New South Wales Bar Association -v- Jobson [2002] NSWADT 171

CITATION: New South Wales Bar Association -v- Jobson [2002] NSWADT 171 DIVISION: Legal Services Division APPLICANT PARTIES: Council of the New South Wales Bar Association RESPONDENT James Alexander Jobson FILE NUMBER: 012008; 012019 HEARING DATES: 08/04/2002, 09/04/2002 SUBMISSIONS CLOSED: 04/09/2002 DATE OF DECISION: 09/18/2002

BEFORE: Currie JS - Judicial Member; Norton S - Judicial Member; Brehe D - Member APPLICATION: Professional Misconduct - mislead Law Society/Bar Association/LSC - Unsatisfactory Professional Conduct - conduct below expected standards of proper conduct, dignity and courtesy - Unsatisfactory Professional Conduct - mislead Law Society/Bar Association/LSC MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 CASES CITED: APPLICANT REPRESENTATION: G R Waugh, barrister RESPONDENT A C Bridge SC, barrister ORDERS: 1. In proceedings 012008, James Alexander Jobson be publicly reprimanded; 2. In proceedings 012019, Information dismissed; 3. No order as to costs.

1 The proceedings, numbered 012008 and 0120109 in the Administrative Decisions Tribunal, Legal Services Division, were commenced by the Council of the New South Wales Bar Association against Mr James Alexander Jobson, a barrister, by Informations filed on 20 April 2001 and 25 June 2001 respectively. 2 In brief, the first Information related to the conduct of Mr Jobson ("the Practitioner") on 7 May 1998 outside Court 7A of the Supreme Court, Queens Square, Sydney, in particular his conduct towards a solicitor, Mr R. The second information relates to the Practitioner's correspondence with the Professional Conduct Committee of the New South Wales Bar Association. Issues for Determination 3 There are three issues for determination. Issue 1 is whether the conduct of the Practitioner outside Court 7A, Supreme Court, Queens Square, Sydney on 7 May 1999, constitutes unsatisfactory professional conduct by the Practitioner. Issue 2 is whether Practitioner's letter of 12 July 1999 to the New South Wales Bar Association Professional Conduct Committee constituted misleading the Professional Conduct Committee and the Bar Council, so as to constitute either professional misconduct, or unsatisfactory professional conduct, by the Practitioner. Issue 3 is what orders are appropriate. Determination of these issues 4 The Tribunal has determined these issues as follows: 5 Issue 1: There is conflicting evidence as to exactly what took place outside Court 7A and otherwise in the Supreme Court building on 7 May 1999. However, the Tribunal is satisfied that what occurred was, at the very least, a confrontation initiated by the Practitioner, which went beyond the bounds of proper professional conduct to a fellow practitioner, and which constituted unsatisfactory professional conduct by the Practitioner in respect of his conduct to another legal practitioner. 6 Issue 2: The Practitioner's letter of 12 July 1999, whilst being an emotive and ill-considered response of unfortunate brevity and tone to the Bar Association's enquiry, does not constitute a failure of the Practitioner to fulfil his duty of candour to the Bar Association. The Tribunal believes the letter must be viewed in the light of the Bar Association's own duty to investigate the complaint, and the Practitioner's subsequent explanations to the Bar Association of what occurred. Viewed in this light, the letter did not constitute misleading the Professional Conduct Committee, nor does it constitute professional misconduct or unsatisfactory professional conduct by the Practitioner. 7 Issue 3: Given the public nature of what occurred on 7 May 1999 there must be some public element in the sanction to be imposed on the Practitioner in respect of the first information. The Tribunal does not believe that a fine or suspension, or striking-off is justified. However the appropriate order is that the Respondent, that is the Practitioner, be publicly reprimanded in accordance with s.171C(1)(e) of the Legal Profession Act. In respect of the second information, the information will be dismissed. In the circumstances it seems appropriate to order that each party pay its or his own costs of these proceedings. REASONS FOR THESE ORDERS The events of 7 May 1999 8 Although there are substantial differences between the witnesses as to what exactly occurred on 7 May 1999, its seems that there is consensus as to certain facts. Firstly, there were Supreme Court Equity Division proceedings involving a Mrs N against the Official Receiver in Bankruptcy for New South Wales. In these proceedings, trustees for sale of a residential property at Burwood were appointed by orders of the Supreme Court on 5 November 1988. Subsequently a notice of motion was filed by the solicitors for the Official Receiver and the hearing of this motion was adjourned until 7 May 1999. 9 It is further agreed that on that day the matter was listed before Registrar Berecry in Court 7A of the Supreme Court Building and that the Practitioner appeared for the Plaintiff Mrs N. Ms H, a solicitor, appeared for the Official Receiver and Mr R, a solicitor, appeared for the trustees for sale. It seems to be further agreed that, prior to the matter coming on there was a discussion between the Practitioner and Mr R as to Mr R's appearance on behalf of the trustees for sale. During the hearing of the application the Practitioner, by way of remarks to the Registrar from the bar table, took exception to some of the allegations made by Mr R. 10 It seems to be further agreed that at the conclusion of the hearing the three lawyers left the court room at the same time, and immediately outside the courtroom in the level 7 corridor a confrontation of some form took place between the Practitioner and Mr R. It is the extent of the confrontation and what the Practitioner actually said and did which is in dispute between the witnesses and which, of course, is central to the complaint. 11 The evidence of Mr R is to the effect that there was a serious altercation between him and the Practitioner involving an assault by the Practitioner. In paragraph 12 of his affidavit dated 5 March 2001, Mr R says as follows: "I was standing in the corridor on level 7 when Mr Jobson approached me. Mr Jobson said: "Who the fuck do you think you are? How dare you make those remarks to the Court, they're patently false and outrageous. You don't even have a right to appear. I intend to report you and the Trustees for misconduct". 12 According to Mr R, he indicated to the Practitioner that he did not understand those remarks and that they were matters which should have been taken up before the Registrar, and that having done that Mr R proceeded to leave but that the Practitioner grabbed him by the shoulder turning him around and proceeded to grab the front of his suit coat, using expletive language to him including the words: "You fucking prick. You little smartarse". 13 In paragraph 13 of his affidavit of 5 March 2001, Mr R deposes to the fact that other practitioners turned around at this stage to see what was happening and that this confrontation caused him great embarrassment and fear. Mr R deposes to the fact he then asked the Practitioner to release him which the Practitioner did. Under cross-examination, Mr R's recollection of some of the words used varied in some respects from his affidavit, but he was adamant that the Practitioner had grabbed his coat lapels as he spoke. According to Mr R there was no further physical intimidation but that the Practitioner did accompany him and Ms H down in the lift to the ground floor continuing to make allegations that Mr R had no right of appearance and that the trustees were going to be reported. 14 The evidence of Ms H is similar but not identical in all respects to that of Mr R. It seems clear that Ms H was in the immediate vicinity and closely witnessed the confrontation. In paragraph 8 of her affidavit of 10 August 2001, Ms H recalled that the Practitioner approached Mr R in what she observed to be an aggressive manner and said certain things including: "You are a fuckwit who is just eating up costs, you are a smartarse, a prick, you have no right to be here and I should report you and the trustee for sale who is a fuckwit." Ms H also deposes that the Practitioner called Mr R a "stupid solicitor" and "a disgrace". 15 Ms H also deposed to the fact that in her observation as the Practitioner approached Mr R and Mr R did not retreat, the Practitioner's stomach appeared to touch Mr R's torso and at the same time the Practitioner reached out and took hold of Mr R's coat lapels and put his face quite close to Mr R's. In examination and under cross-examination, Ms H was adamant that the Practitioner had grabbed the lapels of Mr R's coat and that the contact between stomach and torso of the relevant parties (referred to by her as the "boofing") was more than just a natural consequence of the differences in height and build between Mr R and the Practitioner. That is, it was an aggressive act by the Practitioner. 16 The Practitioner's evidence is that he denies using the expletive language alleged by Mr R and Ms H. The Practitioner said under cross-examination that: "the words used in that manner used to a professional I would regard as disgusting." In paragraph 9 of his affidavit dated 4 October 2001 the Practitioner conceded that he "may have said" to Mr R: "don't be such a smartarse". In cross-examination he conceded that it was more likely than not that he had used that phrase. 17 The Practitioner in paragraph 10 of his affidavit of 4 October 2001, gives a detailed description of how he came to place his hand on the lapel (he alleges, only one lapel) of Mr R's coat. He says that his action in raising his hand was a spontaneous gesture as he wanted to finish the conversation. The suggestion is that as Mr R turned to his left, the Practitioner put out his left hand and it was that hand that touched the lapel (That is the evidence given in paragraph 10 of the Practitioner's affidavit of 4 October 2001). Under cross-examination the Practitioner conceded that Mr R may have in fact turned to the right. This throws at least some doubt on his exact recollection of the events. 18 It is clear from the Practitioner's evidence however that as soon as he realised that he had his hand on Mr R he realised that he had "overstepped his personal boundaries" and that a "cold shudder went through his body". The Tribunal accepts the Practitioner's evidence that at that stage he realised that he had gone too far and that almost immediately he withdrew his hand. 19 The Practitioner denies that he caught the lift down to the ground floor with Mr R and Ms H. Analysis of the evidence regarding the first information 20 Given the divergences in the witnesses' accounts and the seriousness of the allegations made, the Tribunal cannot be satisfied with the requisite degree of comfort that all the facts alleged by Mr R and Ms H have been made out. 21 However on reviewing the various accounts the Tribunal has concluded that there was clearly an aggressive confrontation outside Court 7A between the Practitioner and Mr R, and that that confrontation was initiated by the Practitioner. The confrontation involved the use of unseemly and unprofessional language by the Practitioner. (The Tribunal does not wish to delve into which particular offensive words were or were not said). Whether or not Mr R was "grabbed" by the Practitioner, there was at minimum, and in the context of an aggressive approach, a physical touching of Mr R by the Practitioner. The Tribunal accepts that Mr R felt embarrassment and some apprehension as a result of the confrontation. Equally, the Tribunal accepts that the Practitioner did realise that he had "gone too far" almost immediately after making physical conduct with Mr R. The Tribunal does not believe it necessary to determine whether anything further occurred in the lift down to the ground floor. 22 In summary, the Tribunal regards what occurred as a short but most unfortunate incident: what might be termed a "flare-up". Unfortunately, this occurred in the precincts of the Court, in a public place, in a manner which drew attention to the Practitioner's actions, and in a way which caused embarrassment and apprehension to Mr R, a fellow practitioner. Does the Practitioner's conduct on 7 May 1999 amount to unsatisfactory professional conduct? 23 In many previous cases, the Tribunal, and the former Legal Services Tribunal and its predecessors, have commented on the breadth of the concept of "unsatisfactory professional conduct". That term is defined in section 127(2) of the Legal Profession Act 1987 in the following terms: " Unsatisfactory professional conduct includes conduct (whether consisting of an act or omission) occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent practitioner or interstate legal practitioner." 24 As many authorities have noted, the definition is not an exhaustive one, as it commences with the word "includes". In discussing this point, Riley's "New South Wales Solicitors' Manual" at paragraph [35, 695.10] notes that the legislative definition: "… does not purport to be exhaustive. The conduct described by the definition appears to refer mainly to the relationship of legal practitioner and client. Other professional conduct involving a departure from the standards of reasonably competent legal practitioners in other professional relationships might constitute unsatisfactory professional conduct. That might occur as a result of a practitioner's default in the performance of a professional duty or responsibility to an extent that falls short of professional misconduct." 25 In the Tribunal's view conduct involving a departure from standards of responsibility expected of a Practitioner in dealing with his or her professional opponents can constitute unsatisfactory professional conduct (to the extent that it falls short of professional misconduct). 26 In the Tribunal's view that is an appropriate finding in this case. The Practitioner himself conceded that his conduct went beyond his own personal bounds. It seems beyond doubt that his conduct was inappropriate and unprofessional in the sense of involving a departure from the accepted standards of conduct towards another practitioner. The conduct clearly occurred in connection with the Practitioner's practice of the law. The Tribunal does not believe that the Practitioner's conduct amounted to professional misconduct. Conclusions as to the first information 27 In relation to the first information, the Tribunal finds that that Practitioner is guilty of unsatisfactory professional conduct. 28 Before leaving the first information, the Tribunal makes one closing comment. That is that the practitioner could well have been spared the stress and expense of these proceedings, including the necessary investigation by the Council of the Bar Association and its Committee, by proffering an apology at an early stage. The Tribunal notes that Mr R gave the Practitioner the opportunity to apologise by way of his letter of 7 May 1999 to the Practitioner's instructing solicitors. Indeed, in light of the Practitioner's statement that he realised that he had gone too far in his conduct, the Tribunal remains perplexed that the opportunity to apologise was not taken up. The second information: the Practitioner's reaction to the allegations 29 The second information is to the effect that the Practitioner misled the Professional Conduct Committee and the Bar Council in denying, in his letter of 12 July 1999, that he had grabbed Mr R by the coat lapel or lapels. 30 It is clear from the evidence that the Practitioner was embarrassed and distressed at the fact of the complaint having been made against him (that is, the complaint relating to the facts surrounding the first information). It is clear from paragraph 19 of the Practitioner's affidavit of 4 October 2001 that although his wife was employed as his secretary he was sufficiently embarrassed not to be able to tell his wife of the incident, and it is for that reason that the Practitioner's letter to the Professional Conduct Committee of 12 July 1999 is hand written. 31 The allegation in the information is essentially that that letter was misleading. 32 It is clear that the letter of 12 July 1999 was written by the Practitioner at a time in which, by his own admission, the Practitioner was "extremely angry and upset" that a complaint had been made (his evidence in paragraph 18 of his affidavit of 4 October 2001). The Practitioner had not responded to the initial complaint and required a phone call from an officer of the Bar Association as a prompt to making any sort of response. The response of 12 July 1999 is in the Tribunal's view an emotive and ill-considered one and it is of unfortunate brevity and tone. 33 However, in light of information subsequently given to the Bar Association by and on behalf of the Practitioner, and the Practitioner's evidence on hearing, the Tribunal is of the view that the letter of 12 July 1999 was not misleading. The Tribunal believes that the letter must be reviewed in the light of the Bar Association's own duty to investigate the complaint and the legal practitioner's subsequent explanations of what occurred. Viewed in this light, the letter did not constitute misleading the Professional Conduct Committee. The Tribunal is not satisfied that the Practitioner's actions amounted to a breach of his duty of candour to the Bar Association. The Practitioner's actions do not constitute professional misconduct or unsatisfactory professional conduct by the Practitioner. Conclusions as to the second information 34 It follows that the second information should be dismissed. What orders are appropriate? 35 It was submitted on behalf of the Practitioner that at worst, the Practitioner's actions were a "one-off" and that there was no real likelihood of repetition. Certainly the Tribunal accepts that the Practitioner has endured embarrassment and stress as a result of these proceedings and that he regrets his actions. 36 However, the Practitioner's conduct took place in a public place and worse, in the immediate precincts of a court, in the view of not only members of the profession but members of the public. Given the public nature of what occurred on 7 May 1999, there must be some public element in the sanction to be imposed on the Practitioner. 37 The Tribunal does not believe that a fine, or suspension from practice, or striking-off is justified. However, the Tribunal believes that it is appropriate that the Respondent, that is the Practitioner be publicly reprimanded in accordance with s.171(C)(1)(e) of the Legal Profession Act. 38 In relation to costs, the intended first day of hearing of the matter, on 23 October 2001, had to be aborted because of the absence of Mr R, who was clearly a key witness. In the normal course, it might be expected that the Bar Association be responsible for the costs of the adjourned date. The Bar Association has not succeeded on the second information. Accordingly, the Practitioner has succeeded on one information (the second) but not on the other. In all these circumstances it seems appropriate for the Tribunal to order that each party bear its or his own costs of these proceedings.