COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES v A SOLICITOR [2002] NSWCA 62

New South Wales Court of Appeal

CITATION : COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES v A SOLICITOR [2002] NSWCA 62 revised - 12/03/2002 FILE NUMBER(S) : CA 40361/01 HEARING DATE(S) : 6th November 2001 JUDGMENT DATE : 12 March 2002

PARTIES : The Council of the Law Society of New South Wales - Claimant A Solicitor - Opponent JUDGMENT OF : Mason P at 1; Sheller JA at 2; Giles JA at 117

LOWER COURT JURISDICTION : N/A LOWER COURT - FILE NUMBER(S) : LOWER COURT - JUDICIAL OFFICER :

COUNSEL : J E Griffiths SC - Claimant N E Abadee - Opponent SOLICITORS : Law Society of NSW - Claimant CATCHWORDS : LEGAL PRACTITIONERS - convictions of indecent assaults - obligation to inform - duty of candour - professional misconduct -"fit and proper person" - Legal Profession Act 1987, s48K(5) - removal from Roll of Legal Practitioners Children (Criminal Proceedings) Act 1987 LEGISLATION CITED : Crimes Act 1900 Legal Profession Act 1987 Briginshaw v Briginshaw (1938) 60 CLR 336 Ex parte Attorney General (Cth) re A Barrister and Solicitor (1972) 20 FLR 234 Ex parte Brounsall (1778) 2 Cowp 829; 98 ER 135 in In Re Weare; re the Solicitors Act 1888 [1893] 2 QB 439 In re a Practitioner (1984) 34 SASR 590 In re H (a Barrister) (1981) 1 WLR Johns v Law Society of New South Wales (1982) 2 NSWLR 1 Law Society of New South Wales v Foreman (1994) 34 NSWLR 404 New South Wales Bar Association v Cummins [2001] NSWCA 284 CASES CITED: New South Wales Bar Association v Evatt (1968) 117 CLR 177 New South Wales Bar Association v Hamman [1999] NSWCA 404 New South Wales Bar Association v Livesey (1982) 2 NSWLR 231 New South Wales Bar Association v Somosi [2001] NSWCA 285 Prothonotary of the Supreme Court of New South Wales v Chapman (unreported) 14 December 1992 Prothonotary of the Supreme Court of New South Wales v Del Castillo [2001] NSWCA 75 Prothonotary of the Supreme Court of New South Wales v Ritchard (unreported) Court of Appeal, 31 July 1987 Re a Solicitor (1956) 1 WLR 1312 Re Evatt ex parte New South Wales Bar Association (1967) 67 SR (NSW) 236 Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 DECISION : 1 Declare that the opponent is guilty of professional misconduct in that; (a) the opponent engaged in conduct for which he was, on 20 February 1998, convicted by the Sutherland Local Court of four counts of aggravated indecent assault on person under the age of 16 years contrary to s61M of the Crimes Act 1900 (NSW); (b) prior to serving his affidavit sworn on 31 August 2001 in these proceedings the opponent failed to disclose to the claimant that he had been convicted on 7 November 2000 of further charges of aggravated indecent assault on a person under the age of 16 years contrary to s61M of the Crimes Act 1900 (NSW) notwithstanding that at the time of that conviction the opponent was aware that the claimant was actively considering whether disciplinary action should be taken against the opponent in respect of previous similar convictions as set out in the claimant's letter dated 9 October 2000; 2 Declare that in the light of the matters in para 1 above the opponent is not a fit and proper person to be a legal practitioner of the Supreme Court of New South Wales; 3 Order that the name of the opponent be removed from the Roll of Legal Practitioners; 4 Order that the opponent pay the claimant's costs of these proceedings.