WENTWORTH v NSW BAR ASSOCIATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MCLELLAND, CARRUTHERS and STUDDERT JJA 2 to 6 and 9 to 13 August, | and 2 November 1993, 14 February 1994 [1994] NSWCA 342 LEGAL PRACTITIONERS — Application for admission as a barrister — Opposed by NSW Bar Association — Court is to be satisfied that applicant is "suitable... for admission" independently of whether applicant is 'of good fame and character" — Resolution of Bar Council to oppose application is of no probative value on question of applicant's suitability, where disclosure of counsel's opinion considered by Bar Council was successfully resisted on ground of legal professional privilege — Conduct of applicant as litigant in person — Likelihood of similar conduct as barrister acting for clients — Decision of trial judge dismissing application upheld — Legal Profession Act 1987, s4 and s9. McLelland, Carruthers and Studdert JJA This is an appeal against an order of Campbell J made on 23 December 1992 dismissing an application by the appellant for admission as a barrister. The primary ground on which his Honour dismissed the application was that the appellant had not been shown to be a person suitable for admission as a barrister in that (1) it was likely that the appellant would "abuse the privilege conferred upon a barrister as to the making of defamatory allegations" and would not "properly discharge the responsibility that privilege carries with it"; (2) the appellant lacked "understanding of a fundamental matter of proper conduct" in relation to the making of applications constituting abuses of the process of the Court, and that situation was unlikely to change; and (3) it was doubtful "that the Court could have confidence in the truth of what [the appellant] says". Campbell J also found that having regard to the material upon which he made findings (1)and (3) above, the appellant had not been shown to be of good character. The appellant has challenged these findings and has further contended that on the true construction of the relevant legislation, it is not open to the Court to refuse her application on the ground that she is not suitable for admission, the only available grounds for refusal being, it is argued, either the absence of the requisite educational qualifications or the absence of satisfaction by the Court that she is of good fame and character. It is convenient to deal first with this last submission. The most material legislative provisions are s4 and s9 of the Legal Profession Act 1987, which are in the following terms: "4 (1) The Supreme Court may admit persons as barristers, whether or not as provided by subs(2). (2) The Supreme Court shall, on any day appointed by the Supreme Court for the purpose, hear and determine any application made on that day for the admission as a barrister of a person approved by the Barristers Admission Board as a suitable candidate for admission. (3) A barrister is an officer of the Supreme Court. 2 UNREPORTED JUDGMENTS (4) The Supreme Court Charter is revoked in New South Wales in so far as it relates to the admission of Barristers and Advocates. 9. A candidate, however qualified in other respects, shall not be admitted as a barrister unless the Supreme Court is satisfied that the candidate is of good fame and character." The use of the word "may" in s4(1) indicates that the power thereby conferred may be exercised or not by the Court at its discretion (Interpretation Act 1987 s9). Such a discretion is not of course unlimited: its limits are those indicated by the nature of the purpose for which the discretion is conferred. A principal purpose for which the discretion in s4(1) is conferred is to enable the Court to ensure, as far as possible, that the public, and in the public interest other legal practitioners and the Courts, are protected from the activities as barristers of those likely to act in a manner inconsistent with the standards of professional conduct required of barristers. The likelihood that a person will act in such a manner does not necessarily mean that such person is not "of good fame and character'. Therefore, in exercising its discretion under s4(1), the Court is not limited to the questions whether the applicant has sufficient educational qualifications and whether she is of good fame and character. The limits of the discretion extend to embrace a consideration of any likely acts of the applicant as a barrister inconsistent with proper standards of professional conduct and are aptly indicated by the question whether the applicant is "suitable... for admission", an expression which occurs in s4(2). Subs(1) and subs(2) of s4 provide two alternative routes to admission by the Court. The route provided by subs(2) requires approval by the Barristers Admission Board of the applicant as a "suitable candidate for admission". In these circumstances it would be anomalous if the Court, in an application under subs(1), could not consider whether the applicant was "suitable... for admission". This view corresponds with that expressed by the High Court in an interlocutory appeal in these proceedings (Wentworth v NSW Bar Association 176 CLR 239). The majority of the Court said (at 251): "... the right to practise in the Courts is such that, on an application for admission, the Court concerned must ensure, so far as possible, that the public is protected from those who are not properly qualified and, to use the language of s4(2) of the Act, from those who are not 'suitable... for admission'." The appellant relies on a passage in the judgment of Moffitt P in Re B 1981 2 NSWLR 372 (at 380). That was an application for admission as a barrister prior to the enactment of the Legal Profession Act 1987. The then governing provision was CL10 of the Charter of Justice 1823 by which the Supreme Court was authorised "to admit... fit and proper persons to appear and act as Barristers... according to such general rules and qualifications as the... Court shall for that purpose make and establish." S9 of the Legal Practitioners Act 1898, then in force, provided: "9 No candidate, however qualified in other respects, shall be admitted as a barrister unless the Board is satisfied that he is a person of good fame and character... " The passage relied on by the appellant is the first of the two paragraphs from the judgment of Moffitt P set out hereunder: "The power to admit is a power exercisable generally as appears from the words of the Charter according to such general rules and qualifications as the court shall for the purpose make and establish. If a person meets the requisite learning standards and is of good fame and character so he meets the requirement URVENTWORTH v NSW BAR ASSOCIATION (McLelland, Carruthers and Studdert JJA) 3 that he be a fit and proper person to be admitted to practise as a barrister, it hardly need be said that there is no other discretionary bar to admission, whether on the basis of race, color, religion, sex, political outlook or otherwise. The judicial system and the right to participate in it is an essential part of our democratic institutions. Courts are open to be invoked by all and open to all to become legal practitioners, except so far as the former is confined by jurisdictional limitations of general application or in the case of the latter by requirement already referred to. It follows from the foregoing and, having regard to the background of this case, that it can and should be stated that in itself being a radical in a political sense or being what might be regarded by some as an extremist in views on sex, religion or philosophy provides no bar to admission as a barrister, unless of course, the attitude of the prospective or practising barrister can be seen to render him not a fit and proper person because his character, reputation or likely conduct fall short of the standards expected of a practising barrister. It is an open institution subject only to the requirements of being a fit and proper person. The court has the responsibility to pass judgment on what standards must be met for a person to be adjudged fit and proper, but it does so in the context of democratic institutions and a long history here and elsewhere of the exercise of the power and judicial pronouncements of the question of fitness. " Read in isolation the first paragraph provides support for the appellant's contention. However, read in the light of the second paragraph, it is hardly likely that his Honour was intending to assert that the Court could not take into account, as well as character and reputation, likely conduct falling short of the standards required of a practising barrister. In any event, such a view finds no support in the judgments of the other two members of the Court. It is relevant to note that in Wentworth v NSW Bar Association 176 CLR 239, the majority of the High Court (at 254) assimilated the position under the Legal Profession Act 1987 with that obtaining before that Act: "The terminology of the criterion for admission may have changed, so that the precise question, in terms of s4(2), is whether the person is "suitable... for admission", rather than whether he or she is a fit and proper person" as was previously required by the Charter. But that is a mere change in terminology which cannot affect the nature of the Court's duty to have regard, in admission proceedings, to the protection of the public. And it clearly appears from s4(2) that no change in the nature of the Court's duty was intended, for, by that subsection, the Supreme Court must "hear and determine" an application for admission, even though the person concerned has been approved as a suitable candidate by the Board. Thus the change of terminology affects neither the nature of the issues to be determined nor, as was argued, the nature of admission proceedings. " It is clear from the remaining part of that judgment (particularly at 255) that the High Court regarded the question whether the appellant was "suitable... for admission" as a matter for determination by the Supreme Court on the hearing of her application. We do not consider that these expressions of view by the High Court were either obiter dicta or per incuriam, as submitted for the appellant. We therefore agree with the view expressed by Campbell J "that to succeed in this application the plaintiff must establish that she is a person 'suitable... for admission' and that this requirement, except in terminology, is the same as the earlier requirement that [an applicant] establish that she is a 'fit and proper person' to be admitted to the Bar". 4 UNREPORTED JUDGMENTS Although the power conferred on the Court by s4(1) is, in the sense described above, a discretionary power, the findings of Campbell J that the appellant had not been shown to be a person suitable for admission as a barrister and had not been shown to be of good character are in no sense "discretionary" findings: they are findings on matters which the members of this Court must consider for themselves so far as may be necessary for the resolution of this appeal. In considering those matters however, this Court should not depart from findings of primary fact made by Campbell J to the extent that such findings depend upon an assessment of the demeanor or credibility of the appellant or other witnesses who gave oral evidence, unless it can be shown that Campbell J "has failed to use or has palpably misused his advantage" of having seen those witnesses, for example by his findings being inconsistent with admitted or proved facts or "glaringly improbable" (see Abalos v Australian Postal Commission 171 CLR 167 at 178; and Dawson v Westpac Banking Corporation 66 ALJR 94 at 99, and cases there cited). It is convenient next to deal with the significance (if any) of the fact of opposition to the appellant's admission by the respondent (the Bar Association). Campbell J, citing passages in Ex parte Evatt (Court of Appeal 12 April 1972, unreported) and Ex parte Davis 50 SR 158, said that the opposition of the Bar Association to the admission of the appellant is a "weighty matter" to be considered on her application. His Honour also said that he had expressed his conclusion on the application without taking into account as a_ specific consideration the formal opposition of the Bar Association, but that such opposition strengthened and confirmed that conclusion. There will no doubt be cases in which the fact of opposition by the Bar Association to an application for admission as a barrister should properly be treated by a Court hearing the application as having some probative value on the question of suitability for admission, and in such cases the weight to be given to the fact of such opposition is likely to vary with the particular circumstances. In the present case, the evidence indicates that opposition by the Bar Association to the appellant's application for admission was definitively resolved upon at a meeting of the Bar Council on 25 June 1991. That meeting had before it a written opinion by senior and junior counsel retained by the Bar Association. During the hearing before Campbell J counsel for the appellant called for the production of that opinion. The Bar Association resisted production on the ground of a claim for legal professional privilege. Counsel for the appellant then conceded that Campbell J had no alternative but to uphold that claim, and his Honour did so. Accordingly, the opinion was not available to the appellant or to the Court. Consequently, a significant means of examining the nature and soundness of the reasons for the resolution of the Bar Council authorising opposition to the application, and therefore the evidentiary weight to be attributed to that opposition, namely the opinion, has been withheld from forensic consideration. The claim for privilege having been made and upheld, the fact of the Bar Association's opposition could not in our view thereafter have been properly treated as having probative value on the question of the appellant's suitability for admission We note, as already indicated, that Campbell J's relevant conclusions were not dependent upon taking the Bar Association's opposition into account, and we do not propose to treat it as having any probative value in reaching our own conclusions. URVENTWORTH v NSW BAR ASSOCIATION (McLelland, Carruthers and Studdert JJA) 5 As already indicated, there were three principal findings on the basis of which Campbell J concluded that the appellant had not been shown to be a person suitable for admission as a barrister. The first of these was that it was likely that, if the appellant were to be admitted as a barrister, she would abuse the privilege conferred upon a barrister as to the making of defamatory allegations and would not properly discharge the responsibilities that privilege carries with it. This finding was based on three anterior findings, namely: (a) that in the course of litigation in which the appellant was a party acting for herself, she has made a great many allegations of the gravest kind against a wide range of persons with no foundation for those allegations other than her own "belief" (to which we will refer as the unfounded allegations finding); (b) that it is not likely that her propensity for making unfounded allegations of the gravest kind has altered or will alter; and (c) that as a barrister she would conduct her clients' litigation in much the same way as she has conducted her own. It will be necessary for us in due course to consider certain allegations by the appellant of serious misconduct on the part of other persons who are not, of course, parties to the present proceedings. We do not propose by means of this judgment to give to those allegations any further currency than may be necessary and for that reason we will wherever possible avoid naming those persons. The litigation referred to in the unfounded allegations finding arose out of two earlier proceedings, one criminal and one civil, commenced by the appellant against her former husband (the husband) in respect of an alleged violent sexual assault said by the appellant to have been committed by him upon her on 29 January 1977. The criminal proceedings were initiated by informations laid by the appellant in 1981 charging the husband with buggery, assault occasioning actual bodily harm and common assault. After a committal hearing on the first two of those charges at Waverley Court of Petty Sessions (during the course of which there were ancillary proceedings in the Supreme Court), the husband was on 18 October 1984 committed for trial in the District Court. The common assault charge was withdrawn and dismissed. A no bill application to the Attorney General on the husband's behalf was unsuccessful, and his trial in the District Court on the first two charges took place before judge A and a jury between 22 July and 26 July 1985. He was acquitted on both charges. The civil proceedings (to which we will refer as the common law proceedings) were commenced by the appellant in the Common Law Division of the Supreme Court in 1982. She claimed damages for aggravated assault. After his acquittal on the criminal charges, the husband cross claimed against the appellant in the common law proceedings for damages for malicious prosecution. The trial in the common law proceedings took place before judge B and a jury between 25 November and 18 December 1985. The jury found a verdict for the husband on the appellant's claim against him, and a verdict in his favour for $571,000.00 on his cross claim against her, and judgments were entered accordingly. The appellant appealed to the Court of Appeal which on 6 March 1987 allowed the appeal, set aside the judgments and directed a new trial. The new trial has not yet taken place. In both the criminal proceedings (except for the trial in the District Court in which she was not a party) and the common law proceedings, the appellant was represented by solicitors and/or counsel (as she was in the appeal from the judgments in the common law proceedings). But shortly after the institution of that appeal there occurred the first of a long series of proceedings in, and 6 UNREPORTED JUDGMENTS applications and appeals to, the Supreme Court (to which we will collectively refer as the further litigation) principally instituted by the appellant, in which she acted for herself. Allegations made by her in the course of the further litigation, in pleadings, affidavits, a statutory declaration and submissions, form the basis for the unfounded allegations finding. It is desirable to outline some elements of the further litigation. On 7 May 1986 the appellant filed in the Court of Appeal a summons in which she was the plaintiff and the husband the defendant seeking, inter alia, a declaration that the judgments in the common law proceedings were "obtained by fraud, perjury and conspiracy to pervert the course of justice" and were therefore "null and void". In support of this summons the appellant filed an affidavit of herself dated 7 May 1986. On 21 May 1986 the Court of Appeal transferred the summons to the Equity Division. In accordance with a direction of the Court, the appellant on 27 May 1986 filed a statement of claim and on 29 May 1986 the husband filed a notice of motion for orders that the statement of claim be struck out and the proceedings dismissed. On 3 June 1986 the appellant filed an amended statement of claim. The husband's notice of motion was treated as relating to the amended statement of claim and was heard on 5 June 1986 by judge C who reserved his decision. In response to a threat by the appellant to proceed to judgment in default of defence, the husband made an application which was heard by another judge on 17 June 1986 for protection against summary or default judgment pending the delivery of judge C's reserved decision. The other judge extended the time for defence until delivery by judge C of his reserved judgment. On 18 June 1986 the appellant filed a notice of motion for the punishment for alleged contempts of Court by the barrister and solicitor respectively who had appeared for the husband on the application heard on 17 June 1986 in respect of matters arising out of that application. The contempt notice of motion carne before judge C on 19 June 1986 on which date that judge adjourned the application in relation to the barrister to the Duty Judge's list on 21 July 1986 and the application in relation to the solicitor to 4 July 1986 before the Registrar. On the same day, 19 June 1986, judge C delivered judgment on the application he had heard on 5 June 1986 and ordered that the appellant's amended statement of claim be struck out and the proceedings dismissed. The appellant appealed from judge C's orders to the Court of Appeal. The appeal was heard on 24 July 1986 and on 3 October 1986 judgment was delivered and the appeal dismissed. In the meantime, on 4 July 1986 the contempt application relating to the solicitor was heard by judge D and dismissed. On 18 July 1986 the appellant applied to judge E for an order abridging time for service of a subpoena to require judge C to give evidence on 21 July 1986 in the contempt application relating to the barrister. Judge E refused that application. On 21 July 1986 the contempt application relating to the barrister came before judge F, and was heard over the period 21 to 23 July 1986 and dismissed. The appellant appealed from the decision of judge F to the Court of Appeal and on 7 October 1986 she filed an amended notice of appeal, a notice of motion seeking an order that the judgment and orders of judge F be set aside together with an affidavit of herself dated 7 October 1986 in support of that notice of motion. The notice of motion was heard and dismissed by the Court of Appeal on 20 October 1986. On 13 and 28 November 1986 an application by the appellant to have grants of legal aid to the husband declared invalid was heard by judge G, URVENTWORTH v NSW BAR ASSOCIATION (McLelland, Carruthers and Studdert JJA) 7 who on 3 December dismissed the application. The appellant appealed from that decision to the Court of Appeal. The appeal was heard on 13 March 1987 and dismissed on 25 June 1987. On 7 October 1986 the appellant filed in the Court of Appeal a notice of motion seeking orders that each of 17 named individuals be committed for contempt of Court and for various other criminal offences. In support of that notice of motion she filed an affidavit of herself dated 7 October 1986. On 16 June 1987 the appellant filed in the Court of Appeal a further notice of motion seeking a variety of orders against 19 named individuals including declarations that they had committed various criminal offences. In support of that notice of motion the appellant filed an affidavit of herself dated 16 June 1987 to which was annexed a statutory declaration also of herself dated 9 June 1987. On 21 and 22 July 1987 the Court of Appeal heard applications by some of the respondents thereto that the appellant's notices of motion of 7 October 1986 and 16 June 1987 (together with a third notice of motion which the appellant had filed on 3 July 1987 seeking orders against 8 named individuals) be dismissed and on 22 July 1987 the appellant's three notices of motion were dismissed. On 23 February 1987 orders were made in the Equity Division on a claim by the appellant against a firm of solicitors for the repayment of certain money and the delivery of certain documents. One of the orders made was for the entry of judgment for the appellant for $69,000.00. On 9 March 1987 both the appellant and the firm of solicitors were granted leave to appeal from those orders, and a stay of the order for entry of judgment was granted until further order. The appeals were heard in late March 1987 and the decision reserved. One of the grounds on which the appellant challenges the unfounded allegations finding is that she was denied procedural fairness "in that his Honour made findings that she had made unfounded allegations against unspecified persons and witnesses when such was no part of the [Bar Association's] case...". Mr Gross QC who appeared (with Ms Rimmer) for the appellant in this appeal, made it clear (appeal transcript at 140 to 143, 212 to 214 and 395 to 396) that this ground was directed only to findings that the appellant had made unfounded allegations against persons other than judges and legal practitioners. It was not contended that there was any absence of procedural fairness in respect of any findings that the appellant had made unfounded allegations against judges and legal practitioners. (In this context the expression "legal practitioners" is to be understood as denoting barristers or solicitors acting in that capacity and as not including witnesses in the criminal proceedings or the civil proceedings who were legal practitioners.) It is not clear that Campbell J intended to base his unfounded allegations finding on allegations by the appellant against persons other than judges and legal practitioners. His Honour's pronouncement of the finding is immediately followed by the statement, "T refer shortly, by way of example, to some of the allegations against Judges and legal practitioners. There are more, some of which have been referred to earlier in this judgment". It is unclear whether "more" denotes more unfounded allegations against judges and legal practitioners or more unfounded allegations generally. (Some allegations against judges and legal practitioners (eg of conspiracy with lay persons) necessarily involve corresponding allegations against those lay persons as well.) It is however unnecessary for us to come to any conclusion on that question, or on the related question whether any finding that the appellant had 8 UNREPORTED JUDGMENTS made unfounded allegations of serious misconduct against lay persons fell outside the scope of the Bar Association's case (structured as it was on wide ranging particulars, several of which were expressed in very general terms), since this is an appeal by way of rehearing, and having considered the evidence for ourselves, we have reached a firm conclusion sufficient to dispose of so much of the appeal as relates to the unfounded allegations finding without going beyond some of the more extreme allegations made by the appellant concerning judges. Factors taken by us into account in our consideration of the matter include the following: (1) the appellant, now aged about 54, is well educated (she graduated in Science from the University of Sydney many years ago) and articulate; (2) prior to 1988 she had no formal legal training; (3) during the period 1988 to 1991 she completed the course of study, and passed the examinations, prescribed by the Barristers and Solicitors Admission Rules as a result of which she was granted a Diploma in Law; (4) for the purposes only of the present proceedings, it is appropriate for it to be assumed in her favour: (a) that her account of the events of 29 January 1977 and the succeeding few days is correct, and (b) that she has reasonable grounds to believe that some evidence given by some witnesses in the criminal trial and the common law proceedings was false; (5) that the trial of the common law proceedings miscarried by reason of errors of law by the judge in a number of rulings on the admissibility of evidence, as held by the Court of Appeal on 6 March 1987. It is convenient to consider first a document in the form of a statutory declaration by the appellant dated 9 June 1987 which was an annexure to, and comprised the principal part of, an affidavit of the appellant dated 16 June 1987 which she filed in the Court of Appeal in support of a notice of motion of that date in which she sought a variety of forms of relief against 19 separate respondents, included among whom were various lawyers, doctors, a police officer and numerous lay persons, all of whom had been in one way or another associated with the criminal proceedings, the common law proceedings or the further litigation. The appellant caused the affidavit including the annexed statutory declaration to be served on each of the 19 respondents. It thus had a wide initial circulation. The statutory declaration contained many allegations of serious misconduct by numerous judges, including those indicated below. In para 37 the appellant asserted that judge A "badgered the jury into coming to a decision, before he summed up, as even then the evidence that the rape and assault had occurred was fairly solid and the judge would have had to properly directed the jury to find the defendant guilty on the evidence, which he knew, and set out in a judgement on 22/11/85 when he refused the application of [the husband] for costs of the trial, on the basis of the evidence". In para40 the appellant asserted that the jury acquitted the husband "as a result of the collusion of [judge A] with [17 named individuals including the husband, the Crown prosecutor, the barrister who had appeared for the husband in the committal proceedings, senior and junior counsel and the solicitor for the husband in the criminal trial and several witnesses and potential witnesses], other crown officers, and others, in an attempt to pervert the course of justice". URVENTWORTH v NSW BAR ASSOCIATION (McLelland, Carruthers and Studdert JJA) 9 In para65, para66 and para67, the appellant asserted "It is clear, from his decision, that [judge C] had given extensive regard to the no bill document which he should not have had access to, and scant regard to the contents of the Statement of Claim and affidavit of particulars" and further asserted her belief "that [judge C] was so influenced by the false propositions advanced in the no bill document, and by the press reports of the two trials, that he acted with a predetermination and bias which was unjudicial" and that "these views were reinforced by his discussions with other lawyers and brother judges, especially [11 named individuals including senior counsel for the husband in the criminal trial, senior counsel for the husband in the common law proceedings, and 9 judges] and other members of the Bar of NSW, the legal profession, and other judges". In para 73 the appellant asserted "[judge E] had the file containing the no bill application, and I believe that he gave full heed to its contents and as well discussed the application with [3 named judges] and others and did not give proper heed to the principles of fairness in the administration of justice, having formed a pre determined view, which was biased against me". In para 88 and para 89 the appellant asserted her belief "that the grossly unjudicial behaviour of [judge F] was influenced by his perusal of the no bill application, and by his discussions with counsel and his fellow judges especially [senior counsel for the barrister charged with contempt, and 6 named judges] and that the main reason for forcing on the proceeding was to allow [senior counsel for the barrister] to examine me as to the contents of an affidavit to be sworn in another proceeding, and to prevent [judge C] being called to give evidence, as [judge F] knew that would support the action for contempt against [the barrister]", that "[judge F's] call to the Attorney General was to attempt to preclude me taking action on appeal against his outrageously improper ruling, and to prevent me appealing the main determination before [judge B], taking action against the Legal Aid Commission, for wrongly giving [the husband] legal [a]id, and to prevent action against [a firm of solicitors]", and "that his pre determination against me was such as to pervert the course of justice, and that such misbehavior renders him unfit for judicial office and that his attempt to get the Attorney General to declare me a vexatious litigant was intended to influence the Attorney General to not act on my application against various persons on charges of perjury". In para 93 the appellant asserted her belief "that [judge D] was influenced by the no bill application against me and by discussions with his fellow judges [6 named judges], and came to the Court with pre determination and bias, and intended to find in [the solicitor's] favour regardless of the evidence, and that such behaviour is unjudicial and renders him unfit to hold judicial office". In para98 the appellant asserted her belief "that [judge G] had, at least as early as June 1986, by conversation with his judicial colle[a]gues, and by his inspection of the no bill document, come to such a pre determination against me that he acted unjudicially and in such a biased fashion as to attempt to pervert the course of justice". In para 99 to paral05 the appellant asserted her belief that a named judge 10 UNREPORTED JUDGMENTS "is deliberately causing me harm and damage because of personal antipathy, but as well, he is influencing the other members of the bench to determine matters against me, and is thereby perverting the course of justice" and that "in pursuance of his personal vendetta, [the judge] has influenced the minds of the judges of the Court of Appeal against me... ". Also in paral05 the appellant asserts a belief that a member of the Court of Appeal who participated in the decision of 3 October 1986 "had regard.. to the no bill application, and persuaded the other members of the Bench as to the 'truth' of its contents and that the other members of the court were thereby influenced against me, and agreed to the judgment of 3/10/86. ". In paral 15 (the first so numbered) the appellant asserted her belief (as at 9 June 1987) that the judgment of the Court of Appeal in the appeal heard late in March 1987 from the orders made on 23 February 1987 in her claim against the firm of solicitors "is now being deliberately delayed, by the presiding bench, influenced as well by [a named judge] so as to try and force me into financial ruin... ". In paral 16 the appellant asserted her belief that the refusal of a named judge "to disqualify himself from hearing my matters, is motivated by his desire to cause me as much harm and damage as possible, utilising his position of power with grave impropriety, and that he thereby demonstrates such misbehavior as makes his continued presence on the bench of a Court of NSW, improper. " In paral17 the appellant asserted her belief "that the refusal to deliver judgment in the [firm of solicitors] matter, and the refusal to order the repayment to me of my funds in the meantime, is a deliberate attempt to try and send me bankrupt, so that I will have no defence to the grossly improper claims for payments from [the firm of solicitors]... ". It is to be noted that Campbell J made orders having the effect that para99 to paral16 of this statutory declaration (as well as certain other documents) are to be treated as confidential and are not to be disclosed or in any way published pending a further order by his Honour or another judge of the Supreme Court. We now order that the disclosure or publication of anything expressly stated in this judgment is not to be treated as a breach of those orders. Otherwise those orders remain in full force and effect. The allegation concerning judge A in para37 of the statutory declaration relates to a statement made by the judge to the jury immediately after both counsel had addressed, informing them of their entitlement to "interrupt the trial and announce" a not guilty verdict "[i]f you as a jury at any time feel that the evidence seems to you to furnish an unsafe foundation for convicting the accused... if you are all of that mind". After an adjournment for morning tea the foreman of the jury handed a signed note to the judge which read "Your Honour, Sir, Not guilty on both charges. Based on your offer, we see no point in proceeding". The judge's statement (which we have not quoted in full) was expressed in moderate terms, and was accompanied by a reminder that they alone were to determine the facts and assess the quality of the evidence given, together with a disclaimer of an intention to influence them one way or the other. The statement was incapable of supporting the assertion that the judge "badgered the jury into coming to a decision, before he summed up". The allegation goes on to suggest a sinister aspect to the judge's statement in the assertion that the judge knew that if he summed up he would properly have had to direct the jury to find the husband guilty, which assertion is claimed to be URVENTWORTH v NSW BAR ASSOCIATION (McLelland, Carruthers and Studdert JJA)11 supported by reference to a judgment on costs given on 22 November 1985. There is nothing in that judgment reasonably capable of supporting such an assertion. The allegation in para40 of the statutory declaration, which is of the utmost seriousness, was completely without rational support. In relation to this allegation, Campbell J observed "In cross examination the plaintiff sought to distance herself from the use of the word 'collusion' in relation to [judge A] however I do not accept that attempt and think that the plaintiff meant to allege that there had in fact been a fraudulent secret understanding between the judge and at least some of the others to whom she was referring". We share his Honour's opinion. The "no bill document" or "no bill application" referred to in para65, para66, para73, para88, para93 and paral05 of the statutory declaration is a lever arch binder containing a copy of a letter dated 27 February 1985 from the husband's solicitors to the Attorney General making submissions as to why the prosecution should not proceed, together with various copy transcripts, judgments and other records and a number of affidavits. For obvious reasons, this collection of documents tends to present an impression adverse to the merits of the prosecution case. The appellant says in substance that she discovered this binder among the Court records relating to some of her litigation at the end of May 1987, made enquiries as to its source and ascertained from judge C's associate that the binder had been handed to the associate in Court on 5 June 1986 by an unidentified solicitor and that the associate had treated it as a subpoenaed document, although there had been no call made for it and the appellant was not aware that it had been produced. Upon this tenuous foundation, combined with the fact and terms of the various decisions given against her was erected the chain of allegations of judicial misbehavior associated with this binder, already referred to. There was no reason for the appellant to suppose that judge C's associate having, rightly or wrongly, treated the binder as a subpoenaed document, anyone else within the Court, judge or otherwise, would be likely to have treated it any differently. There was no reasonable basis for the appellant's allegations of judicial misconduct in relation to the "no bill document". The appellant had no reasonable basis for a belief that any discussions of an improper kind had occurred between any particular judge and any other judge or judges or legal representatives or any other person. The appellant relies heavily on the fact and terms of decisions given from time to time against her as providing material supportive of an inference, and in many instances the principal or only basis for an inference, of the corrupt behaviour which she alleges against judges. Those decisions, whether there are errors in them are not, are incapable of giving rise to or supporting any such inference. What does appear is, as Campbell J observed, "that if the point of view for which [the appellant] has contended does not succeed before a Court, she will frequently find an explanation in actual bias, prejudgment or other improper conduct on the part of the judicial officer involved. The possibility that her view might be incorrect or that the decision making body has simply been in error does not appear to be acceptable to [the appellant]". The appellant has sought in her evidence, and through the submissions of her counsel, to justify the allegations she has made, with minor qualifications. We are of opinion that nothing that has been suggested in evidence or argument provides 12 UNREPORTED JUDGMENTS any acceptable basis for belief by the appellant in the truth, or for the making and dissemination in the manner earlier referred to, of any of the allegations to which we have referred. The statutory declaration in the context in which it was deployed by the appellant is properly to be described as scandalous. Mr Gross submitted that the many allegations of judicial misconduct asserted in the statutory declaration should be considered in the context that they were being made for the purpose of complaints to the Judicial Commission under the Judicial Officers Act 1986 for which purpose the statutory declaration was originally prepared. With such complaints, he submitted, vigorous expression by complainants could be expected and excused, because the making of complaints under the Act met the public perception that judges should be accountable for misconduct. To use the document against the appellant, Mr Gross argued, involved a major risk of undermining the very purpose behind the complaints provisions of the Judicial Officers Act. We do not accept the proposition that the Judicial Officers Act provides any justification for the making of baseless allegations of serious misconduct against judges. However, the significant aspect of the matter for present purposes is not the making of a confidential communication to the Judicial Commission, but rather the public use that the appellant made of the statutory declaration in connection with her application to the Court of Appeal in support of which her affidavit annexing it was filed and served. The appellant's suggestion in cross examination that the statutory declaration was annexed to her affidavit because of time constraints is unconvincing to us, as it was to Campbell J. The alleged claim to urgency was not made out, and even if it had been, it could not possibly have justified the course taken by the appellant. We turn next to consider the affidavit of the appellant of 7 May 1986 filed in the Court of Appeal in support of her summons of that date in which she sought to overturn the judgments in the common law proceedings on the basis that they were "obtained by fraud, perjury and conspiracy to pervert the course of justice". That affidavit was relied on by the appellant in the application to strike out her amended statement of claim heard by judge C on 5 June 1986 in which judgment was delivered on 19 June 1986. In para72 of that affidavit the appellant asserted that she "has been gravely harmed by the verdict of the Juries, being partly due to the demonstrated malice, bias and hostility exhibited by the judges. (i) in the Criminal trial [judge A] allowed Counsel for the defendant to act in a way contrary to all rules of the Court,... the Act and the Bar Association Rules, and in no way kept the conduct of the Court within the terms of the Evidence Act leading to a grave miscarriage of justice. (vi)... The hostility and bias of the various witnesses and [judge B] and the improper conduct of proceedings, combined with the determined perjury of witnesses and the suborning of other potential witnesses and the rendering of falsely sworn affidavits only intended to libel [the appellant] and contradicted by the defendant's material facts as pleaded (in particulars), and/or other evidence or statement of other witnesses demonstrate an organised attempt of various persons to pervert the course of justice by not allowing proper facts to go to a Jury for determination and this attempt and/or conspiracy to pervert the course of justice has resulted in a grave miscarriage of justice." The allegation in relation to judge A is based, at least principally, on the cross examination of the appellant by senior counsel for the husband and, in particular, cross examination as to her credit in the course of which various denigratory URVENTWORTH v NSW BAR ASSOCIATION (McLelland, Carruthers and Studdert JJA)13 suggestions were put to her and denied. The cross examination was vigorous and of a kind which would naturally give rise to strong feelings of resentment in the appellant. But grave allegations against the husband, which he denied, were being pursued at the trial, the credibility of the appellant was a critical matter, and the judge's role in the cross examination was extremely limited. The transcript of the criminal trial reveals no reasonable basis for the assertion of "demonstrated malice, bias and hostility" (or any one of the three) on the part of judge A on the grounds specified, and having regard to the evidence of the appellant, we conclude that there was no such basis. Para72(vi) contains a strong implication that judge B was a party to a conspiracy with various other persons to pervert the course of justice in the conduct of the common law proceedings. That such a suggestion was intended by the appellant is evident from the course of argument before the Court of Appeal in the appeal from judge C's decision of 19 June 1986. With reference to the judgment of judge C the following exchange is recorded in the transcript of argument: "MS WENTWORTH.... He goes to the essential allegations at 3 and 4 (reads 140 M - R) and I could not agree with him more, it is disreputable." [The passage identified as "140 M - R" read by the appellant from judge C's judgment was in the following terms: "Tt can be seen that in essence that plaintiff says that the verdict reached at the trial came about because the defendant instigated a conspiracy which involved not only a large number of witnesses, but also several lawyers and which involved at least one Judge, the Crown, the Police Department and a few doctors either not performing their duty or being involved in activities which to say the least would be disreputable."] "Kirby P: Do you agree with his description of what is the general nature and essence of your case? MS WENTWORTH: Yes your Honour, I would indeed..." After discussion concerning another passage from judge C's judgment read by the appellant, there is the following exchange. "KIRBY P:... It is one thing to say a Judge misdirected himself in giving a wrong direction as to the admission of evidence or in a charge to the jury, and you will be heard to advance that case in your appeal in the substance of the matter, but it is quite another thing and it would be as disreputable and as scandalous, to say that a Judge has been involved in some sort of conspiracy with a party to procure a verdict by fraud - that is a very serious allegation. MS WENTWORTH: I realise that your Honour. KIRBY P: It ought only to be made supported by the strongest evidence. MS WENTWORTH: I have done that your Honour..." There was no basis on which the appellant could responsibly have made such a suggestion of conspiracy on the part of judge B. We now turn to consider an affidavit of the appellant of 7 October 1986 filed in the Court of Appeal in support of her notice of motion of that date seeking to set aside the dismissal by judge F on 23 July 1986 of the contempt application against the barrister. In paral4 of that affidavit the appellant asserted her belief "that the Judgements and orders of [judge F] were pre determined and actuated by bias, and that he allowed [counsel for the barrister] to abuse the process of the Court, for a reason that had nothing to do with the case before him, and that this 14 UNREPORTED JUDGMENTS was his real reason for forcing [the appellant] on in a matter, in which an interlocutory proceeding had to be determined before the main case could be heard". In relation to this allegation, it is sufficient that we express our entire concurrence in the view expressed by Campbell J, "There is no basis for the allegations made by [the appellant] other than her own willingness to infer that decisions contrary to her interests must be motivated by some improper conduct". The appellant, both in her evidence before Campbell J and through her counsel in submissions before the Court, has sought to propound or explain the grounds upon which she based the allegations to which we have referred. In each case it is our conclusion that there were no grounds upon which the allegation in question could have been responsibly made. The instances of allegations of judicial misconduct to which we have referred provide a sufficient foundation for a decision on this aspect of the appeal, and it is unnecessary for present purposes to deal with the numerous others disclosed in the evidence. The making, in the course of litigation, of baseless or insupportable allegations of serious misconduct on the part of others, whoever those others may be, is conduct which, in a barrister, would be inconsistent with a fundamental aspect of the professional standards required of barristers. Where the objects of such allegations are judges of the Courts before which the barrister practices, such conduct also has a strong tendency to be destructive of the relationship of mutual confidence and trust between the Court and the Bar which is essential to the proper and efficient administration of justice. If, as a barrister, the appellant were to conduct herself as she has as a litigant in person in the respects referred to above, she would be unfit to remain at the Bar. If it is proper to conclude that, were she to be admitted as a barrister, she would be likely to conduct herself in a similar way, then she is not a suitable person to be so admitted. On the critical question whether the likely future conduct of the appellant as a barrister can properly be measured by her past conduct as a litigant in person, it is relevant to note that in her principal affidavit in reply to the case of the Bar Association, an affidavit of 8 October 1992, the appellant asserted (in paral.15) "I believe and always have believed that... I was entitled to make the allegations and take the steps I have taken in relation to [various proceedings including all the proceedings to which we have earlier referred]". In his judgment, Campbell J said: "During her cross examination [the appellant] did, at times, concede that certain things might be done differently now that she has more legal training. However, those matters were all on the periphery. The impression which emerged strongly from the cross examination was the obduracy with which [the appellant] held to the correctness of the actions that she had taken and the allegations she had made. I was left with a strong impression that nothing of significance has or would change in relation to such matters. Of course, as a barrister [the appellant] would be conducting litigation for her clients and not for herself. Having read a great deal of what [the appellant] has written and heard her cross examination, I am convinced that she would conduct her clients' litigation in much the same way as she has her own." We can discern no error in these findings which are amply justified on the evidence. URVENTWORTH v NSW BAR ASSOCIATION (McLelland, Carruthers and Studdert JJA)15 For the above reasons we are of opinion that Campbell J was correct in finding that it is likely that, if the appellant were to be admitted as a barrister, she would abuse the privilege conferred upon a barrister as to the making of defamatory allegations, and would not properly discharge the responsibilities that privilege carries with it. This is sufficient to lead to the conclusion that the appellant is not a suitable person to be admitted as a barrister. The second principal finding on the basis of which Campbell J concluded that the appellant had not been shown to be a person suitable for admission as a barrister was that she lacked understanding of a fundamental matter of proper conduct in relation to the making of applications constituting abuses of the process of the Court, and that situation was unlikely to change. This finding had reference to the filing (and pursuit) by the appellant, as previously referred to, of three notices of motion in the Court of Appeal of 7 October 1986, 16 June 1987 and 3 July 1987 respectively, and her present expressed belief and attitude as to the propriety of those applications, notwithstanding trenchant judicial criticism by the members of the Court of Appeal in dismissing the three notices of motion summarily as an abuse of process on 22 July 1987. Each of the three notices of motion was filed in the proceedings comprising the appeal from the judgments in the common law proceedings (which appeal was disposed of on 6 March 1987)). In the notice of motion of 7 October 1986 the appellant sought orders against each of 17 persons that he or she "be committed for contempt of Court and for' various other specified criminal offences including (in some cases) perjury, attempts to pervert the course of justice and conspiracy to pervert the course of justice. In the notice of motion of 16 June 1987 the appellant sought against each of those same 17 persons and 2 additional persons, 21 separate orders including declarations that various of them or various combinations of them had committed a variety of criminal acts including conspiracy to pervert the course of justice and perjury, orders that they be "punished", orders that they pay damages to the appellant, orders that 4 of them, being legal practitioners, "be forbidden to practice law in the State of New South Wales", an order that one of them, being a police officer, "be removed from the police force of New South Wales, permanently, and declared to be a disgrace to the police force of New South Wales", an order that each of the 19 persons "be permanently restrained from taking any proceedings against the appellant... in respect of any matters arising out of these proceedings" or various other proceedings, an order that the respondents pay all costs incurred by her in other associated proceedings and that existing orders for costs be stayed, an order that the husband "be re committed for criminal trial", an order that the husband pay damages to the appellant "in the sum of $500,000.00 for the grave harm and damage he has caused to her by his assault and rape, and buggery, and his conspiracy to pervert the course of justice thereafter with the other Respondents", and an order that the orders of the Court of 6 March 1987 ordering a new trial of the common law proceedings "be permanently stayed". In the notice of motion of 3 July 1987 the appellant sought against each of 8 named persons that he or she be committed for contempt of Court for various alleged acts, some done in relation to the proceedings before judge C, some in relation to the common law proceedings and one (perhaps) in relation to the criminal trial, some or all of which were the subject of relief sought in one or both of the two earlier notices of motion. 16 UNREPORTED JUDGMENTS These notices of motion were undoubtedly abuses of the Court's process. Of the three, considered individually, the most egregious collection of objectionable features is to be found in that of 16 June 1987. Among the statements concerning this notice of motion in the reasons for judgment of the Court of Appeal of 22 July 1987 appear the following: Samuels JA — "The declarations and the orders which the claimant seeks in this notice of motion, as I think my description of it will indicate, would entail the court embarking upon a summary trial of criminal offences such as perjury, perverting or attempting to pervert the course of justice, and criminal conspiracy. The claimant took us, most accurately if I may say so, to a good deal of authority distinguishing between criminal and civil conspiracy, and between both of those and other offences which might seem to arise from the relief sought in the notice of motion. This morning she has suggested that this court does have jurisdiction to try offences of this kind. For my own part I can see nothing in s48(2) of the Supreme Court Act, viewed in the light of the Third Schedule, which would enable the Court of Appeal to undertake a trial on indictment, the normal mode of trial for crimes of the kind mentioned. As a matter of practice the court would not consider summary trial of offences of this sort. If such a procedure were undertaken it would of course deprive the opponents of safeguards which our system of criminal justice regards as vital in most cases, although of course not in all. That is to say, a preliminary committal before a magistrate and then a trial by a jury which is still, with few exceptions which have no application to the present case, the mode of criminal trial in force in this State and indeed in most States, if not all, in Australia. This court does conduct a summary criminal trial in cases of criminal contempt. The reasons for that I need not dilate upon. They are somewhat special, and exceptional. I do not think that the court could ever contemplate, leaving questions of strict power aside and even if we had jurisdiction, trying some nineteen charges of perjury and conspiracy made in one document against nineteen respective defendants. Furthermore, as I have said, we have been asked to try a defamation case, to assess damages, to exercise the disciplinary functions which the court exercises over the legal profession and to act as a committing magistrate. I do not know that I have in fact exhausted all the possible consequences. As I have said, the claimant is endeavouring to bring into this court in one process claims and charges against all those against whom she feels she has a right, in order to determine all of the matters which lie in dispute between them and her. It is quite out of the question in my view for the court to contemplate any such procedure. To endeavour to do so and to determine the remedies which the notice of motion seeks would be unfair and oppressive to the opponents and it would be beyond the power, beyond the practice and beyond the competence of the court to undertake. On those grounds the notice of motion in my view is an abuse of the court's process." Mahoney JA: "The proceedings, as they have been brought, and as they have been pressed before this court, are an abuse of the process of the court. This is plainly so. If proceedings of this kind and in this form had been brought and had been pressed by a lawyer in this way, the lawyer would, in my opinion, have been in danger of proceedings for professional misconduct. The mixture of allegations and URVENTWORTH v NSW BAR ASSOCIATION (McLelland, Carruthers and Studdert JJA)17 claims, criminal and civil, can plainly not be dealt with together or in the way which Ms Wentworth seeks to have them dealt with. Before parting with these proceedings, I think, proper to attempt to make certain things clear. First the vice of the proceedings to which I have referred, these notices of motion, does not lie simply in the form of them. The form of them is, as I have said, bad and incurably bad. But the suit [sic] lies also in the substance of them. Where proceedings are taken against an individual for a criminal offence, safeguards have been developed by the law to protect that individual against oppression and to ensure that he is fairly dealt with. These safeguards are not developed out of any tenderness for the guilty; they are necessary because, unless they are applied both to guilty and to innocent, the innocent as well as the guilty will suffer. The reasons of substance why the present proceedings are an abuse of the court is because they would have the court put aside those safeguards and override the rights and, as it was said in argument, the civil liberties of those against whom Ms Wentworth makes her allegations. This cannot be allowed. this is the substance of the reason why in my opinion these proceedings must be set aside." Clarke JA: "The diversity of charges and the varying nature of the orders sought in the notice of motion should in my opinion be sufficient to illustrate the gross oppression caused to the respondents by the claimant's attempt to support the notice of motion and to press the hearing of all the charges against the varying respondents. Nothing could, in my view, be a dearer abuse of the court's process. The collection of a number of criminal and civil charges against a large number of respondents in an initiating process in an appeal court and the obvious circumvention of the processes of the law designed to ensure that the rights of those persons charged with serious crimes are properly protected is in my opinion a blatant misuse of the court's process." We have already referred to the appellant's belief asserted in paral.15 of her affidavit of 8 October 1992 that she was entitled to take the steps taken in relation to the litigation in question. In the same affidavit (in paral2.5(h)), she says with specific reference to the notice of motion of 16 June 1987: "I believe that the orders sought by me on 16/6/87 in respect of each of the 19 respondents were proper and that there is sufficient evidence to show that each of my applications had a proper basis in fact and in law". In cross examination the appellant expressly stated her disagreement with each of the propositions in the three sentences comprising the second last paragraph quoted above from the judgment of Samuels JA of 22 July 1987 and also expressed her disagreement with the proposition as stated by Samuels JA and Mahoney JA that the notice of motion of 16 June 1987 was an abuse of the process of the Court. She also disagreed with the proposition that either of the other two notices of motion was an abuse of the Court's process. We agree with Campbell J's summation of this aspect of the matter as follows: "Tt appears quite clearly that [the appellant] rejects the view and indeed the judgment of those two Judges of the Court of Appeal [Samuels JA and Mahoney JA], sitting as part of the Court of Appeal, that the proceedings she had brought were an abuse of the process of the Court. As she still does not accept the view of the Court that that is so, it is difficult to see how she could be a suitable person to be admitted to practice at the Bar. A clearer example of proceedings which are 18 UNREPORTED JUDGMENTS an abuse of the process of the Court of the most 'blatant', to use Clarke JA's word, kind is hard to contemplate. Yet [the appellant] now does not agree that that is so. Some of what was done as a litigant in person can be explained on that basis, but [the appellant] now maintains, as an applicant for admission to the Bar, that the conclusion of the Judges that the matters were abuses of process is not correct. Clearly they were such abuses and a person who cannot see that is unlikely to be suitable to be admitted to the Bar. Further, a person who does not accept the view of three senior judges upon such a matter would seem to have no real prospect of benefiting by the expression of opinion upon matters of proper conduct by members of the Bar during a reading program or period of pupillage." As his Honour later points out the appellant's adherence to the view that these notices of motion did not involve abuse of the process of the Court raises the possibility that process such as that on which the Court had been required to rule might be issued on her advice. It may be added that the views expressed by the members of the Court of Appeal on 22 July 1987 were reinforced (if reinforcement were thought to be necessary) in a judgment subsequently delivered by Roden J on 7 October 1988 on an application by the Attorney General for an order against the appellant under s84 of the Supreme Court Act 1970. His Honour had occasion to comment on the notice of motion of 16 June 1987 (in association with the other two notices of motion) in the following terms: "Some of the orders sought are inappropriate, unprecedented and beyond the powers of the Court. Lawyers would describe some as grotesque .... Lam in no doubt that there was considerable abuse of process involved in all three proceedings. 'Scandalous', 'embarrassing' and the other adjectives commonly used in this connection, were all well earned by these efforts by Ms Wentworth. It is no surprise that on 22nd July 1987 they were all dismissed by the Court of Appeal... The unacceptability of the procedures adopted, is illustrated by the following passage from the judgment of Clarke JA: 'The collection of a number of criminal and civil charges against a large number of respondents in an initiating process in an Appeal Court and the obvious circumvention of the processes of the law designed to ensure that the rights of those persons charged with serious charges are properly protected is in my opinion a blatant misuse of the Court's process." At the end of his judgment Roden J makes the following cautionary comment after declining to make the orders sought: "Tf Ms Wentworth appreciates that she has been sailing close to the wind, and now realises the virtues of restraint, and the value of having a pilot aboard, these proceedings may prove to have served a useful purpose." We agree with Campbell J that the evidence shows both a lack of understanding by the appellant of a fundamental matter of proper conduct in relation to the filing of documents constituting abuses of the process of the Court, and the unlikelihood of that situation changing. For this reason also, the appellant has not been shown to be a person suitable for admission as a barrister. The third principal finding on the basis of which Campbell J reached his ultimate conclusion was that it was doubtful that the Court could have confidence in the truth of what the appellant says. His Honour found that there is a real, as opposed to fanciful or remote, risk that a Court may be deliberately, in the sense of not by mere inadvertence or error, misled by the appellant, and his Honour did not consider that a Court could have confidence in the truth of what she says in URVENTWORTH v NSW BAR ASSOCIATION (McLelland, Carruthers and Studdert JJA)19 a difficult situation which is, as his Honour observed, the time at which the importance of such confidence comes to the fore. His Honour's findings on this issue were based on several matters. One comprised statements made by the appellant to judge F on 21 July 1986 to which date the hearing of the contempt application relating to the barrister had on 19 June 1986 been adjourned by judge C. When the matter came before judge F the appellant, who did not wish to proceed that day, unequivocally told the judge that the matter was in the list not for hearing that day but to fix a date for hearing if the parties were ready to proceed. Campbell J's judgment deals in considerable detail (which there is no need to repeat) with what occurred before judge F, and with the history of the matter, from which his Honour reaches conclusions to the effect that judge C had on 19 June 1986 stood the matter over for hearing on 21 July 1986 subject to the availability of a judge to hear the matter, that the appellant was aware of that fact, and that the appellant, not wishing the matter to proceed, deliberately misrepresented to judge F what had been said by judge C. We consider those conclusions to be unassailable. Campbell J also found that on three separate matters the appellant had given evidence in cross examination before him which she did not believe to be true. These matters related to (a) her belief as to the effect of a document issued to her by the Barristers Admission Board; (b) her belief as to the effect of certain particulars supplied by the Bar Association; and (c) her belief as to whether she had had a fair hearing on a particular occasion before the Court of Appeal. Each of these matters is discussed in considerable detail by Campbell J in his judgment (under the headings "S33", "S34" and "S13" respectively) and there is no need to repeat the details here. We do not discern any error in his Honour's consideration of these matters or any legitimate basis for challenging his Honour's conclusion that the appellant was deliberately untruthful in the instances given, or his Honour's failure to be satisfied that a Court could have confidence in the truth of what the appellant said, on the basis of there being a real risk of a Court being deliberately misled by the appellant. This again is sufficient reason to find that the appellant has not been shown to be a person suitable for admission as a barrister. In the notice of appeal as ultimately amended there were 99 separate grounds of appeal. We have not found it necessary to deal with every one of these. On the approach to the matter which we have taken, many are irrelevant to the disposition of the appeal. Our conclusions on those which are relevant to the basis for our disposition of the appeal are subsumed or implicit in these reasons for judgment. For the above reasons we are of opinion that his Honour's conclusion that the appellant had not been shown to be a person suitable for admission as a barrister was correct, and that accordingly the appeal should be dismissed. It is therefore not necessary for us to consider the question, which is not without difficulty, whether any of the material supporting the conclusion that the appellant has not been shown to be a person suitable for admission should also lead to a finding adverse to her under s9 of the Legal Profession Act. It remains to consider questions of costs. On 29 June 1993, for reasons given in a judgment of that date, Campbell J made an order the effect of which was that subject to orders already made, each party should bear her and its own costs of the proceedings. An appeal by the appellant against that order has not been 20 UNREPORTED JUDGMENTS pursued. There is however a cross appeal by the Bar Association seeking in substitution for that order an order that the appellant pay the Bar Association's costs of the proceedings. Campbell J's order as to costs was of course made in the exercise of a wide discretion. It has been submitted that his Honour's discretion miscarried for two reasons, namely (1) that he did not adequately take into account the proper role of the Bar Association in the proceedings, and (2) that he took into account an unjustified assumption that it was likely that the legislature had made provision for the funding of the Bar Association in the exercise of its role in the proceedings. Submission (1) depends on the circumstance that the Bar Association was joined, and properly joined, as a party to the proceedings and was not merely an intervener. Although the Bar Association was originally joined as a defendant by reason of the fact that orders were sought against it, the position had in a practical sense altered by the time the interlocutory appeal was heard by the High Court, in that the status of the Bar Association had in substance changed from that of a party against whom orders were sought to that of a party participating in the proceedings for the purpose of assisting the Court in the public interest, in substitution, as a matter of convenience, for the Bar Council, which had a statutory right to appear. We see no error in his Honour's judgment on this ground. Submission (2) is based on the following statement in his Honour's judgment of 29 June 1993: "Tt [is] clear enough that under the Legal Profession Act 1987 the Legislature looks to the Bar Council, in the case of Barristers, to appear on behalf of the public interest. I do not think that the Court should assume that appropriate consideration has not been given by the Legislature and by the Bar Council to the funding of the performance of its public duty in this respect. I should mention that I do not need for the purpose of this paragraph to draw any distinction between the Council and the Association." We agree with submission (2) to the extent that we do not consider that questions of funding come into the matter. What is relevantly significant is the fact that the legislature has, in the public interest, vested certain functions in the Bar Council. It is the public aspect of those functions, rather than how their performance may be funded in any particular case, that matters for present purposes. On the other hand, the quoted passage is expressed in terms of an absence of a particular assumption, which does not necessarily imply a positive assumption to the contrary effect. We are not persuaded that this passage indicates that his Honour was proceeding on the positive assumption that the Bar Association's role in the proceedings was being funded by the government, or that any such assumption played a significant part in his Honour's decision on costs. In our view that decision should stand. In any event, Campbell J's costs order is that which, if necessary, we would ourselves arrive at. The considerations which render it appropriate that there be no order as to the costs of the proceedings before Campbell J do not apply in respect of the costs of an unsuccessful appeal from his Honour's decision. The appellant must pay the URVENTWORTH v NSW BAR ASSOCIATION (McLelland, Carruthers and Studdert JJA}21 costs of the appeal, subject to a qualification to reflect the failure of the cross appeal, which however did not extend the time of the hearing to any appreciable extent. The orders of the Court are as follows: 1. Order that the appeal be dismissed. 2. Order that the cross appeal be dismissed. 3. Order that the appellant pay to the respondent its costs of the appeal other than such costs as are solely referable to the cross appeal. Counsel for the Appellant: Mr B Gross QC, Ms CA Rimmer Instructed by: Russo and Partners Counsel for the Respondent: Mr P Garling Instructed by: Michael Rosser and Co