SEDGWICK v LAW SOCIETY OF NEW SOUTH WALES [1994] NSWCA 282

SEDGWICK v LAW SOCIETY OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and MEAGHER JJA 8 April 1994, 18 May 1994 [1994] NSWCA 282

LEGAL PRACTITIONERS — solicitor — professional misconduct — removal of name from Roll — appeal — sole practitioner in country town — admitted wrongdoing — neglect and deception of clients — misuse of funds — held: Name removed from Roll.

LEGAL PRACTITIONERS — professional misconduct — appeal — nature of appeal by way of "new hearing" — requirements of procedural fairness — reference of fact-finding to single judge — when permissible.

APPEAL — new hearing — nature of proceedings on appeal to Supreme Court from quasi judicial tribunal.

LEGAL PRACTITIONERS — solicitor — sole practitioner in country town — disciplinary tribunal orders removal of name from Roll of Solicitors — appeal to Court of Appeal — reference to single judge — judge's findings of fact received by Court of Appeal — solicitor admits that he acted wrongly — false delays in prosecution of client's litigation — use of client's funds and lack of frankness to client and Legal Aid Commission — held: (1) In considering a charge of professional misconduct against a sole practitioner in a country town, the Court should take into account the practical circumstances in which the solicitor practised as such; (2) With reluctance and because of the conceded wrongdoing, the order removing the solicitor's name from the Roll was correct and the appeal should be dismissed; (3) Without expressing a concluded view, the prospect of restoration of the solicitor's name after a proper time was not excluded.

LEGAL PRACTITIONERS — solicitors disciplinary tribunal — appeal to Court of Appeal from — reference to single judge for findings of fact — report to Court of Appeal by single judge — proper procedures — reference by Mahoney JA (Kirby P and Meagher JA concurring): (1) The nature of an "appeal" by way of new hearing Turnbull vy New South Wales Medical Board [1976] 2 NSWLR 281 (CA) and Workers' Compensation (Dust Diseases) Board v Veksans (1993) 32 NSWLR 221 (CA) considered; (2) The duty to act with procedural fairness in the appeal and to avoid determining the matter upon complaints of misconduct not formally before the Court of Appeal. Smith v New South Wales Bar Association (1992) 176 CLR 256; Bannister vy Walton (1993) 30 NSWLR 699 (CA) applied; (3) Use made and appropriate circumstances for reference of fact-finding to a single judge.