Smith v NSW Bar Association

High Court of Australia|1992-04-30|Before: Gaudron JJ, Brennan J

High Court of Australia Brennan, Deane, Dawson, Toohey and Gaudron JJ. Smith v NSW Bar Association [1992] HCA 36

ORDER In addition to the orders made by this Court on 30 April 1992, order that:

(i) the respondent pay the appellant's costs of the appeal to this Court and of the proceedings resulting in the order of the New South Wales Court of Appeal of 4 July 1991.

Accordingly, the orders made by this Court on 30 April 1992 and on 13 August 1992 will be read together as follows:

(2) the following orders of the New South Wales Court of Appeal be set aside:

(a) orders of 9 May 1991 that the appellant's name be removed from the roll of barristers and that the appellant pay the respondent's costs of the proceedings resulting in the making of those orders;

(b) order of 4 July 1991 that the application by the appellant to set aside the orders of 9 May 1991 be dismissed with costs.

(3) the matter of the respondent's application on the summons of 17 August 1988 be remitted to the Court of Appeal for rehearing and determination in accordance with the reasons for judgment of this Court.

(4) the respondent pay the appellant's costs of the proceedings resulting in the order of 4 July 1991.

(5) the costs of the hearing resulting in the orders of 9 May 1991 be reserved to the Court of Appeal hearing the proceedings referred to in par.(3).

The Court proposes in due course to publish the reasons for the orders that I am about to announce. The appeal be allowed. The order of the Court of Appeal made on 9 May ordering that the appellant's name be removed from the roll of barristers and that the appellant pay the respondent's costs of the proceedings in the Court of Appeal be set aside. The order of the Court of Appeal made on 4 July 1991 ordering that the application by the appellant to set aside the orders of the Court of Appeal of 9 May 1991 be dismissed with costs be set aside. Order that the matter of the application by the respondent against the appellant be remitted to the Court of Appeal of New South Wales to be dealt with in accordance with the reasons for judgment of this Court to be published. We shall make such further orders as may be desirable including possible orders for costs on delivery of the reasons for judgment.

Aug. 13 Brennan, Dawson, Toohey and Gaudron JJ.

On 30 April 1992, orders were made allowing the appeal in this matter, setting aside the orders of the Court of Appeal of the Supreme Court of New South Wales of 9 May and 4 July 1991 and remitting the matter to that Court to be dealt with in accordance with reasons for judgment to be published. It was indicated that the Court would deal with the question of costs when giving reasons for judgment. The following are our reasons for participating in the orders then made and our decision on the question of costs.

The appellant, Ralph Edward Smith, was admitted to the Bar of New South Wales in 1968. He practised at the private Bar from 1974 until 1980 when he was appointed as a Crown Prosecutor. He resigned from that position in June 1984 as a result of ill health and, since November 1984, has practised as a barrister at Penrith, a large urban centre to the west of Sydney.

The appellant established his chambers in a building in Penrith where a solicitor, Mr. Malcolm McDonald, with whom he had a long-standing friendship, also had his office. At some stage, an arrangement was made whereby Mr. McDonald or a member of his firm would act as solicitor for persons referred by the appellant, the appellant being briefed as their counsel. This arrangement seems to have encountered serious difficulties by November 1986.

In June 1985 and pursuant to the arrangement already mentioned, the appellant wrote a note in which he referred a number of persons, including a Mr. Capsanis, to Mr. McDonald or his firm. Mr. Capsanis was a party to divorce proceedings then pending in the Family Court of Australia. Other proceedings involving Mr. Capsanis or his relatives grew out of the divorce proceedings, including an assault case between Noelene Capsanis and Andrew Knight ("the assault case"). Noelene Capsanis is Mr. Capsanis' former wife and Andrew Knight is the son of his second wife, Dorothy Capsanis.

The assault case was listed for hearing in Penrith Local Court on 11 November 1986. The appellant announced his appearance for Andrew Knight. His retainer was immediately challenged by opposing counsel whose instructing solicitor had been informed by Ms. Watson, a solicitor employed in Mr. McDonald's firm, that that firm had no interest in the matter. The appellant asserted that he was briefed and that he was instructed by Mr. McDonald, not Ms. Watson. Mr. McDonald was not present. The appellant said that Mr. McDonald was "engaged in other work". After some further discussion, the matter was stood down in the list so that Mr. McDonald could be in attendance. The matter was mentioned twice before the luncheon adjournment, although the appellant was not present on the first mention. On the second mention, the appellant again asserted that he was instructed by Mr. McDonald and said that during the adjournment he had received "a back-sheet specifically relating to this matter". He indicated that there had been "a misunderstanding" about the backsheet, to the effect that the matter was included in a brief "covering the family matters and property settlement matters and those associated with it". The presiding magistrate declined to proceed in the absence of an instructing solicitor. The matter proceeded after the luncheon adjournment when Ms. Watson was present in court.

The brief which the appellant ultimately received at or about 12.15 p.m. on 11 November was as follows:

We confirm that we have been instructed by Mr. Andrew Knight at 12.00 p.m. on 11th November 1986 to represent Mr. Knight in respect of an assault action instituted by Noeline [sic] Capsanis.

We hereby instruct Counsel to appear upon hearing at Penrith Local Court on 11th November 1986 in respect of the abovenamed, upon the condition that this office is not responsible for Counsel's fees in this matter.

The events of 11 November were referred to the Bar Association of New South Wales ("the Bar Association"). In due course, the matter was referred to a Disciplinary Tribunal and, ultimately, the Bar Association commenced disciplinary proceedings in the Court of Appeal.

There were two separate hearings in the Court of Appeal. The appellant gave evidence in the first hearing, as did Mr. McDonald. It was accepted then, as it is now, that the appellant was not briefed to appear in the assault case until some time after midday on 11 November. The only question was whether he believed in the truth of the statement made earlier that day that he was briefed by Mr. McDonald and other statements made in the course of the exchange with the presiding magistrate, in particular the statement that Mr. McDonald was not at court because he was "engaged in other work".

It emerged from Mr. McDonald's evidence that matters of the kind with which Mr. Capsanis and his relatives were involved were always handled by Ms. Watson, although he checked all briefs before she delivered them to counsel "just [to] make sure the brief looked all right". Apparently in accordance with this practice, Mr. McDonald signed a brief to the appellant for the Capsanis divorce proceedings. However, he did not recollect the matter. He could not recollect any conversation with the appellant concerning Mr. Capsanis or the assault case.

Mr. McDonald was cross-examined as to a conversation in the car park of the building in which he had his office. He said "I don't remember talking to [the appellant] about Capsanis". A little later he said that he was sure he had not spoken to the appellant about Capsanis, explaining "I knew nothing of the Capsanis matter. I had never met Mrs. Capsanis. The name never meant anything to me at all until the day of the Local Court issue."

In a statement annexed to an affidavit filed in the Court of Appeal, the appellant referred to an informal, unplanned meeting in the car park on 6 November. He said that during this meeting he referred to the Capsanis matter and said that it was listed for the following Tuesday: Mr. McDonald said that he would be busy with other matters that day. The appellant was cross-examined as to the conversation and indicated that he remembered it because of planned celebrations for his wife's birthday which he knew would require his absence from chambers on the Friday and the Monday prior to 11 November.

The Court of Appeal rejected the appellant's account of the car park conversation. It was said by Samuels J.A. (whose factual findings were adopted by Meagher J.A. and, seemingly, by Mahoney J.A.) that:

Mr. McDonald denied that any conversation in these terms had taken place, and I believe him. The [appellant] had every reason to assert such an exchange, but Mr. McDonald had no reason to deny it. Two observations may be made with respect to that finding. First, it is not suggested that Mr. McDonald denied that there was a conversation in the car park; rather he could not recollect a conversation concerning Capsanis and "was sure" that no reference had been made to the Capsanis matter in a car park conversation because, among other reasons, the name meant nothing to him until 11 November. Secondly, although the arrangement between the appellant and Mr. McDonald was not in issue in the Court of Appeal, the finding was made without reference to the possibility that Mr. McDonald, who appears to have accepted an arrangement of convenience with the appellant in relation to clients introduced by the appellant, might have put that arrangement and actions referable to or bearing upon it in the best possible light.

Samuels J.A. also said of the car park conversation:

The [appellant] did not mention the conversation in his evidence to the Tribunal or in the "draft affidavit" which he then tendered and which is, to my mind, a generally candid account of these events. The conversation is first related in the statement annexed to the [appellant's] affidavit filed in these proceedings, and was repeated in evidence before this Court. That statement was wrong. The appellant had given evidence along the same lines to the Disciplinary Tribunal.

On the basis that he invented the car park conversation, Samuels J.A. found that:

the [appellant] did not believe on reasonable grounds that he was instructed by Malcolm McDonald & Co. to appear for Andrew Knight.

the [appellant] had no belief in the truth of the statements he made to the magistrate, and he deliberately misled the court by making them.

The factual findings made the further finding of professional misconduct inevitable. There was, however, a difference of opinion as to the consequence which should attach to that finding. Samuels J.A. took the view that censure was sufficient. On the other hand, Mahoney and Meagher JJ.A. considered that the appellant's name should be removed from the roll of barristers. And, in due course, an order was made in those terms with effect from 9 May 1991. Mahoney J.A. said:

Mr. Smith has persisted in his claims, in respect of what he said to the Magistrate and in respect of the alleged conversation with Mr. McDonald, to the end of the present proceeding. I do not think that in these circumstances a suspension is appropriate. Meagher J.A. said: [The appellant] lied to the magistrate, and has subsequently lied to this Court, and on oath.

It must be in the public interest that the profession be purged of those of its members who succumb to the temptations of mendacity.

Very soon after publication of reasons for judgment and before the order was entered, the appellant moved the Court of Appeal to re-open the matter by reason of the error contained in the statement that he had not referred to a car park conversation prior to the proceedings in that Court. He also sought leave to present further evidence, including evidence of his good character and affidavits from Mr. McDonald and from Dr. Atef Gabrael, his medical adviser. Mr. McDonald acknowledged in his affidavit that there had been a car park conversation "some days prior to the "Capsanis" incident", but, according to his recollection, it "was about a client known as Skipper, not about the Capsanis person". Dr. Gabrael swore that he had a conversation with Mr. McDonald in which he (McDonald) said that it was possible that the appellant's evidence as to a car park conversation related to "[a] morning some weeks prior to the Capsanis incident" when they "had a similar discussion about the Skipper matter and not Capsanis". The question whether that latter account is purely hearsay and inadmissible can be passed over.

The Court of Appeal allowed the application to re-open, although there seems to have been a misunderstanding as to the precise scope of that application. It clearly appears from the appellant's written submissions to that Court that his application was, inter alia, for a re-opening of the finding of professional misconduct, but according to the judgment of Samuels A.P., "[t]he finding of professional misconduct [was] not challenged". And although the matter was re-opened, the Court of Appeal ruled that it would not have regard to the further evidence which the appellant wished to present.

After reconsidering the matter, Samuels A.P. stated that he was "not now prepared to find that [the appellant] fabricated, or invented, the conversation with Mr. McDonald, either in his evidence to the Tribunal, or before us". However, his Honour went on to conclude that, even if it occurred, the conversation was not "adequate to support the reasonableness of any belief which [the appellant] held in the existence of his instructions" and, as the appellant had not relied on the conversation in the Local Court, he "had no belief in the truth of the statements he made to the magistrate". His Honour repeated his earlier conclusion that "protection of the public does not demand [the appellant's] disbarment".

Although it had been indicated in the course of argument that regard would not be had to the further evidence which the appellant wished to lead, Mahoney J.A. confirmed his original conclusion saying that "what now has been said by Mr. McDonald tends, if anything, to confirm [that] conclusion". It is clear that his Honour's conclusion was confirmed, not by what Mr. McDonald said in his affidavit but by what was said in Dr. Gabrael's affidavit. His Honour said that it was "difficult to accept that on 11 November 1986, [the appellant] then believed that, because of a conversation about the Skipper matter some weeks before, he was retained by Mr. McDonald to appear in the Capsanis matter". It was only in Dr. Gabrael's affidavit that reference was made to a conversation "some weeks prior to the Capsanis incident about the Skipper matter".

Meagher J.A. confirmed his original view, saying that it was primarily based on demeanour but was amply supported by other aspects of the evidence referred to in the reasons of Samuels A.P. In the result, the appellant's application to set aside the orders of 9 May 1991 was dismissed by order of 4 July 1991.

The appeal to this Court from the orders of 9 May and 4 July 1991 was argued on three grounds. First it was put that Mahoney J.A. erred in confirming his opinion on the basis of a conversation some weeks before the "Capsanis incident" (as outlined in Dr. Gabrael's affidavit) and that this error resulted in a failure to give proper consideration to the case put in the second hearing. Secondly, it was argued that the Court was wrong in refusing to allow the appellant to lead character evidence in the second hearing. Finally, it was argued that the Court of Appeal was in error to the extent that it took the view that disbarment should follow its finding that the appellant lied to that Court. This last ground was expanded in the course of argument to encompass a complaint as to the way in which that finding was made.

The nature and extent of the review required in the second hearing

It is convenient to consider the first and second arguments of the appellant together, for, in combination, they raise a question as to the nature of the review required once it was decided that the case should be re-opened.

As already mentioned, the orders of 9 May 1991 had not been entered when the appellant made his application for re-opening. It has long been the common law that a court may review, correct or alter its judgment at any time until its order has been perfected [1] . Part 40, r. 9(1) of the Supreme Court Rules NSW also provides that "[that] Court may set aside or vary a judgment where notice of motion for the setting aside or variation is filed before entry of the judgment". The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation [2] . Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review [3] . And there may be more or less reluctance to exercise the power depending on whether there is an avenue of appeal [4] . It is important that it be understood that these considerations may tend against the re-opening of a case, but they are not matters which bear on the nature of the review to be undertaken once the case is re-opened, as this case was.

For early cases see, e.g., Abbott v Feary (1860), 6 H. & N. 113, at pp. 118-119 [158 E.R. 47, at pp. 49-50]; In re Suffield and Watts; Ex parte Brown (1888), 20 Q.B.D. 693, at p. 697. As to more recent cases see, e.g., Texas Co. (Australasia) Ltd. v Federal Commissioner of Taxation (1940), 63 C.L.R. 382, at p. 457; Pittalis v Sherefettin , [1986] Q.B. 868, at p. 879. 2. Wentworth v Woollahra Municipal Council (1982), 149 C.L.R. 672, at p. 684. 3. Marinoff v Bailey (1970), 92 W.N. (NSW) 280, at p. 284; National Benzole Co. Ltd. v Gooch , [1961] 1 W.L.R. 1489, at pp. 1492-1494. 4. State Rail Authority of NSW v Codelfa Constructions Pty. Ltd. (1982), 150 C.L.R. 29, at pp. 38-39, 45-46; Wentworth v Rogers [No. 9] (1987), 8 NSWL.R. 388, at pp. 394-395.

It is said in Ritchie's Supreme Court Procedure that the power to review a judgment in a case where the order has not been entered will not ordinarily be exercised "to permit a general re-opening" [5] . As a general statement that is correct, both as to whether leave to re-open will be granted and, if it has been, as to the nature of the review involved. But it is a general statement only and, once a matter has been re-opened, the nature and extent of the review must depend on the error or omission which has led to that step being taken. Very little will be required in a case where, for example, all that is involved is a mathematical error in the calculation of some particular item of loss or damage. And, in the case of a factual error, the extent of the review will vary depending on whether the error goes to the heart of the matter or whether its significance is confined to some discrete subsidiary issue.

Ritchie's Supreme Court Procedure, New South Wales, vol 1, p. 2855.

The error which led to the re-opening of the present case may or may not have been of critical importance in the evaluation of the appellant's conduct by each of their Honours. That was not the factor on which the nature and extent of the review depended. What must be considered is the question to which the error was relevant and the significance of that question to the decision reached.

The error in the present case was relevant to the appellant's honesty. And that was central to the factual issue to be resolved, namely, whether he believed in the truth of the statements he made at Penrith Local Court during the morning of 11 November 1986. Once the decision to re-open was made, what was required was a reconsideration of his truthfulness in relation to that matter and, because it also bore on the matter, his truthfulness generally. The assessment of a party's truthfulness may depend, at least in part, on an inference being drawn from known facts [6] and the assessment of truthfulness, whether generally or in relation to some specific event, can only properly be determined by a consideration of the relevant and available material from which that or the contrary inference might be drawn.

Doney v The Queen (1990), 171 C.L.R. 207, at p. 214.

The question whether the appellant should have been allowed to call further evidence falls for answer in a context in which there was a re-opening of the central issue in the case. Different reasons were given by Samuels A.P. and by Mahoney J.A. for not allowing the appellant to produce further evidence. Samuels A.P. said that he would not take the further evidence into account "because it is all material which was available to be tendered when the original application was before this Court". On the other hand, Mahoney J.A. (though he apparently had regard to the affidavit of Dr. Gabrael) excluded the further evidence because it provided "no basis for interfering with [the earlier decision]". Meagher J.A. contented himself with the statement that the application to "consider additional evidence must fail".

It is again necessary to distinguish between the considerations which may bear on a decision to re-open and the processes involved in reconsideration once a case has been re-opened. If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to inquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application [7] . But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete [8] , or one in which reasons for judgment have been delivered [9] . It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side [10] . In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised. But those considerations bearing on re-opening are not decisive of the question whether, a matter having been reopened by reason of error, further evidence can be called.

Barker v Furlong , [1891] 2 Ch. 172, at p. 184; Hughes v Hill , [1937] S.A.S.R. 285, at p. 287. 2. As, e.g., in Watson v Metropolitan (Perth) Passenger Transport Trust , [1965] W.A.R. 88; Murray v Figge (1974), 4 A.L.R. 612. 3. As, e.g., in In re Scott and Alvarez's Contract , [1895] 1 Ch. 596. 4. As suggested by Sheppard J. in Joyce v G.I.O. (NSW) reported in Ritchie, op. cit., vol. 2, pp. 8551-8552. But cf. Watson v Metropolitan (Perth) Passenger Transport Trust; Murray v Figge; Hughes v Hill.

Not every case involving error will invite further evidence: it will depend entirely on the issue that is opened up. If the issue is one that invites further evidence, then, prima facie and subject to the ordinary rules of evidence, that evidence should be allowed. We say prima facie because there may be situations in which the particular evidence involved would cause embarrassment or prejudice such that, in the circumstances, it would be unfair to allow it.

As earlier indicated, the critical consideration in the present case was the appellant's truthfulness in relation to the alleged car park conversation with Mr. McDonald or the appellant's belief that he and Mr. McDonald had had such a conversation. The finding that he was not a truthful witness made a review limited to the evidence in the first hearing one that, at least in a practical sense, involved the assumption of a very onerous burden. The appellant had to displace their Honours' view that he was untruthful and he ought to have been permitted to present further evidence supporting his truthfulness. The exclusion of that evidence meant that there was something less than a complete review of the issue opened up.

So far as the appellant complained that Mahoney J.A. had regard to the affidavit of Dr. Gabrael, it is sufficient to say that his Honour erred in not having regard to other available evidence, for the review was, on that account, less than a complete review.

The consequence of the appellant not being believed by the Court of Appeal

It is clear that the rejection of the evidence given by the appellant in the Court of Appeal was taken into account in the decision that his name should be removed from the roll of barristers: in the view of Mahoney J.A. it was the fact that the appellant "persisted in his claims to the end of the present proceeding" that warranted striking off; in the view of Meagher J.A. the appellant "lied to the magistrate, and to this Court" and should be struck off because he "succumb[ed] to the temptations of mendacity".

It is necessary to say something as to the finding that the appellant lied in the Court of Appeal. There is a difference between the rejection of a person's evidence and a finding that he or she deliberately lied [11] . In some cases, a rejection of evidence may lead to a finding that that person lied on another occasion. Thus, in the present case, a rejection of the appellant's evidence in the Court of Appeal led to a finding that he lied in the Penrith Local Court on the morning of 11 November 1986. On other occasions, other evidence may be of such a nature or of such weight that, in combination with the rejection of some particular evidence, it will justify a finding that that evidence was fabricated. But, as a matter of logic and common sense, something more than mere rejection of a person's evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence.

See, in relation to disciplinary proceedings against a solicitor, O'Reilly v Law Society of NSW (1988), 24 NSWL.R. 204, at pp. 208, 230.

It is particularly important in disciplinary cases, where the honesty and candour of legal practitioners assume special significance, that the distinction between the rejection of a person's evidence and a positive finding that he or she deliberately lied be observed. The mere rejection of evidence can neither justify a consequence over and above that which properly attaches to the matter charged, nor deprive the person of the benefit of personal considerations which might otherwise be taken into account. The matter was put succinctly, although in a different context, by Cussen J. in R v Richmond [12] :

It would certainly act as a deterrent even to an innocent man giving evidence, especially where there is a strong case against him, if he knew that if the jury does not accept his evidence he may receive a sentence heavier than otherwise would be imposed. 1. [1920] V.L.R. 9, at p. 12.

A finding that a person deliberately lied when giving evidence is, in effect, a finding of perjury and, thus, it ought not to be made on "the single oath of another man, without any confirmatory evidence" [13] .

Reg. v Hook (1858), Dears. & Bell 606, at p. 616, per Byles J. [ 169 E.R. 1138, at p. 1142], speaking in relation to perjury.

It is clear that Meagher J.A. proceeded on the basis of a positive finding that the appellant deliberately lied. There is no express statement to that effect by Mahoney J.A. and it is not clear whether his Honour adopted the findings of Samuels J.A., including the finding that the appellant deliberately lied, in their entirety. However, if his Honour did not proceed on that basis, he was clearly in error in having regard to the mere rejection of the appellant's evidence when determining the order that should be made. In these circumstances it is convenient to proceed on the assumption that his Honour also acted on a positive finding that the appellant deliberately lied. But even if the evidence was sufficient to support the findings so made and even if that finding could properly be taken into account in determining the result, considerations of procedural fairness required that the appellant be given an opportunity to be heard as to whether the finding should be made [14] . In the first hearing before the Court of Appeal, no allegation of deliberately lying was made against the appellant before the adverse finding was made. That being so, the finding then made that the appellant had lied and the consequence of that finding then determined by Mahoney and Meagher JJ.A. that the appellant be disbarred were flawed. In the second hearing, evidence which might have affected the finding of deliberate lying was erroneously rejected. It follows that the affirmation of the finding that the appellant lied and of the order that he be disbarred cannot stand.

See, in relation to disciplinary proceedings against a solicitor, O'Reilly v Law Society of NSW (1988), 24 NSWL.R., at p. 231.

As the members of the Court of Appeal have twice made a voidable finding on the issue of truthfulness of the appellant, and as the matter must be heard afresh by the Court of Appeal, it would be inappropriate to ask the judges who had constituted that Court to re-assess de novo the appellant's truthfulness. The matter must therefore be remitted for rehearing by a Court differently constituted.

The second hearing in the Court of Appeal was less than a complete review of the matter opened up. For this reason, the respondent should pay the appellant's costs of that hearing and of the appeal to this Court. The costs of the first hearing should be reserved to the Court of Appeal.

The detailed facts and the issues involved in this appeal are set out in the joint judgment of Brennan, Dawson, Toohey and Gaudron JJ. I agree with their Honours that, in the particular circumstances of the case, the Court of Appeal was in error in refusing to pay regard to the further evidence upon which the appellant wished to rely. The reasons which lead me to that conclusion diverge somewhat from those of their Honours and it is necessary that I set them out.

Disciplinary proceedings against a legal practitioner are primarily directed towards the protection of the public and not the punishment of the legal practitioner [15] . Nonetheless, a court or other tribunal entertaining such proceedings is bound to observe the requirements of procedural fairness before making or acting upon any finding of misconduct [16] . Two of those requirements in such proceedings are relevant for present purposes. The first is that the allegations against the particular practitioner must be specifically identified [17] . The second is that the practitioner must be afforded an appropriate opportunity of being heard in relation to them [18] .

See, eg, Ziems v Prothonotary of the Supreme Court of NSW (1957), 97 C.L.R. 279, at pp. 286, 289; Clyne v NSW Bar Association (1960), 104 C.L.R. 186, at pp. 201-202. 2. See, eg, Law Society of NSW v Weaver , [1977] 1 NSWL.R. 67, at p. 74; Macksville & District Hosp. v Mayze (1987), 10 NSWL.R. 708, at pp. 713, 727-728; O'Reilly v Law Society of NSW (1988), 24 NSWL.R. 204, at pp. 224-225. 3. See, eg, Johns v Law Society of NSW , [1982] 2 NSWL.R. 1, at p. 6; Reg. v Solicitors' Disciplinary Tribunal , [1988] V.R. 757, at pp. 768-770; O'Reilly v Law Society of NSW (1988), 24 NSWL.R., at pp. 210, 224-225. 4. See, eg, Trivett v Nivison , [1976] 1 NSWL.R. 312, at pp. 322-323; Law Society of NSW v Weaver , [1977] 1 NSWL.R., at 76; Reg. v Solicitors' Disciplinary Tribunal, [1988] V.R., at pp. 768, 770. See also the Legal Profession Act 1987 NSW, ss. 144, 158 and Wentworth v NSW Bar Association (1992), 176 C.L.R. 239, at pp. 252-254.

In the course of the first hearing before the Court of Appeal in the present case, the appellant gave detailed evidence of a conversation about the Capsanis v Knight assault case ("the assault case") which he claimed he had had with Mr. McDonald in a car park on 6 November 1986, that is to say, some days before the events in the Local Court at Penrith which led to the disciplinary proceedings against him. If the appellant's evidence about it was accepted, the conversation was important in that it provided support for the appellant's claim that he had believed that he was briefed by Mr. McDonald to appear for Mr. Knight in the assault proceedings. Mr. McDonald also gave evidence before the Court of Appeal. He denied that he had had any conversation at all with the appellant about the assault case. In deciding whether the alleged conversation had taken place, the Court of Appeal was entitled to consider the possibility that either the appellant or Mr. McDonald had deliberately given false evidence. Indeed, in the course of his evidence, the appellant expressly asserted that the explanation of Mr. McDonald's denial that there had been such a conversation was that "Mr. McDonald either lied or has a very bad memory". If the members of the Court of Appeal were convinced that the appellant had deliberately given false evidence, they were entitled to take account of that in their assessment of the effect of the evidence as a whole and in their decision about whether the particularized complaints of alleged professional misconduct against the appellant, which were the subject of the proceedings before them, had been made out. Those particularized complaints were that the appellant had sought to appear for Mr. Knight without the intervention of an instructing solicitor and that the appellant had deliberately misled the Penrith Local Court by informing it that he was instructed by Mr. McDonald and in certain other specified respects. They were not amended to include a specific complaint that the appellant had deliberately given false evidence before the Court of Appeal. Nor was the appellant ever called upon to answer such a specific complaint or given an appropriate opportunity of being heard in relation to it. In those circumstances, the members of the Court of Appeal were not entitled to make an adverse order against the appellant which was wholly or partly based on a finding that the appellant was guilty of professional misconduct in that he had deliberately given false evidence before them. I turn to explain why that is so.

There are many circumstances in which a trial judge - and the Court of Appeal in the present case was effectively sitting as a court of first instance - is required to consider whether a party or a witness has been deliberately untruthful in the course of giving evidence before it. An obvious example of such as case is where there is a direct conflict of evidence and it is apparent that there is no real possibility of honest mistake. Unless it be truly necessary for the purpose of disposing of the particular case, however, a specific finding that a party or witness has deliberately given false evidence should ordinarily not be made. Ordinarily, a party or other witness will not be concerned or entitled to set out to establish that, if his or her oral evidence is ultimately found to be mistaken, the mistake was an honest one. As a consequence, material which serves only to establish that a party or other witness subjectively believes that his or her evidence is correct is likely to be inadmissible in the proceedings in which the evidence is given. And there is good reason for that. The length, cost and hazards of litigation would be intolerably increased if each party or other witness was required not only to deal with the issues before the particular court but also to anticipate the ultimate rejection of his or her evidence and seek to establish that, notwithstanding that it was mistaken, it was honestly given.

If, in the course of the hearing before the Court of Appeal, it had been sought to expand the particulars of the allegations against the appellant to include an allegation that he had deliberately given false evidence to that Court, a question would have arisen whether it would be reasonable to require the appellant to deal at the one time with the original particularized complaints against him and a complaint that the evidence which he gave in answer to those complaints was deliberately false. Obviously, there would have been something to be said for the view that it would have been unfair to require the appellant to establish that he had been honestly mistaken in giving the evidence upon which he relied before that evidence had been rejected by the Court of Appeal. In fact, there was no attempt to amend the particulars of complaint. In the absence of any such amendment, the issue before the Court of Appeal remained whether the effect of all the evidence, including the appellant's evidence about the car park conversation, was that the particularized complaints had been made out to the requisite standard of proof [19] . The appellant could not realistically be expected, while maintaining the reliability of his evidence in relation to that issue, to have set out to establish how and why that evidence was honestly mistaken. If the Court of Appeal, after reaching the conclusion that the appellant's evidence about the car park conversation should be rejected, had thought it desirable or necessary to consider whether the appellant had been guilty of professional misconduct in that he had deliberately given false evidence before it, "at the very least a new charge would have [had] to be laid (before it could be relied upon) so that [the appellant could] then know of it, appreciate what he [had] to meet and be allowed ample opportunity to meet it" [20] . Such a new charge could have been laid by appropriate amendment to the particulars of complaint and an appropriate opportunity of being heard could have been provided by relisting the matter for that purpose. In fact, however, no specific charge of deliberately giving false evidence before the Court of Appeal was ever laid against the appellant and no opportunity was extended to him to deal with such a specific charge before the Court of Appeal made its initial finding of guilt.

See, as to the appropriate standard of proof, Ziems v Prothonotary of the Supreme Court of NSW (1957), 97 C.L.R., at p. 296, per Fullagar J.: "One must be very sure of the facts before making so serious a finding" (i.e. a finding "that [a person] is not a fit and proper person to practise at the Bar"). And see, also, In re A Solicitor; Ex parte The Prothonotary (1939), 56 W.N. (NSW) 53, at p. 54; Re Hodgekiss , [1962] S.R. (NSW) 340, at p. 347; Attorney-General (N.T.) v Legal Practitioner (1981), 10 N.T.R. 7, at p. 20. 2. Reg. v Solicitors' Disciplinary Tribunal, [1988] V.R., at p. 770, per Murphy, Fullagar and Southwell JJ.

All members of the Court of Appeal joined in the initial finding that the appellant had deliberately given false evidence before it. Their Honours were, however, divided on the question of the appropriate order. The order removing the appellant's name from the roll of barristers was supported by Mahoney and Meagher JJ.A. In dissent, Samuels J.A. considered that censure of the appellant and an order for costs would be appropriate. In supporting a disbarment order, both Mahoney and Meagher JJ.A. relied upon the finding that the appellant had deliberately given false evidence before the Court of Appeal. The judgment of Mahoney J.A. indicates that his Honour relied on it at least for the purpose of negativing the effect of mitigating considerations which might otherwise have justified a more lenient order. The brief comments of Meagher J.A. make plain that his Honour's conclusion that an order of disbarment was appropriate was at least partly based on the specific finding that, to quote his Honour's words, the appellant had "lied to this Court, and on oath". It follows from what has been said above that the Court of Appeal's original order that the appellant be disbarred was affected by a denial of procedural fairness for the reason that the appellant had never been given an appropriate opportunity of being heard in relation to the question whether his evidence of the car park conversation was deliberately false.

It is now common ground that the Court of Appeal's finding that the appellant had deliberately given false evidence about the car park conversation was also affected by a mistake of fact. The Court of Appeal's reasoning leading to that finding was contained in the judgment of Samuels J.A., with which Mahoney and Meagher JJ.A. agreed on that aspect of the case. Samuels J.A.'s judgment makes plain that a basis, and arguably the basis, of the finding was his Honour's mistaken belief that the appellant's account of the conversation had not been advanced before the Disciplinary Tribunal but was "a deliberate fabrication" invented for the purposes of the proceedings in the Court of Appeal.

If the appellant had obtained special leave to appeal and had then appealed to this Court from the original judgment and order of the Court of Appeal, it is clear enough that this Court would have had no alternative but to quash the orders of the Court of Appeal by reason of the obvious and important factual mistake. Presumably, the matter would then have been remitted to the Court of Appeal either for further hearing by the same Court or for rehearing by a differently constituted court. Instead, the appellant applied to the Court of Appeal to reopen the matter. The Court of Appeal acceded to that application. On that re-opened hearing, it was apparent that the original finding that the appellant had deliberately lied to the Court of Appeal was affected by the mistake of fact which the Court of Appeal had made. Accordingly, it was necessary for the Court of Appeal to examine afresh the whole question whether a specific finding of deliberate lying should be made. It seems to me that their Honours did this. As has been seen, however, the appellant had not, on the earlier hearing, been given an appropriate opportunity of being heard or of leading evidence in relation to such a specific finding. In my view, the minimum requirements of procedural fairness dictated that he be given such an opportunity when the question arose on the second hearing. The evidence which the appellant sought to lead was clearly relevant to the issue whether he had deliberately given false evidence before the Court of Appeal. With the possible exception of the affidavit of Dr. Gabrael, which was hearsay, the rules of procedural fairness required that the members of the Court of Appeal receive it as evidence and pay full regard to it in determining the question, which was then before them, of whether the appellant had deliberately given false evidence. This their Honours failed to do. In the result, the order for disbarment could not stand.

There is one further matter which I would mention. It is that nothing in this judgment should be read as supporting a proposition that the Court of Appeal can never, in disciplinary proceedings, make or act on a finding that the practitioner concerned gave deliberately false evidence before it. To the contrary, it appears to me that circumstances could arise in which it would border on the absurd if the court were precluded from making or acting upon such a finding. If, for example, the practitioner conceded under cross-examination that he or she had deliberately lied in his or her evidence-in-chief about critical matters, the court would clearly be justified in allowing an amendment of the particulars of complaint to include that misconduct and, having given the practitioner the opportunity of being heard in relation to it, in taking account of it in determining the appropriate order in the circumstances of the case. As I have sought to make clear, my conclusion that the order that the appellant's name be removed from the roll of barristers must be set aside is based on the view that there was, in all the circumstances, a denial of procedural fairness. In the particular circumstances of this case, procedural fairness required that the Court of Appeal not make an order for disbarment which was partly based on a finding that the evidence which it rejected was deliberately false without relisting the matter and extending to the appellant an appropriate opportunity of being heard in relation to the justification and implications of such a finding. In a context where no such opportunity was extended to the appellant, he was entitled to be accorded an appropriate opportunity of being heard, including an opportunity of leading evidence, in relation to those questions when the Court of Appeal was required to consider them afresh. This he was denied.

I agree with the orders proposed by Brennan, Dawson, Toohey and Gaudron JJ.

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Judgment (81 paragraphs)

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