – whether the respondent ought to be permitted to pay costs in instalments
Legislation Cited: Crimes Act 1914 (Cth) ss 20(1)(b), 16BA
Criminal Code (Cth) s 474.22(1)
Legal Profession Uniform Law (NSW) ss 23, 264
Uniform Civil Procedure Rules 2005 (NSW) r 17.3(2)
Cases Cited: A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1
Council of the Law Society of New South Wales v Ghobrial [2024] NSWCA 307
Council of the Law Society of New South Wales v Green [2022] NSWCA 257
Council of the Law Society of New South Wales v Hislop [2019] NSWCA 302
Council of the Law Society of New South Wales v XX [2025] NSWCA 4
Council of the Law Society of New South Wales v Zhukovska (2020) 102 NSWLR 655; [2020] NSWCA 163
Council of the New South Wales Bar Association v Einfeld [2009] NSWCA 255
Council of the NSW Bar Association v Power (2008) 71 NSWLR 451; [2008] NSWCA 135
Legal Services Board v McGrath (No 2) (2010) 29 VR 325; [2010] VSC 332
Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325
Prothonotary of the Supreme Court of New South Wales v Nikolaidis [2010] NSWCA 73
Prothonotary of the Supreme Court of New South Wales v Thomson [2018] NSWCA 230
Prothonotary v Comeskey [2018] NSWCA 18
Re Davis (1947) 75 CLR 409; [1947] HCA 53
Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93
The Council of the Law Society of New South Wales v Chalabian [2025] NSWCA 255
The Prothonotary v X [2024] NSWCA 251
Wentworth v New South Wales Bar Association (1992) 176 CLR 239; [1992] HCA 24
Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46
Category: Principal judgment
Parties: Prothonotary of the Supreme Court of New South Wales (Applicant)
Ian Russell Bradfield Fox (Respondent)
Representation: Counsel:
K Metzler (Solicitor Advocate) (Applicant)
Self-Represented (Respondent)
Solicitors:
Crown Solicitors Office (Applicant)
Self-Represented (Respondent)
File Number(s): 2025/475832
Publication restriction: Nil
THE COURT: By summons filed on 8 December 2025, the Prothonotary of the Supreme Court of New South Wales seeks orders in the inherent jurisdiction of the Court for the removal of the name of the respondent, Mr Ian Russell Bradfield Fox, from the roll of Australian Lawyers (the Roll) maintained by the Supreme Court. The application follows the respondent’s conviction in 2024 for criminal conduct involving the solicitation and transmission of child abuse material, for which the respondent was sentenced to a term of imprisonment.
The summons was served on the respondent in December 2025 but he did not file an appearance. On 5 February 2026, in correspondence with a solicitor acting for the applicant, the respondent indicated that he consented to all orders sought by the applicant “other than as to costs”. On 13 May 2026, he filed submissions and an affidavit in relation to the issue of costs. Accordingly, this matter, including the issue of costs, is to be determined on the papers.
Notwithstanding the respondent’s consent, this Court must be independently satisfied that the respondent is not presently fit to practise and is likely to be unfit in the indefinite future such that the removal of his name from the Roll is appropriate: see Council of the Law Society of New South Wales v XX [2025] NSWCA 4 at [15] (Bell CJ, Payne and Stern JJA) and cases cited there. In doing so, this Court should make findings of fact in appropriate detail on significant matters concerning the conduct the subject of the application: Council of the NSW Bar Association v Power (2008) 71 NSWLR 451 at 459; [2008] NSWCA 135 (Hodgson JA, Beazley and McColl JJA agreeing).
The principal evidence on which the applicant relies comprises admissions deemed by r 17.3(2) of the Uniform Civil Procedure Rules 2005 (NSW) to have been made by the respondent as a result of his not serving a notice disputing any facts the subject of a notice to admit facts served on him by the applicant. That is an appropriate use of this procedure and one which has been approved by this Court in the past: see Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 (Livanes) at [13]-[18] (McColl JA, Campbell and Meagher JJA agreeing); Prothonotary v Comeskey [2018] NSWCA 18 at [44] (Meagher JA, Simpson JA agreeing). What follows is drawn from the admitted facts, and an affidavit of a solicitor acting for the applicant, Kristian Metzler, sworn on 2 April 2026.
The respondent was born on 15 December 1957. He was admitted as a lawyer in 1984, first in the Australian Capital Territory on 17 February 1984 and then in New South Wales on 6 July 1984. His name remains on the roll in both jurisdictions.
The respondent held a practising certificate issued by the Council of the Law Society of New South Wales from 23 August 1984 to 12 October 2023. He worked as a lawyer at Henry Davis York, Minter Ellison / Minter Ellison Morris Fletcher, Dunhill Madden Butler, Clayton Utz, and finally Eakin McCaffery Cox, where he became a partner in August 2018.
The respondent’s offending was discovered when members of the Australian Federal Police executed a search warrant at the respondent’s residence on 15 December 2022. The police seized an iPhone 8 belonging to the respondent and observed a laptop with two open browser tabs containing textual child abuse material. The respondent provided the police with the passwords to his iPhone and Facebook messenger account, on which the police observed child abuse material. The respondent was placed under arrest on the same day.
According to the laptop’s browser history, on 14 December 2022 the respondent had accessed two fictional short stories, one written from the perspective of a 12-year-old female child describing incestual sexual activity with a 10-year-old female child and adult females, and another which followed a female child around the age of 11 until her graduation from high school and described the child engaging in sexual activity with other children and adult females.
The social media application WhatsApp was installed on the respondent’s iPhone. Although conversation records in the application had been deleted, the police were able to recover 1048 pages of WhatsApp chats (with some words appearing out of order due to the content of the messages having been scrambled), which showed that the respondent was a member of at least 26 different private and group conversations, to which the respondent contributed between 500 to 600 messages. The members of those chats shared content which included, relevantly:
The applicant submitted, and the Court accepts, that references to “cp” in the messages sent by the respondent are references to “child pornography”.
Examination of the Facebook Messenger application on the respondent’s iPhone showed that between 14 April and 18 June 2022, the respondent exchanged messages with Facebook users “Shoaib Khan” and “Luz Cales” in which the respondent solicited and transmitted child abuse material.
Records of messages between the respondent and “Shoaib Khan” show repeated requests within a short period of time from the respondent for videos.
On 27 April 2022, the respondent transmitted to “Shoaib Khan” a video file 33 seconds in duration depicting animated child abuse material. The video showed sexual activity between an adult female and a male child aged four to six years.
On 17 June 2022, the respondent transmitted to “Luz Cales” a video 56 seconds in duration depicting child abuse material, namely a pubescent male aged 14 to 17 years engaging in sexual activity with a young female of an unknown age.
On 7 May 2024, the respondent was convicted and sentenced in the District Court of New South Wales in respect of two charges of offending contrary to s 474.22(1) of the Criminal Code (Cth) (Criminal Code) involving the transmission and solicitation of child abuse material using a carriage service. The respondent was sentenced to 19 months’ imprisonment to commence on 27 March 2024. In passing that sentence, the District Court took account of a third charge under s 474.22(1) of the Criminal Code of access child abuse material using a carriage service, which related to the respondent’s conduct in accessing text-based child abuse material on his laptop: see s 16BA of the Crimes Act 1914 (Cth) (Crimes Act). The sentence was partially suspended upon the respondent entering into a self-recognizance in the sum of $5,000 without security pursuant to s 20(1)(b) of the Crimes Act.
The inherent power of this Court to order the removal of the name of a person from the Supreme Court roll is long-standing. It is preserved in s 264 of the Legal Profession Uniform Law (NSW) and expressly reflected in s 23.
The question to be determined upon an application for removal of the name of a legal practitioner from the roll is whether the practitioner is a fit and proper person to remain as a member of the profession: Re Davis (1947) 75 CLR 409 at 416; [1947] HCA 53 (Latham CJ). That question is to be determined at the time of the hearing: A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253 (A Solicitor) at [21]; [2004] HCA 1 (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ).
Removal from the roll will be appropriate if the Court is satisfied that the practitioner is likely to be unfit for the indefinite future, in the sense that it is not apparent whether, and if so when, the practitioner might be suitable for reinstatement to the roll: see Council of the Law Society of New South Wales v Zhukovska (2020) 102 NSWLR 655 at [99]; [2020] NSWCA 163 (Leeming JA, Macfarlan and McCallum JJA agreeing); Stanoevski v The Council of the Law Society of New South W**ales [2008] NSWCA 93 at [52]-[53] (Campbell JA, Hodgson JA and Handley AJA agreeing).
As is frequently observed, the purpose of disciplinary proceedings such as this application is the protection of the public and its confidence in the legal profession, not the punishment of the individual: see Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 250–251; [1992] HCA 24 (Deane, Dawson, Toohey and Gaudron JJ). That purpose has aspects of both public accountability and deterrence: Council of the Law Society of New South Wales v Green [2022] NSWCA 257 (Green) at [59] (Ward P, Kirk JA and Griffiths AJA). For that reason, as this Court (Allsop P, Giles and Hodgson JJA) explained in Council of the New South Wales Bar Association v Einfeld [2009] NSWCA 255 (Einfeld) at [16]:
When, as happens from time to time, a member of the profession so conducts him or herself as to bring disrepute on to the profession, the administration of justice and the legal system, procedures (such as this hearing) should be unquestionably complete in examination of relevant conduct. To do less may lead to a view (even if misguided) that the system operates without a full opportunity for the public examination of such wrongful conduct. This is not part of any process of punishment; rather, it is as an aspect of protecting the public and fostering the public interest by maintaining full accountability of those in the profession and involved in the administration of justice.
Convictions for, or arising out of, child pornography offences are not prima facie evidence that a person is not a fit and proper person to remain on the roll kept by this court. The nature of the material involved, the extent and circumstances of the offending in question, its relationship to the offender’s professional life, and the behaviour of the offender before, during and after the legal processes which result from that offending will all be relevant to deciding any application to strike that offender from the roll. As the High Court’s decision in [A Solicitor] indicates, even an individual convicted for the sexual abuse of minors can, albeit in a very small number of conceivable circumstances, remain a fit and proper person to practise law in this country.
The respondent’s conduct occurred over a substantial period of time (11 months) up to the date of his arrest. It was not an isolated lapse in judgment that can be explained by the particular circumstances in which the respondent found himself. The conduct was serious in that it included the viewing and sharing of explicit child sexual abuse photographs and videos. It also involved communications with others through a number of chats with other users concerning that material. Conduct of that type is particularly serious because it creates a demand for child sexual abuse material which encourages the abuse of children, who are the most vulnerable members of society, and in turn leads to serious psychological, if not physical damage, that is so often an incidence of it. The degree of moral turpitude involved in that conduct by a member of the legal profession and its serious consequences has a tendency to bring the profession as a whole into disrepute and undermine the public’s confidence in the moral integrity of the profession.
The respondent’s conduct came to an end only when he was arrested. Consequently, there is no reason to think that the respondent has been rehabilitated, and it is not possible to say if or when the respondent will ever be rehabilitated to the point where it would be appropriate for him to be readmitted as a solicitor. The respondent has led no evidence in that regard.
Taking those matters into account, we are satisfied that the respondent's name ought to be removed from the Roll.
The applicant seeks an order that the respondent pay the costs of the applicant in this proceeding. The applicant does not in this case seek an order that those costs be payable on an indemnity basis. The respondent does not oppose an order that he pay the applicant’s costs, but submits that the Court should make an order that he pay the applicant’s costs on the ordinary (rather than an indemnity) basis and in instalments.
In support of his application for an order that any costs be payable in instalments, the respondent swore an affidavit in which he deposes that he has assets of approximately $337,000 comprising the following:
(a) Amounts held in bank accounts totalling approximately $10,655; (b) An amount of $40,000 in a micro-lending enterprise; (c) Art and other collectibles with a realisable value of approximately $25,000; and (d) Amounts held in superannuation accounts totalling approximately $261,500.
The respondent says that he owes a debt to the Australian Taxation Office of $30,000.
The respondent gives evidence that he currently receives the age pension of $1,377.80 per fortnight which he supplements by working as a casual driver, normally only during holidays, for which he is paid $25 per hour plus superannuation and by collecting recyclable cans and plastic bottles from yellow bins. He deposes that his ordinary weekly expenses are approximately $480.
The usual order in relation to costs in cases of this kind is that costs follow the event: see, for example, Green at [97]-[99]; Council of the Law Society of New South Wales v Ghobrial [2024] NSWCA 307 at [21]; The Prothonotary v X [2024] NSWCA 251 at [72]; Council of the Law Society of New South Wales v Chalabian [2025] NSWCA 255 at [42]. This reflects the fact that proceedings of this kind are the necessary and inevitable consequence of the conduct of the practitioner in question. Even where, as here, a practitioner consents to orders for the removal of his or her name from the Roll, those orders cannot be made by consent. The Court must be satisfied that it is appropriate to make the orders sought, including by carefully examining the whole of the conduct giving rise to the application. It follows that the applicant will necessarily incur costs in making the application and that the respondent’s consent, of itself, is not a reason to limit or qualify the applicant’s entitlement to a costs order that follows the event. There is no reason to depart from those principles in this case.
As for the respondent’s financial circumstances, whether a costs order should be structured in a way that takes account of the cost payer’s financial circumstances will depend on a number of considerations including the amount of those costs as ultimately agreed or assessed, whether and if so how the successful party chooses to enforce the debt and what proposals, if any, the cost payer has made to pay the debt: see Council of the Law Society of New South Wales v Hislop [2019] NSWCA 302 at [8] (Bell ACJ, Barrett AJA agreeing).
This may be an appropriate case in which to allow the respondent to pay the applicant’s costs over time. But whether or not it is will depend on the answer to those questions and on the respondent’s financial position at the time the costs order is sought to be enforced. In the circumstances, we think the appropriate order is to give the respondent liberty to apply in relation to the question whether an order should be made for the payment of costs in instalments.
The orders of the Court therefore are:
Declare that the respondent is not a fit and proper person to remain on the Roll of Australian Lawyers;
Order that the name of the respondent be removed from the Roll of Australian Lawyers;
Order that the respondent pay the costs of the applicant in this proceeding;
Grant liberty to the respondent to apply on 14 days’ notice for an order that the costs payable in accordance with order (3) be paid in instalments.
**********
Prothonotary of the Supreme Court of New South Wales
Fox
(2004) 216 CLR 253
(2020) 102 NSWLR 655
(2008) 71 NSWLR 451
(2010) 29 VR 325
(1947) 75 CLR 409
(1992) 176 CLR 239
(1957) 97 CLR 279
The Court declared that Fox was not a fit and proper person to remain on the Roll of Australian Lawyers, ordered his name removed, ordered him to pay the applicant’s costs, and granted liberty to apply on 14 days’ notice for an instalment order: [33].
Invitations to adult group sex chats;
Advertisements for personal sexual massages;
Requests for adult pornography, to swap intimate adult images and to swap intimate adult videos;
Sexual communication between parties and about sexual fantasies such as “incest”, “family”, “mother and son”, “anal”, “tampons”, “urination” and “dirty underwear”; and
Requests for sex.
The recovered messages also show that between 9 February 2022 and 19 July 2022, the respondent used Facebook Messenger and WhatsApp repeatedly to solicit child abuse material from, and occasionally transmit child abuse material to, users in both a group chat and private chat setting.
Communications sent by the respondent to other WhatsApp users included:
On 19 February 2022, a private message to an unidentified number asking, “do u fuck young” and “so sexy they how young are”.
On 6 March 2022, messages to someone identified as “Jose”, with whom the respondent had communicated previously, asking, “do you have young anymore” and “ok of young girls you have more any pics”. The respondent sent further messages to “Jose” on 9, 10 and 13 March 2022, which included a message on 10 March 2022 asking, “hot any ones younger that is”.
On 12 June 2022, messages to a group chat asking for “group child movies or” and “any child videos”.
On 19 July 2022, a message to a group chat stating, “please cp yes love videos”.