THE PROTHONOTARY OF THE SUPREME COURT OF NEW SOUTH WALES v KARP SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY J 27 June 1988, 27 June 1988 [1988] NSWCA 120 LEGAL PRACTITIONERS — solicitors — removal from Roll of Solicitors — solicitor convicted of conspiracy to import prohibited narcotic goods — later pleads guilty to conspiracy to pervert the course of justice — sentenced to and serving long period of imprisonment — proof of service of summons and documents — no appearance — whether solicitor consents to order of removal — held: (1) Solicitor sufficiently consents to order to authorise a single Judge of Appeal to exercise powers of Court of Appeal under s46 Supreme Court Act 1970; (2) Declaration made and name removed from Rolls. PRACTICE — single Judge of Appeal — removal of name of solicitor from Roll — whether consents so as to found jurisdiction of single Judge of Appeal — held: Single judge may exercise powers of Court of Appeal in this respect if consent sufficiently clear, as here. Supreme Court Act 1970, s46. ORDERS 1. Declare that the opponent has been guilty of professional misconduct by reason of the matters set forth in this judgment; and 2. Order that the opponent's name be removed from the Roll of Solicitors of the Court. Kirby P I am dealing with this summons pursuant to the powers conferred on me by s46 of the Supreme Court Act 1970. By that section I am authorised to exercise the powers of the Court of Appeal to direct the entry of judgment by consent or to make any order by consent. The Prothonotary moves the Court, by summons, seeking an order that the name of the opponent, Ross John Karp, a solicitor, be removed from the Roll of Solicitors of the Court. He also seeks a declaration that the opponent has been guilty of professional misconduct by reason of the matters set out in the affidavits filed. The material before the Court indicates that on 11 December 1985 the opponent pleaded guilty to charges that between 21 September 1983 and 23 May 1984 at Sydney and elsewhere in New South Wales he conspired with Nicholas George Paltos and Graham George Palmer and divers other persons to import into Australia prohibited imports to which s233B of the Customs Act of the Commonwealth applied, to wit, narcotic goods; and that between | September 1983 and 15 August 1985 in Sydney and elsewhere he conspired with Messrs Paltos and Palmer and divers other persons to supply Indian Hemp. The opponent's plea of guilty to the first charge was subsequently withdrawn by Slattery CJ at CL. One of not guilty was entered. On 7 March 1986, following his conviction, the opponent was sentenced on the first charge to penal servitude for fourteen years to date from 15 August 1985. Slattery CJ at CL specified a non-parole period of nine years, to date from 15 August 1985. On 18 June 1986 the opponent was charged in the same terms as the first charge which I have set out. To this charge he pleaded guilty and was convicted. On 3 October 1986 T. O'L. Reynolds J sentenced the opponent to penal servitude for fourteen years to date from 15 August 1985. In respect of that charge his 2 UNREPORTED JUDGMENTS Honour fixed a non-parole period of nine years. He made the sentence concurrent with that already imposed by Slattery CJ at CL. On 16 December 1987, the opponent appeared before Judge Dunford in the District Court for sentence on a charge that between 21 May 1985 and 7 March 1986 at Sydney he had conspired with Roger Caleb Rogerson, Maurice Nowytarger and Nicholas Paltos to pervert the course of justice. The opponent pleaded guilty to this charge. Judge Dunford sentenced the opponent to three years' imprisonment cumulative upon the sentence then being served by him. In respect of the total period of imprisonment, Judge Dunford fixed a fresh non-parole period of ten and a half years to date from 15 August 1985. Placed before me are two affidavits which indicate that the amended summons filed by the Prothonotary and relied upon by him to establish the above facts, together with the supporting documentation relating to the proceedings below, have been served upon and received by the opponent. One of those affidavits is that of Gregory John McGrath sworn 23 June 1988. It deposes that Mr McGrath on 23 June served a copy of the amended summons on the opponent personally at Parramatta Gaol. The opponent identified himself. In answer to the question, "Do you realise that this is in Court on Monday? Do you know what you intend to do in the matter?" He replied, "Yes, I have already spoken to Mrs Grant and I won't be opposing this". It is clear in the light of the convictions of the appellant for serious offences that the relief sought by the Prothonotary is properly granted for the protection of the public. Accordingly, the declaration and order that are sought in the summon should be made by the Court. The question arises whether the opponent has consented to the order sought. Although he has not in terms indicated his consent, it is plain from the conversation with Mr McGrath that the opponent is fully aware of the proceedings. In an earlier affidavit of Bernadette June Grant he indicated: "I won't be opposing the application and I won't be coming in. I do not think it is necessary for me to be there". With these observations, in the light of the evidence before me, I would agree. I consider that I have jurisdiction to deal with the summons under s46 of the Supreme Court Act and I will do so. Accordingly, the orders which the Court makes are:- 1. Declare that the opponent has been guilty of professional misconduct by reason of the matters set forth in this judgment, and 2. Order that the opponent's name be removed from the Roll of Solicitors of the Court. As the Prothonotary does not seek an order for costs, no order for costs is made in the proceedings. COUNSEL: Claimant: MS BENNETT Opponent: SOLICITORS: Claimant: H K ROBERTS (NSW STATE CROWN SOLICITOR) Opponent: