Bar Association (NSW) v Evatt [1968] HCA 20

High Court of Australia Barwick C.J. Kitto, Taylor, Menzies and Owen JJ. Bar Association (NSW) v Evatt [1968] HCA 20

ORDER Appeal allowed with costs. Cross-appeal dismissed with costs. So much of the order of the Supreme Court as ordered that the respondent be suspended from practice set aside and in lieu thereof order that the respondent's name be removed from the roll of barristers of the Supreme Court of New South Wales.

Cur. adv. vult.

The Court delivered the following written judgment:—

May 3 Barwick C.J.,Kitto, Taylor, Menzies and Owen JJ.

The Supreme Court of New South Wales has found that the respondent, a barrister of the Court, has been guilty of professional misconduct as a barrister in that

he between 1st February 1963 and 30th August 1965 knowingly was a party to, actively assisted in, and facilitated, a systematic course of action whereby two solicitors charged extortionate and grossly excessive sums as costs to lay clients, and further that acting as aforesaid he charged fees as counsel which were excessive and which he knew would be paid in part from the amounts so charged by the solicitors. Upon this finding the Court ordered his suspension as a barrister for a period of two years.

The New South Wales Bar Association, which made the complaint against the respondent, has appealed to this Court against the order for suspension, claiming that the misconduct found against the respondent rendered him unfit to remain upon the roll of barristers and required that he should have been disbarred. The respondent has cross-appealed against the finding of professional misconduct made against him.

Before this Court there was no issue whether the two solicitors referred to, namely H. A. P. Veron and B. R. Miles, had engaged in a systematic course of action in charging extortionate and grossly excessive sums as costs to lay clients. The decisions of the Supreme Court reported in Re Veron; Ex parte Law Society of N.S.W. [1] and Re Miles; Ex parte Law Society of N.S.W. [2] demonstrate that they despoiled their clients by taking both party and party costs, and, up to nearly one half of the verdicts, as so-called solicitor and client costs, in simple running-down, or industrial accident cases—which were settled on terms that there should be judgment for the plaintiff for an amount not disclosed, except to the Court, and costs. Two instances taken from the evidence before us on this appeal will suffice. In one case investigated in these proceedings, a judgment for £3,000 and costs—assessed at £455—yielded the plaintiff, Godlevsky, after the repayment of £1,182 received by way of worker's compensation, the sum of £850, while the solicitor, Miles, took £1,422, making in all £1,877 from which to pay disbursements, including counsel's fees, and to satisfy his own dishonest demands. In another such case, which unfortunately is fairly representative, a verdict for £2,000 and costs yielded the client, Whitton, £1,000 after the repayment of £22 worker's compensation, and yielded the solicitor, Veron, £977 plus party and party costs of £305.