Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339 Hearing dates: 8 October 2021 Decision date: 21 December 2021 Before: Bathurst CJ; Leeming JA; Simpson AJA Decision: 1. Appeal dismissed with costs. 2. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2020 (NSW), on the grounds stated in s 8(1)(c) of the said Act, publication of information tending to reveal the identity of the first respondent as a party to the proceeding in the Civil and Administrative Tribunal of NSW on 10 and 11 December 2020 and 4 March, 12 May and 18 June 2021, and in the NSW Court of Appeal on 8 October 2021 is prohibited in Australia for a period of 20 years from the date hereof, except to the extent that such disclosure is required for purposes in connection with the first respondent's professional indemnity insurance arrangements. 3. Order 2 does not apply to any person, body or entity to whom it is necessary to disclose the information referred to in Order 2 for the purpose of the legislation, regulations and rules applying from time to time for regulating the legal profession, for the assessment of costs and for the enforcement of judgments. Catchwords: ADMINISTRATIVE LAW – particular administrative bodies – New South Wales Civil and Administrative Tribunal – Occupational Division – subject matter of power or decision – disciplinary decisions – legal practitioners – barristers – misconduct and discipline – professional misconduct – where respondent engaged in demeaning, humiliating and inexcusable conduct towards a female clerk at a dinner – where the Tribunal found that the respondent had not engaged in professional misconduct – whether the Tribunal erred in failing to find that the respondent's conduct would justify a determination that the respondent was not a fit and proper person to engage in legal practice – whether the Tribunal erred in its assessment of the seriousness of the respondent's conduct by imposing only a formal reprimand OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – disciplinary proceedings – professional misconduct – where respondent is a practising barrister – respondent engaged in demeaning, humiliating and inexcusable conduct towards a female clerk at a dinner – New South Wales Civil and Administrative Tribunal found that the respondent had engaged in "unsatisfactory professional conduct" – respondent alleged to have said the words "suck my dick" to the female clerk – where immediate verbal complaint made by female clerk to a colleague – where the events of the dinner were recorded by closed circuit television cameras – where the Court was in as good a position as the Tribunal to determine questions of fact – whether the respondent said to H the words "suck my dick" OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – professional misconduct – where professional misconduct is defined in s 297 of the Legal Profession Uniform Law (NSW) – where that definition is expressed to be "inclusive" of the traditional definition of "professional misconduct"' at common law – where the Court has inherent jurisdiction to supervise members of the legal profession in New South Wales – where the admission, suspension or removal of legal practitioners in exercise of that jurisdiction considers whether a person is a "fit and proper to engage in legal practice" – where the applicant contended that Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 created a distinct category of "professional misconduct" at common law – whether there is a distinct category of professional misconduct at common law beyond that which is incorporated into s 297 of the Legal Profession Uniform Law (NSW) OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – professional misconduct – where s 297 of the Legal Profession Uniform Law (NSW) defines "professional misconduct" as including conduct "that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice" – where conduct that would justify a finding of unfitness is not necessarily conduct that must result in such a finding – where unfitness is not measured by the objective circumstances of the conduct alone but also by consideration of character – whether the respondent's conduct would justify a finding that he was not a fit and proper person to engage in legal practice OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – professional misconduct – grounds for disciplinary orders – where respondent said the words "suck my dick" to a female clerk – where the respondent's conduct and words warranted severe condemnation – where the Court has and will have no tolerance for conduct of legal practitioners that does not recognise and meet appropriate standards in respect of the treatment of women – where the objective of disciplinary orders is protective and not punitive – where the Tribunal found that the respondent's conduct was an isolated instance of departure from accepted norms – where the respondent has suffered significant personal, emotional and financial cost as a result of his conduct – whether the Tribunal erred in its assessment of the seriousness of the respondent's conduct by imposing only a formal reprimand STATUTORY INTERPRETATION – definitions – "means" and "includes" – definition of "professional misconduct" in Legal Profession Uniform Law (NSW), s 297 – where that section was intended to incorporate "the traditional common law definition" of professional misconduct Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW), s 97 Legal Practitioners Act 1898 (NSW) Legal Profession Act 1987 (NSW) Legal Profession Uniform Law (NSW), ss 296, 297, 302 Supreme Court Act 1970 (NSW) Veterans' Entitlement Act 1986 (Cth) Cases Cited: A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1 Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Berger v Council of the Law Society of New South Wales [2019] NSWCA 119 Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40 Council of the Law Society of New South Wales v Parente [2019] NSWCA 33, Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407 Council of the New South Wales Bar Association v EFA [2021] NSWCATOD 21 Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 Council of the NSW Bar Association v Costigan [2013] NSWCA 407 Council of the NSW Bar Association v EFA (No 2) [2021] NSWCATOD 84 Ex parte Lenehan (1948) 77 CLR 403; [1948] HCA 45 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Griffin v Council of the Law Society of New South Wales [2016] NSWCA 364 In Re Davis (1947) 75 CLR 409; [1947] HCA 53 Law Society of NSW v Foreman (1994) 34 NSWLR 408 Law Society of NSW v Walsh [1997] NSWCA 185 Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited (2019) 266 CLR 129; [2019] HCA 38 Myers v Elman [1940] AC 282 New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 NSW Bar Association v Evatt (1968) 117 VLR 177 [1968] NSW Bar Association v Maddocks Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 Prothonotary of the Supreme Court of NSW v McCaffery [2004] NSWCA 470 Prothonotary v Comeskey [2018] NSWCA 18 Prothonotary v Gregory [2017] NSWCA 101 Re Veron; Ex Parte Law Society of NSW (1966) 84 WN (NSW) 136 Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc (2000) 48 NSWLR 548; [2000] NSWCA 65 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279; [1957] HCA 46 Category: Principal judgment Parties: Council of the NSW Bar Association (Appellant) EFA (a pseudonym) (First Respondent) NSW Legal Services Commissioner (Second Respondent) Representation: Counsel: C A Webster SC/P A Maddigan (Appellant) K Richardson SC/A Horvath SC (First Respondent) T L Wong SC/D Levi (Second Respondent)