THE NEW SOUTH WALES BAR ASSOCIATION v MADDOCKS

Court of Appeal (NSW)|1987-07-07|Before: Kirby P, Samuels JA

THE NEW SOUTH WALES BAR ASSOCIATION v MADDOCKS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and MCHUGH JJA 7 July 1987; 16, 17 March 1988; 15 April 1988, 23 August 1988 [1988] NSWCA 102

LEGAL PRACTITIONERS - barrister - removal from roll - threatening litigant in personal litigation with disclosure of insurance fraud - representing to court that fit to be appointed as company director although undischarged bankrupt - conducting twenty hours of conferences in hotels without a solicitor or clerk in a case involving serious criminal charges - dishonesty and lack of candour to the Court held: professional misconduct - name ordered to be removed from the roll of barristers. LEGAL PRACTITIONERS - barrister - removal from roll - procedure comments by Kirby P (Samuels JA concurring) on the desirability of fact finding in relation to disputed matters of fact by a single judge, leaving review of fact finding and determination of consequences of facts as found to the Court of Appeal. PRACTICE & PROCEDURE - legal practitioners removal from roll - comments by Kirby p (Samuels JA agreeing) on desirability of reference of fact finding in disputed questions of fact to a single judge.

Kirby P The New South Wales Bar Association (the Association) by summons seeksdeclarations that John David Maddocks (the opponent) is guilty of professional misconduct, has engaged in unprofessional conduct, has acted in a manner contrary to the standards of practice becoming a barrister and is not a fit and proper person to be a member of the Bar. The Association claims an order that his name be struck off the roll of barristers.

The principles applicable to a summons seeking disbarment of a barrister are not, so far as this case is concerned, in doubt. Relevantly, they include:-

The Supreme Court has the power to remove a barrister from the roll. Its power is derived either from the Charter of Justice or from the inherent power of the Court and is incidental to the Court's power to admit persons to practise as barristers. See In re Davis (1947) 75 CLR 409, 423.

The onus of proof of the conduct alleged to warrant disbarment rests upon the proponent, whether the Prothonotary or the Association. It is the civil onus. See Re Evatt; ex-parte New South Wales Bar Association (1967) 67 SR (NSW)
But in considering whether the facts alleged have been proved, the Court takes into account the gravity of the matters alleged and the very serious consequence which disbarment has upon a person subject to such an order. See Ex Parte Attorney General (Cth); Re a Barrister and Solicitor (1972) 20 FLR 234, 236; applied in New South Wales Bar Association v Livesey [1982] 2 NSWLR 231, 238.

The Court will distinguish between the case of an isolated or passing departure from proper professional or personal standards and the case where repeated demonstration of such departures prove unfitness to practise. Cf NSW Bar Association v Evatt (1968) 117 CLR 177; 183.

The enquiry conducted by the Court is whether the practitioner has been shown not to be a fit and proper person to be a member of the Bar. It is an enquiry said not to be capable of more precise statement. See Ziems v Prothonotary of Supreme Court of New South Wales (1957) 97 CLR 279, 297; applied and discussed in Prothonotary of Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201, 206 In considering charges of professional misconduct, the test to be applied is what would reasonably be regarded as disgraceful and dishonourable by the professional colleagues of the practitioner who enjoy good repute for integrity and competence. See Costello, 203, 207.

Although a distinction is sometimes drawn between "conventional rules", on the one hand, and "fundamental" standards, on the other, (as to which see Clyne v New South Wales Bar Association (1960) 104 CLR 186, 199) and although breach of the former will not, unlike breach of the latter, ordinarily require disbarment, persistent and deliberate conduct in breach of important conventional rules may be such as to indicate that a practitioner is not fit to practise as a barrister. See Clyne, ibid, 200; In Re John Cameron Foster (1950) 50 SR (NSW) 149, 151 and Livesey (above) at 263.

Once it is found that the practitioner is guilty of professional misconduct, the question of his or her honesty to the Court is raised. A conclusion that the practitioner has been dishonest will bear directly upon the opinion of the Court as to whether the practitioner is fit to practise as a barrister. See Re B [1981] 2 NSWLR 372, 381; Livesey (above), at 233. Fair procedures require that, if a Court is to rely upon a conclusion that the practitioner has been dishonest in evidence to the Court (whether in addition to or substitution of the grounds stated in the summons), notice should normally be given to the practitioner in this regard. Honesty and candour to the Court are important indications of the practitioner's fitness to carry on practise as a barrister.

Once professional misconduct is proved, it does not automatically follow that the barrister will be removed from the roll. Sometimes there will be no utility in so ordering. Sometimes the mere finding will, having regard to its nature, sufficiently discharge the function of the Court. See Costello (above) 207, 211.

That function is, from first to last, to protect the public. It is sometimes said to be also protective of the profession. See eg In re S (A Barrister) [1981] 1 QB 683, 691. However, the only claim of the profession to protection is as the discharge of its functions advances the public interest. 10. In evaluating, by these criteria, the proper order to be made in a particular case, an understanding of the position of the practitioner, and an evaluation of evidence called as to good fame and character will all be taken into account. Cf Dixon J in Davis, above, 426. But it is more likely, in cases of professional misconduct, that the Court will withhold disbarment or suspension where the practitioner has admitted guilt. Cf In re S (above) 691. This is not simply because such admission may save time and avoid unnecessary controversy. It is because a barrister is more likely to be accepted by judges and fellow practitioners if, despite lapses, he or she acknowledges frankly a recognition of the errors that led to them. Denial which is not accepted, and contest which fails, may reinforce the conclusion of obtuseness or lack of self insight which require action by the Court to protect the public. The community deals with barristers as participants in its institutional arrangements for the administration of justice and the enforcement of the law. That is why very high standards are required by the law and enforced by the Court.

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The present summons first came before the Court on 7 July 1987. At that time the opponent appeared for himself. As a result of the evidence placed before the Court by the Association and certain questions which arose in the opponent's cross-examination of a key witness, the Court warned the opponent that he should be legally represented. It took this course having regard to the seriousness of the issues raised and their possible consequences for him. Further hearing of the summons was then adjourned.

In due course, in March 1988 the proceedings were recommenced. By this time, the opponent was represented by Senior Counsel. The Court gave leave for the recall of witnesses who had earlier given their evidence. They were then submitted to further cross-examination by counsel. At the close of the evidence, the Court called for written submissions. These were supplied in considerable detail. They have refined the four issues which have to be considered by the Court in responding to the summons. Put generally, those issues raised the following questions.

Did the opponent, in certain litigation in which he was engaged in 1977, convey to his opponent in the litigation, through that person's solicitor, a threat to disclose to police that person's alleged involvement in an insurance frauds in an attempt to induce him to withdraw his proceedings against the opponent?

Did the opponent, in related civil proceedings in 1977 in the Supreme Court, although then an undischarged bankrupt and knowing it to be an offence as such to hold office as a company director, seek to procure his immediate appointment by the Court as a director, without candidly disclosing to the Court his status as an undischarged bankrupt?

Did the opponent accept instruction as a barrister in June 1985 on behalf of a client, Mr R A Ralph, without the intervention of an instructing solicitor; conducting conferences with him in inappropriate places and without the attendance of a solicitor or clerk; soliciting and receiving from him payment of fees in cash; and in other ways acting in breach of the accepted standards required by the Court of barristers and, in some respects, contrary to the provisions of the Rules of the Association?

Did the opponent give sworn testimony to the Court in these proceedings which was false, thereby demonstrating his unfitness to practise at the Bar?

Having stated generally what the case is about, it is important to state what it is not about. It is not a trial of the opponent to punish him for wrongdoing, neglect of duty, breach of conventional practice or false testimony. The purpose of the jurisdiction here exercised is the protection of the public. Barristers have privileges of audience and of partial immunity from Civil liability in discharging at least some of the duties they perform. In a real sense, their functions are integral to the performance by courts, tribunals and others of the administration of justice in our community. To these privileges attach duties and responsibilities. The Court is the guardian for the public that the persons practising as barristers in this State are those who have the qualifications as well as the personal qualities of honesty and integrity which are essential to that practice.

Nor is this a case concerned with a general inquiry into the orthodoxy of the opponent's practice as a barrister. It is a summons for declarations and for an order for his removal from the roll upon particularised grounds. The consequences of such an order are potentially devastating both for the livelihood and reputation of a barrister. It is therefore essential that the case be approached, as it has been, with strict attention to the particularity of the charges and to the

evidence tendered in proof of, or answer to, them. As will appear, the opponent's career and mode of practice, were unusual. But the jurisdiction invoked is not exercised to stamp upon members of the Bar a single and inflexible mode of practise, irrespective of the nature of the work performed or clients served. What is at stake is not decorum and orthodoxy of behaviour. Rather, it is the enforcement of those standards of personal and professional conduct considered prerequisite to the performance by a person of the functions of a barrister.

Nor is the case about the competence of the opponent. As will appear, in his purported performance of functions as a barrister for Mr Ralph, his client, he fell far short of the vigilant, energetic and enterprising activities which might be expected of a barrister defending a client upon very serious charges where his reputation, livelihood and liberty were at stake. It is understandable that it is not every case of carelessness or oversight on the part of a barrister which results in disciplinary proceedings or in summons such as the present. Because the jurisdiction is for the protection of the public, one ground for the order which is sought would clearly be serious, repeated or prolonged neglect or incompetence in representing the interests of the client. But that is not the case which the Association brings against the claimant. To the extent that I consider that the claimant, purporting to act as a barrister and receiving money for that purpose neglected the essential steps which should have been taken to defend his client's interests, I have put this consideration out of my mind. The case perhaps illustrates the way in which proceedings of this kind have tended, in the past, to be concerned with suggestions of misbehaviour and moral delinquency on the part of the barrister rather than failure to attain basic professional standards. Each is equally important for the protection of the public. But this Court must deal with the case brought by the Association. It is only that case which the opponent is called upon to answer.

Finally, no relief was sought from the Court's consideration of the relevance of the events of 1977 to the opponent's fitness to practise as a barrister as, for example, on the ground that reliance upon those events would now constitute an abuse o the court's process or be otherwise unfair. In the European Court of Human Rights the importance of promptness in dealing with allegations of professional misconduct has been stressed in a number of cases. See eg Konig v Federal Republic of Germany (1978) 2 EHRR 170. This question was raised by the Court at the end of evidence. Reference had been made by the opponent to the delay and to the apparent failure of the Association to bring proceedings in 1985 following the completion of an inquiry into them by the Bar Ethics Committee. However, no application was made for the Court to stay so much of the summons as relies upon the events of 1977. I consider that it is not unfair to consider those events in the circumstances. They only came to the notice of the Association in 1985 when, following certain proceedings in the District, Court, Sinclair DCJ referred the conduct of the opponent, as disclosed in those proceedings, to the Association. The delay of nearly two years following the completion of the Committee's work is unexplained But no additional prejudice to the opponent has been disclosed. It seems clear that it was the complaint of Mr Ralph which finally caused the Association to bring the case before the Court and, in doing so, to raise the matters of the 1977 litigation.

The opponent's practice as a barrister The opponent was admitted to practise on 15 March 1957. In 1960 he was

called to the Bar by the Inner Temple in London. He practised there between 1960 and 1963. He returned to full time practice in Sydney in 1963 and remained

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so engaged until 1965. He then went to Hong Kong where he practised at the Bar, apparently for a year. On his further return to Sydney he had chambers and a clerk. Later, apparently in about 1969, he sold his chambers. His practice was apparently small. For a time he shared chambers and used the services of his former clerk. In about 1973 he ceased entirely to practice as a barrister.

It was at this time that he began to work with Mr Allan Logan. Mr Logan was a loss assessor who invited him to participate in a business of insurance loss investigation. The opponent was to advise on issues of liability. In return, he claimed that he was promised shares in a company to be established. He later discovered that the company did not exist. Instead he received a share certificate in another company called "DJE Constructions Company" (DJE). The face value of the shares was said to be $6,000. He claimed that the certificates represented part payment for the work he was doing with Mr Logan in assessing insurance claims. He claimed various other benefits, including the use of a motor vehicle.

Unfortunately, the opponent and Mr Logan fell out. Proceedings concerning a dispute between them commenced in the Equity Division of the Supreme Court in 1977. One proceeding was brought by Mr Logan against the opponent. Separate proceedings were commenced by the opponent and DJE. During the whole of the course of the proceeding in the Equity Division, the opponent was an undischarged bankrupt. It was common ground that he had been made bankrupt on 25 May 1970. He was not discharged from bankruptcy until 2 February 1986.

It was in the course of the proceedings commenced by Mr Logan against the opponent that it is alleged that the opponent threatened to disclose to the police an insurance fraud by Mr Logan in an attempt to induce the latter to withdraw his proceedings against the opponent. It was in the course of the proceedings against DJE that the opponent allegedly sought his appointment as a company director by the Court although not disclosing his status as an undischarged bankrupt to the Court. It will be remembered that these are the first two issues raised by the summons. There is no dispute that the opponent, both to Mr Logan and his solicitor, referred to the suggested involvement of the former in a suggested insurance fraud. Nor is there any suggestion that the opponent was himself a party to that fraud. In due course, the opponent brought the suspected fraud to the attention of the police, as was his duty by the general law. The police investigation led eventually to the charges against Mr Logan upon which he was convicted before Sinclair DCJ. The Association's case is that, instead of proceeding immediately to report a suspected insurance fraud by Mr Logan to the police, the opponent did not do so until after an endeavour had been made by him to induce Mr Logan to withdraw his proceeding against the opponent for fear of reporting to the police. Whilst admitting that, had he so acted, it would have been disgraceful conduct unbefitting a barrister (not to say a breach of the law), the claimant denied the interpretation of events offered by the Association. He put forward an interpretation of events seeking to explain his tardiness in reporting the suspected fraud to the police.

So far as the application to be appointed a director of DJE, the opponent admitted (as the documents filed in court at the time necessitated) the application and that he had not disclosed his bankruptcy. But he said that, although not disclosed, it was his expectation that before securing appointment he would be discharged from bankruptcy. It is to be noted that during all of the opponent's dealings with Mr Ralph, he was an undischarged bankrupt. He admits to receiving $1,000 in cash from Mr Ralph and that he gave no account to his

creditors for that sum. He said that this course of conduct was condoned by the Registrar in Bankruptcy. It appears that the opponent was discharged from bankruptcy by the effluxion of time.

Threatening a litigant with criminal proceedings may amount to professional misconduct. See In the matter of Swanwick; ex parte Bain (1883) 1 QLJ Rep 117; cf In re Gent One and In re a Barrister (1921) 37 WN (NSW) 271.

The insurance fraud which was the subject of the alleged threat by the opponent arose in the following way. On 20 August 1975 the opponent's son, Geoffrey Maddocks, a solicitor, drove to Canberra the car provided to the opponent as part of his employment arrangement with Mr Logan. Near Marulan the car ran off the road. It was very substantially damaged. At the time of the damage, the vehicle was uninsured. The opponent contended that Mr Logan, discovering the extensive damage to the uninsured vehicle, then approached him and asked him to get his son to sign a "backdated claim form". The opponent said that his son "wouldn't have a bar of it". It then appears that Mr Logan arranged for the car to be stored in Goulburn. He paid a storage fee, renewed the insurance and made a claim some time later. This asserted that the accident had happened two or three months after the car went off the road and after the insurance had been renewed.

It is the way in which the opponent responded to the knowledge of these dealings, and used them in his litigation with Mr Logan, in which he was acting on his own behalf, that gives rise to the first charge of the Association.

The precise terms of the alleged threat by the opponent were set out in an affidavit sworn by Mr J J Mannix, solicitor, on 26 September 1978 in the proceedings between Mr Logan and the opponent in the Equity Division. Mr Mannix gave evidence to this Court. I have no hesitation in accepting his truthfulness. It was to him, as Mr Logan's solicitor, that the threat was allegedly made by the opponent. No cross-examination was directed to Mr Mannix to challenge the relevant portions of his evidence. Nor was it suggested to him that the opponent did not say the words nor make the threats, to which Mr Mannix deposed.

According to Mr Mannix's affidavit, the threats were stated twice, each time on 13 September 1978. On the first occasion, they were stated to Mr Mannix alone in these terms:- "'If Logey does not stop this nonsense straight away I am going to give him up to the police.' I said "What do you mean, John?'. He said "You know the insurance claim on the Subaru'. I said 'Yes, I know it was made by I don't know the details'. He said 'Well Logey is really in trouble over that because he defrauded the insurance company'. I said 'I am sorry but I don't know what you are talking about, John'. He said 'Well he approached me and asked me to get my stupid son to sign a back-dated claim form. I wouldn't have a bar of it. What Logey did was store the car in a mate's place at Goulburn, pay him a couple of bucks a week and get him to say that the accident happened a couple of months later. Logey then put in a claim form to show the accident happened two or three months after the car went off the road'. I said 'I don't know about this John. I know a claim was made but I don't know the details'. The defendant said 'Well you can tell Logey from me that he is going to have a Copper knocking on his door this week-end unless he pulls out of this bloody case and gives me what I want'. I said "Well John all I can do is mention this to Logan and see what he

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says'. The defendant said 'You can bloody well tell him that I'll have him really

in serious trouble over this insurance fraud unless he coughs up'. According to Mr Mannix, the opponent repeated this threat in the presence of Mr John Hunter, solicitor:-

The defendant said to me in the presence of Mr Hunter 'Do you mind if I tell John what I said to you about Logan on the way over here regarding the insurance claim'. I said 'No go ahead'. The defendant then said to Mr Hunter in my presence 'I know for a fact that Logan has defrauded the insurance company. He stored the car after the prang and later put in a claim form two or three months after the accident. He picked up a cheque and no doubt cashed it'. Mr Hunter said to the defendant in my presence 'Well John, what has that got to do with this case?' The defendant said 'Bloody well everything. It goes to Logey's credit. No judge is going to believe Logan after I finish with him over this. How are they going to believe a fellow if he has been arrested for fraud - arrested as a liar and cheat?' The defendant then said 'I'm telling you now that if this matter proceeds past next Friday I'll give a couple mates of mine a ring in the fraud squad and they'll be knocking on Logey's door this week-end. You can take it from me that I'll have him really hammered over this insurance business unless he gives me what I want'. John Hunter then said to the defendant in my presence 'Well John what do you want?' The defendant said in the presence of myself and Mr Hunter 'I want Logan to either pull out of this case or at least allow me to be appointed to the Board as a director. I want to institute an inquiry into the company to find out where all the money has gone. I know money has been knocked off and I want to get to the bottom of it. If I find any funny business has gone on then the amount I will want will go up accordingly'. Mr Hunter then said to the defendant in my presence 'John you seem to be trying to get your own way in this matter by bringing in outside influences The defendant said in the presence of myself and Mr Hunter 'That's right. Logan's got to pull out of this case otherwise he can find himself landed in jail. My mates from the fraud squad won't muck around with him'.

Far from denying the making of such threats, in an affidavit filed in the same proceedings and sworn 23 March 1979, also exhibited before the Court, the opponent said, relevantly:-

I said 'Well Logey is really in trouble over this because if it [the insurance] had lapsed he must have defrauded the insurance company'. Outside the building where Mr Mannix's office is situated I said 'If Logey does not stop this nonsense I will have to go to police straight away'. He said 'what do you mean, John'. I said "You know the insurance claim on the Subaru'. He said 'Yes, I know it was made but I don't know the details. I am sorry but I don't know what you are talking about John'.

In the same affidavit, referring to the conversation at Mr Hunter's office, the opponent said:-

I said to Mr Hunter. "I now know practically for a fact that Logan has defrauded an insurance company. The car was kept in store after the accident and he put in a claim form two or three months later. He would then have picked up a cheque and no doubt cashed it.

I then said 'I'm telling you that if this matter proceeds to an order next Friday I'll have to go to our mates in the Fraud Squad and you know they'll be knocking on Logey's door this weekend. You can take it from me that he'll get hammered immediately over this insurance business unless he does it the way I want'. Mr Hunter then said to me 'Well John, what do you want' I then said 'I want Logan to either pull this matter out or at least allow me to appoint the directors I nominated to the Board'.

At the end of this section of the affidavit, there appears the following statement:-

Mr Hunter said 'John, you seem to be trying to get your own way in this matter by bringing in outside influences'. I said 'That's right. Logan's got to pull this application out otherwise he could find himself in jail immediately. Our mates from the Fraud Squad won't muck around with this'.

On the face of things, although denying points of detail, the opponent's affidavit, and indeed his oral evidence, showed little relevant difference from the version given by Mr Mannix. In each there was a reference to an insurance fraud. In each, there was a threat to bring that fraud to the notice of "mates" at the Fraud Squad who would not "muck around". In each, there was an acknowledgment of the determination of the opponent to get his own way in the litigation in which he was involved by using this threat. In each, there was a threat that his opponent, Mr Logan, could end up in jail unless he did as he was told.

The points of distinction drawn by the opponent are subtle. They are necessarily so because of the terms of the affidavit which he swore in 1978. He contended that when told by Mr Logan that the vehicle was uninsured, he did not believe this statement. When asked why Mr Logan would possibly have a reason for misrepresenting the state of insurance, the opponent's explanation was that he suspected this to be the latest ruse by Logan to pocket the insurance monies to his own advantage, thereby depriving him of his entitlement to a motor vehicle.

Various other explanations were offered for the opponent's conduct. They range from his desire to protect himself against a suggestion that he was implicated in the insurance fraud; to resist further delay in the equity proceedings; and in particular to avoid postponement of an audit of the company. The opponent says that the fraud was reported to the police in September 1978 and that there is nothing in his conduct to suggest a desire to intimidate Mr Logan in his prosecution of the equity proceedings I find this submission completely unconvincing, accepting as I do Mr Mannix's version of what was said, it is clear that this was an attempt by the opponent to browbeat Mr Logan in his litigation by the naked threat to take the complaints to the Fraud Squad if he, Logan, did not do precisely as he was told. For any person to use the threat of criminal prosecution in this way for attempted private advantage was wrongdoing. A barrister may be inferred to know something of the duty to report suspected felonies to the police and always to act honestly and honourably in court proceedings. The opponent's conduct falls short of what the law requires and what the Court will require of barristers.

There are many difficulties in the version offered by the opponent in his attempt to exculpate himself from the plain language of his 1978 affidavit. For example, it is difficult to reconcile his statement that he did not believe Mr Logan when he said the car was uninsured (on the one hand) and Mr Logan's request of him to have his son backdate a claim form (on the other). Why would Mr Logan possibly suggest such a course if there were not a real problem with the insurance? Does this not suggest, together with the subsequent postage to the opponent's home of receipts for the cars storage charges, that the opponent was well aware, from the outset, of the problem with the car insurance?

Because the opponent did not report the insurance fraud to the police until September 1978, yet clearly knew of the accident to his car soon after it occurred in August 1975, the problem arises for the opponent to explain how it was that it took him so long to report the matter to the police, and then only after he had made the threats he did to Mr Logan's solicitor. The opponent proffered a number of explanations. None was convincing. For example, he said that the first time that it became clear to him that Mr Logan had in fact been involved in an

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insurance fraud "22 months earlier" was when he received the affidavit of Mr J J Mannix "which contained facts which caused me to have the certain knowledge for the first time that an insurance fraud had been committed". Later, in another affidavit he said that this first realisation occurred on 12 September 1978 because of something in Mr Logan's affidavit. The opponent could not reconcile these inconsistent explanations. They are irreconcilable. Furthermore, when pressed as to what it was in Mr Logan's affidavit which finally disclosed the fraud, there was nothing there to which he could point to make the absence of insurance any more or less convincing than it always was.

It is inherently more probable that the opponent realised, immediately after the crash, that the vehicle was not insured. He acknowledges in his statement to the police dated 8 December 1978 that he was told this by Mr Logan on 25 August 1975. Why he should believe Mr Logan's later affidavit but not his earlier statement is not revealed.

There are many other inconsistencies in the opponent's testimony. He acknowledged that he had held the view in 1975 that the insurance policy had "lapsed". This was so even though he did not believe Mr Logan when he said that the car was "uninsured". He contended that he did not believe that it was impossible for the policy to be resurrected by payment of the premium after the event, unlikely as this possibility would seem to anyone with the rudiments of knowledge of insurance law and practice. He also acknowledged that, as soon as he began to receive the storage accounts from a country tow-truck yard, he thought that Mr Logan would probably try to store the vehicle until "arrangements" had been made with the insurance company. There is a stark contrast between this statement and the statement given to the police when, eventually, the claimant reported the matter to them.

Because of the serious consequence for the opponent of accepting this charge and the gravity of the allegations made against him in this regard I approach the charge mindful of the obligation to reach my conclusion by a very high standard of satisfaction that the Association has made out its case. By that standard, I have concluded that soon after the crash of the opponent's car, the opponent was informed that it was uninsured. Thereafter he became aware of the fraud in which Mr Logan was involved to overcome the lapse of insurance on the car. He did nothing then to report the matter to the police. When he became involved in litigation commenced by Mr Logan he drew his knowledge to the attention of Mr Logan's solicitor. He did so for the particular purpose of putting pressure on Mr Logan to withdraw the proceedings, lest he should report the matter to the police. When this endeavour did not succeed, and after checking with the solicitor that it would not, he then, and then only, reported the matter to the police. This course of conduct is, as the opponent himself acknowledged, unlawful and disgraceful but is true that it arose in the course of his conduct of litigation on his own behalf. The opponent emphasised the distinction drawn by Kitto J in Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279, 299, between a practitioner's conviction of a serious crime but one having no "significance for any professional function". That distinction is irrelevant to this case. Here the activity, the subject of the charge, is activity in connection with litigation in the Court. It is conduct in the course of the management of a case. It is the very class of activity in which the highest standards of probity and scrupulous observance of the law, are required by the Court of barristers.

I acknowledge that when acting for himself, the opponent would probably have become more emotionally involved than he would when acting for a client. This may affect the light in which the misconduct is to be judged. But it does not make it any the less misconduct. I also allow for the fact that it is difficult precisely to establish facts which occurred ten years ago. However, in my opinion the crucial facts relevant to this charge emerged with sufficient clarity from the contemporaneous affidavit of the opponent himself. His unconvincing efforts to explain and justify his acknowledged threats to Mr Logan do not detract from the clear proof that such threats took place in a wrongful attempt by the opponent to use his knowledge of Mr Logan's insurance fraud for his own private litigious advantage.

The facts of the second head of charge can be more briefly stated. At a meeting of shareholders of DJE on 5 September 1978, it was agreed that a special resolution seeking the appointment of the opponent as a director of the company be put to an adjourned meeting of the company and voted upon. The opponent himself put this resolution forward to the meeting of the company. The date of the adjourned meeting was fixed for 11 September 1978.

By letter dated 7 September 1978, the opponent informed the solicitor for Mr Logan that he intended to proceed to the vote. Mr Logan thereupon obtained an ex parte injunction restraining the opponent from voting at the adjourned meeting. Mr Logan filed a notice of motion returnable on 12 September 1978 seeking a continuance of the injunction. On that day the injunction was continued to 22 September 1978. Helsham CJ in Eq ordered the opponent to file any affidavit upon which he intended to rely by 14 September 1978. The injunction proceedings were stood over to 22 September 1978 for further hearing. On 14 September 1978, the opponent filed an affidavit sworn that day. In paragraph 2 of the affidavit he said:

I would respectfully suggest that should I be appointed a director and give an undertaking in this motion that if appointed I shall vote against any measure capable of affecting the company's assets or shareholding and to carry on business in the normal course until the within suit is determined, the plaintiffs rights would be adequately protected. The purpose of the appointment of additional directors is to secure an audit of the company's books which has been refused by the directors relying on the claim of the plaintiff.

At the time he swore this affidavit, and indeed at all relevant times in these proceedings, the opponent was an undischarged bankrupt. In his evidence, the opponent acknowledged that he was aware of the provision of the then Companies Act preventing undischarged bankrupts from acting as company directors. See Companies Act 1961, s117. At no time in his affidavit, or otherwise in the course of the proceedings, did the opponent disclose to the Court that he was an undischarged bankrupt. The first suggestion to the Court of the opponent's status came in an affidavit filed by Mr Mannix on 5 February 1979.

The Association argued that, by his affidavit, the opponent was seeking the immediate discontinuance or variation of the injunction which had previously been granted. The purpose of his request was that he should be appointed a director immediately so that he could commence to act as such. He was suggesting to the court that he was an appropriate person to be so appointed.

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The opponent claimed that, although he did not disclose it as such, his application was "plainly conditional". He said that it was conditional upon the "annulment" of his bankruptcy. Again, I find the opponent's explanation unconvincing.

First, there is not the slightest suggestion in his affidavit or elsewhere of candour to the Court in respect of his status, even though he was aware of it He says, in his oral evidence, that he was aware of its significance for the order which he was suggesting.

Secondly, if appointment as a director were conditional on the termination of his status as a bankrupt, it is unlikely, to say the least, that this could occur in the time frame of the litigation in which the affidavit was filed. The opponent's alleged asset was the shares. Only by sale of the shares could the opponent obtain the fund, in turn, to secure the termination of his bankruptcy. Yet this could not occur until the disposal of the litigation and certainly not before the disposal of the interlocutory Proceedings in which the affidavit had been filed. It is plain from the terms of the affidavit that the opponent was suggesting to the Court an immediate appointment, without condition.

Thirdly, as a barrister, the opponent was under an additional duty of frank dealing with the Court beyond that demanded of the ordinary bankrupt. Even though he was appearing in his own interest, he could not, in his dealings with the Court, cast off the obligations which attached to him as a barrister. These included a duty of candour and the disclosure to the Court of any matter which would otherwise prevent the Court otherwise unwittingly becoming involved in an order which would be in breach of the requirement of company law. If, as he contends, it was the opponent's intention to seek discharge from bankruptcy before taking up appointment as a director of the company it was, at the very least, his obligation to make his status known to the Court so that appropriate conditions could be attached to his appointment. This the opponent did not do.

The second head of charge is therefore also made out.

This brings me to the opponent's dealing with his client, Mr Ronald Ralph. It was Mr Ralph's complaint which triggered the initiation of these proceedings.

Mr Ralph was, before 28 May 1985, a superintendent of New South Wales Police. He was suspended on that day when he was charged with a serious criminal offence. Between the time he first gave evidence before this Court and when the proceedings were relisted, Mr Ralph was convicted upon three counts of conspiracy. He was sentenced by Wall DCJ to serve 14 years of imprisonment concurrently upon each charge, with a non-parole period of 5 1/2 years. He has appealed against his conviction and sentence. His appeal awaits hearing in the Court of Criminal Appeal. His evidence must be viewed as that of a person who has been convicted of a serious crime. In substance it was alleged that whilst Mr Ralph was a member of the police force he received substantial monies to secure favours for persons charged with serious drug offences.

Having said this, and allowing that Mr Ralph may be generally dissatisfied with the legal process which has resulted in the convictions which he challenges, it must be recorded that there is not a great deal of difference in the facts recounted by Mr Ralph and by the opponent concerning their relationship.

It was common ground that the opponent saw Mr Ralph initially as a result of a recommendation made by Mr Ralph's brother-in-law. The opponent had no chambers. The initial conference took place at the Oaks Hotel, Neutral Bay. There was no instructing solicitor or clerk present.

The two next met at the Gresham Hotel, Sydney on 7 or 8 June 1985 for about two hours. In the course of that conversation an aggregate cost of the case was discussed and a sum of $5,000 barrister's fees was mentioned. Again, there was no solicitor or clerk present.

On 12 June 1985, the opponent appeared for Mr Ralph at the mention of the committal proceedings at the Local Court in Castlereagh Street, Sydney. Before the meeting, the opponent introduced Mr Ralph to his son, Geoffrey who, it will be recalled, is a solicitor and who worked at that time for John Gallagher & Co, solicitors. The attendance of Geoffrey Maddocks was not arranged by Mr Ralph but by the opponent.

After the court appearance, the opponent and Mr Ralph went to the Tudor Hotel in Sydney. Mr Geoffrey Maddocks was present for a short time and then left. A further two hours of discussion took place at that hotel between the opponent and Mr Ralph. No solicitor or clerk was present during that part of the discussion.

On 19 June 1985, Mr Ralph met the opponent at the Commercial Travellers' Club, Martin Place. He paid the opponent $1,000 in cash. Later, when Mr Geoffrey Maddocks arrived, Mr Ralph handed him a cheque for $2,000 made payable to John Gallagher & Co.

On 1 July 1985, the opponent appeared for Mr Ralph again at the Local Court. At that time, a date was fixed for the hearing of the committal proceedings. No Particulars of the overt acts relied upon were supplied by the prosecutor although he said that they would be supplied by | August 1985. Following this court appearance, Mr Ralph and the opponent went to the Tudor Hotel again where they discussed the case further for about an hour and a half. No solicitor or clerk was present on this occasion.

In the middle of July 1985, a further conference took place between the opponent and Mr Ralph, this time at the Gresham Hotel in Sydney. This conference lasted about three hours. No solicitor or clerk was present. It was at this meeting that Mr Ralph told the opponent that he wished to retain another firm of solicitors.

On 22 July 1985, the opponent appeared for Mr Ralph to oppose a prosecution application to vacate the hearing date of the committal. The application was unsuccessful. Following the court appearance, the opponent and Mr Ralph went again to the Gresham Hotel where they again talked for a couple of hours. No solicitor or clerk was present at this meeting.

On 29 July 1985, Mr Ralph met the opponent at the Commercial Travellers' Club. A clerk employed by the new firm of solicitors was present. Within a short time of this meeting, Mr Ralph telephoned the opponent and terminated his retainer.

Through his new solicitors, Mr Ralph sought an accounting from Messrs Gallagher & Co concerning the monies which he had paid to the opponent on account of fees. On 24 September 1985, the opponent wrote the following letter to that firm (omitting parts not immediately relevant):

I understand there has been an enquiry by Mr R A Ralph as to how his fees are made up. I propose to set this out and I suggest that you send a photocopy to his present solicitors...

URJ = THE NEW SOUTH WALES BAR ASSOCIATION v MADDOCKS (Kirby P) 13

At the outset Mr Ralph was told that I would not appear for him, but was prepared to advise him. Some twenty hours of conferences took place, after which Mr Ralph asked would I appear for him. He was told I would go no further with him until I had proper instructions from a Solicitor.

There was then a discussion in broad terms about what sort of solicitor he should have. I expressed an opinion which was not followed by Mr Ralph. I did not hear from him for some days, and then only when a hearing was imminent, he asked if a solicitor from your firm could instruct him. Though I sought to have him follow my original opinion, a meeting was arranged with the solicitor from your firm. At that meeting a cheque for $2,000 was handed over, to be held in your trust account for fees to be incurred.

When it was settled that your firm would instruct me, Ralph paid me for advice previously given in the twenty hours, when I was not appearing for him.

Since I was instructed, there have been five hours of conferences, an oral advice on evidence, and three appearances in Court to fix dates and argue particulars. My memo to you was for a fee on brief only. This will no doubt have to be altered as the brief was returned. However, the accumulated fees since brief, exceed that brief fee, on this basis

3x 1/2 refresher at $250 (brief $750) $ 750 5 hours conferences 250 $1000

The oral advice on evidence is included in the fees for conference. If you wish, I shall amend my fee note accordingly but on my view the lay client remains indebted on the fee.

No doubt Mr Ralph takes the view that since that time spent can now be little utilised, he should have some reimbursement. I should point out that the course taken was entirely his decision and does not undo the hours spent in wasted preparation.

The clerk in his present firm of Solicitors plainly prefers not to follow my advice. In view of recent developments in the Department, there may be some support for that advice. I shall watch the outcome with interest.

I do apologise to you personally for the inconvenience this matter has caused, and plainly had any such thing been foreseen, nobody would have become involved.

The letter is remarkable both for matters which it contains and matters which it omits.

The reference to twenty hours of conferences, yet the charge for five hours of conferences is itself unusual. The acknowledgement of the advice that he would not appear for Mr Ralph, yet the persistence with so many conferences, seems astonishing. The acknowledgement of many hours of conferences without a solicitor is plain by the second paragraph. The delicacy of the reference to the opponent's son Geoffrey as "as Solicitor from your firm" is perhaps understandable. How Mr Ralph is said to have volunteered the nomination of the firm or a, solicitor from the firm, is left to inference. Although mention is made of the $2,000 "handed over" "to be held in your trust account for fees to be incurred', no reference whatsoever is made to the $1,000 cash which it is now acknowledged was also received by the opponent. No account is given for that sum. The amount claimed of $1,000 is not debited against $1,000 cash already received. There is simply no mention of it. On the contrary, there is an assertion that the "lay client remains indebted on the fee". There is a resistance to reimbursement. By inference there is therefore the assertion that all that went before was properly the subject of professional legal charges. There is an

acknowledgement that, before Gallaghers became involved, "Ralph paid me for advice previously given in the twenty hours". It is admitted that there was no solicitor retained at that stage. Although this statement of payment would be consistent, as worded, with payment through a previously retained solicitor, this is not the fact of the matter. The payment received was received directly and in cash and not accounted for in the letter to Mr Gallagher.

A number of points of difference between the Association and the opponent were identified as a result of the respective evidence of Mr Ralph and the opponent and the submissions to, the parties. Relevantly they include whether the opponent solicited the sum of $1,000 in cash; whether this was paid in cash to the opponent for the time he spent with Mr Ralph prior to 12 June 1985 when the solicitor first appeared; whether the opponent gave advice in conferences or simply talked about sport and other things; how many hours precisely were spent in the conferences before 12 July 1985 and whether the opponent was actually instructed to appear for Mr Ralph on the three occasions on which he announced his appearance before the Magistrates in the Local Court.

So far as the issues relating to the payment of $1,000 in cash are concerned, the opponent's case was that it was Mr Ralph who pressed the $1,000 in cash on him. He says that he responded "technically, I can't charge for it but it is not just time wasted". Mr Ralph denied that explanation. I accept his denial. It is possible that Mr Ralph suggested (as the opponent contends) part payment in cash. But it is entirely unconvincing to assert that the money was paid on account of possible future costs. First, it does not coincide with the statement in the letter to Mr Gallagher that "Ralph paid me for advice previously given in the twenty hours". Secondly, it would be difficult to reconcile with the undoubted fact that the cash sum was paid separately and before the solicitor, Mr Geoffrey Maddocks, arrived. Thirdly, a proposed reimbursement of $500 to Mrs Ralph was offered only after the commencement of these proceedings and does not appear yet to have been finally made. The opponent says that, having regard to his continuing bankruptcy and low Income, payment in cash e.g. for the avoidance of taxation was of no attraction to him. But such payment may have been attractive precisely because of his continuing bankruptcy and the consequent avoidance of records which might otherwise require accounting to the creditors.

In his evidence, the opponent contended that the twenty hours of "conferences" were not really conferences at all but rather "non-conferences". This explanation was doubtless advanced to justify the absence of a solicitor or clerk during such meetings at various hotels. However, it is to be contrasted with the letter, set out above, in which it was suggested to Mr Gallagher that twenty hours of discussion, called "conferences", took place in which he gave "advice" for which he was "paid". Furthermore, the opponent indicated that the advice included the suggestion that Mr Ralph should go to the public library to remind himself of the relevant horse races from which the substantial funds paid into his and his family's bank accounts, were derived.

Mr Ralph was a senior officer of police when he was charged. The charges were of the gravest character. Not only did he stand to lose his senior position with the police. He was also at risk of the loss of liberty which has now overtaken him and, moreover, the loss of superannuation benefits worth $300,000. These will be forfeited if his appeal to the Court of Criminal Appeal is rejected. There was therefore a great deal at stake for Mr Ralph. Yet during none of the twenty hours of "conferences" for which the opponent was paid (presumably the $1,000 cash, now less the sum to be reimbursed) at no time did the opponent take notes.

URJ = THE NEW SOUTH WALES BAR ASSOCIATION v MADDOCKS (Kirby P) 15

At no time were the overt acts or other particulars sought. No written advice on evidence was given. If, as seems to be common ground, twenty hours was spent, they were not well spent in the defence of Mr Ralph. However, for present purposes, that is not the point. The point is that hours of discussion took place for which the opponent was paid in cash. I would reject his suggestion that he simply received the payment in cash on account of future possible fees with another solicitor. It is neither what he asserted at the time to Mr Gallagher nor does his other relevant conduct after the termination of his retainer bear it out.

So far as the question of whether the opponent gave advice in conference to Mr Ralph on the occasions that they met before 12 June 1985 when a solicitor became involved for the first time, it is clear that he did. Certainly, he accepted the records of interview taken from Mr Ralph. Clearly they discussed the case. Mr Ralph estimated that about half of the twenty hours spent in conferences related to his defence. The opponent belatedly sought to suggest that all of this time was in "non conferences". But if it was so, this assertion hardly squares with the contentions in the letter to Mr Gallagher and the acknowledgment that he had been "paid" for the time spent.

The opponent said in evidence that he did not regard himself as being "instructed" to appear for Mr Ralph. But this too must be rejected. It is inconsistent with the letter he wrote to Mr Gallagher. More importantly, it is inconsistent with his appearance, on three separate occasions, before Magistrates in the Local Court. Certainly, the opponent was representing to that court that he was instructed on behalf of Mr Ralph. Otherwise, he would have had no authority to appear for him in court and, particularly no warrant to oppose the prosecution application on 22 July 1985 to vacate the hearing date.

The conclusions I have reached are these. Having been introduced by Mr Ralph's brother-in-law and doubtless intrigued by the prospect of getting back to practise at the Bar in a challenging case, the opponent proceeded to deal with Mr Ralph as his legal adviser and barrister. He represented to Mr Ralph that he was his barrister. He then proceeded to discuss the case with Mr Ralph, as such, over twenty hours, interspersed with time spent on other pleasantries. He had no chambers and so the discussions took place in hotels. When the court hearings first came upon these conversationalists, for the first time the opponent perceived the desirability of providing for a solicitor. It was then that the opponent suggested his son as a means of cutting costs. Mr Ralph, appreciative of this arrangement, either suggested or agreed to the proposal to pay $1,000 in cash to the opponent. This sum was paid and received by the opponent as part recompense for the "advice" given during the twenty hours of conference with Mr Ralph. The involvement of Mr Gallagher's firm, and specifically of the opponent's son Geoffrey, was purely nominal. Conferences took place respectively at the Oaks Hotel and Gresham Hotel in June 1985 at which the opponent received instructions from Mr Ralph, gave him advice concerning the criminal charges facing him and knowingly purported to act for him in a professional capacity for which he later accepted payment. At neither of these conferences was a solicitor or clerk present. Even when Mr Geoffrey Maddocks became involved on the suggestion of the opponent on 12 June 1985, his involvement was purely formal. His engagement was suggested to Mr Ralph by the opponent. It was willingly embraced by Mr Ralph who hoped thereby to save solicitors' costs.

The Court has stressed on many occasions in cases such as the present the obligation of the legal practitioner to respond to such a summons with complete honesty. The failure to do so may itself display the untrustworthiness or flaws of character which will warrant the conclusion that the practitioner is not a fit and proper person to be permitted to practise. See eg In re Davis (1947) 75 CLR 409, 416, 426. On two occasions during the course of the hearing, the opponent was specifically warned of the duty of candour and of the risks of failing to respond to the matters raised by the summons with complete honesty.

It necessarily follows from the conclusions which I have reached on the preceding three issues, that it is my view that the opponent has not been honest and candid with the Court. On the charge of threatening Mr Logan with the disclosure of the insurance fraud, he falsely, and in the end ineffectively, sought to assert his ignorance of the fraud until immediately before he reported it to the police. His attempts to justify his conduct were completely unconvincing. Equally unconvincing were his attempts to suggest that his attempt to secure appointment as a company director was "conditional" on his discharge from bankruptcy which he never revealed to the court. On this charge too, he showed lack of candour and honesty to this Court. His attempts to justify his relationship with Mr Ralph were similarly not honest and frank. If it were not for the fact that Mr Ralph was faced with the most serious charges and the gravest possible consequences to his liberty, reputation and pocket, the spectacle of the opponent conducting rambling "non-conferences" over twenty hours in a succession of hotels would invite sympathy for the pathos evident in his situation. But the opponent is on the roll of barristers. He was dealing with Mr Ralph on that basis. This required his observance of the basic rules established for the relationship of a barrister with the solicitor and the client. The opponent failed to observe those rules.

The result of these conclusions is that the Association has made out its charge in relation to the threat to Mr Logan (charge 11) and in relation to the representation to the Court about appointment as a company director (charge 12). It has also made out the charges relating to Mr Ralph. I should add two qualifications relevant to the charges as framed:-

(a) On at least one occasion, namely 12 June 1985, when the opponent appeared in court for Mr Ralph a solicitor, the opponent's son, attended (charge 4).

(b) Although the opponent arranged for his son, a solicitor, to act for Mr Ralph, he did so at the request of Mr Ralph, following discussions between them as to ways in which to save costs (charge 4).

I should not be prepared, by the requisite standard, to find affirmatively that the opponent solicited the payment of a sum in cash for counsel's fees. The evidence is equally consistent with the suggestion of such a payment by Mr Ralph (charge 9).

Save for these comments each and every one of the charges contained in the Association's summons is made out.

What is to be done? The breaches are not isolated, in the sense mentioned by Kitto J in Ziems (ibid, 299) and by Fullagar J in the same case (ibid, 298). Although in the equity Proceedings, the opponent was acting for himself, he was dealing with fellow Practitioners and with the Court. One of the reasons given for

URJ = THE NEW SOUTH WALES BAR ASSOCIATION v MADDOCKS (Kirby P) 17

a rigorous rule on the standards demanded of barristers is that, for the Performance of their duties, they must command "the Personal Confidence not only of lay and Professional clients but of other members of the Bar and of judges" See Dixon J in In re Davis (ibid, 420). The facts have been examined at length because it is from the facts that the answer must be found as to the fitness of the opponent to continue to Practise. See Ziems, (ibid 288).

Had the case come before the Court on the basis only of the event in the equity Proceedings in 1978, and had the opponent acknowledged a serious error of judgment and had it been shown that the opponent had since that time acted with honour and integrity in his profession, I should have favoured a lenient view as I did in dissent in Kotowicz v The Law Society of New South Wales (No 2), Unreported, CA, 7 August 1987; (1987) NSWJB 146. But the opponent did not acknowledge the error of his conduct in 1978. On the contrary, he sought to explain and to justify it, without avail. Furthermore, since that time, despise his Prolonged bankruptcy, he has attempted a return to legal Practice with numerous breaches of basic rules which govern the practice of barristers as they are organised in this State. I do not refer to the mere fact of direct payment to the barrister, meeting in hotels and clubs and the conduct there of conferences. These facts would not, at least in isolation, warrant the grave step of removing a barrister from the rolls.

With the growth of the Bar and its increased diversity, as well as the variety of client needs in society today, the Court's jurisdiction to protect the public will not require rigid insistence upon an unvarying mode of practice. The conventional rules of practice vary over time and between jurisdictions. Thus, it has not been the practice in this State to follow the strict limitations observed by counsel in England in the interview of witnesses. See Halsbury's Laws of England (4th ed), Vol 3, para 1186. Nor is it true that, at conferences with clients in this State, barristers invariably have the assistance of an instructing solicitor or clerk. Generally, in contentious matters, it will be so, particularly when the case comes to a court. Payment of fees is sometimes made directly to the barrister by a client, as when an insurance company sends its cheque for the barrister's fees. Sometimes the client, ignorant of conventional practice, will offer cash to a barrister in cases where it may be perfectly proper to receive it.

The majority of barristers occupy well established chambers and have a clerk and other facilities. But some, especially beginners, are not so fortunate. They may "float", share a clerk and secretary and be required to improvise in arrangements for seeing witnesses. These variations of Practice simply demonstrate the fact that conventional rules are not inflexible or immutable. Isolated breaches of them rarely warrant the drastic relief sought by the Association in this case.

This said, there are, nevertheless, minimum standards of professional integrity and competence, as of personal probity, which the Court will require of barristers. It is enough to say in the present case that upon the complaints of the Association determined on this summons, the opponent has fallen short of those standards. His name must, accordingly, be removed from the roll.

I realise that normally, removal is taken to imply a judgment that a person is forever, or at least indefinitely, disqualified from practising. If this is not the conclusion which the Court has reached, it should stop short of removal. In the present case no evidence whatsoever was called to suggest that the way the opponent conducted himself in respect of Mr Ralph was atypical, such that the Court could have confidence in his remaining a barrister. If at some appropriate

future time, the Court were satisfied that the opponent understood the serious wrongdoing and errors of judgment in his threats and other conduct of 1978 and serious and repeated breaches of the rules of practice in 1985, an application for readmission might be entertained. I say this despite the conclusions of wrongdoing, breach of ethics and dishonesty set out in this judgment. I do so because the initial mistakes of the opponent seem to have arisen from obtuseness and ignorance of what was expected of him rather than wilful dishonesty. Any such application will be judged by the Court on the evidence then obtaining and, in particular, the evidence showing the opponent's appreciation and full understanding of the errors disclosed in this judgment and his conduct in the meantime which would merit his restoration to the honourable company of barristers. For the present, and for the foreseeable future, the opponent has been shown unfit to practise as a barrister.

I close this judgment with a remark on procedure. The hearing before the Court was prolonged partly because of the adjournments to allow the opponent to secure legal representation and partly because of the difficulty of securing continuous hearing days in this Court, for the taking of oral evidence. There are strong reasons of convenience which suggest that, in future, where in cases of this kind detailed evidence must be heard, the fact finding should take place before a single judge. Not only would this be more economical of the time of this Court of Appeal and of judges. It would allow a more expeditious hearing; and permit the parties, by reference to available transcript, to offer detailed comments and criticisms on the facts as found. The High Court of Australia has emphasised the function of this Court in determining the standards of the profession in the State. This fact, and the necessity, now, for special leave to appeal to the High Court makes it even more desirable that fact finding should, wherever possible and appropriate, be completed separately from the determination of whether the facts, as found, should be accepted and whether they constitute grounds for disciplinary action by the Court. As this case shows, the present procedure imposes a time-consuming obligation of fact finding upon the Court of Appeal. And the parties have no effective opportunity of review, as of right, of the findings of fact upon which will be based the Court's determination.

Declare that the opponent is not a fit and proper person to be a member of the Bar of New South Wales;

Order that the opponent's name be struck off the roll of barristers; and

Order that the opponent pay the claimant's costs.

Samuels JA I have had the benefit of reading in draft the judgment prepared bythe President and it is unnecessary for me to repeat the careful statement of the facts which it contains. I agree with him, generally for the reasons he states, that the three episodes of professional misconduct which the claimant asserts have been made out. In arriving at that conclusion I have borne in mind the admonition of Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2 that "the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal." In the present case there is, to my mind, an overwhelming preponderance of proof that the opponent

URJ THE NEW SOUTH WALES BAR ASSOCIATION v MADDOCKS (Samuels JA) 19

has been in the respects specified guilty of professional misconduct, is not a fit and proper person to be a member of the bar and has acted in a manner contrary to the standards of practice becoming a barrister.

I am satisfied that the opponent did threaten his adversary in the proceedings in which they were involved with the disclosure to the police of his alleged involvement in an-.insurance fraud in an attempt to induce him to withdraw his proceedings against the opponent, or for the purpose of obtaining some other advantage in the litigation. I think it clear, despite the opponent's attempted explanations, that he accepted the truth of Mr Logan's statement made soon after the accident that the car involved was not insured, and appreciated that Mr Logan there and then had in mind a means of obtaining payment from the insurance company by some fraudulent strategem involving a false representation as to the date of the accident. Despite what can only be described as the twists and turns of the opponent's evidence through affidavit and oral testimony, he ultimately conceded this:-

"Q. So that it is plain from 25 August 1975 you knew either that the insurance had not been renewed or that it had lapsed?

I reject the explanation that the opponent believed that even though the insurance was not current for want of payment of the premium Mr Logan had the intention of disclosing the situation to the insurers and securing indemnity in return for payment of the premium in reinstatement of the policy, or that any such attempt would have been likely to succeed. It seems to me plain that from the very beginning of this chapter the opponent understood that an honest claim on the insurer had no prospects of success so that there could be no question of Mr Logan making full disclosure, obtaining payment and keeping the money for himself rather than depositing it to the credit of the company. Hence the opponent knew throughout that any claim on the insurers could be made only by fraud; and it must have been clear to him that this was exactly what Mr Logan intended doing when he began to receive the accounts for storage of the salvage.

Equally I do not accept the opponent's contention that in making the threat (and there can be no question but that he did speak in the terms asserted to Mr Mannix alone and then to Mr Mannix and Mr Hunter) he was intending merely to protect himself in some way against an allegation by Mr Logan that he was himself involved in the fraud.

The opponent himself agreed - and he could scarcely have done otherwise - that it would have been disgraceful for a barrister to have sought to gain an advantage over an adversary in litigation by threatening to report his criminal conduct to the police; and he conceded also that he regarded it as his duty to report criminal conduct to the police as soon as he knew of it. It cannot be doubted but that the conduct which has been proved against the opponent in this respect is very serious. It not only involves the making of the threat but, since obtaining money by false pretences, which was the offence with which Mr Logan was charged, was, as it still is, punishable by penal servitude, the opponent's failure to report the matter was technically a misprision of felony.

However, as the opponent's counsel pointed out, this conduct did not occur in the course of the performance of the opponent's professional duties. Although it was related to the conduct of litigation, he was involved as a party and not as a barrister; and we were referred to the statement of Kitto J in Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 299 where, referring to the material conduct in that case, his Honour said:

"Tt has neither connexion with nor significance for any professional function." It is true in the present case that the threat made against Mr Logan had no connection with any professional function of the opponent. But it cannot for a moment be asserted that it had no significance for the conduct of the opponent's professional obligations. Deficiencies of character and dishonourable conduct, which might render a barrister unfit to practise, may well manifest themselves in transactions which do not form part of the barrister's professional life. Acts of dishonesty do not cease to be a professional disqualification because they are perpetrated outside the scope of professional engagements. In Marten v Royal College of Veterinary Surgeons' Disciplinary Committee [1966] 1 QB 1 the appellant carried on practice as a veterinary surgeon and also the occupation of a farmer. He was found guilty of failing to give adequate nursing to sick animals in his care (as their owner rather than as the veterinary surgeon looking after them) and of allowing "conditions to exist on his farm which were likely to bring disgrace upon the veterinary profession." It was argued on his behalf, amongst other things, that disgraceful conduct in a professional respect must be conduct occurring during active practice of the profession. A Divisional Court (Lord Parker CJ, Marshall and Widgery JJ), however, was (at 9) of the view that conduct by a member of a profession might be professional misconduct if it tended to bring disgrace to the profession. In my opinion the answer to the opponent's submission is simply that the opponent's conduct was such as to make him unfit to practise as a barrister. For a barrister to threaten an adversary in private litigation with disclosure of a criminal offence, of which incidentally he had known for some two years, in order to obtain a personal forensic advantage, is disgraceful and dishonourable conduct which demonstrates unfitness to remain a member of his profession.

I agree with the President's conclusions upon the charge that the opponent represented to the Court in the same proceedings as those to which I have already referred that he was an appropriate person to be a director of a company when he was in fact an undischarged bankrupt, of which he did not inform the Court. The considerations to which I have just referred apply to this matter also.

Finally, I agree also that the various charges asserted arising out of the opponent's relationship with Mr R A Ralph have been made out; save that I also am not satisfied that the opponent solicited a sum in cash for his fees directly from Mr Ralph.

The opponent swore affidavits and gave oral evidence. As the President has observed he was very much less than candid in these testimonial endeavours. I am of the opinion that in attempting to persuade the Court that it was not until shortly before he reported it to the police that he knew that Mr Logan had committed a fraud, his evidence was deliberately untrue. His evidence about his relationship with Mr Ralph was wholly Unconvincing and lacking in candour. The opponent has throughout endeavoured to justify his conduct. He has demonstrated no contrition. I am not prepared to say, however, that this is because he has an imperfect Understanding of the requirements of his profession. Rather, in my opinion, he has chosen to answer the allegations against him in that unyielding way. I can see no ground for concluding that the interests of the public will be served by any order less than removal from the roll. I entirely reserve any opinion about future readmission. I therefore agree with the declaration and orders proposed by the President.

URJ THE NEW SOUTH WALES BAR ASSOCIATION v MADDOCKS (McHugh JA) 21

I add that I support the President's remarks concerning fact finding in disciplinary cases such as this. It is not an easy matter for a collegiate court to undertake the role of a tribunal of fact. It would be far more efficient and expeditious if the factual aspects of the matter were contested before a single judge who made findings of fact which were then referred to the Court of Appeal for ultimate decision of the issue whether those findings justified disciplinary action and of what kind.

McHugh JA It is a common place in disciplinary proceedings against a legal practitioner that his own evidence strengthens the case for removing him from the Rolls. The present case, brought by the New South Wales Bar Association against a barrister, John David Maddocks (the Opponent), is no exception to this phenomenon. Indeed the evidence given by the Opponent has gone further than usual. It has converted what with a different approach would have been a doubtful case for disbarment into a case where disbarment is the only remedy.

If the Opponent had acknowledged the force of the primary facts against him and asked that they be looked at in the light of various extenuating circumstances, I think that an order removing his name from the roll of barristers could not have been made. Unfortunately, his evidence attempted to explain and justify conduct which could not be justified or explained. Consequently, the lack of any evidence from him acknowledging and regretting his misconduct has persuaded me that his name should be struck off the roll of barristers.

The Association seeks declarations that the opponent has been guilty of professional misconduct, has engaged in unprofessional conduct, and is not a fit and proper person to be a member of the Bar.

The nature of the charges gave rise to four issues:

Did the Opponent in 1977 while a defendant in personal litigation with a person named Logan threaten that unless the proceedings were withdrawn he would disclose to the police that Logan had defrauded an insurance company?

Did the Opponent while an undischarged bankrupt and knowing it to be an offence to hold office as a company director seek to procure his immediate appointment to a directorship without disclosing to the Equity Division of this Court that he was an undischarged bankrupt?

If either issue is answered adversely to the Opponent, did it constitute professional misconduct?

Did the Opponent while acting as a barrister accept instructions from a client without an instructing solicitor, conduct conferences in hotels and receive payment of fees in cash in breach of the standards of professional conduct required of a barrister?

The Opponent was admitted to practice on 15 March 1957. He was called to the Bar of the Inner Temple in London in 1960. He practised in England between 1960 and 1963, in Sydney from 1963 until 1965, and then in Hong Kong for about a year. He then practised in sydney until 1973. In 1965 he appeared as junior counsel in an important case in the Privy Council O' Toole v Scott [1965] AC 939. But by 1969 his practice appears to have fallen away. In that year he sold his Chambers. About 1973 he ceased to practise as a barrister. He went into business with a Mr Allan Logan who was a loss assessor. The opponent's function was to advise on issues of liability in respect of matters referred to the assessor. In 1977 the opponent and Logan were involved in a dispute about the

beneficial ownership of some shares which led to litigation. The first two charges in the summons arise out of incidents connected with this litigation.

In August 1975 a car which was provided to the opponent under the terms of his business relationship with Logan was substantially damaged. At the time the car was driven by the opponent's son. The car was uninsured. The opponent alleged that Logan asked him to get his son to sign a backdated claim form. But he refused to do so. Logan then arranged for the car to be stored, insured the vehicle, and claimed that the damage occurred after the car had become insured.

In 1978 during the course of litigation between the opponent and Logan, Mr J J Mannix, a solicitor who acted for Logan, filed an affidavit which referred to the insurance claim. Mr Mannix has sworn that, on two occasions in september 1978 after that affidavit was filed, the opponent referred to the insurance claim and made threats against Logan. Mr Mannix swore that on 13 September 1978 the Opponent informed him that Logan had defrauded the insurance company and then said to him:

"Well, you can tell Logey from me that he is going to have a Copper knocking on his door this weekend unless he pulls out of this bloody case and gives me what I want.' I said 'Well John, all I can do is mention this to Logan and see what he says'. The defendant said 'You can bloody well tell him that I will have him really in serious trouble over this insurance fraud unless he coughs up. *

Later that day the Opponent is alleged to have made similar statements in the presence of Mr Mannix and another solicitor, Mr John Hunter. Mr Mannix swore that, after repeating that Logan had defrauded an insurance company, the Opponent said:

'I'm telling you now that if this matter proceeds past next Friday I'll give a couple of mates of mine a ring in the Fraud Squad and they'Il be knocking on Logey's door this weekend.'

Mr Mannix said that after Mr Hunter asked the Opponent what he wanted, the latter said:

I want Logan to either pull out of this case or at least allow me to be appointed to the Board as a director. I want to institute an inquiry into the company to find out where all the money has gone. I know that money has been knocked off and I want to get to the bottom of it. If I find any funny business has gone on, then the amount I want will go up accordingly.

A little later the Opponent is alleged to have said:

"... Logan's got to pull out of this case otherwise he could find himself landed in jail. My mates from the fraud squad won't muck around with him."

Although there were some points of difference between the evidence of Mr Mannix and the Opponent, there was little difference between the substance of their accounts. Moreover, Mr Mannix's evidence was not challenged in cross-examination. I accept it as correct.

According to the affidavit of the Opponent filed in the present proceedings, by the morning of 14 September 1978 he had concluded that his anger of the previous day should not stand in the way of reporting the apparent fraud to the police. He said that he telephoned Mr Mannix at about 11.30 am. The Opponent said he told Mr Mannix that he would not proceed with a shareholders' meeting, that there was no need for the injunction proceedings, and that he was going to

URJ THE NEW SOUTH WALES BAR ASSOCIATION v MADDOCKS (McHugh JA) 23

the police immediately. He says that he then went to the Fraud Squad where he reported the fraud to Detective Sergeant Lowe.

If the Opponent had conceded that he had threatened Logan, that the threat was altogether improper, and had asked that due weight be given to the pressure of the intense and apparently bitter litigation in which he was involved, his conduct might wear a very different complexion particularly in the light of his report to the police the following day. But the Opponent did not take that course. In this Court he has sought to place a gloss on what had occurred. He said that it was only the filing of an affidavit by Mr Mannix in the earlier litigation which contained the facts which caused him to have "a certain knowledge for the first time that an insurance fraud had been committed." Ultimately, however, he conceded that it was "plain from 25 August 1975 he knew either that the insurance had not been renewed or that it had lapsed". The Opponent also alleged that although he had said, "Stop this nonsense or I will have to go to the police immediately" he did so because the nonsense to which he was referring was Logan attempting to implicate him in the fraud. The Opponent also denied that his conduct suggested an intention to intimidate Mr Logan in his prosecution of the Equity proceedings. These explanations and assertions are simply unacceptable.

On the facts as I have found them to be, the Opponent, although well aware of an insurance fraud, was prepared to refrain from going to the police provided Logan gave him what he wanted. In a real sense he sought to benefit commercially from what he believed to be a criminal offence committed by Logan.

One may be pardoned for suspecting that at the time when he made his threats the Opponent did not appreciate his duty to report the matter to the police. He filed an affidavit in the litigation against Logan which set out facts which can only be characterised as a willingness by him to compound a felony. The filing of the affidavit supports the suspicion that the Opponent saw nothing wrong with making the threat. But by the time the matter was heard in this Court, the Opponent was well aware that the threats deposed to by Mr Mannix were improper. Instead of frankly conceding that had he acted wrongly, he sought to avoid the consequences of his conduct by explanations and justifications which are simply not acceptable.

As has often been said, the Bar is no ordinary profession. The barrister plays an essential role in the administration of justice in systems which adhere to the common law tradition. He owes duties to the Court as well as to his lay clients. Mr Justice Kitto has pointed out that the barrister, is "by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in the high task of endeavouring to make successful the service of the law to the community": Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 298. For a barrister to seek to Profit from another person's breach of the criminal law by not reporting it is contrary to the Standard of conduct expected of members of a profession so closely involved with the due administration of justice according to law. It constitutes professional misconduct.

Early in September 1978 Logan obtained an ex parte injunction restraining the Opponent from voting at an adjourned meeting of DJE Construction Pty Limited. The injunction was later continued. On 14 September 1978 the Opponent filed an affidavit in which he said:

"T would respectively suggest that I should be appointed a director and give an undertaking in this motion that if appointed I shall vote against any measure capable of affecting the company's assets or shareholding and to carry on business in the normal course until the within suit is determined, the plaintiff's rights would be adequately protected.

The purpose of the appointment of additional directors is to secure an audit of the company's books which has been refused by the directors relying on the claim of the plaintiff..."

It is common ground that the Opponent at that time was an undischarged bankrupt and that the Companies Act 1961, s117, prevented an undischarged bankrupt from acting as a company director.

The Opponent claimed that his application was "conditional" upon the "annulment" of his bankruptcy. But there was nothing in his affidavit which suggested that this was his intention. On the contrary the purpose of the suggestion and undertaking was to obtain the immediate discontinuance of the injunction which had already been granted it would take many weeks, probably many months, for the opponent to be discharged from his bankruptcy the opponents explanation of his affidavit must be rejected.

If the opponent had conceded that he wished to be appointed immediately but had asserted, for example, that he had overlooked the provisions of s117 of the Companies Act, as I suspect may be the case, again his conduct may have worn a different complexion. But that was not the course which his evidence took. He conceded that when he filed his affidavit he was aware of the legal prohibition on a bankrupt acting as a company director.

However, the question arises as to whether his conduct counted to professional misconduct should his conduct be considered as only that of a private litigant and not as that of a barrister? That is to say, did his failure to disclose to the Court his bankruptcy touch or concern him as a barrister? An analogous problem arose in In re Thom: ex Parte Prothonotary (1962) 80 WN 968. Where the Full Court of this State held that a solicitor was guilty of professional misconduct in failing, as required by the then Matrimonial Causes Rules, to disclose his adultery in a suit for the dissolution of his marriage. Likewise the intent of the Opponent to be appointed by the Court as a director, although a bankrupt, should be regarded as professional misconduct since it involves his relationship with the Court.

In May 1985 Ronald Arthur Ralph, then a Superintendent in the New South Wales Police Force, was charged with a serious criminal offence. He has been subsequently convicted and sentenced to fourteen years imprisonment with a non-parole period of five and a half years. In June 1985 his brother-in-law encouraged him to get legal advice in relation to the charge from the Opponent. A meeting was arranged. It took place at the Oaks Hotel, Neutral Bay. Mr Ralph asserted in evidence that he and the Opponent discussed his case for about two hours in the lounge bar of that hotel. He handed the Opponent a copy of the charge sheet and copies of two records of interview between him and police officers. No solicitor or instructing clerk was present. Nor was the Opponent instructed by a solicitor. An arrangement was made to meet later at the Gresham Hotel in the city. A further conference took place at that hotel on 7 or 8 June 1985 for about two hours. The conversation included discussion as to the cost of defending the charge. The Opponent is alleged to have said:

URJ THE NEW SOUTH WALES BAR ASSOCIATION v MADDOCKS (McHugh JA) 25

"You should be able to beat it in the lower court. For me it will be $5,000. For the solicitor, we will only be using his name, so there will only be a token fee for him..."

On 12 June Mr Ralph stated that he saw the Opponent outside the Castlereagh Street Court of Petty Sessions and was introduced by him to his son who worked as an employed solicitor. The Opponent stated that the son's employer would act as solicitor. At the hearing, the Opponent applied for particulars of the overt acts relied on in support of a charge of conspiracy. The case was stood over for further mention. The Opponent, his son, and Mr Ralph then went to the nearby Tudor Hotel Again the case was discussed. During the time they were there. they arranged to have lunch at the Commercial Travellers Club in Martin Place. Mr Ralph alleged that the Opponent told him that he could bring "a cheque for the solicitor and cash for me" to the luncheon meeting. On or about 19 June 1985 the lunch took place at that club. Mr Ralph brought $1,000 in cash which was given to the Opponent and a cheque for $2,000 made out to Gallagher & Co, the solicitor for whom the Opponent's son worked. The cheque was later handed to the son who was also present at the luncheon. On | July 1985 the Opponent again appeared for Mr Ralph at the Local Court where the question of particulars of the overt acts were again discussed. On or about 29 July 1985 Mr Ralph terminated the Opponent's retainer.

The Opponent gave evidence which was in conflict with that of Mr Ralph on a number of matters of detail. But I have no difficulty in accepting the above account of Mr Ralph's evidence as correct. It fits in with the objective and admitted facts better than the Opponent's version.

In his attempt to justify the absence of instructions from a solicitor, the Opponent sought to characterise the twenty hours of conferences which he had with Mr Ralph as non-conferences. But there can be no doubt that, prior to 12 June 1985 when the Opponent's son became involved in the matter, the Opponent was acting as a barrister without an instructing solicitor. The Opponent and Mr Ralph discussed the case at length, the Opponent received the records of interview and a copy of the charge, and arrangements were made for the Opponent to appear at Court before Gallagher & Co came into the matter.

I find that the Opponent acted in breach of the Rules of the New South Wales Bar Association by acting in the capacity as a barrister in a contentious matter without being retained by an instructing solicitor. He was therefore guilty of engaging in "unprofessional conduct".

The question then arises whether the findings of misconduct require an order removing the opponent's name from the Roll of Barristers.

The Opponent's conduct in relation to Mr Ralph although in breach of the Association's Rules and the conventions concerning the manner in which a barrister conducts his practice would not justify disbarment. Moreover, the events in relation to Logan occurred in 1978. They occurred in the context of personal litigation. They did not involve conduct in the ordinary course of practice as a barrister. Much enmity also seems to have existed between the Opponent and Logan. The Opponent appears to have concluded that Logan had defrauded him in various ways. Moreover, within a day of making his threat to Logan, the Opponent did report the insurance fraud to the Fraud Squad. There are, therefore, some extenuating circumstances.

Although he sought an appointment as a director of DJE Constructions Pty Ltd, ultimately the Opponent did not pursue the appointment. Moreover, although I have rejected the Opponent's version of events where it is not supported by Mr Mannix or Mr Ralph, I did not think that the Opponent knowingly gave false evidence. This conclusion may seem surprising. But it was the view I formed after observing the Opponent under the long and able cross examination of Mr Stitt QC and during the first period of the case when he conducted his own defence.

Improbable as many of his answers were, nevertheless I thought that the Opponent really believed in what he was saying even when an answer was in conflict with an earlier answer or statement. He was so obviously resentful at the proceedings brought against him by the Association particularly as they were the result of his dealings with Logan and Ralph that I thought that he had lost all sense of detachment and judgment. In his resentment he seemed to give whatever answer or make whatever statement was best designed to rebut the case against him. Such conduct by a witness is usually a strong indicator of his untruthfulness. But in the Opponent's case I did not think that it was. Certainly his resentment had overwhelmed him to the extent that he did not appreciate how unacceptable his sworn statements and answers were. I think that his resentment also overwhelmed him to the extent that he could not distinguish between statements and answers which protected his own interests and statements and answers which were untrue. I was not prepared to conclude that he knowingly gave false evidence.

However, when every allowance is made for the Opponent, he still stands convicted of two serious charges of professional misconduct and he has failed to acknowledge his wrongdoing. I think that in those circumstances the only order which the Court can make is to remove the Opponent's name from the Roll of Barristers.

Disbarment ordinarily carries with it a presumption of permanent unfitness for practice. But in the very peculiar circumstances of this case as I have seen them, I do not think that the presumption applies to the Opponent. Acceptable evidence at a future time that the Opponent now had a full insight and appreciation as to what had occurred, genuinely regretted it, and was capable of carrying out the obligations imposed on members of the Bar might be sufficient to restore his name to the Rolls.

ORDERS

Declare that the opponent is not a fit and proper person to be a member of the Bar of New South Wales;
Order that the opponent's name be struck off the roll of barristers; and
Order that the opponent pay the claimant's costs.

Counsel for the Claimant: R R STITT QC / J D HISLOP Counsel for the Opponent: R J B ST JOHN QC / P HEDMAN Solicitors for the Claimant: DIBBS CROWTHER & OSBORNE Solicitors for the Opponent: BROWN & PARTNERS

At a glance

Court

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Before

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Judgment (192 paragraphs)

Parties

Cases Cited (6)

Cited By (3)