Roulstone v New South Wales Bar Association

The Plaintiff's disclosure

1. The Plaintiff said the following in a statutory declaration attached to his application for the practising certificate: 2.12 On 18 July 2013 the Council of the Law Society of NSW resolved to refuse my application for a Practicing Certificate as a Solicitor in relation to certain "impugned transactions" as a result of a "Show Cause" event following my filing for bankruptcy on 9 August 2012. An application for the review of this decision was lodged in the Supreme Court of NSW and the matter was heard before His Honour Justice Beech-Jones in the Supreme Court on 4 June 2014. The Appeal was upheld. Oral reasons for Judgement were delivered by His Honour on 11 June 2014, and written reasons for Judgement provided 18 June 2014. A copy of the written reasons for Judgement of His Honour Beech-Jones in the Supreme Court of NSW is attached (29 pages). Prior to the refusal by the Law Society of NSW to issue to me a Practising Certificate, the Council of the Law Society of NSW resolved on 22 November 2012 to suspend my Practising Certificate as a result of a "Show Cause" event, that is the bankruptcy filed 9 August 2012. The basis of the suspension pursuant to S68(3)(b) of LPA 2004 was similar if not identical to the reasons for the refusal by the Law Society to issue me with a Certificate and which were the subject of the Supreme Court Appeal before His Honour Justice Beech-Jones. 3.3 I presented a Debtor's Petition and was declared bankrupt on 9 August 2012, the bankruptcy being annulled pursuant to Section 73 of the Bankruptcy Act 1966 on 12 November 2013. In relation to fitness and propriety I refer to the enclosed Judgement. 3.4 A disclosure was made by me pursuant to a "Show Cause" event, that is the bankruptcy of 9 August 2012, and I provided a Section 67 Statement to the Law Society on 7 September 2012. Subsequent to the original "Show Cause" disclosure I obtained alternate (sic) legal representation and further submissions were made by my solicitor to the Council of the Law Society (Mr Tom Williams). The Council, however, resolved to suspend my Practising Certificate on 22 November 2012. I refer to paragraphs 112-116 of the Judgement of His Honour Justice Beech-Jones, enclosed. 4.3 There are currently two outstanding complaints: a. The relevant complaint concerning the Law Society decision to suspend my Practising Certificate as at 22 November 2012. This complaint was lodged with the Office of the Legal Service Commissioner, and a copy is enclosed. My Solicitor, Mr Tom Williams, has, or is in the process of writing to both the Law Society of NSW and the Office of the Legal Services Commissioner, first inviting the Law Society of NSW to withdraw the complaint or alternatively requesting the Office of the Legal Services Commissioner to dismiss the complaint. b. Mr Stephen Paul Firth, Solicitor, trading as Firths the Compensation Lawyers, on his own behalf and on behalf of numerous former clients of Keddies lawyers, filed numerous complaints against me with the Office of the Legal Services Commissioner from mid 2010 through until end 2011. All of the complaints lodged against me have been dismissed with the exception of a complaint concerning an allegation that myself and my former partners interfered with contractual relationships between Mr Firth and his own clients (former clients of Keddies) over a period of time between approximately August 2011 and November 2011. The Office of the Legal Services Commissioner classified the complaint as an alleged breach of Rule 31 of the Conduct and Practice Rules, an alleged breach of an undertaking, and an alleged conflict of interest contrary to Rule 10. A copy of the complaint dated 24 November 2011 is enclosed. This complaint was associated with parallel litigation brought by Mr Firth on behalf of himself and his former clients whereby he sought injunctive relief and damages, and then ultimately moved to bring a contempt claim against myself and my former partners on 7 December 2011. The Supreme Court litigation was defended and the primary claim of an allegation of interference with contractual relationships and damages was permanently stayed by the bankruptcy occurring 9 August 2012. I have available extensive correspondence between my ultimate Trustee in bankruptcy (Mr Max Donnelly) and Mr Firth concerning a claim for costs in respect of this litigation that Mr Firth was intending to claim upon my and my former partner's estates. As far as I am aware this claim has not been pursued. Further, in respect of the associated claim of contempt, the proceedings were relisted, post bankruptcy, by another party to the litigation (namely a firm of solicitors who were seeking to enforce costs against Mr Firth in relation to compliance with subpoenas). This occurred on 29 May 2013. Counsel representing Mr Firth requested that the contempt matter be referred to the Prothonatory of the Court, This occurrence was without prior notification and further, in circumstances where rebuttal evidence or a defence had not been lodged. I have heard nothing further since this time, however state that myself and my former partners have not answered the charge, however if requested to do so would do so with a full and complete defence. Historically, I have practised in criminal and civil litigation since the date of my admission in 1985. I have practised extensively in plaintiff personal injury litigation from approximately the early 1990's until 1998 and again from 2004 until 2012. I estimate that I have been subject to five to ten complaints during this period. All of these were dismissed with the exception of a reprimand by consent in 1992 or 1993 in relation to a claim that I had adjourned an arbitration on two occasions without instructions.
2. On 7 July 2014 the Bar Council issued a show cause notice under s 68(2) of the Act. The show cause event was said to be "the presentation of a debtor's petition by you on 9 August 2012". The Bar Council, on the same date, issued a notice under s 660(1) of the Act for the production of a number of documents relating to the Plaintiff's bankruptcy as well as: A8. A copy of Claim of Contempt brought against you on or about 29 May 2013. A9. A copy of all complaints made against you by Stephen Paul Firth including the complaints which were dismissed.
3. On 16 July 2014 the Plaintiff provided all but the documents referred to in A9. Those documents were provided on 18 July 2014. In that letter of 18 July 2014 the Plaintiff said this in relation to the contempt claim: Contempt In respect of the contempt claim brought by Mr Firth, myself and my former partners have received advice not to file any affidavit evidence until required to do so. That advice currently stands. The short response is as follows: On 12 October 2011 I received a telephone call from Mr Naushad Husaini, a solicitor employed by Margiottas. This approach was unsolicited. Mr Husaini informed me that he had been consulted by Mr Xi Li (who was with him at the time) and that Mr Li wished to attempt to settle his existing claim against the Keddies Partnership. Mr Husaini requested for me to provide some basic accounting documentation from the former file maintained in respect of Mr Li's matter. I did so on the same date by way of facsimile. An injunction was consented to on 24 November 2011 between Mr Firth and the former Keddies partners the terms of which included that if any former clients of Keddies instructed Solicitors other than Mr Firth, then the Keddies Partners could communicate with such former clients or their Lawyers without breaching the injunction. I heard nothing further from Mr Husaini until the morning of 30 November 2011. Mr Husaini telephoned me on behalf of Mr Li and I informed him immediately that there were orders in place preventing the Keddies Partners from communicating with Mr Li. At about midday on 30 November 2011 Verekers Lawyers (who were acting on behalf of the Keddies Partners) received a letter from Margiottas advising that they were instructed to act on behalf of Mr Li and requesting that that Firm contact Mr Husaini. At approximately 1.40pm on the same date Verekers received a facsimile of a sealed copy of a Notice of Change of Solicitor indicating that Margiottas were then on record for Mr Li. Settlement of the claim was affected (sic) between Verekers and Margiottas the same day and by me drawing the cheque in favour of Mr Li was an action carried out pursuant to the existing agreement and not in breach of the injunction.
4. On 8 August 2014 the Bar Association issued another notice under s 660(1) of the Act asking a number of questions. The Plaintiff provided a statutory declaration answering those questions on 19 August 2014. The questions and answers are these: Q1. Did you have any communication with any of the following persons at any time that Mr Steven Firth was acting as their solicitor in connection with separate proceedings brought by each of them in the District Court against Mr Tony Barakat and Mr Russell Walter Keddie (your former partners) and you (District Court Proceedings): (a) Mei Yu Liu; (b) Wai Chun Chan Yu; (c) Wei Yuan; and (d) the late Mr Sidney Chafei, (each a Plaintiff)? A1. No Q2. Did you instruct or otherwise procure anybody to communicate on your behalf with any of the Plaintiffs at any time that Mr Firth was acting as their solicitor in connection with the respective District Court Proceedings? A2. No. Q3. If the answer to either Al or A2 above is in the affirmative, in respect of each such communication, instruction or procurement please identify when and where it took place, between whom and the substance of the communication, instruction or procurement. A3. Not applicable. Q4. Were you aware at the time of the settlement of any of the District Court Proceedings that either of your partners or anyone on their behalf had communicated with a Plaintiff at any time that Mr Firth was acting as his or her solicitor in connection with one of the District Court Proceedings? A4. No. Q5. If the answer to A4 above is in the affirmative, in respect of each such communication please identify by reference to your knowledge as at time of the settlement of the District Court Proceedings, when and where it took place, between whom and the substance of the communication. A5. Not applicable. Q6. Did you authorise or were you otherwise aware that Mr Barakat had given an undertaking on your behalf to Mr Firth to the effect that no monies would be paid by Mr Barakat, alternatively by you, or alternatively on either of your behalf, to any of the Plaintiffs pending either agreement on or if necessary assessment of Mr Firth's legal costs? A6. No. Q7. Did you at any time act on your own behalf as a defendant in any of the District Court Proceedings and act on behalf of a Plaintiff in the same proceedings? A7. No. Q8. Was Mr Xi Li a former client of Keddies? A8. Yes. Q9. Was Mr Naushad Husaini a former employee of Keddies? A9. Yes. Q10. If the answers to A8 and A9 above are in the affirmative, did Mr Husaini act for or otherwise represent Mr Li at the time that Mr Li was a client of Keddies? A10. Yes. Q11. Did you draw a cheque on or about 1 December 2011 in the sum of $80,000 in favour of Mr Li? A11. Yes. Q12. If the answer to A11 is in the affirmative, please answer the following questions: (a) who asked you to draw the cheque? A12(a) No one. I drew the cheque of my own volition and as a matter of course to complete the settlement. (b) for what purpose did you draw the cheque? A(b) To complete the settlement. (c) to whom did you give the cheque? A(c) To Eileen Drurie, the receptionist at my Redfern Office, a former employee of Keddies. (d) at the time you drew the cheque were you aware of any undertaking given by your former partners and yourself to the Supreme Court of New South Wales that reflected the following order sought by Maria Goritsas, Basil Goritsas and Mr Firth: An order that the Defendants be restrained from, either by themselves or by their servants or agents, at any time contacting, approaching or in any way communicating or attempting to communicate with any of their former clients or any of the former clients of Keddies the Insurance Law Specialists Pty Ltd or any other person or persons acting on behalf of such former clients (other than any solicitor on behalf of such former clients on the record) who have provided instructions to Firths the Compensation Lawyers to act on their behalf. A(d) Yes. The undertaking was given on 22 November 2011. There were no communications between myself and Mr Li, or anyone on his behalf until 30 November 2011 when Mr Husaini came onto the Record. (e) at the time you drew the cheque were you aware of the injunction granted by Adams J on 24 November 2011 in the following terms: That the Defendants be restrained from, either by themselves or by their servants or agents, at any time contacting, approaching or in any way communicating or attempting to communicate with any of their former clients or any of the former clients of Keddies the Insurance Law Specialists Pty Ltd in respect of whom the third plaintiff [Firth] has served an authority to transfer the file or any other person or persons acting on behalf of such former clients (other than any solicitor acting on behalf of such former clients on the record) who have provided instructions to Firths The Compensation Lawyers to act on their behalf in respect of the subject matter of those instructions. A(e) Yes. In relation to the context see A12 (d) above. (f) at the time that you drew the cheque were you aware: that Helena Li (also known as Hong Mei Li) contacted Mr Li on or about 30 November 2011 and advised him that he should attend the office of Margiotta Solicitors and Attorneys (Margiotta); A(i) No. of any attendance by Mr Li at the offices of Margiotta and any discussions he had with Mr Husaini on or about 30 November 2011; A(ii) No. of any authority obtained by Mr Husaini on or about 30 November 2011 from Mr Li terminating Mr Li's retainer of Firths and appointing Margiotta as Mr Li's solicitor; and A(iii) No. of any communication by Mr Husaini to Mr Li on or about 30 November 2011 that you and your former partners would pay Mr Li $80,000 to resolve the proceedings that Mr Li had brought against you and your partners. A(iv) No.
5. It is not clear thereafter what transpired in the Bar Association. However, on 23 October 2014 the Bar Council resolved that it was unable to complete its investigation and make a determination under s 68(3) of the Act in respect of the show cause event notified by the Plaintiffs before 7 November 2014. That date represented the required period for the purposes of s 68(5) of the Act.
6. Section 48(13) of the Act provides: (13) If an application made for the grant of a local practising certificate is not determined within: (a) 3 months after the application is made, unless paragraph (b) applies, or (b) the required period referred to in section 68 (Investigation and consideration of show cause event), if that section applies in relation to the applicant, the application is deemed to have been refused.
7. The deemed refusal occurred on 24 September 2014. Section 108 of the Act gives a right of appeal to a person who is dissatisfied with a decision to refuse a local practising certificate. Such an appeal ought to have been brought within 28 days of 24 September 2014: r 50.3 Uniform Civil Procedure Rules 2005 (NSW). The Bar Association does not argue that an extension of time should not be granted under sub-r (1)(c).

The test for an interim order

1. An issue arose concerning the approach the Court should take when considering whether to make an interim order for the grant of a practising certificate as the Plaintiff seeks. The Plaintiff submitted that the matter was analogous to the grant of an interlocutory mandatory injunction. Reference was made to Business World Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 to suggest that there is no difference in principle for how such an injunction should be approached from any other interlocutory injunction. Such an approach would require the Plaintiff to establish that there is a serious question to be tried and that the balance of convenience favoured the granting of an injunction. For the expression "a serious question to be tried" to be meaningful in the present context, the Plaintiff would need to show some likelihood that the contempt charge would not result in him being found not to be a fit and proper person to hold a practising certificate.
2. I do not find that a helpful approach in the context of s 48(3) and s 108 of the Act. The parties agree that the onus is on the Plaintiff under s 48(3) even for the obtaining of an interim order. They also agree that the Court must make the determination that the Bar Council was required to make.
3. I consider, therefore, that the correct approach where an interim order is sought is to examine all of the evidence before the Court and to determine if the Plaintiff has discharged the onus imposed by s 48(3). The result that the Court reaches on an interlocutory application may differ from the result at the final hearing by reason of the extent of the evidence that will be available at the final hearing from cross-examination and otherwise. In addition, the Court will be required to make findings of credit based on all of that evidence.
4. If that approach is correct, issues concerning the balance of convenience are not of any particular relevance. The Plaintiff relied upon an affidavit where he detailed various expenses he has incurred and will continue to incur as a result of his decision to practice at the bar. Two things can be said about those matters. The first is that they would have been incurred in any event and not simply as a result of the refusal of the grant of a practising certificate. Secondly, it was the Plaintiff's risk to incur those various expenses prior to being assured of obtaining a practising certificate at this stage.

The contempt proceedings

1. It is now necessary to say something about the contempt charge. On 22 November 2011, in proceedings commenced by some former clients of Keddies, the Plaintiff and two of his partners provided an undertaking to the Court in these terms: An order that the Defendants be restrained from, either by themselves or by their servants or agents, at any time contacting, approaching or in any way communicating or attempting to communicate with any of their former clients or any of the former clients of Keddies the Insurance Law Specialists Pty Ltd or any other person or persons acting on behalf of such former clients (other than any solicitor on behalf of such former clients on the record) who have provided instructions to Firths The Compensation Lawyers to act on their behalf.
2. Thereafter, on 24 November 2011, Adams J ordered an injunction in these terms: That the Defendants be restrained from, either by themselves or by their servants or agents, at any time contacting, approaching or in any way communicating or attempting to communicate with any of their former clients or any of the former clients of Keddies the Insurance Law Specialists Pty Ltd in respect of whom the third plaintiff [Firth] has served an authority to transfer the file or any other person or persons acting on behalf of such former clients (other than any solicitor acting on behalf of such former clients on the record) who have provided instructions to Firths The Compensation Lawyers to act on their behalf in respect of the subject matter of those instructions.
3. The Plaintiffs asserted that the three named defendants in those proceedings, including the present Plaintiff, breached the undertaking and the injunction. By a Notice of Motion filed 8 December 2011 in those proceedings the Plaintiff sought that the Plaintiff and others be punished for that contempt.
4. The Statement of Charge filed 13 December 2011 contained the following factual particulars of the contempt: 6. A former client of Keddies, Mr Xi Li, had retained Firth to act in a claim against the Defendants in respect of overcharging. Mr Li's claim for damages was based on a number of causes of action, including claims for: breach of contract; breach of s 42 of the Fair Trading Act 1987; breach of fiduciary duty and deceit. That claim was set down for hearing in the District Court of New South Wales on 1 and 2 December 2011. 7. Mr Li had been charged by Keddies an amount in the order of $124,000. If the statutory fixed costs regime applied (which, it was to be argued, it did), Keddies would have been entitled to charge an amount in the order of $25,000. According to a document titled "Fee Ledger", an internal Keddies costing document, Naushad Husaini had worked extensively on Mr Li's file. Throughout the time Keddies had represented Mr Li he was assisted by a Chinese interpreter who worked with Keddies, Helena Li (also called Hong Mei Li). 8. In 1999 Helena was retained by Keddies to act as an interpreter in respect of all matters where Keddies' clients required a mandarin interpreter. Between 1999 and October 2006 Keddies built up a substantial practice acting for Chinese-speaking clients with the assistance of Helena. 9. On 29 November 2011, Mr Li returned from an overseas trip and found, recorded on his answering machine, a large number of phone messages by Helena. He telephoned Helena back that night. A conversation followed in relation to Mr Li's claim against the defendants. 10. On 30 November Mr Li received a telephone call from Helena requesting that he attend the office of a firm of solicitors, Margiotta Solicitors and Attorneys. 11. On the same day, Mr Li attended the office of Margiotta and spoke to Naushad Husaini who, having previously been an employee of the defendants and represented Mr Li in the matter which was the subject of his claim against the defendants, was now an employee of Margiotta. 12. Mr Husaini obtained an authority terminating Firth's retainer and appointing Margiotta as Mr Li's solicitor, and informed Mr Li that Keddies would pay him $80,000 clear in the hand. 13. Pursuant to that authority and proposed settlement, a cheque in favour of Mr Li for $80,000 was drawn on 1 December 2011 on the account of the three defendants ("the cheque"). On the cheque, the account of the three defendants was referred to as "Russell, Barakat and Roulstone" and the cheque was signed by Scott Roulstone. 14. On 1 December 2011, Helena attended the home of Mr Li and delivered to him the cheque. She also provided Mr Li with a photocopy of the cheque which Mr Li was asked to sign so as to confirm receipt of the cheque from Keddies. That signature was provided. 15. Subsequently Helena provided the cheque to Mr Margiotta, a partner at Margiotta, who handed it to Mr Husaini. 16. The cheque was accounted for in the bank statements and records of the defendants as having been drawn on 1 December 2011.
5. Mr Li swore an affidavit in support of the Motion for contempt where he said that he spoke to Helena Li on 29 November 2011 in response to a telephone message from her. She asked if he wanted to settle his claim with Keddies and he said that he would if they paid him $80,000. The next day he received a call from Helena asking him to come to Margiotta's office. Later that day he went to the office of Margiotta's where he spoke to Naushad Husaini whom he knew as a solicitor who had represented Mr Li at Keddies. Mr Husaini asked him to sign some documents which he did, and Mr Husaini then said that Keddies would pay him $80,000 clear in his hand.
6. The following day, 1 December 2011, he received a call from Helena who told him she had a cheque which she would bring around that morning. At about midday she gave him a cheque for $80,000 which was a Keddies cheque signed by the Plaintiff.
7. Those proceedings were listed before Adams J on 29 May 2013. Debate took place between Mr Stitt QC for the plaintiff in those proceedings and his Honour concerning the contempt Motion. Both Mr Stitt and his Honour thought that the appropriate course was for the contempt Motion to be refrred to the Prothonotary for his consideration. At the conclusion of the debate his Honour said this: I think what I will do, therefore, is to note that the Motion for contempt is to be referred to the Prothonotary. If it is appropriate that new proceedings are commenced then the current contempt proceedings will be dismissed reserving the question of costs and the parties will be informed of that matter. Nothing thereafter transpired in relation to that Motion
8. On 6 January 2015 the solicitors acting for the Bar Association wrote to the Prothonotary asking him to advise on the current status of the contempt charge against the Plaintiff. The Prothonotary replied on 7 January 2015 in an email saying this: Unfortunately, I am unable to confirm that Adams J has referred to me contempt charges against Messrs Roulstone, Keddie and Barakat. I do recall speaking to Adams J on or about 29 May 2013 when he was at that time contemplating making an order referring contempt proceedings to me. I have also read the transcript of the proceedings before Adams J on 29 May 2013, which was the last time that the proceedings Goritsas & ors v Barakat & ors (2011/370116) was listed in Court, where he notes that the notice of motion for contempt is to be referred to the Prothonotary. However the directions on that day have never been formally entered, and His Honour has not subsequently advised me that he has formally referred the contempt to me. I note that an issue as to costs, which was also raised on 29 May 2013 by Margiotta, Solicitors, and which was to be dealt with by His Honour on the papers also appears to be outstanding. It appears from the Court file, that it was Adams J's intention to refer the contempts to me to prosecute, however it is possible that it has been overlooked. Unfortunately, as His Honour is currently on leave I cannot confirm with him whether what he intended on 23 May 2013 remains his intention. At this stage I have not taken any steps to prosecute the contempts charges.
9. The position is, therefore, that the contempt proceedings are effectively in limbo. The Motion for contempt was filed in December 2011, there was supposedly a reference of the contempt proceedings to the Prothonotary in May 2013 and thereafter nothing has happened. It is not clear whether new contempt proceedings are to be commenced by the Prothonotary and, if so, whether the material already filed will be adopted by him. It does not seem likely even on an optimistic view that the contempt proceedings will be heard before the second half of 2015 after the present practising year.
10. In one sense, that is irrelevant to the present determination except that the Court has a discretion under s 108(2), particularly where what is sought is an interim order, whether it makes an order and what that order should be. For example, the Plaintiff might discharge the onus under s 48(3) on the evidence that is before the Court on an interim basis but an order may be refused as a matter of discretion if there was likely to be an imminent or early determination of the contempt proceedings.
11. The Defendant submitted that the Plaintiff has chosen not to make a candid disclosure of matters concerned in the contempt charge and that there are a number of questions which arise, principally from the Statement of Charge and the affidavits filed on behalf of the plaintiffs bringing the contempt charge. It was noted that the present Plaintiff has not yet filed his evidence in answer to the evidence served by those bringing the contempt charge. It appears that the occasion had not arrived for the Plaintiff to do so and he had been advised not to serve that evidence until he was required to do so. The Defendant submitted in that regard that although a person the subject of the contempt charge might wish to exercise a right of silence, consequences may flow from that silence because the lack of evidence might mean that the onus under s 48(3) had not been discharged.
12. The Plaintiff pointed to the practising certificate that he currently holds from the Law Society as demonstrating his fitness and propriety. However, that practising certificate was granted following Beech-Jones J's determination of fitness and propriety where only the issues touching the Plaintiff's bankruptcy were canvassed. The issue with which this application is concerned is the contempt charge. At best for the Plaintiff, his existing practising certificate demonstrates that, subject to determining the present issue, he is a fit and proper person to hold a certificate.

Fitness and propriety

1. In my opinion, on the basis of the material before me on the present application, and noting that no person was cross-examined, the Plaintiff has discharged the onus on him under s 48(3) of showing that he is a fit and proper person to hold the practising certificate. My reasons are as follows.
2. First, in the statutory declaration attached to his application the Plaintiff made reference to the claim of contempt, that there was a request that it be referred to the Prothonotary and that nothing further had been heard since that time. The Plaintiff said that he had not answered the charge but if requested would do so with a full and complete defence. There does not seem to be any evidence that the Plaintiff knew at that time that the Bar Association's concern was with the contempt charge. Indeed, the evidence suggests that that was not the principal concern of the Bar Association. The s 68(2) notice suggested that the Bar Association's principal concern at that time was a show cause event being the presentation of the Plaintiff's debtor's petition. Additionally, the s 660 notice dated 7 July 2014 principally sought matters to do with that petition, although in one question it also identified the claim of contempt as a matter in respect of which documents were to be produced.
3. Secondly, on receipt of the s 660 notice the Plaintiff set out in greater detail matters concerned with the contempt charge that I have reproduced at [18] above.
4. Senior Counsel for the Bar Association was critical of this account by the Plaintiff because the Plaintiff said that he received a call from Mr Husaini on 12 October 2011 with regard to Mr Li wanting to settle the claim against Keddies. That date certainly did not accord with what appeared in the Statement of Charge, nor in Mr Li's affidavit. However, assuming the Plaintiff is telling the truth about the call from Mr Husaini, there is no necessary inconsistency about Mr Husaini having rung and said those matters to the Plaintiff despite not having had the authority from Mr Li to do so. The Plaintiff was not cross-examined on this application and I have no basis for inferring that what he said in that letter to the Bar Association was not true.
5. Thirdly, and in any event, that summary of the contempt matter appears to have led the Bar Association to issue another s 660 notice asking the Plaintiff some very direct questions about any involvement he had in relation to the settlement with Mr Li. Those questions and answers appear at [19] above. The answers given by the Plaintiff are clear and unqualified. They were given in a statutory declaration. Again, there is nothing to justify an inference that the answers are untrue.
6. Although the evidence given by Mr Li raises questions about the involvement of Helena Li and Mr Husaini, why they acted as they did and at whose behest (if anyone's at all), the Plaintiff denied on oath that he communicated or instructed or procured anybody to communicate with the persons identified. He admitted to drawing the cheque for $80,000 in favour of Mr Li which he said was to complete the settlement of Mr Li's matter against Keddies. At the time Mr Husaini and Mr Li say (and the Statement of Charge reflects this) that Mr Husaini was a solicitor at Margiotta's acting for Mr Li. Additionally, the Plaintiff swore that at the time he drew the cheque he was aware of the undertaking and the injunction that have been referred to.
7. It can reasonably be inferred that the matters about which the Bar Association asked questions in that s 660 notice were the matters that concerned it. It does not seem reasonable to assert that because certain matters remain unresolved it should be inferred the Plaintiff has some knowledge about those matters, particularly given his answers on oath to the s 660 notice.
8. Fourthly, it is obvious sometimes that candour has not been demonstrated by an applicant in the Plaintiff's position because it can reasonably be inferred that particular matters must be within the knowledge of the applicant and have not been explained. It is not apparent to me that the unresolved questions arising out of the Li settlement are within the Plaintiff's knowledge. I accept that after cross-examination of the Plaintiff the position may change but I must determine the interim application, as the parties acknowledge, on the basis of the evidence before me and reasonable inferences that can be drawn from that evidence.
9. A suggestion that the Plaintiff might be exercising, to a greater or lesser extent, a right of silence with the consequence that he has failed to discharge the onus, should be rejected. The material provided by the Plaintiff gives no suggestion of the adoption of any such right. The contempt matter was mentioned briefly in application of 24 June 2014 but when it became clear that it was the principal object of the Bar Association's concern, the Plaintiff provided greater detail and subsequently frankly answered all the questions directed to him.

Balance of convenience and discretion

1. One consideration in relation to the grant of an interlocutory mandatory injunction that might be thought relevant to the present application is the risk of injustice if it is granted rather than withheld. This was a matter discussed by Hoffmann J in Films Rover International Ltd v Cannon Films Sales Ltd [1986] 3 All ER 772 at 780-1 which was adopted by Gummow J in Business World Computers at 502-503. Hoffmann J said, for example: An order requiring someone to do something is usually perceived as a more intrusive exercise of the coercive power of the state than an order requiring contemporarily to refrain from action. The court is therefore more reluctant to make such an order against the party who has not had the protection of a full hearing at trial.
2. In the present case, the Bar Association identifies the risk of injustice as being the effect an interim order will have on the protection of the public where there is an unresolved issue concerning the Plaintiff's fitness and propriety. Two things should be said about that. First, it is speculation at the present time that there is any unresolved matter. There is certainly a possibility that the position surrounding the payment to Mr Li may be better clarified at a final hearing but there is no certainty of that. Helena Li and Mr Husaini could doubtless shed more light on the matter but any such elucidation is not currently available.
3. The fact that the Bar Association did not seek any further information from the Plaintiff that it thought might be relevant after he provided sworn answers to the questions in the second s 660 notice might tend to suggest that there is nothing further relevant that can be clarified, at least by the Plaintiff. In saying that, I do not cast any doubt on the principle that an applicant for a practising certificate must make a full and complete disclosure of relevant matters. However, as I have said, it is not apparent from what has been provided by the Plaintiff that there might be more to be provided by him.
4. Secondly, the interim order is for the grant of a practising certificate for the present practice year, that is, to 30 June 2014. The Plaintiff will be required to apply again for a practising certificate for the following year. Moreover, if information comes to the Bar Association that constitutes a ground under s 60 of the Act, the Bar Association may suspend or cancel the practising certificate that is to be granted to the Plaintiff.
5. This matter of the protection of the public is relevant to any discretion the Court has to refuse an interim order notwithstanding a finding of fitness and propriety on the present evidence. I noted earlier that an order might be refused if the contempt matter was to be determined within a short period of time. That is not the case. That is the fault of neither the Bar Association nor the Plaintiff.
6. The Bar Association submitted that a delay until such determination was not unreasonable, particularly having regard to the delay in the Plaintiff commencing these proceedings. They could have been commenced by the end of September. That should be taken into account on any balance of convenience argument.
7. The delay in commencing the proceedings seems to have come about as a result of the referral of the show cause investigation to the Legal Services Commissioner under s 68 without regard to the effect of s 48(13) of the Act - see annexures "B", "C", "D" and "E" to the affidavit of the Plaintiff sworn 5 December 2014. I do not consider that this delay is relevant to the question of whether an interim order should now be made. It was a relatively short period. In any event the determination of the show cause matter was unresolved in that period.
8. It does seem to me that it would be unfair to the Plaintiff to withhold an order simply because matters surrounding the contempt are likely to be better clarified at the hearing of the contempt charge or the final hearing in the present matter in circumstances where (a) there is likely to be a delay for most or all of the present practising year in either matter being finalised, and (b) I cannot infer on the present evidence that the Plaintiff is likely to be able to add much if anything to what he has hitherto disclosed.
9. Bearing in mind also the matters in [49] above, I do not consider that the matter of the protection of the public is significant in this case to result in a refusal of an order.

Conclusion

1. I make the following order: Upon the Plaintiff giving the undertaking below the Plaintiff forthwith be granted a practising certificate as a barrister for the balance of the year ending 30 June 2015. Undertaking The Plaintiff undertakes that upon being requested by the Court to do so, he will surrender the practising certificate granted.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 January 2015