NEW SOUTH WALES BAR ASSOCIATION v PRINCE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and CLARKE JJ 15 February 1993, 2 March 1993 [1993] NSWCA 192 Barristers — Application for removal from Roll of name of English barrister — Failure to disclose facts on application for admission — Notice of Application — Exchange of correspondence and fax messages and telephone conversations — Notice sufficient. Mahoney, Priestley and Clarke JJ The New South Wales Bar Association ("the Bar') has brought proceedings againstRoger Graham Prince, a person whose name appears on the Roll of Barristers of this Court. The Bar seeks an order that Mr Prince's name be removed from the Roll of Barristers. The Bar is entitled to the order that it seeks. In accordance with the practice generally followed by this Court, the Court will record in summary form the circumstances in which the order is made. The proceeding has been brought by the New South Wales Bar Association. That body is an incorporated body. It has for many years played a part in the steps taken by this Court in relation to the admission, discipline and disbarment of members of the New South Wales Bar. The control of these matters has been exercised by this Court as part of the jurisdiction traditionally exercised by it. The position of members of the New South Wales Bar is now, to an extent, affected by the Legal Profession Act 1987. Some aspects of the operation of that Act were considered by the High Court in Wentworth v New South Wales Bar Association (1992) 66 ALJR 360. Mr Garling, for the Bar, has submitted that the Bar, as an incorporated body is the proper body to take proceedings to secure the removal from the Roll of a barrister. Reference was made in argument to Wentworth v New South Wales Bar Association and what was there said as to the standing of the Bar and of the Council of that Association. It is not necessary for the Court, in the present proceeding, to examine in detail what is the proper body to bring proceedings of the present kind or to determine formally whether it is the Bar, as an Association, or the Council of that Association, which is the proper or an appropriate party. If and insofar as the Bar, as an Association, is not, as of right, the party to bring the present proceeding, it is a body which the Court may, in the exercise of its powers to regulate procedures of this kind, authorise to seek orders of this kind. If and insofar as it is necessary to do so, such authority is given. If and insofar as it is necessary, the Court directs that that order take effect nunc pro tunc. The Court is satisfied that the evidence placed before it establishes the following facts. Mr Prince was admitted as a member of the Honourable Society of the Inner Temple in September 1975. On 22 November 1977, he was called to the Bar by that Honourable Society. On 31 August 1978 he was, at the Ipswich Magistrates Court in England, convicted of two offences against the criminal law: the offence of "unlawfully travelling on a railway without having previously paid the fare and with intent to 2 UNREPORTED JUDGMENTS avoid payment thereof"; and the offence of "intending that the Railways Board should be defrauded or prejudiced by wilfully using a ticket which had been materially altered". On 6 January 1982 a Disciplinary Tribunal of the Senate of the Inns of Court found proved two charges of professional misconduct against him. Those charges were: "1 Professional Misconduct Particulars: Conduct unbecoming a barrister, namely that on the 31st day of August 1978 at Ipswich Magistrates Court you were convicted of the offence of unlawfully travelling on a railway without having previously paid the fare and with intent to avoid payment thereof; 2 Professional Misconduct Particulars: Conduct unbecoming a barrister, namely that on the 31st day of August 1978 at Ipswich Magistrates Court you were convicted of the offence of intending that the railways board should be defrauded or prejudiced by wilfully using a ticket which had been materially altered." After an appeal to the Visitors against the findings of the Tribunal was heard and dismissed, the Masters of the Bench of the Inner Temple ordered that he be reprimanded on each charge. On 5 January 1984 a Disciplinary Tribunal found a charge of professional misconduct proved against him. That charge has been described in correspondence with the General Council of the Bar as "conduct unbecoming a barrister in that he made a malicious and unwarranted attack upon the integrity of a Clerk to the Justices at Ipswich Magistrates Court". On 11 October 1984 the Masters of the Bench of the Inner Temple ordered that he be suspended from practice as a barrister and from enjoyment of the rights and privileges of the Honourable Society for three months from 11 October 1984. By letter dated 17 August 1987 and otherwise, Mr Prince made application for admission as a barrister of this Court. In relation to that application he made no disclosure of the two findings or of the orders to which the Court has referred. On 13 April 1988 a Disciplinary Tribunal found a further charge of professional misconduct proved against him. That charge has been described as "incompetence by making misconceived and frivolous submissions". Mr Prince submitted a notice of appeal and a petition of appeal to the Lord Chancellor against that finding. While consideration of the lastmentioned matters was pending, Mr Prince applied for and on 6 December 1988 obtained a Lawyer's Professional Identity Card issued by the Secretary of the International Practice Committee of the General Council of the Bar of England. The Identity Card was expressed to be valid for five years. By letter dated 20 December 1988 the Lord Chancellor's Department informed the Treasurer's Office of the Inner Temple that the Lord Chancellor had decided not to grant an extension of time to Mr Prince in respect of his appeal and petition for appeal. On 19 January 1989 the Masters of the Bench of the Inner Temple ordered that Mr Prince be disbarred from that Honourable Society. Meanwhile, by letter dated 17 January 1989, Mr Prince gave notice that, in respect of the application then pending, he wished to be admitted as a barrister of this Court on 7 April 1989. He forwarded to the Barristers Admission Board an affidavit sworn by him on 28 March 1989 in which he said, inter alia: WHEW SOUTH WALES BAR ASSOCIATION v PRINCE (Mahoney, Priestley and Clarke JJB "2 Since (August 1987) I have been a practising barrister, and have conducted successful defences at the Central Criminal Court (Old Bailey) and other Crown Courts, as well as a civil law practice covering what is customarily known as private international law in addition to a full range of domestic civil law. 4... I have practised and intend to continue to practice as a barrister." He subsequently, by letter dated 31 March 1989, forwarded to the Barristers Admission Board a copy of the Lawyer's Professional Identity Card to which we have referred. He was admitted as a barrister of this Court on 7 April 1989. At no time prior to his admission as a barrister of this Court did Mr Prince disclose the matters to which reference has been made. It was his duty to disclose them. Had he, at the time when he pressed his application for admission in 1989, informed the court of what had occurred in respect of his position in England, it is, to put the matter no higher, quite unlikely that he would have been admitted as a barrister of this Court. That non disclosure and the facts to which reference has been made provide sufficient grounds for his removal from the Roll of Barristers. The Court is satisfied that Mr Prince has had appropriate notice of this application. The evidence placed before the Court establishes that the, or an, address of Mr Prince is in England: the address given by him, in correspondence is: "World Law Chambers. 56 Centre Point, Avondale Square, London SE1 5NX, England". On 18 December 1992 the Bar sought directions from this Court in relation, inter alia, to service of the proceeding. The Court ordered that leave be given to the Bar to serve the summons and affidavits in the proceeding upon the opponent in the United Kingdom and that sufficient service of them might be affected by sending them, together with a sealed copy of the order, by prepaid registered mail to Mr Prince at the address to which reference has been made. This appears to have been done. Mr Prince had, by a letter dated 14 December 1992 faxed to the Registrar of the Bar, indicated that his "address" was at the place to which reference has been made and made assertions in relation to some of the matters to which reference has been made. In addition, on 27 January 1993, the Bar caused to be served by delivery to Mr Prince at that address a copy of the summons, the orders of 18 December 1992 and the relevant affidavits. On 5 February 1993, the solicitors for the Bar forwarded by facsimile to Mr Prince notice of the intention of the Bar to make application to the Court on 15 February 1993 and of the possible outcomes of the application. On 15 February 1993, prior to the commencement of the proceeding, the Bar received by post a letter in the following terms: "WORLD LAW CHAMBERS PRIVATE and CONFIDENTIAL 56 Centre Point, Avondale Sq, London SEI 5NX, England. 7 February 1993. DJT 92122 Miss DJ Truss, Michael Rosser and Co, 99 Elizabeth Street, Sydney NSW 4 UNREPORTED JUDGMENTS Australia 2000. Dear Miss Truss, I refer to your previous correspondence, addressed variously to 'HG Prince' and '46 Centre Point'. You have still not sent to me a copy of the letter which you say was sent to you by some person in England alleging that I have been disbarred. I wish I could believe that your absence of any reference to your undertaking to send me it in our telephone conversation was an act of mere carelessness, to which you seem to be prone: unfortunately if it was not, it rather seems to indicate that your affidavit was not entirely honest, doesn't it? Trying to get away without revealing your sources is no excuse for same. With reference to the purported proceedings which you have commenced against me in the Court of Appeal, I have to inform you as preliminary matters that 1 so far as I am aware, the 'New South Wales Bar Association' is an unincorporated body, and as such would appear to have no locus standi to make any application to a court. If this is so, it will mean that you will be personally liable for meeting my costs of defending this void claim. 2 the Court would in any event appear to have no jurisdiction to bring any such claim against me. You should note that I have applied for legal aid to defend myself against this absurd claim, and J have selected Minter Ellison Morris and Fletcher (whose address in Sydney is unknown to me) to represent me, and I should be grateful if you could inform them of same. I can but repeat that, if you had sent me a copy of the letter referred to above when you first received it, instead of in such a cavalier fashion commencing these proceedings against me you could have saved yourself and your 'client' a considerable amount of trouble and expense. It is quite clear that your telephone call to me was not a genuine effort to resolve this matter, but rather a vain attempt to get me to give you a confession, which you no doubt thought would round off your case nicely. I had hoped all the tricky solicitors were confined to England, and your employment by the Bar Association (of which I have been belatedly informed by them) redounds greatly to their discredit. Yours sincerely (Sgd) RG Prince RG Prince." Mr Garling, who appeared for the Bar, informed the court that the firm of solicitors referred to in Mr Prince's letter of 7 February 1993, Messrs Minter Ellison Morris and Fletcher, have indicated that they had been approached by Mr Prince by telephone to act for him but have declined to do so. Mr Garling informed the court also that, as the result of a facsimile communication received by him, he had, on the morning of 15 February 1993, had a conversation with Mr Prince. In the circumstances, the Court is satisfied that Mr Prince has had appropriate notice of the application and has had time to take steps to oppose the application if seriously he intended so to do. The proceedings have been served on Mr Prince in accordance with the Court's order of 18 December 1992 and otherwise. His correspondence with the Bar and with counsel for the Bar indicates that he is appropriately informed of the application, of the basis of it, and of the intention to proceed with it on 15 February 1993. The Court is satisfied that it is not necessary that the proceeding be further adjourned to allow Mr Prince to decide what to do or to take steps in the proceeding. WHEW SOUTH WALES BAR ASSOCIATION v PRINCE (Mahoney, Priestley and Clarke JJB It is proper to record that, since the Court reserved its decision in this proceeding, a facsimile communication has been received by the Registrar of the Court of Appeal in the following terms: "WORLD LAW CHAMBERS 56 Centre Point, Avondale Sq., London SEI 5NX, England. 9 February 1993 No 40739 of 1992 Registrar, Court of Appeal, Law Courts' Building, Queen's Square, Sydney 2000 Australia. Dear Sir, I refer to the hearing in this matter which purports to have been set down for Monday next, 15th February 1993, at 10.15. I have been supplied with no form for entering an appearance to this wholly groundless claim by the claimant, but I hereby do so, limited to contesting the jurisdiction of the court within and without the terms of Paral(a) and (b) of the summons. I hereby make the application under paral in accordance with para3. It seems to follow that the hearing of that date does not apply. Kindly confirm same. I enclose a bundle of correspondence. Yours sincerely, (Sgd) RG Prince RG Prince." Mr Prince has, in letters directed to the Bar and otherwise, questioned the fact that he has been disbarred in England. It is proper to record that the Bar has placed before the court substantial evidence to establish that fact, in the form of correspondence from the relevant bodies in England. Copies of that correspondence are annexed to the affidavits filed in the application and served upon Mr Prince. It is ordered that the name of Mr Prince be removed from the Roll of Barristers of this Court. In the circumstances it is appropriate that Mr Prince be ordered to pay the costs of the proceeding. In the course of the proceeding reference was made from the Bar table to the fact that a practising certificate in New South Wales has been issued to Mr Prince. It is appropriate that that certificate be cancelled. Mr Prince should be called upon to deliver up the certificate held by him. The Court directs that a copy of the Court's order be served on Mr Prince by prepaid registered mail at the address referred to and by facsimile directed to the fax number appearing in the correspondence received from Mr Prince. 1 The name of Mr Roger Graham Prince be removed from the Roll of Barristers of the Supreme Court of New South Wales. 2 Costs of the proceedings to be paid by Mr Prince. Counsel for the Appellant: PR GARLING 6 UNREPORTED JUDGMENTS Instructed by: MICHAEL ROSSER and Co Counsel for the Respondent: NO APPEARANCE Instructed by: NO APPEARANCE