THE NEW SOUTH WALES BAR ASSOCIATION v SMITH

Court of Appeal (NSW)|1991-06-07|Before: Mahoney JA, Meagher JA

SAMUELS AP, MAHONEY and MEAGHER JJA 7 June 1991, 4 July 1991

Court of Appeal - Order that barrister be removed from Roll of Barristers - Application, before entry of order, that order be set aside - Further affidavits filed. Jurisdiction to review Court's order - Inherent jurisdiction exists: State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1981) 150 CLR 29; Wentworth v Rogers and Ors (No 9) (1987) 8 NSWLR 388 - Statutory jurisdiction exists: Pt40 r9. Effect of new evidence - Not alter conclusions arrived at in previous proceeding (Samuels AP dissenting).

Samuels AP By a summons dated 17 August 1988 the claimant sought declarations that the opponent had been guilty of professional misconduct, and an order that his name be struck off the Roll or, alternatively, that he be suspended from practice. The particulars charged were that at Penrith Local Court on 11 November 1986 the opponent sought to appear for a litigant without the intervention of an instructing solicitor, and deliberately misled the court by informing it that he was instructed by a firm of solicitors called Malcolm McDonald and Co, when in fact he was not so instructed, and by other statements.

The proceedings were before this Court on 29 and 30 January and 1 March 1991, and judgments were delivered on 9 May 1991. I dealt in some detail with the facts. I found that the claimant had proved the opponent's professional misconduct in the respects charged. I went on to say this:

"In the present case I feel bound to take into account, although it is not an independent head of complaint, the opponent's evidence about the conversation in the car park which, I regret to say, I regard as a deliberate fabrication. Hence in this respect the opponent lied to this Court."

I indicated the gravity, to my mind, of that part of the opponent's evidence. I said:

"He dealt lightly with the truth, both before the magistrate and before us. It is the latter occasion that I find the more disturbing. It lacked the stress which was no doubt exhibited by the circumstances of 11 November 1986. The opponent had ample time to consider the contents of his affidavit and its annexures and what he would say in evidence in this Court. Thus the conversation in the car park has a premeditated character which the exchange with the magistrate necessarily lacks."

However I concluded that, notwithstanding the finding of professional misconduct and his untruthful testimony before this Court, it was not appropriate to order his removal from the Roll. Mahoney JA and Meagher JA agreed with my findings of fact, but were each of the opinion that his untruthful evidence to this Court required his disbarment. Accordingly, by majority, the Court ordered that the opponent's name be removed from the Roll of Barristers, and, unanimously, that he pay the claimant's costs of the proceedings in the Court of Appeal.

On 13 May the opponent filed a notice of motion seeking a stay of proceedings and on 27 May a further motion requesting the Court to review the judgments and to set aside the orders of 9 May. The finding of professional misconduct is not challenged.

I do not think it necessary to recapitulate the facts which are fully set out in my judgment save, of course, to mention those which are necessary to provide a context for the determination of the current application. The review is sought substantially on two grounds. First, that there was in my judgment, in which, in this respect, the other members of the Court agreed, an error of fact which, it is suggested, influenced the findings to which I came and which the other members of the Court adopted. Secondly, the opponent has filed affidavits offering new evidence not tendered at the hearing. It was submitted, however, that the interests of justice required this material to be considered. It consists of the following:

(1) an affidavit from Mr McDonald which maintains his denial that there was any conversation in the car park with the opponent about the subject case of Capsanis v Knight, but expresses the clear recollection that he did have a conversation with him about another client, for whom the opponent appeared, called Skipper:

(2) an affidavit from Dr Atef Gabrael, the opponent's general practitioner, deposing to a conversation with Mr McDonald to the same effect as the substance of Mr McDonald's affidavit referred to above, and annexing a medical report concerning the opponent, dated 5 July 1989:

In addition, the opponent has himself sworn two affidavits, which are mainly argumentative, and has filed two affidavits sworn by Ms Yvonne Swift, who was his solicitor in the original application by the Bar Association, which are designed to support the contention that in those proceedings certain instructions given by the opponent about the conduct of the matter were not taken up by counsel. Further we were informed that the opponent proposed to call Dr Gabrael to testify to the chances of the opponent and/or Mr McDonald being mistaken about their contradictory accounts of some conversation in the car park and to lead further character evidence.

The submission therefore was that the mistake of fact entitled the opponent to a review of the Court's decision; and, in the course of that review not only the evidence already given in the original application but the new material also should be considered. I have no doubt but that we have the power which the opponent asks us to exercise. Pt40 r9 of the Rules of the Supreme Court provides:

"(1) The Court may set aside or vary a judgment where notice of motion for the setting aside or variation is filed before entry of the judgment.

(3) The Court may on terms, set aside or vary an order -

(b) where notice of motion for the setting aside or variation is filed before entry of the order.

(5) Nothing in this rule affects any other power of the Court to set aside or vary a judgment or order."

It is, however, clear from the authorities (to most if not all of which the opponent, who appeared in person, has helpfully referred us) that this power is one to be exercised sparingly and with considerable care. Without doing any injustice to the opponent's diligence, I can content myself by referring only to two cases. In State Rail Authority of New South Wales v Codelfa Construction

URJ THE NEW SOUTH WALES BAR ASSOCIATION v SMITH (Samuels AP) 3

Pty Ltd (No 2) (1981) 150 CLR 29, Mason and Wilson JJ, at 38, having concluded that the High Court had jurisdiction to entertain an application to vacate its orders, continued:

"Nevertheless, it is a power to be exercised with great caution. There may be little difficulty in a case where the orders have not been perfected and some mistake or misprision is disclosed. But in other cases it will be a case of weighing of what would otherwise be irremediable injustice against the public interest in maintaining the finality of litigation. The circumstances that will justify a rehearing must be quite exceptional."

At 45, Brennan J, having also concluded that there was jurisdiction to entertain the application, said:

"That jurisdiction inheres in this Court as a final court of appeal to prevent irremediable injustice being done by a Court of last resort, but the occasions of its exercise must be rare indeed."

In Wentworth v Rogers and Ors (No 9) (1987) 8 NSWLR 388 this Court considered the existence, extent and limits of its power to set aside or vary its own orders. At 394 the Court expressed the view that since appeals now lie from this Court to the High Court of Australia only by special leave of the High Court it may be appropriate to apply to this Court the principles stated in Codelfa, although "irremediable injustice" cannot be an inevitable consequence because of the availability of special leave. At 395 the Court observed: "It may be assumed for the purposes of this judgment that such a discretion to correct or supplement the Court's own orders before entry of the order or judgment in question: exists, as we incline to think it does and plainly ought to exist. But it is a discretion to be utilised with extreme care. Although not confined to such cases, it should normally be limited to dealing with technical or incidental changes to the form or content of orders but should not be used as a substitute for an appeal."

The first complaint made by the opponent is plainly correct; that is to say, there was an error of fact in the judgment I wrote. At 25 I said this: "Finally, the opponent made the direct assertion of a conversation with Mr McDonald on 6 November in the car park attached to their premises in which Mr McDonald spoke in terms consistent only with knowledge and approval of the opponent's holding a brief in the proceedings listed for the following Tuesday.

The opponent did not mention the conversation in his evidence to the Tribunal or in the draft affidavit' which he then tendered and which is, to my mind, a generally candid account of these events. The conversation is first related in the statement annexed to the opponent's affidavit filed in these proceedings, and was repeated in evidence before this Court."

I then went on to relate the opponent's account of the conversation and, having done so, noted that Mr McDonald denied that any conversation in those terms had taken place, and that I believed Mr McDonald. I continued by discussing the competing probabilities in terms which I need not now repeat. I turned then to the remaining complaints charged by the claimant which consisted of statements made by the opponent to the magistrate at Penrith Local Court and alleged to have been untrue and misleading. I said:

"Tt follows from my rejection of the opponent's evidence about the car park conversation that that encounter cannot be the source of any of these statements. However, neither in the draft affidavit' tendered to the Disciplinary Tribunal, and said to be a contemporary account of the events of 11 November 1986, nor in his evidence to the Tribunal did the opponent mention the car park conversation.

That first emerged, as far as I know, two and a half years later in the statement annexed to the opponent's affidavit of 30 June 1989. Accordingly, the opponent originally did not seek to attribute the statements made in court to a conversation with Mr McDonald. The explanation he gave in the draft affidavit', and to the Tribunal, must therefore be the one to be considered when evaluating the character of those statements. The fact that he later sought to embellish that account by reference to a conversation which I do not think took place, is relevant to a different aspect of this application."

This last reference, I interpolate, was, of course, to the consequences of lying to this Court as I ultimately concluded that the opponent had done. Regrettably, my statement that the opponent did not mention the car park conversation in his evidence to the Tribunal was wrong. The transcript of the proceedings before the Disciplinary Tribunal was annexed to the affidavit sworn by the claimant's Registrar. It appears that, apart from this matter of Capsanis v Knight, there was another matter involving the opponent which was being investigated at the same time. The Capsanis matter was dealt with first, and the opponent tendered what he described as a 'draft affidavit' prepared either on 11 November 1986, the day on which his retainer was challenged at the Penrith Local Court, or the next day, and which, according to him "sets out everything in perspective, recorded at the time." He said he had prepared it because "I wanted to get everything in proper perspective and proper sequence. If any trouble arose in Capsanis v Knight, in view of Hiatt's threats to me that he was going to cause trouble for me in relation to Skipper, and the subsequent business in front of him relating to Capsanis, Torrington and Davies - which came out of the blue to me and was a great surprise to me, and greatly disturbed me." Torrington, I might add, was the name of the barrister who appeared for Mrs Capsanis in the case in question, Ms Davies was his instructing solicitor, and Mr Hiatt, of course, was the magistrate. I interpolate that there was indeed no reference to the car park conversation in this draft affidavit. Having tendered that document, the opponent explained his position in the Capsanis matter and why he believed that he had been properly instructed. And then, towards the bottom of p32 of the transcript, he said: "That is about all I can say about Capsanis v Knight. I rely on what I have said in those letters to the Bar Association." I note that the Court has not seen those letters, but I infer that there is no reference in them to the car park conversation. I imagine that had there been mention of it we would have been told.

However, the opponent continued his account of what had happened in the Capsanis matter until at the top of p 35 he said: "Unless you have any questions I will proceed to the next matter." Up to this moment he had not mentioned the car park conversation. Then the barrister chairing the Tribunal drew the opponent's attention to his statement to the magistrate that his instructing solicitor was engaged in other work and was not able to be at the court, and asked the opponent whether he had any knowledge about Mr McDonald's whereabouts on that day. To that the opponent said that he knew that Mr McDonald was engaged in other matters. That response and other explanations led the Tribunal to infer that the opponent had spoken to Mr McDonald before 10 o'clock on the day in question; and at this stage the following exchange occurred:

"MR MACFARLAN: When you had spoken to Mr McDonald prior to 10 o'clock on 11th November

MR SMITH: I did not speak to him that day prior to 10 o'clock. That was the previous week. I had known that he would be engaged in matters on that day.

URJ THE NEW SOUTH WALES BAR ASSOCIATION v SMITH (Samuels AP) 5

MR MACFARLAN: So you had some discussion with him about the fact that this hearing was on for hearing on 11th November?

MR SMITH: There is a car park at the back of the building where McDonald and I work and sometimes we meet each other in the car park and just say Hello and pass the time of day. It was on one of those occasions that he indicated to me

I don't attempt to use the exact words. I said Capsanis is on on Monday'. He said 'Oh well, good luck', or something like that. I said What are you doing?' I

don't know the words he used but he said I'm engaged the whole day'.

The opponent then at once moved on to the other matter under examination.

Plainly the opponent did mention the conversation with Mr McDonald to the Tribunal, and I was in error in saying that he had not done so.

The first question is whether that error is such that the Court ought, in the exercise of its discretion, to review the orders it has made. In my opinion it should. This is not a case in which a party seeks to reargue a case upon the material originally advanced in an attempt to persuade the Court to come to a different decision. It may be true to say that the application is "a substitute for an appeal", in the sense that an error of fact will, in certain circumstances, found an appeal, or even an application for special leave to appeal. But it seems to me that once an error of fact is revealed in the reasons supporting the Court's orders it is proper for the Court itself, before the orders are perfected, to undertake the review which the rules authorise. Such a procedure is likely to be cheaper and more expeditious than mounting an appeal, or, in the present context, an application for special leave to appeal. The party allegedly aggrieved may choose which course to follow. But it is only fair to recognise that errors of fact may not rank highly in the ratings for special leave.

The first step in the review is to determine whether the mistake was significant. The test must be an objective one, not confined to the view of the judge who wrote the judgment and made the misstatement. The opponent here must establish that reasonable persons reading the judgment might consider that the mistake had influenced the conclusion. Cases of apprehended bias offer a useful, although inexact, analogy: see e.g. The Queen v Watson; Ex parte Armstrong (1976) 131 CLR 248 at 263-4.

In some cases the effect of the mistake will be obvious. In others it will be less evident. But all that an applicant for review must prove is that it is reasonably open to infer a connection between error and conclusion. A litigant is entitled to have his case determined upon an accurate statement of what the evidence was. Of course, the judge's opinion about credibility, or about the acceptance or rejection of evidence, is not involved in the present question, which concerns only what does or does not appear in the material before the Court. To adapt the words of Lord Denning MR in Metropolitan Properties Co (FGC) Ltd v Lanson (1969) 1 QB 577 at 599: "Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking": "The judge misunderstood the evidence.' I have supplied the words emphasised.

In my view the judgment evidently regards the opponent's failure to mention

the car park conversation before the Tribunal as suggesting the inference that when raised in his statement it was a 'recent invention', and of doubtful

It is therefore necessary to reconsider the application on the material previously before the Court, including the evidence of the opponent's reference before the Tribunal to a conversation with Mr McDonald.

It will be recalled that the claimant moved on two grounds. First, that the opponent sought to appear for Andrew Knight without the intervention of an instructing solicitor. Secondly, that he deliberately misled the Local Court by informing it that he was instructed when in fact he was not, and by making other statements that he did not believe to be true.

In answer to the first ground the opponent conceded that he had no distinct oral or written instructions, but contended that he believed, on reasonable grounds, that he was briefed in the matter. This belief, it was submitted, was a reasonable inference from the arrangement between him and Mr McDonald; or was fostered by the conduct of Ms Watson and the conversation in the car park with Mr McDonald.

I remain of the opinion (I need not repeat the reasons previously given) that there was nothing in the arrangement with Mr McDonald, or in the conduct attributed to Ms Watson, capable of supplying the reasonable belief for which the opponent contends. That leaves the conversation. I am still of the view that it did not take place. But, taking account of the opponent's reference to it before the Tribunal (which removes what I previously regarded as a telling argument against acceptance of the opponent's evidence on the point) I am not now prepared to find that he fabricated, or invented, the conversation with Mr McDonald, either in his evidence to the Tribunal, or before us. I develop my reasons as I consider the effect of this revised finding upon the opponent's answer to the first ground.

Let it be assumed that when he gave each account of the conversation, first to the Tribunal and then to us, the opponent believed that such a conversation had taken place. There is no ground for concluding that on 11 November 1936, at any time, the opponent had such a conversation in mind as a basis for his belief that he was instructed in the Capsanis matters by Ms Watson on behalf of the firm or by Mr McDonald personally. He did not mention it that day to the magistrate or, more pertinently, to Mr McDonald. It is objectively evident, of course, that Mr McDonald had no notion of any such conversation; the form of the brief which he delivered to the opponent after the challenge to the opponent's retainer had been made is eloquent upon this point and is a powerful factor in rejecting the assertion that the conversation in fact took place.

But assuming that the opponent believed that it had occurred, he does not appear then to have relied on it. In any case, considering the conversation as the opponent described it, and in the context of the surrounding circumstances with which the opponent was familiar, it falls far short of furnishing an adequate basis for the relevant reasonable belief. The opponent was aware that it was not Mr McDonald's practice to engage himself personally in matters such as the Capsanis affair. The opponent had no reason to suppose that Mr McDonald had ever heard of the matter. He must have understood that casual mention of "Capsanis" and the opponent's involvement would have been taken by Mr McDonald to refer to proceedings in which the opponent had been briefed by Ms Watson. Hence, in my view, neither version of the conversation, neither the laconic response to the Tribunal's questions, nor the expanded description given in evidence to the Court, was adequate to support the reasonableness of any belief which the opponent held in the existence of his instructions. Accordingly, I confirm my original finding that the opponent did not believe on reasonable grounds that he was instructed by Malcolm McDonald and Co, and was therefore guilty of professional misconduct. I do not repeat the whole of the reasoning to be found in my original judgment. I add only that, on reflection, I think that the

URJ THE NEW SOUTH WALES BAR ASSOCIATION v SMITH (Samuels AP) 7

better view is that the onus of establishing belief on reasonable grounds rested on the opponent and has not been discharged. This is a civil matter and where the onus lies is to be determined by consideration of civil rather than criminal law. The opponent's answer should be regarded as a plea in confession and avoidance rather than as imposing merely an evidentiary burden, leaving the ultimate persuasive burden of proof (as in a criminal prosecution) on the claimant. However, if the burden lay on the claimant to negative reasonable belief, it has done so to my comfortable satisfaction.

The conclusion that the opponent did not rely, in dealing with the events of 11 November 1986, upon any conversation with Mr McDonald applies equally to the statements, said to be deliberately misleading, which comprised the second ground of the application. The first two statements were to the effect that the opponent was instructed by Malcolm McDonald and Co or by Mr McDonald personally. The third and fourth are based upon the opponent's assertion to the magistrate "....my instructing solicitor is engaged in other work. He is not able to be at Court today and the reason why I am at Court in the matter and he is not is that I am the person who is very familiar with the facts whereas his familiarity with the case is restricted to other aspects of it and not this particular aspect of it."

I emphasise that never at any time during what must have been a distressing morning for the opponent, during which he needed to deploy all available armament, did he mention the conversation with Mr McDonald. In argument before us on the last occasion he conceded that the fact was that the conversation

"did not occur to me at the time. I know it sounds strange perhaps but it did not occur to me at the time because I did not believe I was intending to meet - I believed that Malcolm McDonald would support me in saying that I was briefed by him because I believed that to be the case and it never occurred to me until the Bar Association took proceedings against me that I had not been briefed by Mr McDonald. I thought it was sufficient on that day to get Mr McDonald to come to court and say what was said."

It follows that in these respects too the opponent was relying, in his answers to the magistrate, upon events which did not include that conversation. Hence the analysis made in my earlier judgment was not affected by the error about what the opponent said to the Tribunal. Even there he did not explicitly rely on the conversation for more than an explanation of how he knew that Mr McDonald was engaged in other work that morning. Be that as it may, the statements, which I have recited above, were not consciously derived from the car park conversation. Indeed, the last of them, concerning Mr McDonald's familiarity with the case, finds no support in either version of the conversation. The statement that Mr McDonald was engaged in other work was unlikely to be other than true, and could be advanced with impunity as to the fact, although not as a reason for Mr McDonald's absence, which was due to other factors entirely. For these reasons, and those previously given, I remain satisfied that the opponent had no belief in the truth of the statements he made to the magistrate.

Hence, upon reconsideration I do not revise my original findings of professional misconduct.

That brings me to the final and perhaps critical issue in the case. Both my brethren and I were of the view that the opponent told a deliberate lie to the Court when he swore to the car park conversation. I was also of the opinion that he made statements to the magistrate that he did not believe to be true. My brethren may have taken a more serious view of his conduct in that respect. I thought it

desirable, however, to be as precise as I could about the character of those statements. It is true, of course, that a false statement made "knowingly, or without belief in its truth, or, recklessly, carelessly whether it be true or false" in each case betokens lack of honest belief in its truth: Derry v Peek (1889) 14 App Cas 337 at 374, Fleming, The Law of Torts, (7th ed 1987) at 601. In a sense not all the statements were wholly false. Rather they were misleading, as the claimant alleged. By emphasising want of belief in the truth of what the opponent asserted (rather than conscious falsity) I wished to draw attention to what seemed to me to be the essence of what had happened. As I put it the opponent "offered a reckless defence." As Mahoney JA described it: "It was, I suspect, a wrong committed on the run." It was not, I think, a wrong demanding the protection of an order for disbarment. Nor was the first item of professional misconduct.

Hence the evidence given to this Court was, at least in my brethren's eyes, critical on the question of the order to be made. For my own part I did not think removal from the roll a necessary consequence, in the circumstances, even of the deliberate lie which I found the opponent to have told. In arriving at that finding, it appears, as I have pointed out, that my judgment was influenced by the assumption that the material conversation was not advanced until the opponent made the statement annexed to his affidavit of 30 June 1989. I think that the terms of the judgment are such as to suggest that the supposed omission strongly influenced the conclusion.

If that error is corrected, the case against the opponent, on this point, and here the claimant bears the onus of proving an adverse circumstance material to the order to be made, is somewhat diminished. But it is by no means destroyed. The conversation was raised only in answer to a question. It was not put in the van of the opponent's case before the Tribunal when he knew well enough that he had to meet a charge of seeking to appear without instructions. He told us, as I have indicated above, that it never occurred to him until the Bar Association took proceedings against him that he had not been briefed by Mr McDonald. That moment of revelation had certainly come before he actually appeared in the Tribunal to answer that charge.

The finding, which I affirm, that the conversation never took place is itself a cogent argument in favour of the view that the opponent deliberately invented it. But it does not determine the question. I have no doubt but that the opponent, over the time which passed from November 1986 to 23 October 1987 (when the Tribunal sat) thought a great deal about the matter, especially after early March 1987 when the opponent received a letter from the claimant indicating the complaints made against him. I think it likely that a degree of reconstruction took place in the opponent's mind. Since there was a car park which both men used almost daily, it is not unlikely that there were from time to time brief snatches of talk between them; and it is conceivable that the opponent might have deceived himself into the belief that on one such occasion there was mention of the Capsanis case. His reference to such a conversation before the Tribunal, in its terms, does not seem to me extravagant or contrived. Indeed, even the fuller version is modest in its content. If the context, which to my mind is fatal to the fact of its occurrence, is excluded, the conversation itself is not improbable. It will not supply the support which the opponent sought from it. I have already dealt with that aspect. But it is necessary, at this stage, to consider only whether it was a deliberate invention. That is to say whether the opponent deliberately and

URJ = THE NEW SOUTH WALES BAR ASSOCIATION v SMITH (Mahoney JA) 9

untruthfully swore that a few days before 11 November 1986 he had had a conversation in the terms alleged - critically mentioning Capsanis - with Mr McDonald.

I have given this question the most careful consideration. All in all, I am not sufficiently persuaded, once his evidence to the tribunal is correctly appreciated, that the opponent did deliberately lie in this respect.

This revised conclusion makes no difference, however, to the orders I would propose. It is merely a further reason for my view that protection of the public does not demand the opponents disbarment. The finding of professional misconduct entails that the existing order for costs be confirmed.

I have summarised the new evidence which the opponent wished us to consider. I would not take it into account because it is all material which was available to be tendered when the original application was before this Court. Similarly, I would not examine the complaint that the opponent's instructions were not in all respects followed by his counsel. I do not think that any miscarriage of justice occurred on that account. R v Birks (1990) 1 NSWLR 677, although a criminal case, is instructive on this point. But in the end these exclusions do not affect the conclusion to which have come.

I would therefore allow the motion and set aside the orders made on 9 May 1991. I would substitute the single order that the opponent pay the claimant's costs of the summons.

Since mine is a minority view I do not provide for the costs of this application.

Mahoney JA On 9 May 1991 this Court ordered that Mr Smith be removed from the Roll of Barristers. He has now applied to the Court to review and reverse that order. He has done so on grounds which are essentially three:

(1) that a conversation which the Court held did not take place did take place;

(2) that evidence which he desired to bring forward at the original hearing had not been brought forward by his counsel; and

(3) that this Court made an error of fact when, on 9 May 1991, it decided as it did.

I regret that I do not see in any of these matters grounds which warrant what Mr Smith seeks. In the proceedings which led to the order of 9 May 1991, Mr Smith was represented by counsel and solicitor. He now appears for himself. He sees, I think, in the matters to which he now refers the possibility of achieving another result. He has placed before the Court written material and he has argued the matter orally. I have given careful attention to each of the matters raised and generally to what he has said. But in the end I feel no doubt that the order made by the Court on 9 May 1991 was the correct order. What has now been put, particularly what has been put in relation to the conversation in question, has, if anything, strengthened the view which I then formed.

The order of 9 May 1991 has not been entered. Mr Smith has contended that, because the order has not been entered, the Court has jurisdiction to do what he now seeks. I accept that the jurisdiction to do so exists both because of the Court's inherent jurisdiction over orders which have not been entered and because of Pt40 r9: see State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1981) 150 CLR 29; Wentworth v Rogers and Ors (No 9) (1987) 8 NSWLR 388. The issue in this case is whether the Court should do what Mr Smith seeks.

The power which the Court has in this regard has implications for the due administration of justice such that applications for the exercise of it should not be lightly granted. The position in respect of the inherent power has been considered in cases such as those to which I have referred. The jurisdiction given by Pt40 r9 is not, or may not be, simply congruent with the inherent power of the court. The jurisdiction given by Pt40 r9 is to be exercised in accordance with the considerations which, in accordance with the terms of the rules, it is necessary to take into consideration. But however that be, considerations such as, for example, the need to have finality in litigation and to avoid parties to litigation being delayed or burdened by costs, mean that any application for the exercise of the power must be carefully scrutinised.

In the original proceeding, a central issue was whether Mr Smith was instructed by Mr McDonald, a solicitor, to appear as counsel in a proceeding in the relevant Local Court on the 11 November 1986. That matter has been described as the Capsanis matter. Mr Smith claimed that there was a conversation between himself and Mr McDonald in a car park on 11 November 1986 and that conversation showed that he had instructions from Mr McDonald to appear in the Capsanis matter on 11 November 1986.

In the original proceeding I came to two conclusions in this regard: that the conversation did not take place; and that Mr Smith did not actually believe that it had taken place. Because of these conclusions, I concluded that Mr Smith had not spoken the truth, to the Local Court on 11 November 1986 and to this Court in the original proceeding. I therefore concluded that he was not a fit and proper person to be a barrister.

Mr Smith, in the present application, sought to have the Court come to a different conclusion concerning that conversation. He did this upon the basis of what, he submitted, had been said by Mr McDonald to a medical practitioner and subsequently in an affidavit. It is therefore necessary to examine what relevantly Mr McDonald has now said and what is the effect of it upon Mr Smith's fitness to practice as a barrister.

As far as is presently relevant, Mr McDonald has now said essentially two things: that he did not have the conversation about the Capsanis case which Mr Smith had sworn took place on 6 November 1986 but that he had had a conversation with Mr Smith about another matter at another time (the other matter related to a client Mr Skipper); and, second, that he, Mr McDonald, thought Mr Smith was an honest person and may have mistaken the one conversation for the other. In fairness to Mr Smith and at the risk of drawing out the matter at too great a length, I shall indicate what, in my opinion, is the significance of these matters.

Mr McDonald's opinion of Mr Smith has relevance in relation to any conclusion drawn as to Mr Smith's general character. It cannot be, nor was it suggested to be, of particular assistance in determining the issues which arise in relation to the alleged conversation.

The proof by Mr Smith that a conversation about the Capsanis matter took place on 6 November 1986 was of importance to his case for two reasons: it might evidence that Mr Smith was in fact instructed by Mr McDonald to appear in the Capsanis matter on 11 November 1986; and it might evidence that, even if Mr Smith was not so instructed, he believed that he was.

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I shall examine first the significance of Mr McDonald's present evidence in relation to the question whether Mr Smith was in fact instructed to appear as he alleged.

In the original proceeding Mr Smith gave oral and written evidence: so did Mr McDonald and a solicitor in his employ at the time, Miss Watson. In view of the submissions which Mr Smith has now made, it is necessary that I record that I found Mr McDonald and Miss Watson to be truthful and accurate witnesses: I did not find Mr Smith to be such. Having regard to what was said directly by Mr McDonald and by what was said by Miss Watson in respect of other matters indirectly related to the alleged conversation, I was then satisfied that the conversation which Mr Smith alleged concerning the Capsanis matter did not take place. It followed from that, as I indicated in my judgment on 9 May 1991, that I was of the opinion that Mr Smith had not told the truth about that conversation. For the purpose of those conclusions, it was of little significance whether Mr Smith had first set up the alleged conversation with Mr McDonald during the disciplinary proceedings before the Bar Association or not.

Mr McDonald has now said again, in the evidence recently relied on, that the conversation alleged by Mr Smith to have taken place about the Capsanis matter did not take place. His evidence is not directed only to whether it took place on 6 November 1986: the effect of Mr McDonald's evidence is that the conversation did not take place at all. What he now says can, therefore, but add to the force of what Mr McDonald said orally in the original proceeding. It adds weight to the conclusion I then formed that Mr Smith's sworn evidence that there was such a conversation was not true.

Mr Smith has, then, properly relied upon Mr McDonald's evidence for an alternative purpose. Mr McDonald has raised the possibility that Mr Smith mistook another conversation (the Skipper conversation) for the Capsanis conversation to which he swore. If he did, then, the argument has been, what happened before this Court was not that Mr Smith lied but that he was honestly mistaken.

I am conscious of the infirmities of recollection and I have therefore considered the possibility that, though it may have been unlikely, there is a sufficient possibility that Mr Smith, when he said what he did, honestly believed that a conversation had taken place about the Capsanis matter on 6 November 1986 and that he had been drawn to the belief that he was instructed to appear on 11 November 1986. My conclusion remains that the conversation did not take place and that Mr Smith did not believe that it did.

The significance of the alleged conversation about the Capsanis matter was not merely that the Capsanis case was mentioned. It lay in at least two things. First, it provided the basis for Mr Smith's suggestion that Mr McDonald was not present at the Local Court at the time of the hearing of 11 November 1986 because on that day Mr McDonald had appointments with clients. That is what Mr Smith told the magistrate in the Local Court on 11 November 1986. Mr Smith swore that Mr McDonald had told him that on 6, November 1986. Mr McDonald denied that he had done so. And it was not suggested that, in the course of any conversation in respect of the Skipper matter, Mr McDonald said that he would not be present at the Capsanis hearing for such a reason.

The Capsanis conversation was significant also because it provided the basis for the suggestion made by Mr Smith that, the Capsanis hearing having been mentioned between him and Mr McDonald, Mr Smith could have believed that Mr McDonald was briefing him in the Capsanis proceeding on 11 November

If the conversation which took place was about the Skipper matter, it could hardly have supported a belief by Mr Smith that he was instructed in the Capsanis matter. But, more significantly, it is clear that, if there was a conversation about the Skipper matter, it took place some weeks before. Mr McDonald did not attempt to pinpoint with accuracy the date on which, if there was such a conversation, it took place. But from his affidavit and from the facts relating to the Skipper matter, it is clear that, if there was such a conversation, it was some weeks before 11 November 1986.

It is, in my opinion, difficult to accept that on 11 November 1986, Mr Smith then believed that, because of a conversation about the Skipper matter some weeks before, he was retained by Mr McDonald to appear in the Capsanis matter on that day or that he believed that Mr McDonald was not then present in court because Mr Smith had been told that Mr McDonald was that day engaged with clients.

If Mr Smith did not, on 11 November 1986, believe these matters, then what he said was, to his knowledge, then false. And, if Mr Smith then said what to his knowledge was false, I do not think that it should be accepted that, later, he came to think of the suggested Skipper conversation as one, at another time, about the Capsanis matter.

I do not think that what now has been said by Mr McDonald assists Mr Smith in any respect. Mr Smith's attempted use of it tends, if anything, to confirm the conclusion which I formed at the original hearing, and retain, as to what then was said by him.

Mr Smith suggested, in the material he has now adduced and in what he has said, that there was evidence, generally as to his reputation and perhaps otherwise, which he had desired to be before the Court but which was not placed before the Court by those representing him at the original hearing. This was not, I think, the main matter relied upon. It is sufficient to say that the fact that, in the presentation of Mr Smith's case, those then acting for him took a course different from what he would have proposed and Mr Smith acquiesced in what was done provides no basis for interfering with what the court then did. Assuming the facts to be as Mr Smith has suggested, I do not see them, in the full context of the present case, as warranting the exercise of that power. 4. Error of fact: In my judgment of 9 May 1991, I accepted the statement cf the facts set forth in the judgment of Samuels JA. I shall rot detail the process of reasoning by which I arrived at the conclusions I then stated or detail which of the facts in question was significant in it: cf Zanatta v McCleary (1976) 1 NSWLR 230. It is sufficient to say that, considering the matter afresh, my opinion in this regards remains what it was on 9 May 1991.

On 11 November 1986 Mr Smith knew that what he told the magistrate in the Local Court was not correct. The fact that, as I shall assume, there was a conversation about the Skipper matter some weeks before did not, I think, lead Mr Smith to believe that a conversation had taken place on 6 November 1986 about the Capsanis matter. To the extent that there was an error in the recital of the facts, it was not, I think, one that required that a white sheet be worn: In re Wilson (1985) AC 750 at 760. It does not, on consideration of it, warrant a change in the order then made.

URJ THE NEW SOUTH WALES BAR ASSOCIATION v SMITH (Meagher JA) 13

Meagher JA In this matter judgment was delivered on 9 May 1991. The respondent has now sought to reagitate the matter. The principal judgment was that of Samuels AP, with which, insofar as it analysed the facts of the case, I agreed. The respondent has now submitted that the judgment of Samuels AP contains an error, viz. that the respondent never mentioned the "car park conversation" in his evidence before the Disciplinary Tribunal. It is true that the Court did make that error. I have read the judgment in draft of Samuels AP dealing with the respondent's application for review. Insofar as it deals with the primary facts of the case, I respectfully agree with it. However, in my view, the original order made that the respondent's name be struck off the Roll of Barristers should stand.

The alleged "car park conversation" of 6 November 1986 never occurred. We have considered evidence from Mr McDonald that it did not, and the contrary from the respondent. We believed Mr McDonald on this issue. I still do. This finding is primarily based on demeanour, but is amply supported by the other aspects of the evidence referred to by Samuels AP.

When on 11 November 1986 (only a week later) the respondent sought to inform the magistrate that he had been retained by Mr McDonald, he was asserting a falsehood. Since he must at that time have known what transpired and did not transpire between himself and Mr McDonald, he must have knowingly asserted that falsehood. Hence, my original remark that he "lied" to the magistrate is still correct.

In repeating his allegation of a retainer before this Court, he was likewise affirming a falsehood. In view of his intelligence and training, and in view of the gravity of the matters alleged, I cannot accept that he was doing so innocently and inadvertently.

In view of the error made, I agree we should reconsider the original evidence; however, having done so, I think the original orders should stand.

Insofar as the respondent applied to have us consider additional evidence, the application must fail.

I therefore favour dismissing this application with costs and confirming our original order.

Application to set aside orders dismissed with costs. Counsel for Claimant: Ralph Edward Smith, in person Counsel for Opponent: N R Cowdery QC and P Garling

Solicitors for Opponent: Dibbs Crowther and Osborne

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