Consideration
25 Section 25 of the Legal Profession Act relevantly provides:
" 25 Requirement for practising certificate
(1) A legal practitioner whose sole or principal place of legal practice is this State must not practise as a barrister or solicitor and barrister without being the holder of a current practising certificate.
(2) A legal practitioner whose sole or principal place of legal practice is this State must not hold himself or herself out to be a barrister without being the holder of a current practising certificate as a barrister.
…
(4) A legal practitioner or interstate legal practitioner who contravenes this section wilfully and without reasonable excuse is guilty of professional misconduct."
26 "Barrister" is relevantly defined in s 3 of the Legal Profession Act to mean "a legal practitioner who holds a current practising certificate as a barrister". There is no suggestion that the opponent was an "interstate legal practitioner" which would have brought him within the second limb of the definition of "barrister".
27 Practising certificates operate for the period of 12 months following the first of July in the relevant year: s 36 Legal Profession Act. Section 27(1) of the Legal Profession Act provides that the Bar Council may, on application, grant a practising certificate to a legal practitioner authorising the practitioner to practise as a barrister. A legal practitioner who holds a current practising certificate as a barrister (which I infer was a description which applied to the opponent prior to 30 June 2002) was required to apply to the Bar Council for a new practising certificate (for the 2002 practising certificate year) during the period commencing on 1 April and ending on 15 May (Legal Profession Regulation 1994, cl 4) and (for the 2003 practising certificate year) the period commencing on 1 April and ending on 7 June before the current practising certificate expires: s 27(3) Legal Profession Act; cl 5 Legal Profession Regulation 2002.
28 It is plain from the facts which I have set out above that the opponent has both practised as a barrister and held himself out to be a barrister during the 18 months commencing on 30 June 2002 without being the holder of a current practising certificate as a barrister. He has, therefore, prima facie contravened ss 25(1) and (2) of the Legal Profession Act. Those subsections will only have been contravened, however, if, in practising in that manner, the opponent acted "wilfully and without reasonable excuse".
29 The use of the word "wilful" in a statute creating an offence connotes intention and knowledge: Iannella v French [1968] HCA 14; (1968) 119 CLR 84 at 95 per Barwick CJ; see also Windeyer J at 106 - 109; Fitzgerald v Montoya (1989) 16 NSWLR 164 at 168 - 171 per Rogers JA (with whom Kirby P and Clarke JA agreed). In Iannella v French, McTiernan J (at 98) said that the word "wilfully" should be given its ordinary meaning of "wilful intent", while Taylor J (with whom Owen J agreed) clearly regarded an act to have been "wilful" where it was intentional.
30 In Environment Protection Authority v N (1992) 26 NSWLR 352 at 355, Hunt CJ at CL (with whom Enderby and Allan JJ agreed) noted that Barwick CJ and Windeyer J were in the minority as to the result in Iannella v French and, therefore, the weight "to be given their interpretation of the word 'wilfully' is thus perhaps equivocal". His Honour concluded that the true significance of Iannella v French may lie in Barwick CJ and Windeyer J's statements (at 93, 95 and 108 respectively) that the meaning of "wilfully" should be sought from the context in which it appeared.
31 It is sufficient for present purposes to conclude that "wilful" in s 25 encompasses an intentional act.
32 There can be no doubt that the opponent deliberately practised without a practising certificate, knowing of his obligation to obtain that certificate. He turned his mind to the question of obtaining a practising certificate at the renewal time in June 2002 and made a deliberate decision, having regard to his financial circumstances, not to do so. Having committed himself to a course of practising without a practising certificate he decided, by October that year, that it was too late to turn back. He persisted with the course of practising without a practising certificate because, apparently, the alternative course of admitting his omission was too unpalatable. I am satisfied that his conduct was "wilful" in the relevant sense throughout the period commencing on 8 August 2002 and concluding on 11 December 2003, as well as on the dates and during the periods set out in paragraph 2 of the Summons.
33 The next question is whether it has been established that the opponent acted "without reasonable excuse".
34 In Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454 at 464 ff, Brennan CJ, Toohey, McHugh and Gummow JJ pointed out that what was a "reasonable excuse" depended both upon the circumstances of the individual case and also on "the purpose of the provision to which the defence of 'reasonable excuse' is an exception".
35 Without commenting upon whether the presence of the phrase "without reasonable excuse" in s 25(4) operates by way of defence, it is plain that in that context the expression requires an explanation to be propounded which would justify the opponent's otherwise contravening conduct.
36 In this context it is relevant to note that the requirement that legal practitioners hold practising certificates performs important functions in the regulation of the legal profession. Significantly, s 32 of the Legal Profession Act enables the relevant Council to issue a practising certificate subject to conditions such as requiring the holder to undertake and complete one or more courses of continuing legal education, undertake additional academic training courses, limiting the practising rights of the holder as determined by the relevant Council or other conditions agreed to by the holder (s 33) and the conditions set out in s 34.
37 Holding a practising certificate means that the "barrister" is subject to the Barristers' Rules made under the Legal Profession Act by the Bar Council: s 38G. Furthermore, prior to issuing a practising certificate the Bar Council is required to be satisfied that there is, or will be, in force with respect to the barrister an approved indemnity insurance policy: s 38R. While there is no evidence before the Court that the opponent did not have an approved indemnity insurance policy, provisions such as s 38R underline the importance of the issue of the practising certificate for members of the public who use the barrister's services.
38 There are undoubtedly many other aspects of the Legal Profession Act to which reference could be made to demonstrate the significance of a barrister holding a practising certificate, but those to which I have referred are sufficient for present purposes to demonstrate the role of that document in regulating the profession. The regulation of the profession through practising certificates seeks, as the claimant submits, to uphold and maintain professional standards and to provide a safeguard for the public. By failing to renew his practising certificates for the years 2002/2003 and 2003/2004 the opponent circumvented the scheme of regulation and protection for which the Legal Profession Act provides.
39 I have already referred to the contents of Dr Armstrong's report. The claimant submits that the matters set out in that document do not provide the basis for a "reasonable excuse" for contravening s 25 of the Legal Profession Act. The claimant contends that while the major depression to which Dr Armstrong refers may explain the opponent's behaviour to some extent it does not provide a "reasonable excuse".
40 Having regard to the opponent's consent to the declarations and orders the claimant seeks, I do not understand him to be advancing Dr Armstrong's report in justification for his behaviour. Dr Armstrong does not suggest that the opponent was at any time incapable of understanding the requirement to obtain a practising certificate or the consequences of failing to obtain it, namely that he was then practising in contravention of the Legal Profession Act. Nor can the opponent's financial embarrassment at the time for renewal of his practising certificate afford any justification for his conduct. Rather, it is plain that he preferred his personal position at the expense of complying with his statutory obligations as a barrister.
41 It is plain, in such circumstances, that the opponent wilfully and without reasonable excuse contravened both subsections 25(1) and (2) of the Legal Profession Act.
42 The claimant submits that the opponent's conduct amounts to a grave breach of the standards of professional behaviour expected of members of the legal profession and barristers in particular. He points to the fact that the legislature has demonstrated the seriousness with which such conduct is to be regarded by providing that a breach of those subsections, without more, constitutes "professional misconduct".
43 The claimant also submits that in practising without a practising certificate the opponent has not been required to provide proof of having professional indemnity insurance (s 38R) so that it is "highly probable that he did not have such insurance during the relevant time period". There is no evidence to support that proposition. It was open to the claimant to inquire of the opponent whether he had complied with s 38R. It must be recalled that the standard of proof which applies in disciplinary proceedings is that referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 where, at 362, Dixon J in a well known passage referred to (inter alia) "the gravity of the consequences following from a particular finding" as being relevant to the question whether an issue has been proved. His Honour said that "'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences": see also Neat Holdings Pty Limited v Karajan Holdings Pty Limited [1992] HCA 66; (1992) 67 ALJR 170. A conclusion that the opponent practised without professional indemnity insurance would be, in itself, capable of amounting to professional misconduct. In the absence of positive proof as to the opponent's insurance position, I do not regard it as appropriate to make a finding adverse to him in this respect.
44 The claimant submits that by continuing to practise and holding himself out as a barrister in contravention of s 25, the opponent set out to deceive the courts, his clients, the general public and his professional colleagues as to his qualifications as a barrister and his entitlement so to practise. The claimant submits that such deliberate deceit is the antithesis of the requirements of candour and honesty expected of members of the legal profession. The claimant contends that the opponent's conduct demonstrates he lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner: see In re a Practitioner (1984) 36 SASR 590 at 591; Council of the Law Society of New South Wales v A Solicitor [2002] NSWCA 62 at [89], [113], [125]; Prothonotary of the Supreme Court of New South Wales v Farran, above, at [14].
45 The claimant's Summons invokes the inherent jurisdiction of the Supreme Court with respect to the discipline of legal practitioners, a jurisdiction which is preserved by s 171M of the Legal Profession Act; see A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 78 ALJR 310 at 312, [3]. The jurisdiction which the Court exercises in such circumstances was described by the High Court in its joint judgment in the following terms (at [12]):
"As Griffith CJ pointed out in Southern Law Society v Westbrook (1910) 10 CLR 609 at 612, the question that arises when the power of the Supreme Court is invoked in a case such as the present is not one of punishment, but 'whether the Court is justified in holding out the [appellant] as a fit and proper person to be entrusted with the duties and responsibilities of a solicitor'."
46 As s 25(4) of the Legal Profession Act provides that once a contravention of the section is established the legal practitioner is "guilty of professional misconduct", it is, strictly speaking, unnecessary to consider the common law meaning of that expression - the statutory definition in s 127 of the Legal Profession Act is relevant only to Part 10 of the Act. Nevertheless, it gives content to s 25 to note it was enacted in the context that "professional misconduct" at common law was said to connote "conduct which would reasonably be regarded as disgraceful or dishonourable" by one's peers: see Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 and other authorities collected by Spigelman CJ (with whom Mason P and Handley JA agreed) in New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [36] ff. Allinson was adopted in relation to the legal profession in In re a Solicitor; Ex parte Law Society [1912] 1 KB 302 at 311-312: see A Solicitor v Council of the Law Society of New South Wales, above, at [13].
47 Accordingly, the effect of s 25(4) of the Legal Profession Act is that by contravening ss 25(1) and (2) the opponent has engaged in conduct which would be regarded as "disgraceful or dishonourable" by his peers. The declarations which the claimant seeks in paragraphs (1) and (2) of the Summons should be made. They have utility in that they serve to maintain the confidence of the public in the legal profession: see New South Wales Bar Association v Cummins, above, at [69]. The sense in which the expression "professional misconduct" is used is plain from the facts constituting the contraventions: see A Solicitor v Council of the Law Society of New South Wales, above, at [14].
48 In exercising the Court's inherent jurisdiction, it is accepted that a declaration or finding that a practitioner has been guilty of professional misconduct will not automatically lead to a finding that the practitioner is not a fit and proper person to remain on the Roll of Legal Practitioners. Resolution of that question turns upon an examination of the circumstances of the contravention: Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 at 288 per Fullagar J; see also Taylor J at 303; Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 per Priestley JA at 207. The issue of fitness is determined at the time of the hearing: A Solicitor v Council of the Law Society of New South Wales, above, at [21].
49 In Ziems v Prothonotary of the Supreme Court of New South Wales, above, at 297, 298, Kitto J said:
"The issue is whether the appellant is shown not to be a fit and proper person to be a member of the Bar of New South Wales. It is not capable of more precise statement. The answer must depend upon one's conception of the minimum standards demanded by a due recognition of the peculiar position and functions of a barrister in a system which treats the Bar as in fact, whether or not it is also in law, a separate and distinct branch of the legal profession. It has been said before, and in this case the Chief Justice of the Supreme Court has said again, that the Bar is no ordinary profession or occupation. These are not empty words, nor is it their purpose to express or encourage professional pretensions. They should be understood as a reminder that a barrister is more than his client's confidant, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. He is, by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations. If a barrister is found to be, for any reason, an unsuitable person to share in the enjoyment of those privileges and in the effective discharge of those responsibilities, he is not a fit and proper person to remain at the Bar. Yet it cannot be that every proof which he may give of human frailty so disqualifies him. The ends which he has to serve are lofty indeed, but it is with men and not with paragons that he is required to pursue them. It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self-respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily co-operation which the satisfactory working of the courts demands. …"
50 Legal practitioners are under an obligation of candour to the Court: In re Davis [1947] HCA 53; (1947) 75 CLR 409 at 417 and 426. Lack of candour by a practitioner may lead to the conclusion that a practitioner is not a fit and proper person to remain on the roll. That obligation is essential to ensure that counsel may "command the personal confidence … of other members of the Bar and of judges": In re Davis, above, at 420 and so that the Court may hold out legal practitioners to members of the public as fit and proper persons to act for them: Ziems v Prothonotary of the Supreme Court of New South Wales, above, at 290; see also Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 at 681; Southern Law Society v Westbrook [1910] HCA 31; (1910) 10 CLR 609 at 625. The confidence a legal practitioner commands in judges and other members of the profession must be such that they can rely implicitly on the practitioner's word and behaviour: Barristers' Board v Young [2001] QCA 556 at [42] per Mackenzie J.
51 The Court must be careful not to accredit as legal practitioners those in whom the public cannot have confidence that they will discharge the obligation of candour the Court requires of them, whether because of "deliberate misleading or reckless laxity of attention to necessary principles of honesty on the part of those the Courts trust to prepare the essential materials for doing justice": Incorporated Law Institute of New South Wales v Meagher, above, at 681 per Isaacs J; see also Southern Law Society v Westbrook, above, at 625 cited in Law Society of NSW v Foreman (No 2) (1994) 34 NSWLR 408 by Kirby P at 412B-E and by Mahoney JA at 442E-G.
52 In Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 199, 200, Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ emphasised in their joint judgment the fundamental rule governing the conduct of members of a body of professionals, such as the Bar of New South Wales, saying that:
"… they rest essentially on nothing more and nothing less than a generally accepted standard of common decency and common fairness. To the Bar in general it is more a matter of "does not" than of "must not". A barrister does not lie to a judge who relies on him for information. He does not deliberately misrepresent the law to an inferior court or to a lay tribunal …"
53 It is impossible to understate the confidence which courts must be able to place in the candour of those legal practitioners who appear before them. As Mahoney JA said in Law Society of New South Wales v Foreman (No 2), above at 445G-446C:
"The administration of justice would proceed more slowly and with greater costs if the courts before whom a solicitor practised felt it necessary to check the accuracy of what the solicitor had said to it …. if what the solicitor has done is such that the court will hesitate before acting upon what the solicitor has said, that is … an important matter to be taken into account."
54 In Council of the Law Society of New South Wales v A Solicitor [2002] NSWCA 62, Sheller JA (with whom Mason P and Giles JA agreed) said (at [101]) that:
"The solicitor's duty is to be faithful to the oath of office, to the courts, to fellow practitioners and most importantly to the clients … who should be able confidently to expect that the solicitor will honour the obligation and responsibility imposed by the relationship of solicitor and client. The sworn duty is a public duty. The administration of justice depends in large measure on the trust the courts and the public place in those who practise the law."
55 His Honour's remarks were not affected by the High Court's decision, on appeal, in A Solicitor v Council of the Law Society of New South Wales, above.
56 The question which falls for determination by this Court is whether the Court is "justified in holding out the [opponent] as a fit and proper person to be entrusted with the duties and responsibilities of a [barrister]": A Solicitor v Council of the Law Society of New South Wales, above at [12].
57 The fundamental rules to which the High Court referred in Clyne v New South Wales Bar Association have been given expression in The New South Wales Barristers' Rules made under s 57A of the Legal Profession Act. Those rules emphasis (see rr 21 -31) the barrister's obligation to be frank in court. It goes without saying that the obligation of frankness is one which the barrister is also expected to discharge in his or her dealings with the public and other members of the profession.
58 The opponent's conduct struck at the heart of these obligations. In appearing in the matters listed in the Schedule and in rendering tax invoices in respect of those appearances he represented that he was entitled to practise as a barrister. In so doing he misled the courts before which he appeared, he misled the members of the legal profession against whom he appeared and he mislead the clients for whom he appeared. Further, by permitting his name to be published in the two law diaries which are the point of reference for identifying members of the profession he represented to the world at large that he was entitled to practise as a barrister.
59 His conduct was dishonourable and disgraceful in the sense encompassed by the expression "professional misconduct". The opponent pursued a deliberate course of deceit continuously over 18 months. He acted in flagrant disregard to his obligations to the administration of justice, to his obligations to the Court, the profession and the public. His deceit was only revealed when his conduct came to the attention of the Bar Association.
60 I accept that the contraventions occurred by reason of the financial and psychological constraints under which the opponent was suffering and in circumstances where he sought to support his family. Moreover it is apparent from Dr Armstrong's report that some three or so months after his first decision not to renew his practising certificate, he sought treatment for depression. That condition may also have had an operative effect in his conduct. These matters evoke sympathy but they cannot, in my opinion, be permitted to obscure the serious nature of the contraventions.