THE PROTHONOTARY OF THE SUPREME COURT OF NEW SOUTH WALES v LEAK SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 27 June 1988, 27 June 1988 [1988] NSWCA 121 KEY WORDS: LEGAL PRACTITIONERS — PRACTICE — CONSENT LEGAL PRACTITIONERS — solicitors — removal from Roll — removal from Roll of Practitioners under Legal Practitioners Act 1981 (SA) for trust account and other offences — application by Prothonotary — hearing before single Judge of Appeal — whether order properly made by consent under Supreme Court Act 1970, s46 — held: (1) On the evidence, the opponent consented to the order; (2) order for removal from Roll of Solicitors made. PRACTICE — order by consent. WORDS & PHRASES — consent Supreme Court Act 1970, s46. Legal Practitioners Act 1981 (SA). ORDER That the name of Ronald Douglas Leak be removed from the Roll of Solicitors. Kirby P I am dealing with these proceedings pursuant to s46 of the Supreme Court Act 1970. That section, relevantly, authorizes me to exercise the powers of the Court of Appeal to direct the entry of any judgment by consent or to make any order by consent which may be made by the Court. The Prothonotary of the Supreme Court has moved the Court for an order that the name of Ronald Douglas Leak be removed from the Roll of Solicitors of the Court and that he be ordered to pay the costs of and incidental to the proceedings. The summons first came before the Court constituted by Priestley, Clarke JIA and myself on 9 May 1988. The basis of the summons is an order which is annexed to the affidavit of the Prothonotary made by the Full Court of the Supreme Court of South Australia (King CJ, Legoe and Cox JJ) on 2 April 1984. This ordered that the opponent's name be removed from the Roll of Practitioners of that State. The opponent's name was admitted to the Roll of Solicitors of this State on 12 February 1971. It has remained there since that date. However, it appears that the opponent has practised as a solicitor in South Australia. The order made by the Full Court of the Supreme Court of South Australia was made following an affidavit which was filed in proceedings commenced in that State under the Legal Practitioners Act 1981 (SA) for the removal of the opponent from the Roll of Practitioners of the Supreme Court in South Australia. In an affidavit by the opponent, tendered in these proceedings, he indicated that he admitted a number of allegations made against him in the Legal Practitioners Disciplinary Tribunal of South Australia. Those allegations are set out in the affidavit of the opponent filed in the Supreme Court of South Australia. I will not repeat them. Suffice it to say that they relate principally to offences in the control of his trust account as a solicitor. It was these offences which led to his removal from the Roll in South Australia. When the matter came before the Court on 9 May 1988, the Court expressed concern that the opponent might not be aware of the proceedings, or might not have been aware of the fact that the proceedings were before the Court that day. 2 UNREPORTED JUDGMENTS Because of the serious step involved in the removal of a person's name from the Roll of Solicitors (involving as it does not only the livelihood of the solicitor but also his reputation) the Court considered that, before final orders were made, a telegram should be sent to the opponent informing him clearly that the Court would proceed to finality on a return date later fixed. When the matter came back before the Court today, proof was placed before me that the telegram was sent to the opponent informing him of the adjournment of the proceedings to the list for conclusion today. Also placed before me was an affidavit of Sarah Mary Connors deposing to a telephone conversation between her and the opponent. Miss Connors is a solicitor employed in the office of the State Crown Solicitor of New South Wales. The conversation between Miss Connors and the opponent, as deposed to, was as follows:- "Opponent: 'Apparently the Court of Appeal adjourned this matter until June. Why was that?' Deponent: 'We were hoping to proceed with the application on the day but the Court was reluctant to do so in view of the fact you were only served on the Friday before. I understand that you have no objection to our application.' Opponent: 'No, as far as I am concerned it is a fait accompli and you can put on an affidavit recording this telephone conversation and me saying so. I just want to keep the costs down.' Deponent: 'We will be asking the Court to deal with the application on the next court day.'" The proceedings have been brought by the Prothonotary pursuant to the practice followed in this Court since the time of Jordan CJ. Where a person is convicted of a crime or is removed from the Rolls of the Court of another State or Territory, the proceedings are brought by the Prothonotary directly to the Court. This provides a ready and speedy means by which this Court can exercise its jurisdiction, which is exercised essentially for the protection of the public. A question arises as to whether the opponent consents to the making of the order which is sought by the Prothonotary. That, it will be recalled, is the basis of the jurisdiction which I exercise for the Court, sitting alone. Although the word "consent" is not used by him, it is plain, as it seems to me, from the conversation with Miss Connors and from the earlier letter which was placed before the Court dated 14 January 1985, that the opponent realises the inevitability of the order that would follow in this Court. It is equally clear that he is not here by reason of that fact, the distance, the costs involved in coming here and his desire to keep the costs down. In the present context it appears that "consent" means agreement or acquiescence. It will be rare that a person will actually welcome entry of a court judgment which adversely affects him or her. Least of all would a solicitor welcome removal of his or her name from the Roll of Solicitors. Doubtless that will sometimes occur to terminate the litigious agony. But often it will rather be a grudging concurrence in an order (provided as a result of compromise or practical realisation of the inevitable) that consent is forthcoming in this context. Cf Chandless-Chandless v Nicholson [1942] 2 KB 321; Thorne v Smith [1947] KB 307. Such is the case here. Accordingly, the opponent considering rightly as I think that the order will follow on the evidence, there being no substantive opposition to the application made and it being plain that the relief sought is properly granted, the orders which the Court made are made by consent as the Act requires in the case of a single Judge of Appeal. The order which the Court therefore makes is that the URE PROTHONOTARY OF THE SUPREME COURT OF NEW SOUTH WALES v LEAK (Kirby P) name of Ronald Douglas Leak be removed from the Roll of Solicitors of the Court. As the Prothonotary does not ask for costs, no order for costs of the proceedings will be made. 5 COUNSEL: Claimant: MS A BENNETT Opponent: 10 SOLICITORS: Claimant: H K ROBERTS (STATE CROWN SOLICITOR) Opponent: