New South Wales Bar Association v Brezniak (No 2) [2004] NSWADT 196

CITATION: New South Wales Bar Association v Brezniak (No 2) [2004] NSWADT 196 DIVISION: Legal Services Division APPLICANT PARTIES: The Council of the New South Wales Bar Association RESPONDENT Daniel James Brezniak FILE NUMBER: 032023 HEARING DATES: On the papers SUBMISSIONS CLOSED: 08/31/2004 DATE OF DECISION: 09/08/2004

BEFORE: Nader J QC - ADCJ (Deputy President); Norton S SC - Judicial Member; Kennedy A - Non Judicial Member APPLICATION: Unsatisfactory Professional Conduct - breach of Bar Rule MATTER FOR DECISION: Penalty and costs LEGISLATION CITED : Legal Profession Act 1987 CASES CITED: APPLICANT REPRESENTATION: C Adamson SC RESPONDENT P Brereton SC ORDERS: 1.The barrister be publicly reprimanded pursuant to Section 171C(1)(e); 2.The barrister pay one half of the Bar Association's costs as taxed or agreed

REASONS FOR DECISION 1 This matter was heard by the Tribunal on 17 March 2004 and the decision in the principal matter was made on 28 July 2004. Orders were made allowing the Respondent 21 days from the date of receiving the decision to file evidence and make submissions on outcome. The Applicant was given 14 days thereafter to make any further submissions as to outcome. 2 The Respondent filed submissions on 16 August 2004 and on 19 August 2004 filed an Affidavit of Rosemary MacDougal sworn 16 August 2004. The Informant's submissions as to outcome were dated 31 August 2004. 3 The Informant had also filed on 7 May 2004 submissions in the principal matter whereby they indicated that a fine and a reprimand were the appropriate findings to be made on outcome. Additional Evidence 4 As noted above the Tribunal has received the Affidavit of Rosemary MacDougal sworn 16 August 2004. In that Affidavit Ms MacDougal deposes to the fact that since about 1982 she has been involved in a practice which specialises in disciplinary proceedings against solicitors. She notes that she met the Respondent in about 1988 and that in fact she offered to provide him with this reference in circumstances where she was aware it would be tendered in his support to assist the Tribunal in its deliberations on outcome. Ms MacDougal is of the opinion that the barrister's breach of Rule 35 is inconsistent with his normal behaviour and is out of character. She also deposes to the fact that the barrister has found these proceedings upsetting and informs the Tribunal that she would have no hesitation in continuing to brief him. Submissions of the parties 5 On behalf of the barrister it is suggested that as the finding made by the Tribunal was one of unsatisfactory professional conduct the matter could have been dealt with under the provisions of Section 155(3) of the Legal Profession Act 1987 and that in those circumstances it would be appropriate to administer a private reprimand. Attention is drawn to the barrister's record and the general circumstances of the offence. On the question of costs it is submitted that the Tribunal has a discretion to order a legal practitioner to pay costs when a finding of unsatisfactory professional conduct has been made. It is suggested, however, that it is appropriate for no order for costs to be made because the matter could have been dealt with under the provisions of Section 155(3) and the barrister admitted certain aspects of the information in his reply. 6 The Informant submits that the appropriate order is for a public reprimand together with an order that the barrister pay the Informant's costs of the proceedings. It is suggested that the costs order should be made because the barrister's response to the complaint was "unduly antagonistic" and that the informant properly commenced and necessarily prosecuted the proceedings and therefore should have a costs order made in its favour. Barrister's history 7 Details of the barrister's practice are contained in paragraphs 45 to 50 of his Affidavit sworn 8 January 1994 and filed in the principal matter. In short he was admitted to the Supreme Court of New South Wales as a solicitor on 14 July 1978. He practiced as a solicitor from then until 1992 when he transferred onto the roll of barristers. For most of his time as a solicitor he was a principal in his own firm which conducted a general practice concentrating in criminal law. 8 From 1988 to 1991 he was a member of the Council of the Law Society of New South Wales and served on a number of committees including a complaints committee. 9 Since his admission to the Bar he has had a general practice with a sizable component of criminal law. Over the period of 25 years he has practiced law, he has never prior to the present occasion been the subject of any sustainable complaint about his conduct. Consequences of the unsatisfactory professional conduct 10 As noted in the decision on the primary matter the first ground of complaint against the barrister was that he misled the Court of Criminal Appeal in the course of his failure to comply with Rule 22 of the New South Wales Barristers Rules. As noted in the primary decision (paragraph 73) there was no suggestion that the Court of Criminal Appeal was actually misled by what was included in the submissions and in fact found that Mr Button's conduct of the trial had been thorough professional and committed. Section 171C 11 In all the circumstances the Tribunal is of the opinon that the appropriate outcome is a public reprimand as provided for in Section 171C(1)(e). The Tribunal notes that the matter has already become public by the publishing of the judgment in the principal matter. Costs 12 Costs are governed by Section 171E of the Legal Profession Act, 1987 as amended. It is made clear in subsection 1 of that section that costs do not necessarily follow the event. In subsection 3 it is noted that the order for costs: "a. May be for a specified amount or an unspecified amount; and b. If for an unspecified amount, may specify the basis on which the amount is to determined; and c. May specify the terms on which the costs must be paid." 13 The Tribunal did not receive any submissions suggesting that the costs should be paid on terms. Neither party suggested that the costs should be ordered in a specified amount. 14 The Tribunal notes that the Informant has only been partially successful in their application and there has been a finding of unprofessional coduct rather than professional misconduct. The Tribunal has no evidence of the financial circumstances of the barrister and notes there are no claims for compensation before the Tribunal. 15 In light of the above the Tribunal is of the opinion that the appropriate order is that the barrister pay one half of the informant's costs as taxed or agreed. Orders 1. That the barrister be publicly reprimanded pursuant to Section 171C(1)(e). 2. The barrister pay one half of the costs of the informant as taxed or agreed.