Clifton v The Council of the Law Society of New South Wales [2021] NSWSC 1111

Supreme Court New South Wales

Medium Neutral Citation: Clifton v The Council of the Law Society of New South Wales [2021] NSWSC 1111 Hearing dates: 30 August 2021 Decision date: 01 September 2021 Jurisdiction: Common Law Before: Adamson J Decision: (1) Dismiss the summons filed on 9 August 2021, as amended on 30 August 2021. (2) Subject to either of the parties applying to my Associate in writing for a different order within seven days, order the plaintiff to pay the defendant's costs of the proceedings. (3) Note that the stay ordered by Cavanagh J on 12 August 2021 is hereby dissolved. Catchwords: OCCUPATIONS — Legal practitioners — Practitioner made unauthorised withdrawals from trust account and authorised false tax invoices to conceal withdrawals — Practitioner seeking appeal against or review of decision of the Council of the Law Society of New South Wales — Decision to appoint a manager and not renew the practitioner's practicing certificate — Decisions followed a decision of the New South Wales Civil and Administrative Tribunal finding practitioner guilty of professional misconduct and recommending that his name be removed from roll of lawyers — Whether practitioner is a fit and proper person— Evidence of insight into his wrongdoing and his good fame and character — Gravity of misconduct prevents practitioner from proving that he is a fit and proper person — The challenge to the decision to appoint a manager unsuccessful as the need for a manager is finite and will be kept under review by Council CIVIL PROCEDURE — Principles of disciplinary proceedings — Protection of the public includes whether practitioner will commit the same misconduct again, the reputation of the profession and the salutary effect of the proceedings on the practitioner and the profession generally — Consequences necessary so as to not bring the legal profession into disrepute Legislation Cited: Legal Profession Uniform Law (NSW), ss 44, 45, 47, 53, 100, 135, 138, 145, 146, 147, 148, 154, 278 Legal Profession Uniform General Rules 2015 (NSW) rr 13, 45, 47 Cases Cited: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32 Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Council of the NSW Bar Association v Power (2008) 71 NSWLR 451; [2008] NSWCA 135 Hercules v Phease (1994) 2 VR 411 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Law Society of New South Wales v Clifton [2021] NSWCATOD 101 McCarthy v Law Society of New South Wales (1997) 43 NSWLR 42 New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 New South Wales Bar Association v Murphy (2002) 55 NSWLR 23; [2002] NSWCA 138 NSW Bar Association v Meakes [2006] NSWCA 340 Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42 Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669 Weaver v Law Society (1979) 142 CLR 201; [1979] HCA 3 Category: Principal judgment Parties: David Vincent Clifton (Plaintiff) The Council of the Law Society of New South Wales (Defendant) Representation: Counsel: N Beaumont SC / R Withana (Plaintiff) K Morgan SC (Defendant)