Council of the Bar Association of NSW v Fitzgibbon [2010] NSWADT 291

CITATION: Council of the Bar Association of NSW v Fitzgibbon [2010] NSWADT 291

DIVISION: Legal Services Division

APPLICANT Council of the New South Wales Bar Association PARTIES: RESPONDENT David Claude Fitzgibbon

FILE NUMBER: 092042

HEARING DATES: 16 and 17 November 2010

SUBMISSIONS CLOSED: 17 November 2010

DATE OF DECISION: 7 December 2010

BEFORE: Norton S, SC - Judicial Member; Wright R, SC - Judical Member; Fitzgerald R - Non-Judicial Member

CATCHWORDS: Disciplinary action unsatisfactory professional conduct – strike out application

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Legal Profession Act 2004

CASES CITED: Council of the New South Wales Bar Association v Archer (No. 2) [2004] NSWADT 78 Council of the New South Wales Bar Association v Bland [2010] NSWADT 34

APPLICANT C A Webster, Barrister REPRESENTATION: RESPONDENT M S Jacobs QC

1. Interlocutory application dismissed ORDERS: 2. Costs of the application be reserved 3. Matter be relisted on 2 February 2011 at 10am for further directions and the allocation, if appropriate, of a hearing date for the substantive application.

REASONS FOR DECISION

APPLICATION FOR ORIGINAL DECISION

1 On 18 December 2009 the Council of the New South Wales Bar Association ("the Applicant") filed in the Tribunal an application for original decision which sought findings that David Claude Fitzgibbon ("the Respondent") had been guilty of unsatisfactory professional conduct. The application sought consequential orders and contained two grounds. In brief the first ground was that the Respondent prepared various written submissions on behalf of Mr Bernard Hardt who was an Appellant in proceedings in the Court of Criminal Appeal and these submissions failed to reach a standard of competence and diligence that could be expected by a member of the public and breached the Respondent's duty to the Court and to his client. 2 Ground 2 related to oral submissions made by the Respondent when the matter was listed for hearing in the Court of Criminal Appeal on 29 November 2007. Again it is alleged that those submissions failed to reach a standard of competence and diligence that could be expected by a member of the public and were in breach of the Respondent's duty to the Court and to his client. 3 The Application for Original Decision contained background narrative and particulars with respect to each ground. 4 The Respondent has filed three replies to that Application for Original Decision. The first was received at the Tribunal on 18 May 2010, the second on 5 August 2010 and the third or further amended reply on 17 August 2010. 5 The Application for Original Decision was supported by the Affidavit of Philip Alan Selth affirmed 25 September 2009. 6 After a number of direction hearings the matter was listed for hearing on 16 and 17 November 2010. The present application 7 On the first morning of the hearing the Respondent field in Court an application requesting that the Application for Original Decision be struck out.