DEJ v Council of the New South Wales Bar Association [2021] NSWCA 72

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: DEJ v Council of the New South Wales Bar Association [2021] NSWCA 72 Hearing dates: 19, 20 August 2020 Date of orders: 28 April 2021 Decision date: 28 April 2021 Before: Macfarlan JA at [1]; Meagher JA at [6]; White JA at [202]. Decision: (1) Dismiss the appeal against order 3 made by the Tribunal on 11 December 2019. (2) The appellant to pay 80% of the respondent's costs of the appeal. (3) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) and on the ground specified in s 8(1)(c): (a) Order that the appellant and his wife continue for a period of 20 years to be referred to in relation to these proceedings as DEJ and DEK respectively. (b) Order that publication of the identity of the appellant as a party to these proceedings and of any information tending to reveal his identity be prohibited in Australia for a period of 20 years. (c) Order that publication of [199] of these reasons be prohibited in Australia for a period of 20 years. (4) Orders (3)(a) and (3)(b) do not apply to the respondent, or any member of the Bar Council or the New South Wales Bar Association, or any of their officers or employees, from disclosing: (a) The appellant's name; (b) The decisions, reasons for decisions and orders of the Court in these proceedings; (c) Documents and evidence filed with the Court in these proceedings; and (d) Information about the proceedings, decisions, documents and evidence referred to in (4)(b) and (4)(c) above to any of the persons, bodies or entities listed in Schedule A attached to the Court's reasons, in connection with the Bar Council's exercise of its functions under the Legal Profession Act 2004 (NSW), the Legal Profession Uniform Law 2014 (NSW) (as amended or substituted from time to time) and all regulations and rules made under or in connection with those Acts (as amended or substituted). (5) Orders (3)(a) and (3)(b) do not preclude the respondent, or any member of the Bar Council or the New South Wales Bar Association, or any of their officers or employees, from disclosing: (a) The appellant's name; (b) The decisions, reasons for decisions and orders of the Court in these proceedings; (c) Documents and evidence filed with the Court in these proceedings; and (d) Information about the proceedings, decisions, documents and evidence referred to in (5)(b) and (5)(c) above to any of the persons, bodies or entities listed in Schedule B attached to the Court's reasons, for the purpose of enforcing any costs order made by the Court in these proceedings, assessing those costs, and enforcing any judgment of a court that arises from the filing of a cost assessor's certificate or review panel's certificate and any judgment on appeal from a determination of a review panel. (6) Orders (3), (4) and (5) be subject to any further orders of this Court and any other court. Catchwords: LEGAL PRACTITIONERS – practising certificate subject to conditions relating to financial management and tax affairs – barrister contravened conditions – whether psychiatric disorder provided "reasonable excuse" to justify not treating contraventions as professional misconduct LEGAL PRACTITIONERS – barrister made representations to Bar Council – Tribunal found that those representations knowingly false – whether open to Tribunal to make those findings – whether Court of Appeal in position to make findings determining issue LEGAL PRACTITIONERS – barrister made representation as to future conduct namely that would sell property to discharge tax liabilities – where barrister acted contrary to representation – whether that conduct constituted professional misconduct LEGAL PRACTITIONERS – finding of professional misconduct – whether barrister a fit and proper person to remain on Supreme Court roll of lawyers Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 52, sch 5 cl 29 Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8 Evidence Act 1995 (NSW), s 140 Legal Profession Act 2004 (NSW), ss 4, 5, 58, 67, 68, 73, 497 504, 537, 551, 555, 562, 660 Legal Profession Uniform General Rules 2015 (NSW) r 16 Legal Profession Uniform Law 2014 (NSW) ss 44, 53 Supreme Court Act 1970 (NSW), s 48, 75A Uniform Civil Procedure Rules 2005 (NSW), r 51.53 Cases Cited: A Solicitor v Council of the Law Society of New South Wales (2003) 216 CLR 253; [2004] HCA Anderson v Anderson (2017) 94 NSWLR 591; [2017] NSWCA 131 Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226 Berger v Council of the Law Society of New South Wales [2019] NSWCA 119 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Browne v Dunn (1893) 6 R 67 Council of the Law Society of New South Wales v Zhukovska (2020) 102 NSWLR 633; [2020] NSWCA 163 Davison v Council of the New South Wales Bar Association [2007] NSWCA 227 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Laminex (Australia) Pty Ltd v Smeeth [1999] NSWCA 462 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Misrachi v Public Guardian [2019] NSWCA 67 Monie v Commonwealth (2005) 63 NSWLR 729; [2005] NSWCA 25 New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 New South Wales Bar Association v Hamman [1999] NSWCA 404; (1999) 217 ALR 553 New South Wales Bar Association v Murphy (2002) 55 NSWLR 23; [2002] NSWCA 138 Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 Seymour v Australian Broadcasting Commission (1990) 19 NSWLR 219 Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47 Taikato v The Queen (1996) 186 CLR 454; [1996] HCA 28 Vines v Djordjevitch (1955) 91 CLR 512; [1955] HCA 19 Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46 Texts Cited: SM Stoddard and CA Stutsman Jr, "Income Tax Offences by Lawyers: An Ethical Problem" (1972) ABAJ 842 Category: Principal judgment Parties: DEJ (appellant) Council of the New South Wales Bar Association (respondent) Representation: Counsel: D A Lloyd SC (appellant) K Richardson SC and C Mitchell (respondent)