THE COUNCIL OF THE NSW BAR ASSOCIATION v. DAVISON [2006] NSWSC 699

Legal Profession Act 1987 (NSW) LEGISLATION CITED : Legal Profession Act 2004 (NSW) Interpretation Act 1987 (NSW)

The Council of the NSW Bar Association v. Davison [2006] NSWSC 65 The Council of the NSW Bar Association v. Davison [2005] NSWADT 252 Briginshaw v. Briginshaw (1938) 60 CLR 336 CASES CITED : NSW Bar Association v. Somosi [2001] NSWCA 285 NSW Bar Association v. Cummins [2001] NSWCA 284 Prothonotary of Supreme Court of NSW v. McCaffery [2004] NSWCA 470 Taikato v. Regina (1996) 186 454

PARTIES : THE COUNCIL OF THE NSW BAR ASSOCIATION v. DAVISON, William Roy

COUNSEL : Plaintiff: C. Adamson, SC/S. Pritchard Defendant: In person

SOLICITORS : Plaintiff: Eakin McCaffery Cox Defendant: N/A

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

THE COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION v. WILLIAM ROY DAVISON

1 The plaintiff, the Council of the New South Wales Bar Association ("the Bar Council"), commenced proceedings against the defendant, William Roy Davison, by summons filed on 15 August 2005. An amended summons was filed on 14 September 2005 and a further amended summons was filed on 5 October 2005. 2 Judgment was delivered on 28 February 2006: The Council of the New South Wales Bar Association v. Davison [2006] NSWSC 65. Findings were made that the defendant practised as a barrister without being the holder of a current practising certificate (at [150]) contrary to s.25(1) of the Legal Profession Act 1987 (NSW). In summary, the defendant had provided legal advice and services during the relevant period as follows:-

(a) Advice in relation to legal proceedings in the Land and Environment Court.

(b) Legal advice in relation to State planning laws.

(c) Advice in relation to the evidentiary requirements for legal proceedings, and the preparation of evidence for use in proceedings.

(d) Advice in relation to strategy to be followed in legal proceedings and advice in relation to the use of expert evidence in proceedings, the issue of subpoenae and as to claims for legal professional privilege.

(e) Services in drafting documents, including points of claim and written submissions, and advice in relation to the preparation of such documents.

(f) Advice in relation to the preparation of evidence, including the need for experts to address specific issues in their reports and preparing points for cross-examination.

(g) Attendance at conferences with clients and counsel in relation to current legal proceedings in order to assist in preparation for those proceedings.

(h) Advice to clients in relation to the Environmental Planning and Assessment Act 1979 , including in relation to s.94 contributions concerning public amenities and services. 3 An opportunity was afforded the parties to file supplementary submissions in relation to the relief sought in Prayer 2 of the further amended summons. The plaintiff in that respect, claimed relief in the following terms:- "2. Further, a declaration that the conduct prescribed in Prayer One was done wilfully and without reasonable excuse, and accordingly that the defendant is guilty of professional misconduct within the meaning of s.25(4) of the Legal Profession Act 1987." 4 The plaintiff filed supplementary submissions on 3 March 2006. The defendant filed supplementary submissions on 11 April 2006. The Issues

5 The issue concerning the declaratory relief sought raised for determination the operation of the now repealed Legal Profession Act 1987 (NSW) ("the 1987 Act"). In that respect, the issue concerns the operation of s.25(4) of the 1987 Act.

6 Section 25(4) of the 1987 Act provided:- "A legal practitioner or interstate legal practitioner who contravenes this section wilfully and without reasonable excuse is guilty of professional misconduct." 7 The central question is whether the defendant's conduct as determined in the judgment of 28 February 2006 was done "wilfully and without reasonable excuse", and, if so, whether that renders him liable as a "legal practitioner" to a declaration of professional misconduct pursuant to s.25(4) of the Act.

8 The Legal Profession Act 2004 (NSW) ("the 2004 Act") commenced on 1 October 2005 (Schedule 9 of the 2004 Act), simultaneously repealing the 1987 Act (s.735 and Schedule 1 of the 2004 Act).

9 Subsection 30(1) of the Interpretation Act 1987 (NSW) provides that:- "The amendment or repeal of an Act or statutory rule does not:- (a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or (b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or (c) affect any right, privilege obligation or liability acquired, accrued or incurred under the Act or statutory rule, or (d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty, and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed."

10 Section 30(3) provides that s.30 applies to the amendment or repeal of an Act in addition to, and without limiting the effect of, any provision of the Act by which the amendment or repeal is effected. It is therefore necessary to consider whether the "saving and transitional provision" in Schedule 9 to the 2004 Act has a different effect to that provided for in s.30(1) of the Interpretation Act. 11 Subclause 3(1) of the 2004 Act provides that:- "If anything of a kind required or permitted to be done under a provision of this Act was done under a corresponding provision of the old Act and still had effect immediately before the commencement day, the thing continues in effect on and after that day as if:- (a) this Act had been in force when it was done, and (b) it had been done under this Act."

12 Consequently, subclause 3(1) of the 2004 Act has the effect that where there is a provision in the 2004 Act which corresponds with a provision in the 1987 Act (the "old Act"), the provision in the 2004 Act applies in relation to things done before the commencement of the 2004 Act as if the 2004 Act had been in force and such things were done under that Act. Conversely, subclause 3(3) of the 2004 Act provides that where there is a provision in the 1987 Act (the "old Act") which corresponds with a provision in the 2004 Act and which would, but for its repeal by the 2004 Act, have applied in relation to anything done before the commencement date (1 October 2005) of the 2004 Act, the provision of the 2004 Act applies in relation to that thing and so applies with any necessary adaptations.

13 Where, as here, there is no provision in the 2004 Act which corresponds with s.25(4) of the 1987 Act, Schedule 9 of the 2004 Act does not apply and therefore does not limit or qualify the operation of s.30(1) Interpretation Act.

14 Sections 30(1) and (3) Interpretation Act lead to the conclusion that the repeal of the 1987 Act does not affect any legal proceedings or remedy in respect of any obligation, liability or penalty arising under that Act and such legal proceedings may be continued or enforced as if the Act had not been repealed.

15 These proceedings were, as noted earlier, commenced on 15 August 2005 by way of summons. The 1987 Act was repealed on 1 October 2005. By Government Gazette No. 105 of 19 August 2005, p.4570, the Legal Profession Act 2004 was proclaimed to commence on 1 October 2005.

16 These proceedings were, accordingly, on foot when the 2004 Act repealed the 1987 Act. The circumstances of this case, accordingly, fall within the terms of s.30(1) Interpretation Act in that the repeal of the 1987 Act does not affect the previous operation of that Act in relation to legal proceeding already commenced under that Act. The result, in other words, is that the Interpretation Act provides that where proceedings have already been commenced under subsequently repealed legislation, the repeal of that legislation does not affect those proceedings and those proceedings are to continue as if the Act had not been repealed. That being the case, it is necessary to examine the facts in order to determine the question of the declaratory relief sought in terms of the 1987 Act. 17 An affidavit of Rosemary MacDougal sworn 3 March 2006 attached a copy of a decision by the Administrative Decisions Tribunal given on 7 November 2005 in proceedings against the defendant entitled Council of the New South Wales Bar Association v. Davison [2005] NSWADT 252. In those proceedings, the Tribunal made an order pursuant to s.171C(1)(a) of the Legal Profession Act 1987 that the defendant's name be removed from the Roll of Legal Practitioners. The information filed in the Tribunal alleged that the defendant was a legal practitioner within the meaning of s.128 of the Act. The allegations of professional misconduct in those proceedings related to entirely different subject matters to the subject matter of the present proceedings. 18 By reason of the provisions of s.30 of the Interpretation Act to which I have referred above, and, notwithstanding the order made by the Tribunal pursuant to s.171C(1)(a) of the Legal Profession Act 1987 on 7 November 2005, I am of the opinion that the Court does have the power to make a declaration as sought in Prayer 2 of the amended summons. 19 In the judgment of 28 February 2006, it was observed (at [51]) that the standard of proof referred to in Briginshaw v. Briginshaw (1938) 60 CLR 336 was applicable to these proceedings and that in making factual findings underpinning the ultimate conclusions expressed in that judgment I had sought to apply that standard. See also paragraph [148]. 20 In paragraph [149] of the judgment, I stated that I was satisfied to the requisite standard that the evidence established the various matters set out in that paragraph. 21 In relation to the issue of "wilfully and without reasonable excuse" arising in terms of s.25(4) of the 1987 Act, I stated in the abovementioned judgment that there was a basis for an inference that the defendant had both the knowledge and the intention of providing specialist advice and services in relation to matters that fell within the scope of the practice of a barrister, to members of the public, including some clients for whom he had acted before he lost his practising certificate. That observation, however, was made subject to the position that, until further submissions were made upon issues arising from the repeal of the 1987 Act, I would refrain from expressing any final view on the matter (see paragraph [169]). 22 In supplementary submissions, the plaintiff submitted that a more appropriate form of the declaration sought in Prayer 2 of the amended summons would be a declaration related to the defendant's conduct in the period from 10 November 2001 to 14 September 2005, the latter being the day on which the defendant consented to the interlocutory injunction. It is noted that during most of that period the 1987 Act was still in force. The plaintiff's proposed declaration is in the following terms:- "2. Further, a declaration that the conduct described in Prayer One was done wilfully and without reasonable excuse, and accordingly that the Defendant was guilty of professional misconduct within the meaning of s.25(4) of the Legal Profession Act 1987 from on or about 10 November 2001 until on or about 14 September 2005."

23 In support of this submission, the Bar Council submitted that a declaration in the form proposed would be of significance in the event that the defendant sought at some time in the future to have his name restored to the Roll of Legal Practitioners.

24 The significance of a declaration in the event of such circumstances arising has been the subject of judicial comment. In New South Wales Bar Association v Somosi [2001] NSWCA 285 at [4], Spigelman, CJ. observed that:- "The reasons of the Court are also of significance because of the possibility that a legal practitioner will, at some time in the future, seek to have his or her name restored to the Roll of Legal Practitioners. The reasons for his or her removal will affect any such future decision making process. This was emphasised by this Court in The Prothonotary of the Supreme Court of New South Wales v. Ritchard (NSWCA, unreported 31 July 1987) as adopted and applied in this Court in New South Wales Bar Association v. Cummins [2001] NSWCA 284 at paras. [25]-[27]."

25 Whilst the nature of the present proceedings do not involve any question of the defendant's removal from the Roll of Legal Practitioners, the nature of any findings potentially remain of significance in the way identified by the Chief Justice in Somosi (supra) and in New South Wales Bar Association v. Cummins [2001] NSWCA 284. The meaning of "wilfully and without reasonable excuse" in s.25(4)

26 Section 25(1) of the 1987 Act proscribed the act of performing legal services in circumstances where the person performing such an act did not hold a current practising certificate. In the judgment of 28 February 2006, it was found that the defendant began providing professional legal services shortly after the cancellation of his practising certificate, that he had not undergone any relevant re-training in a discipline other than law, and that the nature of the work that he provided was performed in contravention of s.25 of that Act, they being matters that were relevant in relation to relief sought under s.25(4) (Judgment at [168]).

27 The defendant continued regularly to provide professional legal services in the relevant period despite the fact that on some isolated occasions he had stated that he was not able to provide legal advice. These facts and the other findings made give rise to the inference that the defendant had the intention of providing specialist legal advice and services of a barrister to members of the public including, in particular, certain of those for whom he had acted prior to losing his practising certificate.

28 The defendant did not give evidence. The absence of evidence or an explanation for his actions the subject of findings to which I have referred is germane to the issue as to whether there is a basis or not for concluding that the defendant acted "wilfully and without reasonable excuse" within the meaning of s.25(4) of the 1987 Act.

29 In Prothonotary of the Supreme Court of New South Wales v. McCaffery [2004] NSWCA 470, McColl, JA. (with whom Sheller and Beazley, JJA. agreed), accepted that for the purposes of s.25 of the Legal Profession Act 1987 the term "wilful" "encompasses an intentional act" (at [31]) and that in "a statute creating an offence connotes intention and knowledge" (at [29]). Her Honour then proceeded to analyse the facts in that case finding that "there was no doubt that the [barrister] deliberately practised without a practising certificate" in circumstances where, for financial reasons, the barrister disregarded his obligation to renew his practising certificate (at [32]).

30 In McCaffery's case, her Honour also considered the meaning of "without reasonable excuse", relying upon the decision in the High Court in Taikato v. Regina (1996) 186 CLR 454 at 464, per Brennan, CJ., Toohey, McHugh and Gummow, JJ. that the relevant meaning "depended 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'" (at [34]). Accordingly, her Honour concluded that in the context of s.25 "the expression requires an explanation to be propounded which would justify the [barrister's] otherwise contravening conduct" (at [35]).

31 In that context, her Honour discussed the purpose and function of what is in effect a regulatory regime requiring that legal practitioners hold practising certificates. A part of that regime is that practising certificates are issued on certain conditions, including conditions that legal practitioners undertake and complete courses in continuing legal education, undertake additional academic training courses, and provision is also made for limiting the practising rights of the holder (at [36]). Her Honour also observed that where a barrister holds a practising certificate as a barrister that person is subject to the Barristers' Rules, and that before issuing a practising certificate the Bar Council must be satisfied that the applicant has an approved indemnity insurance policy (at [37]). 32 I am of the opinion that the findings made and observations as set out in the Judgment of 28 February 2006, including, in particular, the matters referred to in paragraphs [147], [149] and [160], establish matters that are relevant to a finding that the defendant contravened the provisions of s.25(1) wilfully and without reasonable excuse. I do not here reproduce the matters there stated. 33 The findings set out in the judgment and the matters otherwise referred to in the preceding paragraph plainly indicate that the defendant acted wilfully in the sense that the legal advice and services provided by him were in the nature of advice and services customarily provided by barristers and that he did so with knowledge of that fact and with the intention of so acting over a substantial period of time. 34 There was, as noted earlier, no witness called or material adduced directed to or capable of establishing relevant matters concerning the defendant's state of mind during the period in question and relevant to his undertaking the work of a barrister nor otherwise directed to establishing a reasonable excuse in respect of his conduct. No reasonable excuse otherwise appears from the evidence in the proceedings. Accordingly, the basis for the declaratory relief sought in Prayer 2 has been made out. 35 The question remains as to whether, as a matter of the proper exercise of the discretion, a declaration should be made in terms of Prayer 2. That in turn requires consideration as to whether or not there have been established particular matters that indicate that a declaration is warranted. That includes consideration as to whether such a declaration would be of public benefit as the Bar Council has submitted in light of the observations of Spigelman, CJ. in New South Wales Bar Association v. Somosi [2001] NSWCA 285 as set out in paragraph [25]. 36 I have had regard to the submissions made by the defendant including, in particular, the matter set out in paragraph [2] of those submissions. 37 The declaratory relief in Prayer 2 of the amended summons was sought by the Bar Council from the outset of the proceedings and was a matter which was fully argued. I do not accept the defendant's submission that there was anything unsatisfactory in the way in which the plaintiff has sought in these proceedings a declaration of professional misconduct. There was no evidentiary or procedural unfairness to the defendant in the claim for such relief being determined at the same time as the other issues and relief arising in relation to Prayer 1 of the amended summons. 38 In determining whether the declaratory relief sought should be granted, I have had regard to the fact that the findings made in the principal Judgment establish significant contraventions by the defendant of the provisions of s.25(1) of the 1987 Act over a substantial period. Legal practitioners who so conduct themselves are liable to a finding that they have been guilty of professional misconduct. Absent special or exceptional circumstances, this Court would, in proceedings such as the present, act properly in making a declaration that the conduct of the person in question constitutes professional misconduct. I am conscious that the defendant has already lost a great deal in having his name removed from the Roll of Legal Practitioners and for the need to ensure that the declaratory relief sought in light of that history can be shown to be of utility and otherwise warranted. 39 I am of the opinion that, having regard to the findings as to the defendant's conduct which establish that the conduct was intentional and persistent over a substantial period and was undertaken without reasonable excuse, such conduct was plainly professional misconduct within the meaning of s.25(4) of the 1987 Act and that accordingly a declaration to that effect should be made. 40 I, accordingly, make a declaration in the amended form sought by the Bar Council in the following terms:- "A declaration that the conduct of the defendant referred to and set forth in paragraphs [147] to [149] inclusive (including that set out in the schedule to the judgment) was done wilfully and without reasonable excuse, and accordingly, that the defendant was guilty of professional misconduct within the meaning of s.25(4) of the Legal Profession Act 1987 from on or about 10 November 2001 until on or about 14 September 2005."

Costs 41 The Bar Council has sought an order for costs in its favour under Rule 42.1 UCPR 2005. It was submitted that the general rule therein set out, namely, the costs should follow the event, would apply in the circumstances where the plaintiff has succeeded on all substantial issues in the proceedings and in which it cannot be said that the plaintiff caused the defendant to incur any unnecessary costs in the defence of the proceedings. 42 There were no submissions made by the defendant on the application for costs made by the Bar Council. I have, notwithstanding, considered the history of the issues and the findings made in determining whether an order for costs as sought should be made. Having done so, I am satisfied that it is appropriate and proper to order that the defendant pay the plaintiff's costs of the proceedings, and I so order. **********

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