CITATION: NSW Bar Association v Donnelly (No 2) [2004] NSWADT 188 DIVISION: Legal Services Division APPLICANT PARTIES: The Council of the New South Wales Bar Association RESPONDENT Bruce Leicester Donnelly FILE NUMBER: 032016 HEARING DATES: 13/08/2004 SUBMISSIONS CLOSED: 08/13/2004 DATE OF DECISION: 08/31/2004 BEFORE: Nader J QC - ADCJ (Deputy President); Macfarlan R QC - Judicial Member; O'Neill A - Non Judicial Member APPLICATION: Professional Misconduct - fail to disclose convictions for tax offences MATTER FOR DECISION: Penalty LEGISLATION CITED : Legal Profession Act 1987 CASES CITED: A Solicitor v The Council of the Law Society (2004) 78 ALJR 310 In Re Davis (1947) 75 CLR 409 APPLICANT REPRESENTATION: C Adamson SC, barrister RESPONDENT In person ORDERS: 1. That a practising certificate not be issued to the respondent Bruce Leicester Donnelly before 26 February 2005; 2. Order that the respondent Bruce Leicester Donnelly pay the costs of the Council of the NSW Bar Association of these proceedings, such costs to be assessed on a party and party basis. REASONS FOR DECISION 1 By its decision dated 31 May 2004 ([2004] NSWADT 102), this Tribunal found that Bruce Leicester Donnelly ("the Barrister") was guilty of professional misconduct in failing to disclose certain tax convictions. 2 Submissions as to penalty having been made to the Tribunal on 13 August 2004, we proceed now to deal with that issue. 3 We note at the outset that although particulars of the Applicant's complaints referred to the making by the Barrister of a statutory declaration in support of his application for a practising certificate, the grounds of complaint alleged a failure to disclose rather than the making of a positive misstatement. We accordingly deal with the question of penalty on that basis. 4 The importance of a barrister's duty of candour and the seriousness of a breach of it is not in doubt. What needs to be considered here is where, in the scale of seriousness of breaches, the present breach falls. 5 Guidance as to the proper approach in the case of a breach of the duty of candour was given earlier this year by the High Court in its decision in A Solicitor v The Council of the Law Society (2004) 78 ALJR 310. 6 In that case, the solicitor was corresponding with the Law Society as to whether the Law Society would take any action in relation to the solicitor's conviction in 1998 on four counts of aggravated indecent assault on a person under the age of 16 years. The solicitor failed to disclose that he had been convicted in November 2000 on further charges of aggravated indecent assault on a person under the age of 16 years. 7 The High Court concluded: "Although the specific focus of that correspondence was the conduct of the appellant in 1997, and although the respondent, being unaware of the new allegations, did not ask any questions about them, the appellant's professional obligations to the Law Society required him to disclose facts that were material to the respondent's decision as to what, if any, action to take against him. Giles JA was right to observe that the appellant 'succumbed to the temptation of keeping from [the respondent] something clearly relevant to its decisions because he feared that disclosure would be against his interests.' It is no excuse that he believed in his own innocence, and that his convictions were ultimately quashed. Frankness required the disclosure of the convictions and sentence, even if he regarded them as unjust, and hoped (or even expected) that they would be overturned on appeal. Furthermore, the appellant's duty of candour in his dealings with the Law Society was a professional duty, and its breach was professional misconduct. It was proper that it should be declared to be such. The appeal against declaration 1(b) must fail. … The Court of Appeal was right to treat very seriously the breach of the duty of candour involved in the conduct the subject of declaration 1(b). Even so, the circumstances in which it occurred were extraordinary. Making full allowance for the need to consider the combined effect of the 1997 conduct and the conduct the subject of declaration 1(b), it should not be concluded that it had been shown that, at the time of the decision of the Court of Appeal in March 2002, the appellant was unfit to practise. Declaration 2 should be set aside. … By reason of the events of 1997, the appellant resigned from the Army Reserve, and has not renewed his practising certificate since the 1998-1999 year. In effect, he has been unable to practise for more than five years. It would have been appropriate for the Court of Appeal to make an order for his suspension, but an appropriate order would not have extended beyond the present time. The Court of Appeal made an order for costs against the appellant, and that should stand. In those circumstances, no further sanction is required." 8 As we see it, the breach of the duty of candour in that case was more serious than that in the present case. In the present case, the Barrister was well aware at the relevant time of the fact that he had no taxable income for the years in respect of which he was late in lodgement of returns. Returns showing that position had been lodged by the Barrister before the subject application was made by him to the Bar Association. Furthermore, we must proceed upon the basis that the Barrister was unaware of publicity that had occurred concerning non-payment of tax by barristers and steps taken in consequence thereof. This is so because the Barrister gave evidence of his unawareness and that evidence was not challenged. 9 In these circumstances, the Barrister could reasonably have taken the view that the tax convictions would only be regarded by the Bar Association as of limited significance. It is reasonable to infer that the Barrister would have thought that once the tax convictions were put in their proper context, they would not prevent the grant of a practising certificate but that their disclosure might delay that occurring. We think that this is the proper inference to be drawn and that the possibility of their disclosure altogether thwarting issue of the practising certificate was not a realistic one (compare paragraph 69 of our earlier decision). 10 It would of course have been possible for the Barrister to volunteer information to the Bar Association designed to put the convictions in their proper context with a view to obviating any delay. It was wrong for the Barrister to succumb however "to the temptation of keeping from (the respondent) something clearly relevant to its decisions because he feared that disclosure would be against his interests" (see para 7 above). 11 Nevertheless, the circumstances to which we have referred above in our view render the present breach significantly less serious than many others that might be imagined. For example, in the matter under consideration in the High Court, the solicitor could well have foreseen that disclosure of the fresh conviction might have had a significant effect on the Law Society's deliberations. Likewise in In Re Davis (1947) 75 CLR 409, where the matter not disclosed was a conviction for house-breaking for the purpose of theft. As was said by Dixon J in that case: "House-breaking for the purpose of theft is not a crime the effect of which as a disclosure of character can be considered equivocal. It is not so easy to imagine explanation, extenuation or reformation sufficiently convincing or persuasive to satisfy a court that a person guilty of such a crime should take his place as counsel at the Bar." (At 426) 12 In these circumstances, our view is that the Barrister should be precluded from obtaining a practising certificate for a period of 2 years from the date of his failure to disclose the tax convictions. This would enable him to recommence practising from 26 February 2005. Our view is that, by that time, the importance of adhering to his professional obligations will have been sufficiently brought home to him to justify confidence that he will thereafter act with due propriety. 13 We should add that in reaching this conclusion we have taken into account the fact that shortly before the subject non-disclosure occurred, this Tribunal had handed down its decision in another matter concerning the Barrister (NSW Bar Association v Donnelly [2003] NSWADT 3) in which the Barrister had been found guilty of misleading the Bar Association. The Tribunal found that a statement made by the Barrister was false and misled the Bar Association but did not find it necessary to determine whether the statement was intentionally misleading or whether the Barrister was "merely inappropriately indifferent to the detail of his declaration". The occurrence and proximity of this decision to the matter in question here is of course one which needs to be, and has been, weighed against the Barrister in considering the appropriate penalty to be imposed in the instant matter. 14 Finally, we refer to the application made by the Bar Association for an order for costs on an indemnity basis. Three matters were principally relied upon. 15 First, the Bar Association asserted that the Barrister had unreasonably prolonged the hearing by putting the Informant to proof of intention. We do not however consider that what occurred here constituted any significant departure from the ordinary manner in which litigation is conducted such as to warrant costs being awarded other than on the normal party and party basis. 16 Secondly, it was submitted by the Bar Association that the respondent gave evidence which was deliberately false. There was no finding by the Tribunal to this effect and as the allegation was not clearly put to the Barrister in cross examination, we are not prepared to embark upon a consideration of this question. 17 Thirdly, reliance is placed by the Bar Association upon its statutory duty under s.155 of the Legal Profession Act, 1987 to bring proceedings. This factor is not in our view sufficient in itself to warrant a costs order other than on the normal basis. 18 For these reasons, the application for indemnity costs fails. Orders 19 The following orders are made: 1. Order that a practising certificate not be issued to the respondent Bruce Leicester Donnelly before 26 February 2005. 2. Order that the respondent Bruce Leicester Donnelly pay the costs of the Council of the NSW Bar Association of these proceedings, such costs to be assessed on a party and party basis. 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.