THE NEW SOUTH WALES BAR ASSOCIATION v KALAF

Court of Appeal (NSW)|1987-10-12|Before: Kirby P, Mahoney JA, Samuels JA

KIRBY P, SAMUELS and MAHONEY JJA 12 October 1987; 18, 24 March 1988, 11 October 1988

LEGAL PRACTITIONERS - barrister - removal from roll - barrister acts in unconventional manner - practice involves giving of tax advice - complaints include (1) direct dealing with client without solicitor; (2) provision for formal instruction by solicitor only; (3) misleading the Court in respect of arrangements; (4) lack of candour to Solicitors' Admission Board on application to change professional rolls - held: (1) (by the Court) The irregularities of the barrister's dealings with his client and in the conduct of his practice, as well as his lack of frankness of dealings with the Solicitors Admission Board, amounted to misconduct for which a reprimand would be insufficient. (2) (per Kirby P and Mahoney JA; Samuels JA dissenting). The conduct did not require final removal of the barrister's name from the roll of barristers but his suspension for one year. Discussion of the purposes of disciplinary orders and levels of appropriate orders. New South Wales Bar Association v Evatt (1968) 117 CLR 177; The Prothonotary of the Supreme Court of New South Wales v Richard, unreported, CA 31 July 1987; (1987) NSWJB 147 and Kotowicz vy Law Society of New South Wales, unreported, CA, 7 August 1987 (1987) NSWJB 146 referred to. EVIDENCE - standard of proof - proceedings for removal of name of barrister from roll - solicitor with whom he was alleged to have had irregular professional arrangements not called - whether duty on the barrister to call solicitor - inferences arising from the failure of the Association and the barrister to do so - held: (1) The proper standard of proof applicable to such cases was that described in Briginshaw v Briginshaw and Anor (1938) 60 CLR 336, 361; (2) (per Kirby P and Mahoney JA). It was not incumbent on the barrister to call the solicitor in the circumstances and the failure of the Association to do so made it impossible for the Court to draw inferences adverse to the barrister on some issues, having regard to the high standard of proof required of the Association for establishing its case.

Orders (By majority) The court 1. Finds that the opponent has engaged in acts of professional misconduct; 2. Orders that the opponent be suspended from practice as a barrister for one year from this date; and 3. Orders that the opponent pay the claimant's costs of the proceeding.

Kirby P The other members of the Court have set out in their reasons for judgment the issues which are posed for resolution in these proceedings.

Samuels JA has described in detail the irregular and unconventional practice which Mr Kalaf (the opponent) carried on at the material times. He purported to act as a barrister. But, in effect, his mode of practice was more akin to that of a solicitor or a tax agent. He was not observing the stringent ethical standards and conventional rules of practice of a barrister, as they are accepted in this jurisdiction.

The summons brought by the New South Wales Bar Association (the claimant) seeks relief not to punish the opponent, as such, but for the purpose of protecting the public which deals with barristers. Isolated cases of departure from accepted rules or an occasional lapse from conventions will not, depending upon the

circumstances, warrant removal of a barrister from the roll. Especially in the case of young or inexperienced practitioners, a small degree of latitude may sometimes be allowed. This is because it may usually be expected with confidence that the trial of proceedings such as the present will have a salutory effect. The prospect of removal from the roll, the publicity (including in the profession) which often attends such proceedings and the collegiate pressures operating within the profession itself all tend to reinforce good ethical and professional standards. They may avoid, in the particular case, the need for the drastic order for the removal of the name of an otherwise qualified practitioner from the professional roll.

Although the Court was taken to the general way in which the opponent conducted his practice as a barrister, the case cannot be determined by disquiet about generalities. In considering the relief sought by the claimant, it is necessary to determine whether it has established a ground or grounds for relief in the particulars of misconduct upon which it has relied. Expressed broadly, those particulars related to the charges arising from the opponent's dealings with a client, Mrs Ikin, and a charge arising from his alleged lack of candour to the Supreme Court. The latter charge arose out of an affidavit he filed in support of an application which he made to have his name removed from the roll of barristers with a view to his later being admitted to practise as a solicitor. In connection with both heads of charge, the claimant finally relied upon the opponent's alleged lack of candour to the Court of Appeal as demonstrating a moral obtuseness which, it was claimed, indicated that he was unfit to remain on the roll of barristers. Cf Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655, 692. Early in the proceedings I warned the opponent of the need for complete candour to the Court. Any familiarity with this class of case will demonstrate the imperative obligation of total honesty on the part of the practitioner in responding to the charge before the Court.

Samuels JA has pointed out that, in respect of the majority of the particulars of professional misconduct concerned with what might be termed the Ikin head of charge, the opponent has admitted the claims, either in whole or in part. True, particular aspects of that charge are denied. So was some of the evidence of Mrs Tkin - or the inferences which the Court was asked to draw from such evidence. Like the other members of the Court, I would generally resolve differences between the evidence of the opponent and Mrs Ikin, by preferring the evidence of Mrs Ikin. However, before reaching ultimate conclusions about the matters finally in dispute, it is necessary to remember the conventional rule which governs proceedings such as the present. The objective is not, as such, the punishment of the practitioner who is disciplined but the protection of the public. It would however be unrealistic to ignore the drastic economic, reputational and other consequences of a finding adverse to the practitioner and of an order such as is sought by the claimant. It is therefore necessary to approach the resolution of the matters in dispute by applying the standard conventionally adopted where issues with serious consequences fall to be resolved by a court. Briginshaw v Briginshaw and Anor (1938) 60 CLR 336, esp 361 ff.

Thave said that the Court may look to the practitioner whose conduct is under scrutiny to display candour and complete honesty in the conduct of the case. The practitioner must do so in responding to questions, including those posed by the Court. However, it would likewise be unrealistic to impose upon him or her a

URJ THE NEW SOUTH WALES BAR ASSOCIATION v KALAF (Kirby P) 3

duty alien to the procedures normally followed in our courts. For example, the duty of candour does not extend so far as to require the practitioner to volunteer all relevant evidence, including any which may, in particular respects, be considered to hold possible risks. Cf Kotowicz v Law Society of New South Wales, unreported, CA 7 August 1987; (1987) NSWJB 146. It is the professional association which has assumed the obligation to establish the case against the opponent. It is the association which seeks the drastic relief of the opponent's removal from the roll of barristers. It is therefore for the association to prove its case. It must call such evidence (other than that of the practitioner) as will assist the Court to reach the correct conclusion upon the facts.

In the present case, the opponent was criticised for failing to call the solicitor (Mr Cassimatis) with whom it was alleged he had operated a "sham" relationship. It was suggested that this relationship was designed to observe the formalities but not the substance of the proper dealing between a solicitor and counsel. An affidavit by Mr Cassimatis was indeed filed by the opponent. Mr Cassimatis was in court to answer a subpoena. But he was not called by either party. His affidavit was not read. No explanation was given for this course of conduct by either side. It is clear that the claimant expected the opponent to call this witness. Equally clear is that it still elected not to do so, even when it became plain that the opponent would not call him. I pass over the matter raised by Mahoney JA concerning whether, in such circumstances, the Court may itself sometimes have the right, and even the duty, to call such a witness forward given the objective of the protection of the public. No one suggested that the Court should do so in the present case. Accordingly, at the end of the evidence, the matter remains to be judged by the rigorous standard appropriate to the seriousness of the consequences of an adverse finding. It has to be decided without the benefit of the evidence which Mr Cassimatis could have given upon several relevant matters. These matters include:

(1) The precise way in which Mr Cassimatis received his instructions from Mrs Ikin, including the identification of the form of written instruction which he received from her

(2) Any relevant course of dealings between the opponent and Mr Cassimatis in other cases which might have thrown light on that relationship in Mrs Ikin's case; and

(3) The circumstances of the preparation of the copy letter allegedly written by Mr Cassimatis to Mrs Ikin dated 14 January 1986. Mrs Ikin denied receiving such a letter. The letter tends to support the opponent's case. However, it was suggested that it might not have been written to her at all.

This conclusion involved the suggestion that the letter amounted to a belated attempt at exculpation in which the opponent and Mr Cassimatis had conspired. Inherent in such a suggestion was the possibility of allegations of professional misconduct, perjury, and possibly conspiracy on the part of Mr Cassimatis.

In such circumstances, facing no professional charges of his own, there are a number of reasons which might have explained a disinclination on the part of those representing the opponent to offer Mr Cassimatis as a witness in this case. However that may be, the Court, in the end, must resolve the disputed issues of fact without the benefit of Mr Cassimatis' evidence. It must do so applying the rigorous standard of proof necessary to reaching a conclusion that relief as sought

by the claimant was warranted. But it must also do so remembering that it was for the claimant to make out its case. When it became plain that the opponent did not intend to call Mr Cassimatis, it was for the claimant to decide whether to seek to do so. In the absence of Mr Cassimatis' evidence, like Mahoney JA, I would not be prepared to draw the inference that the evidence of the opponent concerning his dealings with Mr Cassimatis was false and the letter which he relied upon was a concoction.

I turn to the opponent's suggested lack of candour to the Solicitors' Admission Board of the Supreme Court. It is important to distinguish this case from others which have involved deception of that Board. The usual case is that of complete non-disclosure of a relevant circumstance. The opponent would surely have known that, by including in his affidavit the disclosure concerning the earlier inquiry about his professional conduct as a barrister, he would set in train an investigation of the precise circumstances of that inquiry. It is true that he did not disclose to the Board that he had been found guilty of what amounted to professional misconduct. It is also true that he did not reveal the precise and serious findings by the Bar Council concerning the complaint of 1979. Finally, it is true that he did not reveal that he had been "severely reprimanded" by the Bar Council. His rebuttal was rather self-serving. The disclosure, whilst not dishonest, lacked appropriate detail and frankness.

I do not consider that the opponent, as a barrister, acted properly in the way in which he brought the circumstances of the earlier proceedings to the notice of the Solicitors' Admission Board. However, I would not regard the case as one of serious impropriety. Perhaps without the more serious complaints involving Mrs Ikin - and the general irregularity of the opponent's practice which those complaints revealed - the lack of candour to the Board would never have made its way to a proceeding in this Court. Nevertheless, it is now here. It must be dealt with. A failure to reach the proper standard of disclosure that can be expected of a barrister dealing with the Supreme Court should be found in respect of his disclosure to the Board. But it is not a grave default. Enough was disclosed to alert the Board that there was a matter requiring investigation. I would not, therefore, regard this failure, of itself, as sufficient to warrant more than a reprimand. To dispose of the summons, it is therefore necessary to turn back to the evaluation of what I have called the Ikin head of charge.

I agree with Mahoney JA that the issue is not whether there has been misconduct. Clearly there has. The issue is the assessment of the seriousness of the misconduct and the consideration of what should be done about it. The High Court of Australia has made it plain (as has this Court on many occasions) that to remove the name of a practitioner from the roll, it is necessary to conclude that the practitioner is permanently or indefinitely unfitted to be a member of the legal profession, with the great privileges and responsibilities that go with that membership. See Ex parte Lenehan (1948) 77 CLR 403, 422; New South Wales Bar Association v Evatt (1968) 117 CLR 177, 183-4; The Prothonotary of the Supreme Court of New South Wales v Richard, unreported, CA, 31 July 1987; (1987) NSWJB 147 per Kirby P and McHugh JA. If the Court were to determine that there was not that measure of unfitness as warrants permanent, or at least indefinite, removal from the ranks of the legal profession, the proper course to adopt, misconduct being found, is to suspend the practitioner from practice for a specified time.

URJ THE NEW SOUTH WALES BAR ASSOCIATION v KALAF (Samuels JA) 5

The view which I formed of the opponent is that he is not an arrogant man, deliberately breaching the rules and conventions of the Bar. Instead, I conclude that he was at times obtuse and even ignorant about some of those rules and content to comply with his understanding of proper forms rather than with the substance and letter of the rules governing barristers. His experience in the profession has been unusual and rather limited. But, like Mahoney JA, I have ultimately concluded that the opponent is not of such a character or so lacking in competence that this Court should finally remove his name from the roll of barristers in order to protect the public. In so concluding, I take into account the fact, as the evidence disclosed, that the opponent had earlier been reprimanded for misconduct by the Bar Association. I agree that a further reprimand would insufficiently mark the Court's disapproval of the irregularities of his dealings with Mrs Ikin and the conduct of his practice in that regard and the earlier lack of frankness in his dealings with the Board. Alone, the last mentioned default would not have warranted more than a reprimand. But in combination with the charges concerning Mrs Ikin - most of which were admitted - it requires a response from the Court which is more substantial.

I therefore agree that the Court should declare that the opponent has engaged in acts of professional misconduct. In consequence, the opponent should be suspended from practice for one year. He must pay the costs of the Association of the proceedings. In due course it will be for the admitting authorities to consider, in the light of the then evidence and of the matters disclosed in these proceedings, whether he should be admitted to practise as a solicitor. That is not an issue which needs to be determined in order to dispose of the summons. I therefore refrain from offering any comments upon it.

Samuels JA The opponent was admitted to the bar of New South Wales on 9 February 1973. At the relevant time, which is September 1985 and the months following, he conducted his practice from an office on the seventh floor of 105 Pitt Street Sydney. On that floor there were three offices apparently leased as a suite by a company called Professional Administrators Pty Limited which was in the business of providing services of various kinds to medical practitioners. The company, which had one employee, occupied one office and the opponent and his secretary the other two. The opponent was a shareholder and possibly a director of the company, of which a Dr Cassimatis, the brother of a Mr Peter Cassimatis, a solicitor, was also a shareholder. The opponent carried out some ill-defined work for the company, apparently involving the checking of the correctness of accounts sent by it to its clients. It appears that the opponent, notionally at least, paid rent to the company by medium of a book entry by way of set-off against a sum of some $30,000 or so which he had lent to the company in 1983 or 1984.

It was frankly conceded by Mr Toomey QC, who appeared for the opponent, that his client, throughout his practice at the bar, had acted as a solicitor rather than as a barrister and was in that respect in breach of the rules governing conduct at the bar. It is plain, in my opinion, that the opponent was either ignorant of or entirely flouted those rules; so that the case essentially comes down to the question of the order that should be made in the exercise of the Court's duty to protect the public from professional misconduct and its consequences. However, it is not simply a matter of evaluating the opponent's professional misconduct. He swore an affidavit and was cross-examined before us, and it is asserted by Mr Stitt QC, for the Bar Association, that in the course of this evidence the opponent

was less than candid and, indeed, endeavoured to mislead the Court. If affirmative findings are made in those respects, they must be taken into account in judging the extent of the moral incapacity against which protection is required.

The facts require a degree of analysis and it will be the simplest way of explaining the history of the matter if I start by setting out the way in which the complaint is put by the claimant.

There are two matters of complaint arising out of separate incidents. The first involves the opponent's dealings with a client, a Mrs Miriam Joy Ikin, between 24 September 1985 and June 1986. The second concerns the opponent's application to the Supreme Court to have his name removed from the roll of barristers in order to be admitted as a solicitor.

Mrs Ikin received a letter from the Australian Taxation Office shortly after 19 September 1985 inquiring whether she had lodged income tax returns for the years ended 30 June 1981 to 1984 inclusive, and requiring her to furnish information about her income and, if necessary, to lodge income tax returns for those years. She sought assistance from a friend, a Mr Coombes, who took her to see the opponent at his office on 24 September 1985. At that meeting, at which there was no solicitor present, the opponent accepted instructions from Mrs Ikin and agreed to act for her in respect of the requisitions from the Taxation Office. He produced to her in his office an authority headed "Taxation Authority" which was in the following terms:-

I, Mrs Miriam Joy Ikin, of 1/137 Maroubra Road, Maroubra NSW 2035, do hereby instruct Peter Cassimatis and Co of Darlington House, Suite 2, 200 Riley Street, Darlinghurst NSW 2010, to appoint San Jack Kalaf, Barrister-at-Law, 7th Floor, 105 Pitt Street, Sydney NSW 2000, to comply with a communication dated 19 September 1985, issued by the Australian Taxation Office, with respect to particular of balances and interests for the years commencing | July 1980 to 30 June 1984, and to do everything in his power to settle any contingent liability that may arise.

There are two such authorities among the exhibits in the case, each of them original and each signed "Joy Ikin" and each dated 24 September 1985. There is a lively question about how the two originals came into existence and as to whether either of them was signed in the opponent's office or whether he gave one such authority or both of them to Mrs Ikin on 24 September 1985, she then taking them away, signing them on that day or later, but not in the opponent's office. To these questions I will return. The opponent received the sum of $50 in cash from Mrs Ikin for which he did not issue a receipt. He said that he would attend to her matter and would get in touch with her later on.

On 22 October 1985 Mr Peter Cassimatis, the solicitor, sent to the opponent a brief to advise. It is a matter of dispute whether the taxation authority, that is to say, the document signed by Mrs Ikin, or one such document, if she signed more than one, was included in this brief. The brief, naturally enough in the circumstances, consisted otherwise merely in the following instructions:- "Counsel, please find enclosed an Authority by our client for us to brief you. Counsel is authorized to comply with a communication dated 19th September 1985 issued by the Australian Taxation Office with respect to particulars of balances and interest for the years commencing Ist July 1980 to 30th June 1984 and to do everything in your power to settle any contingent liability that may arise." I interpolate that whether the taxation authority was included in the brief it is clearly to be inferred that Mr Cassimatis had seen it since his instructions to counsel follow its terms. Alternatively, Mr Cassimatis was aware that Mr Kalaf had a standard form of authority of whose terms he was aware.

URJ THE NEW SOUTH WALES BAR ASSOCIATION v KALAF (Samuels JA) 7

I point out at this stage that the opponent's practice was confined to taxation matters of the kind exemplified by Mrs Ikin's problem. He said that in the majority of cases he was approached directly by a taxpayer but that in every case he then arranged to be briefed by a solicitor. No doubt the steps he took to achieve this in the present case were paradigmatic of his general practice. In carrying out his retainer in such matters he dealt directly with the Taxation Office without the routine intervention of his instructing solicitor.

To continue with the narrative, when Mrs Ikin had not heard from the opponent for five or six weeks she rang Mr Cassimatis who, on 6 November 1985, wrote to her confirming a recent telephone conversation in which he had apparently told her that the opponent had been briefed; adding that he had been briefed "amongst other things, to deal directly with the Taxation Office without recourse to this office." On 27 November 1985 Mrs Ikin received a second letter from the Taxation Office and rang the opponent who said he would attend to the matter and "get back to her." In January 1986 the opponent telephoned Mrs Ikin at her home and asked her to come in to his office to see him and a little later on, still in the same month, she did so. There was no representative of Mr Cassimatis present. The opponent asked Mrs Ikin to get together details of her building society accounts, bank statements and so forth which she proceeded to do. She had several subsequent telephone conversations with him.

On a date in March, which she does not now recall, Mrs Ikin had another conference with the opponent at his office and again, Mr Cassimatis was not represented. It is contended by the Bar Association that at that meeting the opponent requested Mrs Ikin to pay to him the sum of $850 as part payment for his fees. There is considerable disagreement as to exactly what happened in this respect, although it is agreed that Mrs Ikin did give the opponent a building society cheque for $850, but how she came to do so and what the purpose of the payment was are in contest.

On 12 March 1986 the opponent wrote three letters on behalf of Mrs Ikin to the managers of the Commonwealth Bank, Maroubra Junction and Advance Bank in the same suburb, and to the Taxation Office.

On 12 May 1986 Mrs Ikin wrote to the opponent, asking him to send her a complete and detailed statement of the work which he had performed on her behalf. On 26 May 1986 the opponent prepared an account in which he claimed that he had spent forty eight hours in all on Mrs Ikin's matter and charged her at the rate of $30 per hour for this time, a total of $1440. In addition he charged $60 for writing five short letters and $20 for perusing replies; and added $125 for three conferences; in all a sum of $1870. He gave credit for the $850 which had been paid, but not for the $50 paid in cash on 24 September 1985. Then, by discounting the bill by the amount of the net balance of $1020, he effectively made no charge. On 28 May 1986 the opponent wrote to Mr Cassimatis, enclosing the detailed account and a cheque for $50 "for yourself in this matter." On 18 June 1986 Mr Cassimatis wrote to Mrs Ikin, repeating the details of the account sent by the opponent. She complained to the Bar Association that she had been overcharged and on 23 July 1986 the Professional Conduct Committee No 1 of the Bar Association interviewed the opponent who, it is alleged, then made false statements.

This recital is, of course, taken primarily from the assertions made by the Bar Associations and is in certain respects challenged by the opponent. However, it is said by the claimant to sustain the following acts of professional misconduct:-

(i) That between 24 September 1985 and June 1986 the opponent was not conducting his practice as a barrister and had erected an artificial arrangement with Mr Cassimatis whereby the latter nominally acted as

his instructing solicitor. The first part of this complaint, but not the assertions relating to the "artificial arrangement" is admitted.

(ii) That the true arrangement was that the opponent advised and acted in a professional capacity without the intervention of an instructing solicitor in his dealings with the Taxation Office and various banks on behalf of his client, Mrs Ikin. This is admitted.

(iii) That the opponent collected directly from Mrs Ikin, his client, a sum of money to cover his fees. If for "collected" the word "received" were substituted, the opponent would admit this complaint.

(iv) That between September and June 1986 the opponent held conferences with Mrs Ikin without the attendance of his instructing solicitor. This complaint is admitted.

(v) That the defendant charged his client fees which were grossly excessive and sought to induce his client to pay a sum of money on account of costs which were said to be incurred and which was out of all proportion to what was a proper fee having regard to the legal business which he had been instructed to carry out. This complaint is denied.

I go back to the first meeting between Mrs Ikin and the opponent. The opponent contended that he informed Mrs Ikin that if she wished to brief him it would be "her duty to formalise our relationship by instructing a solicitor". When she said that she did not have a solicitor of her own, he gave her the names of three, including the name of Peter Cassimatis. Mrs Ikin, on the other hand, said in her affidavit that the opponent, having left the room and gone out to his secretary, returned with the taxation authority, saying: "It has to be done through a solicitor and I want you to sign this piece of paper. You will get confirmation from Mr Cassimatis that I have been retained to act on your behalf. It will be necessary for you to pay $50." She then signed and dated the authority; she did not take any authority away with her.

In cross-examination Mrs Ikin confirmed this evidence and, in particular, maintained that she had signed one authority only, had left it with the opponent, and had next seen it only when the opponent sent back his file to her, that is to say, when he returned her papers. Now, what was put to her by Mr Toomey, presumably in execution of his instructions from the opponent, was that the opponent had given her "'a blank form of authority" which she took away with her from his office. It was further put that, having taken it from his office, she photocopied it and that "at a different time" she signed that photocopy "of that authority, the blank authority". I am not clear what counsel meant by a "blank authority"; I assumed that he meant an unsigned authority. He could scarcely have meant an authority in which the name of Mr Cassimatis did not appear, since it is evident enough, and the contrary was never suggested, that Mr Cassimatis' name was inserted in the authority when the document was typed.

It may well be that Mrs Ikin was at fault in her recollection that she signed only one authority; but, by the same token, it seems equally likely that the opponent's instructions to his counsel contained some defects of recollection. It turned out in the course of Mrs Ikin's cross-examination that there were in existence two original (that is, not carbons or photocopies) authorities, each signed by Mrs Ikin and each dated 24 September 1985, both of which were produced. They appear to have been identically typed by the same machine, but one of them is on A4 and the other on quarto. The one typed on quarto has punch holes in it and, it is common ground, came from Mr Cassimatis' file produced to the Court under subpoena. It does not appear to have been folded. The other authority, on A4, has

URJ THE NEW SOUTH WALES BAR ASSOCIATION v KALAF (Samuels JA) 9

clearly been folded horizontally; it has no punch holes. It was sent by Mrs Ikin to the Bar Association under cover of her letter of 17 July 1986 together with the original of her letter to the opponent of 14 March 1985.

Mrs Ikin's explanation is that she thought she had signed only one authority in the opponent's office, but may have signed two; in either case she left the document, or documents, with the opponent. She received the authority on A4 (the one without the punch holes) when the opponent returned his file (i.e. her papers). She got back her original letter of 14 March at the same time by the same means; but that letter bore punch holes. Specifically she denied sending a signed authority to Mr Cassimatis. She saw the authority on quarto (with the punch holes) for the first time when it was produced from Mr Cassimatis' file in court.

The opponent contended that he gave Mrs Ikin only one authority, which she took away with her unsigned. He did not specify which of the two originals it was. He again saw the authority given to Mrs Ikin for the first time when it arrived, signed, in the brief he received from Mr Cassimatis on 23 October 1985.

Apart from the different sizes of paper on which they are typed (a distinction which does not survive in the photocopies) it is possible to distinguish the two authorities because of slight but perceptible differences in the signatures. Hence it is evident that the authority annexed to the opponent's affidavit is a photocopy of the authority produced from Mr Cassimatis' file; and the document also bears faint traces of punch holes. The authority annexed to the Registrar's affidavit is a copy of the one sent to the Bar Association by Mrs Ikin on 17 July. But the authority annexed to Mrs Ikin's affidavit is a copy of the one produced by Mr Cassimatis.

Mr Toomey submitted that the absence of punch holes on the authority which Mrs Ikin said she received when the opponent returned his file - the other documents from that file being punched - showed that Mrs Ikin had taken that authority away with her from the opponent's office contrary to her account. No plausible explanation readily appears as to why the opponent would not have punched the authority along with the other documents in the file. Equally, I can see no reason why the opponent would have given two authorities to Mrs Ikin to take away with her unsigned.

It seems to me that in the context of the documents the probabilities suggest that what happened was this. The opponent produced both original authorities to Mrs Ikin and she signed them both in his office. It is more likely that this is what happened than that she took them away. Both documents are dated (by Mrs Ikin) 24 September, the day she first met the opponent. This is by no means conclusive: but it cogently supports the view that she did sign them on that day, and not on a later day; she would have had no reason for back-dating them. While Mr Cassimatis needed an authority, as did the opponent as evidence of his own retainer, Mrs Ikin did not. As it turned out Mr Cassimatis sent to the opponent, with the brief, a copy of the authority he had received. In effect, if the opponent sent it to him originally, Mr Cassimatis was merely returning a copy of the same document. I do not, however, find that odd; it was an appropriate document to include with the brief. Indeed, it was the only document apart from the formal instructions. The authority annexed to Mrs Ikin's affidavit was a copy of that sent to Mr Cassimatis. But I know that Mr Cassimatis was interviewed by the Professional Conduct Committee. I infer that he produced his file and that the Committee took, or was given, copies.

The fact that the two authorities were typed on paper of different sizes seems odd. In my opinion it renders it unlikely that both were typed by the opponent's secretary at the one time i.e. on 24 September. I think it improbable that the secretary, asked to type two originals, would type them on different paper, unless directed to do so, and I can imagine no reason for any such direction. It is more probable that they were part of a stock of authorities, typed at different times on different paper and picked up on the day at random. But is not a matter of importance.

What is of importance, however, is this. Mrs Ikin says that the only solicitor whose name was mentioned at that first meeting was Mr Cassimatis. The opponent said he mentioned the names of three. There are two fatal objections to acceptance of that testimony. First, it is impossible to imagine that if he had done so he would given Mrs Ikin a form of authority bearing only Mr Cassimatis' name. What, one might inquire, was she to do with it if she decided upon one of the other solicitors allegedly mentioned? She could hardly scratch out Mr Cassimatis' name and insert a competitor. Nor could it be seriously considered that she was expected to copy the form herself and insert the name of some other solicitor. If, as I think the opponent suggested, he had dictated this form and had it typed by his secretary while Mrs Ikin was in his office, he could readily have omitted the name of any solicitor. The chances are, I think, that he had a stock of authorities directed to Mr Cassimatis and that is one explanation of the fact that he gave Mrs Ikin two originals. But the question was not distinctly put to him, and I take no further account of it.

Secondly, having admitted in his affidavit and in his cross-examination before us that he had received $50 in cash from Mrs Ikin, he was asked:-

Q. Why did you accept the money from her when you told her she ought not pay it to you?

A. There was a notion on my part that I was aware that she wanted to contain her costs and if she gave me the money I would, in fact, have it sent down to Mr Cassimatis and I was fairly confident that the instructing fee would not exceed that amount, or very little more.

Q. You had nominated three solicitors. How did you know she would choose Mr Cassimatis?

Q. How did you know you would send it to Mr Cassimatis?

A. I sent it down because, from her behaviour, she had intimated very strongly she would instruct Mr Cassimatis.

A. She said - I will leave it up to you. I told her that I was going to send the money down to Mr Cassimatis. I did not want to have this money on my person, or in my possession. I said - if you give me this money I am sending it down to Mr Cassimatis.

Q. You did not send the money straight away to Mr Cassimatis?

In my view, this evidence is explicable only on the footing that the opponent distinctly and explicitly nominated only Mr Cassimatis and that the authority was signed in his office. The opponent dropped his guard in the early part of this exchange and the truth, in my view, was revealed. He could not possibly have sent the money down to Mr Cassimatis "the very next day" if Mrs Ikin had taken away a form of authority on the footing that she might well delete Mr Cassimatis'

URJ THE NEW SOUTH WALES BAR ASSOCIATION v KALAF (Samuels JA) 11

name and insert one of the other two solicitors. He simply had no authority whatever to send Mrs Ikin's money to Mr Cassimatis until he knew that she intended to instruct him and this he could not have known unless he had in his possession a signed authority to that effect. Accordingly, I am well satisfied that Mrs Ikin's account of this meeting is substantially true and, in the important respects, I reject the opponent's evidence. Accordingly, I am satisfied that the authorities were signed in the opponent's office, and that he himself sent one to Mr Cassimatis and retained the other, which ultimately he returned to Mrs Ikin.

There is a further aspect concerning Mrs Ikin's payment of the $50 in cash. The opponent was asked about this when he appeared before the Professional Conduct Committee. This was the evidence:-

Q. There is one thing I don't think you have mentioned: Mrs Ikin says at the bottom of that first page of the 17th July that she paid $50 in cash. Why did she do that, and what did you do with that?

A. Wait a minute. I would like to know when she paid this money. I would like to know when Mrs Ikin paid this money. When did she pay this money?

Q. We only know what is in the letter. She said she signed the authority in your office, for which she paid $50 cash. The inference arising from that may well be that she paid it on that occasion.

Q. We weren't there; you were. That is what we are trying to find out.

A. Fair enough, fair enough. My honest belief is I have no recollection of requesting any person to make a cash payment.

Q. But the issue is not whether you requested a cash payment, the question is whether you received it.

A. To the best of my knowledge the answer is No. But I stress one thing. An

independent witness, Mr Coombes - if this is the time in which the payment was made I do believe it does call for an independent witness. Because I have here a letter I have never seen in my life before.

The opponent was cross-examined about the discrepancy between this account and that set out in his affidavit. I do not find his explanation convincing. I did not find him a persuasive witness at any point in the case. I do not base this conclusion to any great extent upon my assessment of the opponent's demeanour. Rather much of his evidence - and I have quoted some of it and will presently add to that material - was in terms unconvincing and, even more importantly, at odds with the probabilities and the documents. Mrs Ikin, on the other hand, was trying I thought to be truthful and accurate. Evidently she was not accurate in all respects; but she is well supported on the main questions at issue by the probabilities and the documents. When she and the opponent are in conflict I prefer her evidence to his.

I have already made some reference to the payment of $850 which Mrs Ikin made. Her evidence was - in her affidavit - that after the conversation to which Ihave earlier referred, she went to her building society on 14 March and obtained a cheque payable to the opponent which she posted to him with a covering letter on the same day. The opponent denies that he received the letter, but admits, as of course he had to as he had deposited it in his own bank account, that he received the cheque. He admits that he asked Mrs Ikin for the money to secure his fees but denies that he asked her to send it to him. The first sentence of her handwritten letter reads: "Enclosed please find cheque for $850 as requested." I think that any embarrassment which that sentence causes the opponent is only slight; but perhaps it does suggest the request which he denies. The letter bears punch marks as do all the other papers which came from the opponent's file

except for the authority. As I have said, I prefer Mrs Ikin's evidence. I therefore am satisfied that she did send the letter which, after all, was precisely the kind of thing that one would have expected her to do. I could not accept any suggestion that she deliberately wrote out a letter after the event and asserted falsely that she had sent it in order to make or improve a case against the opponent. Since the cheque arrived at its destination, the covering letter, had there been one, would have done so too. I accept that the letter was written and I reject the opponent's denial.

In his evidence Mr Kalaf said that he said to Mrs Ikin "my costs have to be secured." She did not ask him how they should be secured nor did he tell her. He did not ask for the money to be sent to his chambers. But she did ask how much she had to pay and he answered "$850." He was then asked this question and gave this answer:- Q. What was your intention when you asked her to secure for costs (sic) as to whether it ought to be paid to her, or to Mr Cassimatis? A. I was clear that those funds should be directed to Mr Cassimatis".

Notwithstanding this evidence it is clear, and not in dispute, that the opponent deposited Mrs Ikin's cheque in his own bank account. In his affidavit sworn on 27 February 1987 (the evidence to which I have just referred was given on 12 October 1987) the opponent had said that upon receiving the cheque from Mrs Ikin (without the covering letter which he denied he received with the cheque) he telephoned Mr Cassimatis who instructed him to retain the cheque providing that the opponent sent Mr Cassimatis a memorandum in respect of his fees. The Bar Association contended that, leaving aside the affidavit, the evidence was capable of establishing that the opponent had solicited money for his own fees from a lay client and, having received it, had deposited it to his own account, in contravention of the standards of conduct of the bar. It is, of course, a question to be determined primarily by the view the Court takes of the opponent's credit whether the explanation advanced in his affidavit is accepted or rejected.

However, Mr Cassimatis, upon this point, must have been a witness who probably would have had knowledge of the event since it was his instruction or request to the opponent that led the latter to keep Mrs Skin's cheque. It was common ground between the parties that Mr Cassimatis was present in court during the hearing in answer to a subpoena served by the Bar Association. Furthermore it seems to me proper to take account of the fact that Mr Cassimatis swore an affidavit which was filed and served by the solicitors acting for the opponent but which was not read. On the first day of the hearing Mr Stitt tendered the record of Mr Cassimatis' interview with the Professional Conduct Committee, which was objected to, and rejected. Referring to Mr Cassimatis Mr Stitt said: "He has sworn an affidavit and notice has been given to him by us to attend for cross-examination"; Mr Toomey rejoined: "I may not tender it." He did not. The question which arises is what effect upon the cases of each of the parties the failure of either of them to call Mr Cassimatis ought properly to have.

In Wigmore on Evidence (1979 Ed) Vol 2, s285 the principle is stated in this way:-

The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so;

and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party.

URJ THE NEW SOUTH WALES BAR ASSOCIATION v KALAF (Samuels JA) 13

In Payne v Parker [1976] 1 NSWLR 191 at 202 Glass JA pointed out that the requirement that it is sufficient to attract the rule that a party claims that a witness has knowledge is insufficient, the correct requirement being that the witness would "probably" have knowledge. In the present case, as I have already indicated, the more stringent test, which I would myself respectfully adopt, is amply met.

But then the question is: which of the parties would have been expected to call Mr Cassimatis? In s288 Wigmore op cit advanced this view:- "It is commonly said that no inference is allowable where the person in question is equally available to both parties; particularly where he is actually in court; though there seems to be no disposition to accept such a limitation absolutely or to enforce it strictly. Yet the more logical view is that the failure to produce is open to an inference against both parties, the particular strength of the inference against either depending on the circumstances." However, it is really a question of whether a witness is "equally available" to both parties. Consequently, the question may be refined into two elements, the first being whether the witness was available (which he obviously was here, and to both parties) and the second whether he was a witness whom the party against whom the inference is sought to be drawn would naturally produce: see Payne at 201-2.

In the present case the opponent had, with Mr Cassimatis, what he agreed was a "close association". The opponent's professional premises were part of premises leased by a company for which the opponent provided gratuitous services and of which he and a Dr Cassimatis, a brother of Mr Peter Cassimatis, were directors. Furthermore we know that Mr Cassimatis provided an affidavit tot he solicitors acting for the opponent. Since the affidavit was not read no reference to its terms can be made, but I think that I can infer with confidence that it would not have been filed on the opponent's behalf unless it would not have been filed on the opponent's behalf unless it did not contain material adverse to his interests. I have no hesitation in concluding that I would have expected Mr Cassimatis to be called by the opponent on any of the grounds referred to by Glass JA in Payne at 201. I can well understand that the Bar Association might well have been disinclined to call Mr Cassimatis, apprehending that he would be benevolently cross-examined, by counsel for the opponent. The opponent's failure to call him is, in my view, susceptible of only one inference, that is, that the opponent feared the consequences of Mr Cassimatis' testimony under cross-examination.

I turn back to the five particulars of misconduct which the opponent's dealings with Mrs Ikin are alleged to reveal. The second and fourth are, of course, admitted. I am satisfied that the first and third are proved in their terms. That is to say, I find that the opponent had erected an artificial arrangement with Mr Cassimatis and that he collected directly from Mrs Ikin a sum of money to cover his fees. I am satisfied that the fifth particular has been established. The fees are in my opinion, excessive for the small amount of work done. I appreciate that I am not to equate the fees properly charged by a member of the bar with those properly charged by a registered tax agent. But I derive a useful idea of the extent of Mrs Ikin's problem from her evidence that a registered tax agent prepared four tax returns for her (there is no evidence of what he charged) and she was then assessed to tax in the sum of $198.12. It was scarcely a matter of complexity requiring the extent of effort which the opponent says he put into it. Moreover, I draw an adverse inference from his final abandonment of the balance of his fee.

The second matter of complaint concerns the opponent's application to the Supreme Court to have his name removed from the roll of barristers in order to be admitted as a solicitor. It is alleged that he failed to make full disclosure of the terms of the Bar Council's finding of professional misconduct against him in

5 August 1981. That matter arose out of a contract for the sale of land and chattels to a company of which the opponent was a director. The vendor complained of the opponent's conduct which appears, in the opinion of the Bar Council, to have involved the use of his standing as a barrister and his presumed legal knowledge

10 to mislead and threaten the vendor. The President of the Bar informed the opponent that his conduct "fell short of the standard required of a barrister and amounted to professional misconduct" and that he should be severely reprimanded. The opponent annexed to his affidavit in support of his application, sworn 31 July 1986, what purported to be an account of this affair. So far as 15 relevant it was as follows:

The basis of his claim being that I attempted to mislead him.

A genuine dispute arose over the ownership of etchings and engravings at the time the real property was to be transferred along with all the other contents of the house that was not in dispute.

20 5. My rebuttal to the allegation of misleading in which he did not rely upon is: (i) The vendor has a duty to himself to ensure that he has independent legal advice qua-vendor vis a vis the purchaser. (ii) That Dr Green sought to exploit my vulnerability by applying pressure 25 on me to prevent the purchaser from exercising its rights by seeking a

remedy in the form of a declaration that the property in the said items had passed to the purchaser on exchange of the contract.

It was held that my conduct fell short of the standard required of a Barrister.

This must be compared with the text of the President's letter:- "The Bar

30 Council is of the opinion that in the matter which was the subject of a complaint

by Dr Green, your conduct fell short of the standard required of a barrister and amounted to professional misconduct in the following respects:-

35 2. in making the accusations of deceit and false representation on 17 November 1979;

in stating to Dr Green as a matter of law that by reason of the 'false representation' about the ownership of the dinghy and clothes dryer, Dr Green had lost his right under the contract to remove those items;

40 4. in impliedly threatening legal action if Dr Green sought to pursue his claims, which were undoubtedly good in law;

in leaving for Dr Green on 16 November 1979 the message concerning the money for the telephone bill, which message was in the finding of the Committee at least intended to embarrass Dr Green.

45 The Bar Council resolved that you should be severely reprimanded and that I should convey this advice to you.

It will be seen that, first, the opponent's document substantially consists of exculpatory matter which the President's letter does not justify; and that, secondly, the opponent mentions neither the finding of Professional misconduct

50 nor the severe reprimand. On the face of it the annexure is misleading and falls very far short of conveying an accurate description of the circumstances in

URJ THE NEW SOUTH WALES BAR ASSOCIATION v KALAF (Samuels JA) 15

question. It does not amount to a proper disclosure. His explanation before this Court was unconvincing and contradictory. For example:-

Q. Did you consciously believe at the time that you swore the affidavit that it was not necessary for you to state expressly a finding of professional misconduct against you?

A. It is necessary for me to say that; I must say that.

A. I did not say it because I did not have the actual document in front of me and it was six or seven years ago and all I could remember was that a finding had been made against me and I put the facts as I recollected them.

SAMUELS JA: Q. You mean you have forgotten that there had been a finding of professional misconduct against you?

A. No, I had not, what I knew was that the words stuck out in my mind was that my conduct fell short of a barrister and I agree that the following phrase now should be amended to "professional misconduct".

Q. Was any penalty imposed when this finding was made by the Bar?

Q. Did you make any such inquiry as to the precise terms of the finding that had been made against you?

Q. Did those files contain the information that a finding of professional misconduct had been made against you?

SAMUELS JA: How were you told of that, by what means?

A. There was a letter sent to me and that letter was 1980 or 1981 and I couldn't find that letter and I had vividly recollected the facts and I vividly recollected what I believed was in that letter but I couldn't write down the letter verbatim but I stated the facts and I have indicated that my conduct fell short of a barrister and I honestly and genuinely -

Q. Did the letter convey any penalty to you; did it indicate that a sanction or penalty of some kind had been imposed upon you?

A. My recollection was that it was considered as a reprimand.

Q. You have forgotten that severe reprimand, have you?

Q. Bar Council resolved that you should be severely reprimanded, that it should convey these facts to you?

Q. You had forgotten that had been said in the letter?

A. Yes, at that time of swearing the affidavit I had forgotten that.

lam satisfied that the opponent deliberately chose not to disclose the full story, and to impart to the Solicitors Admission Board what he knew to be a sanitised and inaccurate account of the transaction, his intention being to mislead the Board by presenting his previous conduct in a favourable character which it would not truly bear. I therefore find professional misconduct arising out of his dealings with Mrs Ikin, in the respects specified, and in connection with his application to the Board.

The issue which remains is that of determining the orders which the Court should make in the exercise of its protective jurisdiction. Mr Toomey with disarming ingenuity presented the opponent as an honourable man led astray by ignorance of the rules of professional conduct. His case was: "I am ignorant. I have no background. No one taught me." I cannot accept this excuse.

The opponent graduated in law from the Australian National University in 1971, having completed Evidence and Ethics at the University of Sydney. He worked as a clerk with a firm of solicitors in Sydney for three months in 1972, and then moved to Darwin. He was admitted to the bar of New South Wales in February 1973, and as a barrister and solicitor in the Northern Territory where he spent two and a half years as an employed practitioner. He returned to Sydney in March 1975. He took chambers first in Phillip Street, and then in Wardell Chambers for twelve to eighteen months. He read with a member of the bar but spent very little time with him and learned nothing from him. The opponent was not a member of the Bar Association and had not read the rules of the Association until about April 1986. He left Wardell Chambers and moved to 105 Pitt Street where he confined himself to taxation law as he had done ever since returning to Sydney from the Northern Territory. There his work came to him almost wholly from members of the public or from accountants, rarely from solicitors. But, he said in evidence "There has never been an occasion when I have acted in my capacity as a barrister without being briefed by a solicitor." Upon this point he was scrupulous. For example:

Q. When you referred either the individuals or the accountants to a solicitor did you receive a brief in respect of that on each occasion?

I think you have told their Honours that there was no occasion when you acted in your capacity as a barrister without being briefed by a solicitor? Never.

By that I take it you meant that you had received a document of briefing from a solicitor. A. And signed by him.

Q. Did you in the usual case name them a solicitor? A. Initially I used to, but then I used the phrase 'You seek a solicitor of your natural choice.

SAMUELS JA: Why was the reason for the change in practice?

A. Well your Honour, I began to become aware that it could be interpreted that I was showing some favouritism to any particular solicitor and I was most strident (sic) about that.

KIRBY P: Q. Was that particular solicitor Mr Cassimatis?

Now this evidence seems to me to establish a firm appreciation of a fundamental rule of practice at the bar and an answering resolve to observe it. And the opponent was aware "that conferences with the client should be with the solicitor unless there were extremely compelling circumstances." In this light his protestations of ignorance seem to me to be humbug. He asserts that he knew of no rule that prevented his making direct contact with the Taxation Office. So be it. But he did know that he must be properly briefed and by using Mr Cassimatis as a solicitor of convenience, as I have found he did, and by nominating him

URJ = THE NEW SOUTH WALES BAR ASSOCIATION v KALAF (Mahoney JA) 17

alone, as I have also found he did, he flouted rules which he seeks to persuade the Court he observed without exception.

I must add this. In 1981, only four years or so before his first meeting with Mrs Ikin, he had been found guilty of professional misconduct and severely reprimanded. The circumstances were very different from his transaction with Mrs Ikin. But he had already had one encounter with the bar's disciplinary body. He had been told that his conduct had fallen short of the standard required of a barrister. This was a sharp warning to find out what that standard was. I must reject the argument that his ignorance is excused because no one took the trouble to educate him. He was a trained professional of mature years, able to find out for himself what he felt it necessary to know. I am afraid that in my opinion the opponent was well aware of the conduct required of a barrister in the respects in suit; and, as I have found, deliberately ignored them, because, I infer, their constraints did not suit the type of practice he had undertaken.

Mr Toomey put to us that since, as he conceded, the opponent had practised in the style of a solicitor rather than that of a barrister, the situation might be resolved by letting him pass over to the other branch, which in any case the opponent had decided to do. But counsel recognised that this solution would not be appropriate if some "lack of candour with the court" was "such as to demand his suspension for some period of time."

In my view the opponent displayed a significant lack of candour with the Court. He did not tell us the truth about his dealings with Mrs Ikin in the particulars I have specified, or about his general practice with respect to obtaining the formal validation of a nominal brief, or about his relationship with Mr Cassimatis. He was not truthful about his concealment from the Solicitors Admission Board of the full account of his censure by the Bar Council. The President, when the opponent commenced his evidence, thought it right, as indeed, with respect, it was, to warn him "of the consequences which might flow from not being totally candid with the Court in this situation." That advice unfortunately went unheeded.

In my view the opponent's conduct was not the product of ignorance; nor was it "some isolated or passing departure from proper professional standards amounting to something less than proved unfitness" New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183. The opponent chose his style of practice for the benefits which he could derive from, evading the regulations and codes of conduct of both branches of the profession. His conduct does not involve merely some failure to observe a technical rule of practice. It constituted a complete departure from what was required, and, in particular, included a substantial incident of overcharging. Further the defence selected - ignorance - foundered on his own untruthful but vigorous assertion of compliance with rules which he firmly and correctly identified; and, a matter of great importance, he sought refuge in lying to the Court.

I see no ground for suspension see Evatt supra. The opponent has been shown to be unfit for professional practice and it is necessary in protection of the public to remove him from the roll. His name should therefore be removed from the Roll of Barristers. He must pay the costs of the proceedings.

Mahoney JA The facts are detailed in the judgment of Samuels JA and I shall not repeat them.

The issue in the present appeal is not whether there has been misconduct; it is how serious the misconduct is and what should be done about it. Mr Toomey QC, for Mr Kalaf, has conceded that what Mr Kalaf did constituted misconduct. As

was put for him, he acted rather as a solicitor than as a barrister. He dealt with his clients without solicitors being present; he dealt directly with the Department of Taxation and with banks and building societies with which, in this case, Mrs Ikin was concerned.

This was contrary to the rules regulating the way in which barristers should act. Whether this should be so and why it is so are not in question in this appeal. Mr Kalaf either knew that what he was doing was, in the relevant sense, wrong or he should have known. If he did not know, that itself constitutes conduct unacceptable in a barrister.

However, the Bar Association has contended that the matter is more serious It submits that the evidence establishes further and more serious misconduct. Mr Stitt QC has contended that Mr Kalaf lied in respect, in particular, of the way in which he dealt with the sum of $850 paid to him by Mrs Ikin; and that he lied generally in relation to the way in which he received instructions from and dealt with Mrs Ikin. These are not the only matters to which Mr Stitt QC referred. But they are among the main matters on which he relied and I shall take them as illustrating what is urged against Mr Kalaf in this regard.

As to the $850: It is agreed that Mr Kalaf received $850 by cheque from Mrs Ikin on account of fees payable by her and that he put the cheque into his own bank account and retained it. Mr Kalaf said that he did this by arrangement with Mr Cassimatis as instructing solicitor. He said that he spoke to Mr Cassimatis, told him that he had received the cheque, and' asked him what he should do with it. Mr Cassimatis, he said, told him to keep it on account of his own fees.

The Bar Association has submitted that the court should conclude that Mr Kalaf was, in this regard, not telling the truth: it submitted that there was no such conversation.

Were the matter to be determined upon the basis only of the evidence of Mr Kalaf and Mrs Ikin, it would be necessary to choose between them. Mrs Ikin was, in my opinion, endeavouring generally in her evidence to speak both truthfully and accurately. I do not doubt that she was endeavouring to tell the truth. But Mr Toomey QC, for Mr Kalaf, submitted that she was not, in all things, accurate in respect of some things, she was not: at least, her evidence was not without inconsistencies. Mr Stitt QC submitted that, where Mr Kalaf was in conflict with Mrs Ikin in relation to what happened concerning the $850, he should not be accepted. Were it necessary to determine the matter by choosing between the evidence, in relation to this matter, of Mr Kalaf and Mrs Ikin, it would be necessary to review the details of what was said by them with particularity and to decide between them. But I do not think that, as the appeal has proceeded, it is necessary to do so. This is because of what occurred in relation to Mr Cassimatis.

Mr Cassimatis was, Mr Kalaf, contended, the solicitor instructing him in the matter. Mrs Ikin went to see him and Mr Cassimatis did send a form of brief to Mr Kalaf. He could, if called in this proceeding, have established that Mr Kalaf did or did not speak to him as Mr Kalaf suggested. He was not called and no explanation was given, at least in evidence, as to why he was not. The court has been told that he was, during the appeal, present in court on subpoena by the Bar Association. Either party could, of course, have called him.

If Mr Cassimatis had been called, had said that Mr Kalaf did have the conversation with him, and had been accepted in that regard, then this complaint against Mr Kalaf would have failed. He did not lie, as it was suggested he had done.

URJ = THE NEW SOUTH WALES BAR ASSOCIATION v KALAF (Mahoney JA) 19

In the absence of the evidence of Mr Cassimatis, I am not satisfied that the telephone conversation to which Mr Kalaf deposed did not take place. I am therefore not satisfied that Mr Kalaf was, as suggested by Mr Stitt QC, not telling the truth in this regard. I do not, in so deciding, express any opinion as to the principles which should determine whether there is, in general, an onus upon the Bar Association or similar body to call all available evidence bearing upon the issue of misconduct. Such an issue does not necessarily arise in the present case and there has been no detailed examination of the considerations involved. But, where the issue is whether a party who has given evidence on oath has lied, where his evidence is not inherently unacceptable, and where a witness who could confirm or deny his evidence is not before the court and could have been, the court must consider carefully whether, in the relevant sense, it is satisfied that the deponent gave false evidence.

What is involved is not whether Mr Kalaf's conduct was satisfactory: that can be dealt with by the order which is to be made. The present issue is whether, in respect of the $850, he lied. What is involved is whether, absent the evidence of Mr Cassimatis, the court should be satisfied that Mr Kalaf did so.

The significance of finding that Mr Kalaf lied would be great. That finding would involve, not merely professional misconduct, but perjury. What is involved in the making of such a finding, and the extent to which the court must be satisfied in finding it, has been discussed in cases such as Briginshaw v Briginshaw 60 CLR 336 and Helton v Allen 63 CLR 691.

In this case, this issue does not turn on matters of onus or on the inferences which may be drawn from the failure to call a witness. An issue as to whether a conversation took place is not the same as an issue as to whether a witness lied about it. A court may decide, with the proper degree of satisfaction, that the conversation did not take place and, in doing so, it may refuse to accept the evidence which a witness gave. It does not follow that if the issue be whether the witness lied, it would be prepared formally to find that issue against him.

In this case, Mr Cassimatis not having been called, I am not satisfied that Mr Kalaf was in this regard not telling the truth. My conclusion does not involve criticism of the parties and in particular of the Bar Association. Decisions as to whether a witness is to be called must be made and the court does not know the circumstances in which the present decision was made. Such decisions tend, I think, to appear more important from the Bar table than from the Bench. In Bassett v Host [1982] 1 NSWLR 206; 57 ALJR 681; at 213, I said: "It is not necessary to consider whether or in what circumstances a trial judge may, without consent, call or direct the party to call a witness:..... But a trial judge faced with such a situation as faced the trial judge in this case should, in my opinion, consider carefully whether action should be taken by him to ensure that the necessary evidence is before the court. There are, in my opinion, circumstances in which a trial judge may and should exercise his influence to this end. What philosophy should inform a trial judge's participation in a trial (whether he should be an umpire or something more) will no doubt require consideration from time to time. But, whatever philosophy be adopted, a trial judge has the right and, in my opinion, the duty, in the proper case, to use his influence to see that the court has before it the evidence necessary for the proper determination of the issues. I do not mean by this that each judge must be a Sirica in pursuit of Watergate. But, whatever be the philosophy adopted, it places no premium on gaps in the evidence. I appreciate the niceties of trial practice and the right of parties to the presentation of the case of their choice. What a judge will do will

depend upon the circumstances of the case and there will sometimes be reasons why he will not intervene. But often this will not be so. Thus, on occasions, a judge may suspect that a witness is not called because each party fears the other and not he, will have the cross-examination of him. In such cases, a trial judge may, in my opinion, properly ascertain what the position is and, if it is such, may make clear to the parties that his procedural powers will be exercised to ensure that each party has fair access to and an appropriate right to question a witness, by whomever called".

In the present case, the significance of the evidence of Mr Cassimatis was made apparent.

In disciplinary proceedings such as this, considerations of this kind are, I believe, of particular relevance. It is, in my opinion, the duty of a practitioner in question in such proceedings to make a full and frank disclosure of the facts. He or she is not entitled merely to stand mute or "to put to proof" the body proceeding in the matter. A fortiori, the practitioner may not put forward a case known to be untrue: of Bridges v Law Society of New South Wales [1983] 2 NSWLR 361 at 376G.

It is also to be expected that the body in question will put before the court the material which, as far as it is aware of it and as far as it is within its power to do so, is of significance for the purpose of decision in the particular matter I do not mean by this that the Bar Association is always required, for example, to call evidence in which it does not believe merely because, if believed, it would assist the other party. What it should do must be determined by the considerations of the particular case. But where it asks the court to find, and act on a finding, that a party or witness has lied and asks the court to do so upon the basis of matters such as demeanour or upon, as it has been described, "word against word", it should not ordinarily expect that such a finding will be made or acted upon if there is a person who is able to establish the truth of the matter and that person is not called.

I am conscious of the possibility that the Bar Association may be put in the position of calling a witness whose evidence will benefit the practitioner. This is not a novel situation: Crown Prosecutors are faced with it. Such a body may normally assume that the practitioner will place before the court evidence which favours him. But where the case presented against the practitioner involves that a particular finding be made by the court and a witness can speak as to it directly, ordinarily that witness should be called. The matter should not be left to inferences of the kind to which I have referred.

As to the other dealings with Mrs Ikin: Similar questions arose also in relation to other aspects of Mr Kalaf's evidence. In particular, they were raised by Mr Stitt QC in relation to the initial discussions between Mr Kalaf and Mrs Ikin and the role which Mr Cassimatis played in that regard. It was suggested, in effect, that tar Cassimatis' name was introduced by Mr Kalaf only as a formality and that he did not and was never intended to perform any relevant functions as a solicitor in the relationship between Mr Kalaf and Mrs Ikin.

In this regard, there were differences between the evidence of Mr Kalaf and of Mrs Ikin. It has been submitted that the court should accept Mrs Ikin's evidence and, on that basis, should hold that Mr Kalaf gave false evidence and so was guilty of further misconduct.

URJ = THE NEW SOUTH WALES BAR ASSOCIATION v KALAF (Mahoney JA) 21

Mrs Ikin saw the role played by Mr Cassimatis as merely formal. She suggested, in effect, that she had been directed to go to him. On Mr Kalaf's evidence she was given a choice and Mr Cassimatis played something more than a formal role in the relationship.

In the material before the court is a document purporting to be a letter dated 14 January 1986 written by Mr Cassimatis to Mrs Ikin. Mrs Ikin said that she did not receive it. The letter, in its terms, provides evidence that the relationship between Mr Kalaf and Mrs Ikin was somewhat more regular than, upon the evidence of Mrs Ikin alone, it might be concluded to have been. But the court has not the evidence of Mr Cassimatis as to whether or not it was written.

The letter, in its terms, provides, indirectly but significantly, some support for what Mr Kalaf said. If it was written as it purports to have been, I would not be satisfied that Mr Kalaf misstated the position as Mr Stitt QC submitted he did.

No attempt was made to prove, or disprove, the authenticity of the letter. It was tendered as part of the evidence of the Bar Association. And Mr Cassimatis was not called to prove that the letter was written or, more significantly, to prove that it was not.

In the circumstances, I am not prepared to conclude that it was not written as it purports to have been. That conclusion would require the inference or the conclusion that Mr Cassimatis and, it may be, Mr Kalaf brought the letter into existence for the purpose of misleading some person, probably the court in this application. In the absence of an examination of this question, by the calling of Mr Cassimatis, I am not prepared to conclude that Mr Kalaf lied as to the role which Mr Cassimatis was to play.

For these reasons, I do not accept the submissions of the Bar Association that, in the respects to which I have referred, Mr Kalaf misled the court in the present proceeding.

It was submitted that, in other respects, Mr Kalaf misled the court. For example, Mr Kalaf has made an application to the Solicitors Admission Board for admission as a solicitor. The submission by the Bar Association has been that he failed adequately to disclose that, on a prior occasion, he had been the subject of unfavourable consideration by the Bar Council and had been "severely reprimanded". Mr Kalaf accepts that he was "severely reprimanded" and that he did not disclose that fact to the Solicitors Admission Board. He says, in effect, that he did not recall that that had happened. I shall assume for present purposes that his conduct in this regard was conduct of a barrister relevant for the purposes of this application.

The disclosure to a body such as the Solicitors Admission Board of previous disciplinary proceedings and the result of them is a matter of significance. It is a matter which, before an application is lodged, should be investigated and the person in question should do what is appropriate to ensure that what is stated by him to such a body is correct. On Mr Kalaf's evidence, he did not act properly in this regard.

I come now to consider the orders which should be made.

Mr Kalaf's conduct as a barrister has been generally unsatisfactory. His view of what was proper conduct on the part of a barrister during the relevant time is unacceptable. Without limiting the matters in respect of which complaint has properly been made, the way in which, as it has been conceded, he acted when dealing with Mrs Ikin is a matter of concern. It is proper to have in mind the likelihood that he dealt similarly with others. And I take into account what happened in relation to his application to the Solicitors Admission Board.

Mr Toomey QC has emphasised the essential purpose for which orders are made in disciplinary proceedings of this kind. They are not directed to punishment but to the protection of the public. It has been said for Mr Kalaf that what he did was done because of a failure to appreciate what was required of a barrister, that he now realises what he did was wrong, and that he will not in future offend.

I do not think that what has happened indicates that Mr Kalaf is in character or competence such that he should be finally removed from the roll of barristers. Iam, for example, not satisfied that what has occurred indicates that he will act generally in defiance of the appropriate rules governing professional conduct. It has been submitted that Mr Kalaf has reconsidered his position and that, subject to the censure of his previous conduct, he is now fit to practice.

I do not think that this is so. The default is too substantial to be dealt with merely by a reprimand.

It has been conventional for the court, on appropriate occasions, to deal with misconduct by suspension from practice. This is, in my opinion, the appropriate course in the present case. Mr Kalaf should be suspended from practice for one year from the date of the court's judgment.

It is not necessary to express any opinion as to the effect of this upon Mr Kalaf's application to become a solicitor. That is a matter to be dealt with by the Solicitors Admission Board.

Mr Kalaf should pay the costs of the present proceeding.

The Court:

FINDS that the opponent has engaged in acts of professional misconduct;

ORDERS that the opponent be suspended from practice as a barrister for one year from this date; and
ORDERS that the opponent pay the claimant's costs of the proceeding.

At a glance

Court

Decision date

Before

Source

Judgment (189 paragraphs)

Parties

Cases Cited (4)

Cited By (1)