The Legal Services Tribunal of New South Wales CITATION : Carver v The Legal Profession Disciplinary Tribunal and Anor Judgment [1991] NSWLST 5 PARTIES : Carver v The Legal Profession Disciplinary Tribunal and Anor Judgment FILE NUMBER(S) : CA 40562/90 of 1990 CORAM: J A Clarke - J A Maegher - A J A Hope CATCHWORDS: Professional Misconduct - misappropriate trust moneys/moneys :- LEGISLATION CITED: Legal Profession Act 1987 Rondel v Worsley, (1969); CASES CITED: Cassidy & Anor v Glover & Anor (29 October 1987, unreported); Myers v Elman, 1940 AC 282 DATES OF HEARING: 17/09/91 DATE OF JUDGMENT: 09/17/1991 LEGAL REPRESENTATIVES: JUDGMENT: The Supreme Court of New South Wales Court of Appeal Carver v The Legal Profession Disciplinary Tribunal and Anor Judgment Appeal from arbitration CA 40562/90 Judgment of Clarke JA, Meagher JA, Hope AJA 17 September 1991 Counsel: Appellant: R.A. Skiller Respondent: D. McGovern and P. Sutherland Solicitors: Appellant: Peter Carver, Star Carver & Co Respondent: Frederick Smith Appeal dismissed Clarke JA On 3 February 1989 the Council of the Law Society of New South Wales (which I shall describe as the respondent) lodged a complaint with the Disciplinary Tribunal constituted under the Legal Profession Act 1987 complaining that the conduct of Peter George Star Carver (the appellant), a legal practitioner, amounted to professional misconduct. The asserted ground for the complaint was in the following terms: "The continuing failure to abide by an award made by the Joint Tribunal on Fees since on or about 18 June 1987 when the Society forwarded a letter to the solicitor informing him of a council resolution on 4 June 1987 that he be censured." The complaint was heard by the Tribunal, then constituted by two solicitors and a lay member, which on 23 August 1990 published its orders and reasons for determination in which it expressed its conclusion that the solicitor's failure to comply with the award since at least 18 June 1987 constituted professional misconduct. As a consequence of this finding the Tribunal ordered that, pursuant to s.163(1)(d) of the Legal Profession Act 1987 ("the Act"), the solicitor pay a fine of $2,000 and made various other orders. The appellant has appealed from this determination pursuant to s.164 of the Act and in his Notice of Appeal has raised seventeen separate grounds. During the hearing of the appeal the argument in support of those grounds raised, in essence, three basic points, they were: (1) The award made by the Joint Tribunal on Fees was invalid and, as a consequence, it was not open to the Tribunal to conclude that the appellant's failure to abide by it constituted professional misconduct; (2) In view of the resolution passed by the respondent on 4th June 1987 it was not open to the Tribunal to embark upon a hearing of the complaint for the reason that the appellant was thereby placed in "double jeopardy"; (3) The proper conclusion on all the evidence was that the appellant had not committed professional misconduct. The facts in this case are many and are complex. In the interests of clarity I will confine myself to a relatively short summary of those facts. In adopting this course I have focused on those facts which appear to me to be of the greatest significance and I have sought to convey their essential thrust as it emerges from the general factual matrix. The appellant, who was admitted as a solicitor in December 1978 and practised between 1981 and 1986 at Beamish Street, Campsie, first briefed Mr A. McQuillan, a junior barrister, prior to 1984 having been referred to him by another solicitor. It would seem that they became quite friendly for in July 1984 the appellant loaned McQuillan the sum of $5,000 on terms which were set out in a letter of 5 July. One of those terms was that the interest and principal be repaid on 30 September 1984. Mr McQuillan was unable to conform with this requirement and his apparent financial needs led to the appellant advancing him another $5,000 from moneys which he held in trust for a client. The loan was to bear interest and was repayable on 31 December 1984. McQuillan, however, also failed to pay this sum on the due date. Early in 1985 the appellant became concerned about the non payment of the Goodwin loan and he wrote to McQuillan on 13 February 1985. Thereafter misunderstandings seem to have occurred between the appellant and McQuillan and their relationship soured. The appellant sought the return of all briefs currently held by McQuillan and these were duly returned together with memoranda of fees. Some of the briefs related to cases in which the appellant was personally concerned and it is, I think, true to say that the greatest portion of the $8,970 claimed by McQuillan for fees represented amounts which he claimed in respect of matters in which he was briefed to appear on behalf of the appellant himself. McQuillan did repay one of the loans, without interest, on 3 May 1985. He did not, however, trouble to identify in writing the loan in respect of which the payment was made and this led to another area of dispute. McQuillan claimed that he had repaid the Goodwin loan while the solicitor claimed another solicitor. It would seem that they became quite friendly for in July 1984 the appellant loaned McQuillan the sum of $5,000 on terms which were set out in a letter of 5 July. One of those terms was that the interest and principal be repaid on 30 September 1984. Mr McQuillan was unable to conform with this requirement and his apparent financial needs led to the appellant advancing him another $5,000 from moneys which he held in trust for a client. The loan was to bear interest and was repayable on 31 December 1984. McQuillan, however, also failed to pay this sum on the due date. Early in 1985 the appellant became concerned about the non payment of the Goodwin loan and he wrote to McQuillan on 13 February 1985. Thereafter misunderstandings seem to have occurred between the appellant and McQuillan and their relationship soured. The appellant sought the return of all briefs currently held by McQuillan and these were duly returned together with memoranda of fees. Some of the briefs related to cases in which the appellant was personally concerned and it is, I think, true to say that the greatest portion of the $8,970 claimed by McQuillan for fees represented amounts which he claimed in respect of matters in which he was briefed to appear on behalf of the appellant himself. McQuillan did repay one of the loans, without interest, on 3 May 1985. He did not, however, trouble to identify in writing the loan in respect of which the payment was made and this led to another area of dispute. McQuillan claimed that he had repaid the Goodwin loan while the solicitor claimed that it was his own loan which had been repaid. It is apparent that by late May relationships were strained between the two men. Notwithstanding the appellant's immediate reaction to the memoranda of fees sent by McQuillan was not completely adverse. Although he said, in a letter written on 17 June 1985, that he thought the fees in relation to a matter concerning Johnson were not fair, because the client could not bear such a heavy bill, his only comment in that letter relating to the other memoranda was: "In fairness to all concerned I propose to review your fees to reflect a just result." A month later he was claiming that McQuillan's fees were exorbitant and after further exchanges of angry letters he asked, in a letter dated 16 August 1985, "that all the disputed matters in respect of your fees be referred to the Disputes Committee as a matter of urgency". McQuillan responded by ringing the appellant and, as he was not in, speaking to his secretary. The message conveyed was that it would be sensible for both of them to sit down and work out their problems. McQuillan repeated this comment in a letter of 21 August 1985 saying: "I would hope that our differences could be resolved by sitting down and discussing the matter in the usual way rather than the expensive inconvenience of litigating and arbitrating." The appellant's response was a request to refer all disputed matters for arbitration as soon as possible. At this stage it is perhaps desirable that I explain the references to the Disputes Committee and arbitration. It has long been accepted that barristers have no right to sue for outstanding fees; the obligation of the solicitor to pay the fees sounds only in honour. (The cases are collected in Rondel v Worsley, (1969) 1 AC 191, at 236-239, 261-262 and 287-8.) One consequence of this rule, which was accepted by the parties in this case as correct and was therefore not reconsidered by the court, was that some junior counsel, particularly those newly called to the Bar, from time to time found themselves in embarrassing financial circumstances when particular solicitors refused, for one reason or another, or merely failed to pay outstanding fees. Those problems became more severe where a solicitor simply refused to pay outstanding fees in a number of cases. In order to deal with this problem the Bar Council resolved many years ago to set up a black list consisting of solicitors who, without good reason, refused or failed to pay counsel's fees. To be placed on the black list was a severe disadvantage for a solicitor and because of disputes as to whether solicitors had been properly, or justly, placed on the black list the system created disharmony between the two branches of the profession. As a consequence representatives of the Bar Association and the Law Society met and in 1951 published a memorandum which contained a joint statement setting up machinery for dealing with disputes between barristers and solicitors. That memorandum was amended on 12 March 1982 when a new joint statement was issued. The purpose underlying the joint statements was the facilitation of arbitration in matters where a bona fide dispute as to the quantum of fees payable existed. The relevant parts of the 1982 statement were as follows: "5. The solicitor personally is in honour bound to pay to counsel whatever fees are charged by counsel unless (a) a fee was marked on the brief and the fees claimed are not in accordance with such marking or (b) an arrangement as to fees was made between solicitor and counsel and the fees claimed are not in accordance with that arrangement or (c) in a case where no fee was marked on the brief and no arrangement was made, the fees claimed are manifestly excessive, or contrary to the practice of the Bar - e.g. if a junior counsel charged the same fee as senior counsel with whom he appeared but in each case the solicitor remains bound to pay the proper fee. ... 7. If counsel is unable to obtain payment from a solicitor of fees to which he considers he is entitled, he should report the matter to the Bar Association or, if he considers that professional misconduct on the part of the solicitor is involved, lodge a complaint with the Council of the Law Society. Counsel is also entitled, if he has reason to believe that the solicitor has received the fees from the client, after notice to the solicitor, to enquire of the client whether the client has in fact paid the amount of the fees or any part of them to the solicitor. 8. If a solicitor considers that the fees charged by counsel are in excess of what (having regard to paragraph 5 above) he is bound to pay, or that he is not bound in all the circumstances of the particular case to pay the fees at all, and after his views have been fully represented to counsel the latter still presses a claim which the solicitors considers unjustified, he should report the matter to the Council of the Law Society which will take it up with the Bar Association. ... 11. Where, in accordance with the provisions of paragraph 8 above, a solicitor has reported a dispute as to fees to the Council of the Law Society, the Bar Council will enquire of the counsel concerned whether he still presses his claim and, if he still presses his claim, whether he is willing to have the dispute arbitrated by the Joint Tribunal on Fees. If counsel still presses his claim but is not willing to have the dispute arbitrated, the Bar Council will take no further action to assist counsel in obtaining payment of the fees in question. If the solicitor should refuse to submit to arbitration, the Law Society will not thereafter assist him. 12. The Joint Tribunal on Fees shall consist of the President for the time being of the Bar Association (or such other member of the Bar as such President may from time to time nominate) and the President for the time being of the Law Society (or such other member of the Law Society as such President may from time to time nominate). 13. Where a dispute is to be arbitrated by the Joint Tribunal on Fees, (a) the members of the Joint Tribunal on Fees shall, before commencing upon the arbitration, select by lot, from a pool of names kept for that purpose and comprising not less than six representatives of each body, the name of an umpire to act in the event that they disagree as to the result of the arbitration and (b) the parties may appear on their own behalf or be represented and may call evidence if they wish or, alternatively, the Joint Tribunal on Fees may, if both parties agree, determine the dispute in the absence of the parties and on the basis of such written material and/or submissions (if any) as the parties may wish to put before it. 14. An agreement to arbitrate shall be deemed to be an agreement by the solicitor that he shall pay within twenty-one (21) days of the publishing of the order made by the arbitrators or umpire (as the case may be) any amount stated therein to be due to counsel." In this case it is tolerably clear that the appellant was asking McQuillan to refer the dispute to a joint tribunal constituted pursuant to this joint statement. No resolution of the dispute occurred and at some stage prior to 10 March 1986 a Joint Tribunal was appointed for on that day the appellant wrote to McQuillan saying, inter alia: "As you are no doubt aware an arbitrator has already been appointed with a view to arbitrate your claims for fees due to you. "We are currently preparing a statement to be handed to the Disputes Committee and of course we are both bound by the decision of the arbitrator." The Bar Association appointed Mr C. Darvall QC as its representative on the Joint Tribunal and the President of the Law Society was its representative. The first meeting was called for 11 June but, because that date was inconvenient to the appellant, it was changed. A new hearing date was fixed for 24 June 1986 at Mr Darvall's chambers. The arbitrators duly convened and McQuillan was also present. The appellant, however, was not there. He has claimed, and there is no substantial basis for doubting this claim, that he had not been notified of the date. Notwithstanding Mr Garling, the President of the Law Society, spoke with him on the telephone. During that conversation a number of things were discussed and, according to Mr Garling, the appellant indicated that he did not intend to be present at the arbitration and said that he would send written submissions for consideration by the arbitrators. This evidence given by Mr Garling was not challenged in cross-examination nor denied by the appellant and is broadly consistent with the terms of a letter written to the appellant, and signed by both arbitrators, on 24 June 1986. In that letter the arbitrators noted that the appellant had indicated that there was no dispute that the work had been done by McQuillan and that there had been no prior agreement as to the fees to be charged. The letter then proceeded: "In order that the dispute may be brought to a prompt conclusion we issue the following direction: `On or before 8th July, 1986, you are to send to Mr Garling a schedule setting out the fees which have been charged in each instance and against each fee your submission as to the amount charged and if you claim that the amount is manifestly excessive, you should then state the amount which you consider to be reasonable in each instance.' "Upon receipt of this schedule, a copy will be given to Mr McQuillan for his further comment and the Tribunal will then forward to you any such comments from him and will convene for further consideration as may be necessary." This letter was received by the appellant on 26 June 1986 but he did not comply with the direction contained in it nor did he seek any extension of time. In the light of this default the arbitrators met on 17 July 1986 and made an award which recited, inter alia, the existence of the dispute and allowed in total the fees charged by McQuillan. On 30 July Mr Garling forwarded the award to the appellant who, unaware that it had been made, had written to the arbitrators on 29 July asking for an extension of time. Mr Darvall responded to that request by saying, in effect, that an award had been made and the arbitration terminated. The appellant then wrote to Mr Garling expressing his disgust at what had occurred and saying that he did not consider himself bound by the award. Mr Garling responded by pointing out that the award was not made hastily by the arbitrators and was made with considerable reluctance "having regard to your failure to specify at any time in the course of the dispute any basis for disputing counsel's fees". Mr Garling also pointed out that he would be forwarding the file to the Discipline Department of the Law Society for its consideration. The appellant made no real attempt to re-open the arbitration but instead wrote to Mr Garling notifying him that he was seeking the assistance of the Attorney General and proposed initiating proceedings against the Law Society in the Supreme Court. In reply Mr Garling said, amongst other things, that "failure to pay counsel's fees in certain circumstances may be considered by the Law Society to amount to professional misconduct". On 1 October 1986 the Discipline Department of the Law Society notified the appellant that a complaint had been made that he had failed to pay the amount awarded and that such failure could constitute professional misconduct. In the letter there was an invitation to the appellant to make submissions upon the issue. The appellant quickly replied reiterating his claim that he did not consider himself bound by the award and adding that he was preparing a comprehensive reply to all matters raised. That comprehensive reply never materialised. On 26 March 1987 the solicitor for the Discipline Department of the Law Society notified the appellant that the Bar Association had stated that their Fees Committee and Mr McQuillan would have no objection to the appellant applying to the arbitrators to re-open the arbitration provided that he deposited the amount in dispute with the Law Society to abide the result of the re-opened arbitration. The appellant rejected the proposal out of hand and did not, either then or later, seek a re-opening of the arbitration or suggest that he would agree to the arbitration being re-opened upon different terms. His attitude was that the award was not binding and he would disregard it. The Law Society was obviously concerned that it not act precipitously. On 3 April 1987 the Manager of the Discipline Department wrote to the appellant pointing out that the Society still had to make a decision as to his conduct and seeking any submissions that he wished to make as a matter of urgency. Notwithstanding that he had never furnished to the arbitrators or the Law Society his reasons for contending that the fees claimed by McQuillan were excessive he made no submissions. Not surprisingly when the Council of the Law Society met on 4 June 1987 it considered his conduct and resolved that: "The solicitor's conduct in failing to comply with the Arbitrator's (sic) decision as to payment of counsel's fees constitutes professional misconduct and is deserving of censure and that the parties be advised accordingly." It would appear that this resolution had no impact upon the solicitor. He did not seek to present explanations to the respondent in support of an application that it rescind its resolution. Nor did he pay the whole, or any part, of the award of the arbitrators. So the position remained until December 1988 when a solicitor in the Professional Conduct Department of the respondent wrote to the appellant forwarding him a copy of the judgment of Brownie J in Cassidy & Anor v Glover & Anor (29 October 1987, unreported) and pointing out that the effect of the decision was that the award of the joint tribunal did not create a legally binding debt and that the obligation of the solicitor to pay counsel's fees remained one in honour only. The letter then proceeded: "In the above circumstances, the Complaints Committee, at its meeting on 15 December 1989, considered that your continuing failure to abide by the award made on 17 July 1986 may constitute professional misconduct. Should such failure continue by the time the Committee convenes for its next meeting on 19 January 1989, it shall determine at such time whether or not to recommend to the Council that a complaint should be made to the Disciplinary Tribunal pursuant to Section 135 of the Legal Profession Act 1987." The appellant did not respond to the letter nor did he pay the award. Accordingly on 2 February 1989 the respondent resolved that the complaint be referred to the Disciplinary Tribunal. Before proceeding to consider the submissions it is pertinent to make two observations concerning the manner in which the appeal was conducted. The first is that both parties joined in asking the court to consider the material contained in the appeal books and to determine from that material whether a case of professional misconduct had been made out. This is a convenient approach in the circumstances of this case and as it could not involve injustice to either party the court decided to adopt it. In these circumstances it is unnecessary to consider the terms of s.164 of the Act which provides for appeals to the court or to consider what was intended by the legislature when it referred in s.164 to "a new hearing at which fresh evidence, or evidence in addition to, or in substitution for the evidence received at the original hearing may be given". It will no doubt be necessary to consider the terms of this section in the future, particularly where findings on credit have been made by the Tribunal but the questions which are raised in that connection are, in my opinion, best left for a case in which they directly arise. In this case the evidence upon which the Tribunal based its conclusion was not controversial, no relevant findings on credit were made and neither party sought to introduce evidence in addition, or in substitution, to the evidence given before the Tribunal. Accordingly, there is no good reason for declining to deal with the case in the way suggested by the parties. The second observation is that no submissions were made concerning the definition of professional misconduct in the Act. Both parties addressed their submissions to the test of misconduct at common law which was articulated in Myers v Elman, 1940 AC 282, in which Viscount Maugham said: "... it is of course true that a solicitor may be struck off the rolls or suspended on the ground of professional misconduct, words which have been properly defined as conduct which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency." There is nothing in the definition of professional misconduct in s.123 of the Act which would indicate that this is an incorrect approach and, accordingly, it is one that I have applied in reaching my conclusion. Counsel for the appellant put a number of submissions in support of the claim that the award was invalid. He submitted that the appellant was denied the opportunity to put submissions to the arbitrators. He submitted that it was incumbent on the arbitrators to give the appellant notice that in the light of his default an award would be made unless he put in submissions by a particular date. He also submitted that the arbitrators erred in failing to take account of the outstanding loan. In my opinion these submissions are without substance. The appellant was given plenty of opportunity to put in submissions and, in the absence of any request for an extension of time, there is no basis upon which it can be said the arbitrators were not entitled to proceed in the manner in which they did proceed. The third submission is hopeless. The jurisdiction of the arbitrators was limited to a consideration of the questions referred to in the joint statement concerning the fees rendered by the barrister. They simply had no jurisdiction to determine questions concerning the loans which raised issues separate from those concerning the fees. The only submission of the appellant on this issue which had any substance was the submission that the arbitrators erred in proceeding to decide the issues without holding a hearing. Paragraph 13(b) of the joint statement makes it clear that although a hearing may usually be called for the arbitrators may determine the dispute in the absence of the parties and on the basis of such submissions as the parties may wish to put before them in the event that both parties agree to this course being followed. Counsel for the appellant submitted that there was no evidence of such an agreement in this case and the award was therefore invalid. I am prepared to accept, for the purposes of this submission, that the arbitrators may only proceed in the absence of the parties where both parties agree to this course being followed. The question is, therefore, whether the evidence established that both parties agreed to the course adopted. McQuillan at no stage objected to what had occurred and the only available inference is that the course was followed with his consent particularly as he was present on 24 June when the directions, which did not contemplate a hearing, were given. This was not seriously in dispute but it was submitted that there was no evidence that the appellant had agreed to this course being followed. This submission cannot be sustained for, as I earlier pointed out, there was undisputed evidence from Mr Garling that the solicitor said to him, in effect, that he would not be present at the arbitration but would send written submissions for consideration by the arbitrators. There could be no clearer indication of a desire that the arbitrators proceed in the absence of the parties and act on written submissions. It follows that the appellant has failed to make good his first challenge. It was then submitted that after the resolution of the respondent which was notified in the letter of 18 June 1987 further proceedings were out of order. The submission, in my view, misconceives the complaint. The question referred to the Tribunal was whether the continuing failure to abide by the Award after 18 June 1987 constituted professional misconduct. This question did not involve any reconsideration of the issue whether his earlier failure, which was the subject of the respondent's resolution, constituted misconduct and I fail to see how that resolution could be regarded as in any way a bar to a determination of the question which was put before the Tribunal. I turn then to the third submission. The first argument which was advanced in its support was that while a failure to pay counsel's fees might expose the solicitor to the rigours of the black list it could not constitute professional misconduct on his behalf. The submission again misconceives the complaint but putting that to one side I do not think it can be upheld. It is not possible, in my opinion, to make a statement of principle of universal application that a failure by a solicitor to pay counsel's fees does, or does not, constitute professional misconduct. As it seems to me there may be cases in which failure to pay counsel's fees may be regarded as professional misconduct. If, for instance, a solicitor admitted that the fees claimed were due but refused to pay them because of an argument he had had with counsel about another matter it would, in my opinion, be open to a tribunal to hold that the refusal constituted professional misconduct. On the other hand, one could conceive of situations in which failure to pay counsel's fees may not amount to professional misconduct. This view is supported by a number of decisions of the relevant disciplinary tribunal in England to which the court was referred (Re Marson, Law Society Gazette 8 March 1989; Re Shukla, Law Society Gazette 22 May 1991; Re a Solicitor, Law Society Gazette 1 May 1991; Re Landau, Law Society Gazette 20 February 1991. What is of more significance in the present case is that the respondent (i.e. the Council of the Law Society) considered that the failure to abide by the award constituted professional misconduct. It is well established that this Court will pay great regard to the views of that Council. In a passage which was quoted with obvious approval by this Court in Re Veron; Ex Parte Law Society of New South Wales, 84 WN Pt 1 136, at 143, Darling J said in In re a Solicitor; Ex parte The Law Society, ([1912] 1 KB 302) that: "The Law Society are very good judges of what is professional misconduct by a solicitor, just as the General Medical Council are very good judges of what are misconduct as a medical man." And in Veron itself the court expressly said that it would pay great regard to the views of the Council (p.147). No doubt the weight to be accorded to those views will vary depending upon the matter under consideration but where the subject matter is the non-payment of counsel's fees I consider that the views of the Council of the Law Society are of very great significance. The ultimate submission which was made was that, even if it is open to conclude that non payment of counsel's fees by a solicitor may constitute professional misconduct, upon the facts of this case the complaint had not been made out. In particular it was submitted that in view of the fact that McQuillan had failed to repay one of the $5,000 loans the appellant was justified in taking the stand which he did. I have some difficulties with this submission. If, as the appellant contended, McQuillan had repaid the appellant's loan then there was no possible basis on which the appellant could claim to be relieved of the obligation to pay the outstanding fees. Or, at least, that portion of them which was not in dispute. The basic facts in this case are simple and telling. After the falling out between solicitor and barrister the appellant challenged fees rendered by McQuillan. When it was apparent that there was a dispute in relation to this challenge he required that the dispute be referred to arbitration. This was done and procedures set in motion for the resolution of the arbitration. The appellant failed to comply with the procedures set down and not surprisingly was the beneficiary of an adverse award. He did not then, or at any time, seek to re-open the award but took the stand that he was going to treat it as invalid and disregard any obligation to pay any moneys to McQuillan. In the circumstance, which was accepted by the parties before this court, that McQuillan could not sue for his fees even though an award had been made (see Brownie J's judgment in Cassidy & Anor v Glover & Anor [supra]) that means that he refused to pay fees which he was in honour bound to pay and having set in motion an arbitration to determine the correct amount of those fees simply ignored the award which resulted from that arbitration. This hardly qualifies as honourable conduct. Furthermore, having been informed of a resolution which branded his conduct as professional misconduct and having been censured by the respondent he continued to treat his responsibility to McQuillan as though it didn't exist. A more contemptuous attitude to his responsibilities and the position of the respondent would be hard to imagine. These facts, in my opinion, establish a clear case of professional misconduct. I would add that, although s.164 is in different terms from the provision under the old Act dealing with appeals, no reason appears why in the circumstances of this case this Court should not give weight to, and be slow to differ from, the Tribunal's opinion that the conduct of the appellant constituted professional misconduct. The statement that such weight should be given to the opinion of the Statutory Committee constituted under the old Act was made in Re Hodgekiss, 1962 SR 343, and it is particularly apt in a case of the nature of the one under consideration. In my opinion the appeal should be dismissed with costs. Meagher JA I agree with Clarke JA. Hope AJA I agree with Clarke A. 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.