CITATION: Nguyen -v- New South Wales Bar Association [2001] NSWADT 165 DIVISION: Legal Services Division APPLICANT PARTIES: Council of the New South Wales Bar Association RESPONDENT Van Thieu Nguyen FILE NUMBER: 002016 HEARING DATES: 13/08/2001 SUBMISSIONS CLOSED: 08/13/2001 DATE OF DECISION: 10/05/2001 BEFORE: Nicholas WH QC - Judicial Member; Gailey C - Judicial Member; Costigan M - Member APPLICATION: Professional Misconduct - make false statement - Professional Misconduct - mislead Court/Tribunal MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 CASES CITED: NSW Bar Association -v- Prince (CA 40739/92) NSW Bar Association -v- Jetnikoff (CA 40673/92) APPLICANT REPRESENTATION: P Garling SC, barrister RESPONDENT No appearance ORDERS: 1. That the name of Van Thieu Nguyen be struck off the Roll of Legal Practitioners in New South Wales; 2. That the Respondent pay the costs of the Applicant of, and incidental to, the proceedings on a solicitor/client basis. 1 By Information dated 10 October 2000 The Council of the New South Wales Bar Association (the Applicant) claimed that Van Thieu Nguyen (the Respondent) was guilty of professional misconduct on the following grounds: i) making a false declaration ii) making a misleading application for registration 2 The particulars relied upon and contained in the first schedule of the Information are: "1. The legal practitioner was admitted to practice in new South Wales as a barrister on 3 August 1990. 2. In January 1999, Holman Webb, solicitors, made a complaint against the legal practitioner. 3. On 25 February 1999, the Council of the Bar Association ("the Bar") by letter notified the legal practitioner of that complaint and its investigation of it. It sought from him information with respect to it. 4. On 13 July 1999, the legal practitioner made a Statutory Declaration before the Deputy Prothonotary of the Supreme Court of Victoria at Melbourne in which he said amongst other things: "3. I am not the subject of disciplinary proceedings in any jurisdiction (including any investigations or action which might lead to disciplinary proceedings) in relation to those operations. …… 8. annex hereto a certified true copy of my first court order admitting me to practise and a certified true copy of my current practising certificate." 5. The Statutory Declaration concluded with these words: "I, Van Thieu Nguyen of 4/157 Holmes Road, Moonee Ponds Victoria (P.O. Box 219, Ascot Vale Vic 3032), Barrister, being the applicant herein, do solemnly and sincerely and truly declare that all the information set out in this application is to the best of my knowledge and belief true and correct in every particular, and that the accompanying documents are verily what they purport to be." 6. The Statutory Declaration was a part of a document described as Notice of Intention to apply for Registration under the Mutual Recognition Act 1992 (Cth) and which was in the form of Schedule L to the Rules for Registration as a legal practitioner under the Mutual Recognition Act. 7. Attached to the form – Schedule L was a certified copy of the legal practitioner's Certificate of Admission as a barrister of the Supreme Court of New South Wales. The Copy was certified on 30 June 1999. 8. Also annexed to the Attached (sic) to the form – Schedule L was a certified copy of the legal practitioner's then current practising certificate being for the period from 1 July 1999 to 30 June 2000 which was certified on 30 June 1999. 9. On 13 July 1999 the legal practitioner filed, or caused to be filed in the Supreme Court of Victoria his application for admission to practise as a Legal Practitioner of the Supreme Court of Victoria pursuant to the Mutual Recognition Act 1992 (Cth). 10. At the time he made the Statutory Declaration, and at the time of filing of the form Schedule L, which contained the Statutory Declaration, the Statutory Declaration was, to the knowledge of the legal practitioner false, in that he was the subject of disciplinary proceedings in New South Wales, defined in the declaration to include any investigations or actions that might lead to disciplinary proceedings, because a letter of complaint about his conduct had been received by the Bar Council and the Bar Council had, as the barrister well knew, initiated an investigation into the barrister's conduct, the subject of that complaint. 11. In applying for admission to practise pursuant to the Mutual Recognition Act 1992, the legal practitioner owed to the Supreme Court of Victoria an obligation to provide it with material which was accurate and which was not misleading. The material, Schedule L, filed by, or on behalf of, the legal practitioner to the Supreme Court of Victoria was misleading in that it failed to disclose that he was the subject of an investigation by the Bar Council into his conduct as described in the letter of complaint to Holman Webb and it asserted that he was not the subject of disciplinary proceedings (as defined) in that document. 12. The legal practitioner's conduct, as described above, constituted professional misconduct. " 3 A Reply to the Information was filed on behalf of the Respondent on 3 November 2000. As to the ground that he made a false declaration it stated: The Respondent states that he did not intentionally make a false declaration. On 13 July 1998 the Respondent attended upon the office of the Deputy Prothonotary of the Supreme Court of Victoria and, in his presence, swore a statutory declaration in relation to an application to be admitted to the roll of barristers in Victoria. At that time, the Respondent answered in the negative, a question as to whether he was under investigation in respect of any complaint made against him. That was the case as at 13 July 1998. The Respondent acknowledges that being a legal practitioner, he should have re-examined the contents of the statutory declaration before submitting the document on 13 July 1999. As to the ground that he made a misleading application for registration it stated: The Respondent states that he did not intentionally make a misleading application for registration. The Respondent (in addition to the reply to Allegation 1 above) states that he did not further deal with his application for registration on 13 July 1998, as he did not attend the Court Registry with all the necessary documents. The Respondent states that filing of the application did not take place until 13 July 1999, when a member of his staff attended the Supreme Court of Victoria, arranged cash payment to the cashier and lodged the documents necessary for admission as a barrister in Victoria. 4 At the hearing on 13 August 2001 there was no appearance by, or on behalf of, the Respondent. However, the Applicant proved to the satisfaction of the Tribunal that sufficient notice had been given to the Respondent of the date of the hearing and of the issues raised in the information. Accordingly, the Tribunal proceeded to conduct the hearing despite the failure of the Respondent to appear. 5 The evidence in support of the complaint was contained in the affidavits of Allen William Blanch sworn 10 October 2000 (Ex. B) and 28 March 2001 (Ex. C). These affidavits proved relevant correspondence and the documents detailed below. There was also the affidavit of Michael William Deviny sworn 23 March 2001 (Ex. D). 6 The evidence established that the Respondent was admitted to practice in New South Wales as a barrister on 3 August 1990 and received an unrestricted practising certificate on 8 September 1993. 7 By letter dated 29 January 1999 Messrs. Holman Webb, solicitors, made complaint to the Applicant on behalf of their client, Wallco Limited, alleging that the Respondent had transferred and attempted to convert money to his own account in Australia without the instructions, consent or authority of the company. By its letter of 25 February 1999 to the Respondent, the Applicant sent a copy of the complaint and advised that it was being investigated. 8 The Applicant provided further particulars by letter dated 11 March 1999 to which the Respondent replied by his letter dated 22 March 1999. Letters dated 20 April and 17 May 1999 were also sent by the Applicant to the Respondent requesting further information regarding the complaint but it appears that no response was made. 9 On 13 July 1999 the Respondent filed, or caused to be filed in the Supreme Court of Victoria an application for admission to practise as a practitioner of that court pursuant to the Mutual Recognition Act 1992 (C'th). The executed and filed documents included Schedules L and M. 10 Schedule L was the notice of intention to apply to the Board of Examiners for Legal Practitioners for the Supreme Court of Victoria for registration under the abovementioned Act. The document contained the statement of the Respondent which included the following: "3. I am not the subject of disciplinary proceedings in any jurisdiction (including any investigations or actions which might lead to disciplinary proceedings) in relation to those operations (sic). 8. I annex hereto a certified true copy of my first court order admitting me to practice and a certified true copy of my current practising certificate". It concluded with a statutory declaration made by the Respondent in the following terms: "I Van Thieu Nguyen of 4/157 Holmes Road, Moonee Ponds, Victoria (PO Box 219, Ascot Vale Vic 3032), Barrister, being the Applicant herein do solemnly and sincerely and truly declare that all the information set out in this application is to the best of my knowledge and belief true and correct in every particular, and that the accompanying documents are verily what they purport to be". 11 Schedule M contained the oath to be sworn by applicants for registration and provided a space where the applicant formally signed the roll of barristers and solicitors. It also provided a space for the person who administered the oath to the applicant to sign and date the document. 12 The original of Schedules L and M, as filed by the Respondent, were in evidence (Ex. E), and were examined by the Tribunal. 13 The Tribunal observed from the original and the copy of Schedule L the date was 13 July 1998 written immediately below the signature of the Respondent. Both documents showed the imprint of a cash register receipt dated 13 July 1999. 14 The Tribunal also observed that the original and the copy of the Schedule M bore two dates in handwriting. The first date, immediately above the signature where the Respondent had signed the Roll was 13 July 1998. The second date, appearing at the foot of the document in the space beside the signature of Mr Deviny was 13 July 1999. The handwriting of each of the two dates appears to be different, suggesting that each may have been written by a different person. 15 In its letter dated 18 August 2000 to the Respondent, the Applicant notified him that it had received a copy of the statutory declaration contained in Schedule L, and asked for his comments on the statement that he was not subject to any investigations or actions that might lead to disciplinary proceedings. 16 On 15 October 1999 the Applicant sent the notice under section 152 of the Legal Practitioners Act 1987 to the Respondent through Mr Frank Lawson, Solicitor, of Corrs Chambers Westgarth who was then acting for him. The notice referred to the investigations then being conducted by Applicant, and requested a response within fourteen days. No response appears to have been forthcoming. 17 On 21 October 1999 the Applicant resolved to initiate a complaint against the Respondent pursuant to section 135 of the Legal Profession Act 1987 alleging that he was guilty of professional misconduct and/or unsatisfactory professional conduct within the meaning of section 127 of the Act. The particulars were that he misled the Victorian Board of Examiners for Legal Practitioners in that he failed to disclose the current investigation by Bar Council of a complaint against him and that he positively stated to the Board that he was not the subject of any investigation or action that might lead to disciplinary proceedings. 18 By its letter dated 17 November 1999, the Applicant advised the Respondent of the resolution. It invited his submission to comment on the complaint against him and …… "in particular the allegation that (he) misled the Victorian Board of Examiners for Legal Practitioners in failing to disclose the current investigation of the complaint against (him) by Holman Webb and would seek (his) explanation for the fact that (he) positively stated to the Board that (he is) not the subject of any investigation or action that might lead to disciplinary proceedings". 19 The Respondent's submissions are contained in his letter to the Applicant of 26 November 1999, the relevant part of which is as follows: "1. Sometime prior to 13 July 1998, I arranged for my secretary to type the Statutory Declaration and include my details. On 13 July 1998, I approached Mr Deviny, Deputy Prothonotary of the Supreme Court of Victoria. In his presence, I swore the Statutory Declaration and he witnessed the Statutory Declaration. 2. As at 13 July 1998, all of the information that I deposed to was correct. I did not, however, lodge my Statutory Declaration and application for admission to practice on that date because I did not have the necessary accompanying documents with me. I was required to present my academic qualifications and my practising certificate issued by the NSW Bar Association. 3. Since there was no urgency to the matter, I let the matter rest for some time. My application simply lay in my office in Melbourne. 4. On 13 July 1999, I caused a member of my staff (I do not remember who) to make a required payment for my application for admission as a Legal Practitioner of the Victorian Supreme Court. Once that was achieved and a receipt was issued, I went to the Secretary of the Board of Examiners for Legal Practitioners and submitted my Statutory Declaration together with my academic qualification and Practicing Certificate issued by he NSW Bar Association. 5. At the time I submitted my Statutory Declaration, I only quickly glanced at its contents. I did not spend any length of time examining the contents of the Statutory Declaration since I had already sworn it a year ago. I acknowledge that, in accordance with professional standards, I ought to have read the Statutory Declaration more carefully. If I had, I would have altered clause 3 to reflect the fact that I was currently under investigation by the NSW Bar Association. " It is observed that the substance of these submissions is repeated in the Reply filed 3 November 2000 already referred to. 20 Between 10 January and 9 August 2000 there was correspondence between the Applicant and the Respondent and/or his solicitor the details of which are of little relevance to the issues raised by the Information. However, it is noted that in his letter to the Applicant of 9 August 2000, the Respondent applied to have his name removed from the list of practising barristers of the New South Wales Bar Association. Also, he returned his practising certificate to the Applicant with his letter received by it on 28 August 2000. 21 In his affidavit sworn 23 March 2001 (Ex. D) Mr Deviny said that he was the Senior Deputy Prothonotary of the Supreme Court of Victoria in 1998 and 1999. In that capacity, he took the oath or affirmation of applicants who sought admission to practise as a legal practitioner pursuant to the Mutual Recognition Act 1992 (C'th). It was his usual practice to see applicants once. It was also his usual practice when taking an oath or affirmation from an applicant to require the applicant to read the form of affirmation before him or to place a hand on a Bible and read the oath in front of him before signing a label which was then stuck into the roll of barristers and solicitors after the Court had ordered the admission. He also required an applicant to sign Schedule M to the application. After an oath or affirmation was taken, it was his practice to direct an applicant to the cashier for payment of the fees. He went on to say: "6. I believe I followed my usual practice when Nguyen made his declarations before me. 7. Nguyen made his affirmation recorded on Schedule M before me on 13 July 1999. At that time, I also witnessed the statutory declaration on page 2 Schedule L and initialled page 1. Nguyen paid a fee of $274.00 on 13 July 1999. 8. I saw Nguyen only once and that was on 13 July 1999. I have never seen any applicant more than once in respect of any one application". 22 Mr Deviny's evidence is consistent with the information he provided to the Applicant in his letter of 1 February 2000. 23 Whether the Applicant establishes the grounds relied upon for the orders sought in the information depends upon proof of the date on which the Respondent attended upon Mr Deviny, made the statutory declaration in Schedule L and signed Schedule M. 24 As earlier noted, Schedule L bears the handwritten date "13-07-1998" and the cashier's imprint "13/07/99". It also bears the signature of the Respondent and of Mr Deviny as witness to that signature. Schedule M bears a handwritten date "13-7-1998" in the space provided beneath the line on which the Respondent's name is written. The label attached to the document over the Respondent's signature bears date "13 Jul 1999". In the appropriate space provided is the signature of Mr Deviny and beside it, in handwriting, the date "13 July 1999". Below his signature has been affixed the court stamp in which appears the date "13 Jul 1999". 25 The evidence of Mr Deviny that the Respondent attended upon him on 13 July 1999 when Schedules L and M were completed has been set out above. It will be readily apparent that it contradicts in a number of respects the version of events put to the Applicant in the Respondent's letter of 26 November 1999 (see paragraph 19 above). Mr Deviny's affidavit is before the Tribunal unchallenged. It provides an unqualified and rational account of the events under consideration. The Tribunal accepts without reservation this evidence, which must be preferred to the unsworn assertions of the Respondent which are unsupported by evidence. 26 Having regard to the whole of the evidence before it, the Tribunal is satisfied that the Respondent made the statutory declaration which is part of Schedule L on 13 July 1999, which falsely stated that he was not the subject of disciplinary proceedings in any jurisdiction (including any investigations or action that might lead to disciplinary proceedings), which to his knowledge was false. The Tribunal is also satisfied that he knowingly made a misleading application for registration under the Mutual Recognition Act 1992 (C'th) to the Board of Examiners for Legal Practitioners for the Supreme Court of Victoria by filing Schedule L which failed to disclose that he was the subject of an investigation by the Applicant into his conduct as described in the letter of complaint of Holman Webb and it asserted that he was not the subject of disciplinary proceedings (as defined) in that document. 27 Senior Counsel for the Applicant drew the attention of the Tribunal to the judgements of the NSW Court of Appeal in NSW Bar Association -v- Prince (CA 40739/92) and NSW Bar Association -v- Jetnikoff (CA 40673/92). These cases emphasise the duty of candour imposed upon an applicant for admission. The making of a false declaration, particularly where it was intended to be relied upon by the Court to which the application was made, provides sufficient ground for the making of the orders sought by the Applicant. Deliberately and knowingly filing with the Court false information intending the Court to act upon it also establishes that the Respondent lacks the necessary character for the duties of a barrister and is wholly unfit to be a barrister in New South Wales. Having regard to the evidence, the Tribunal is satisfied that the name of the Respondent should be struck from the role of legal practitioners in New South Wales. 28 At the conclusion of the hearing the Tribunal was informed by Senior Counsel for the Applicant that there were other proceedings against the Respondent in the Legal Services Division, being matter number 12014 of 2000. The Applicant did not seek to have the proceedings dealt with by this Tribunal and requested that they be stood over to a date to be fixed. The Tribunal accepted that this was the appropriate course to take in the circumstances. Orders made on 13 August 2001 29 The Tribunal orders: (1) That the name of Van Thieu Nguyen be struck off the Roll of Legal Practitioners in New South Wales. (2) That the Respondent pay the costs of the Applicant of, and incidental to, the proceedings on a solicitor/client basis. (3) That the proceedings in No. 012014 be stood over to a date to be fixed. (4) That the documents forwarded by the Board of Examiners for Legal Practitioners of the Supreme Court of Victoria be returned to the Board forthwith. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.