ABDUL-KARIM v THE COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION [2005] NSWCA 93

New South Wales Court of Appeal

CITATION: ABDUL-KARIM v THE COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION [2005] NSWCA 93

HEARING DATE(S): 21 February 2005

JUDGMENT DATE: 21 February 2005

JUDGMENT OF: Mason P at 1; Ipp JA at 54; Hunt AJA at 55

DECISION: Appeal dismissed with costs.

CATCHWORDS: ADMINISTRATIVE LAW - professional misconduct - unsatisfactory professional conduct- question of law - legal error - leave to review the merits - Administrative Decisions Tribunal Act 1997 s113(2)(b). (D)

Michael Saadey ABDUL-KARIM PARTIES: THE COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION

FILE NUMBER(S): CA 40177/04

Appellant: R D Wilson COUNSEL: Respondent: P G Mahony SC/ G Young

Appellant: McKells SOLICITORS: Respondent: Eakin McCaffery Cox

LOWER COURT JURISDICTION: Administrative Appeals Tribunal (Legal Services Division)

LOWER COURT FILE NUMBER(S): ADT 12009/01; 122033/01; 39051/03

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40177/04

MASON P IPP JA HUNT AJA

Monday 21 February 2005

Michael Saadey ABDUL-KARIM v THE COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION JUDGMENT

1 MASON P: This is one of those cases where pleading and procedural difficulties reveal problems of substance. Had the jurisdictional parameters of the appeal to the Appeal Panel of the ADT and of the appeal to this Court been given closer attention in the documents that were framed then I am sure a lot of the time spent today would have been avoided. 2 At the outset of today's hearing the Court drew attention to serious objections to the form of the grounds of appeal. We examined one issue in detail, namely the issue globally encompassed in the original ground one concerning the affidavit sworn for the proceedings before Young J. That examination exposed the substance of the technical deficits in the appellant's case. 3 It prompted the appellant to accede to the suggestion from the Court that there be an attempt to reframe the issues in a proper way. A proposed amended set of grounds went through two revisions in the course of the afternoon but the examination that ensued has really only confirmed in my mind that this appeal is either incompetent or untenable. 4 The appellant was admitted to practice as a barrister in 1991. Commencing in October 1996 he acted in various matters for Mr Hamod. Mr Hamod was a bankrupt who was defending charges of obtaining benefit by deception and possessing a false instrument. A costs agreement was entered into on 17 October 1996 between the appellant and Mr Hamod's company, Hamock Investments Pty Limited. 5 The lawyer-client relationship was an unsettled one and it was terminated and later restored at one stage. The retainer was terminated finally in June 1997. Thereafter there were major disputes about fees and other matters. One such dispute was heard in the Equity Division by Young J when the appellant unsuccessfully applied to have a fund of money owing to Mr Hamod frozen on the basis of a lien for costs. 6 On 24 April and 14 November 2001 the respondent filed informations in the Administrative Decisions Tribunal, Legal Services Division, charging the appellant with several counts of professional misconduct and/or unsatisfactory professional conduct. There were eight grounds in the first information and five in the second. The Tribunal, constituted by D Officer QC, Judicial Member, J Catanzariti, Judicial Member and R Geitzelt, Member, heard the two informations over several days in September 2002 and February 2003. The Bar Association was represented by counsel, the appellant represented himself. The Tribunal made detailed findings of professional misconduct in many respects (see New South Wales Bar Association v Abdul-Karim [2003] NSWADT 152). Its reasons note that the resolution of the issues turned upon close assessment of the credit of the two principal witnesses who gave evidence before it, namely Mr Hamod and the appellant. 7 For reasons set out in some detail at pars [51] to [56] of the Tribunal's statement of reasons Mr Hamod emerged reasonably unscathed and the appellant's credibility as a witness was significantly damaged. The reasons of the Tribunal then proceed to detailed findings as to the evidence and the Tribunal's conclusions on the thirteen grounds of the two informations. 8 The adverse findings of professional misconduct include findings that the appellant entered into an illegal costs agreement in contravention of s 186(3) of the Legal Profession Act 1987, that he made a false and misleading affidavit in the Supreme Court proceedings before Young J, that he made false and misleading statements to a costs assessor, that he claimed a lien for costs without any justification, that despite the terms of the costs agreement he demanded a cash payment for representing Mr Hamod in a particular application - conduct which the Tribunal described as "disgraceful" -, that he refused to respond to a subpoena in circumstances also attracting the description of "disgraceful", and that he made false and misleading representations to the client as an inducement to plead guilty to criminal charges which the client disputed and of which he was ultimately acquitted. 9 There were additional adverse findings of professional misconduct and of unsatisfactory professional conduct, including a finding of unsatisfactory professional conduct with reference to some misleading correspondence with the Attorney General's Department and a Mr Walsh. 10 Submissions as to orders were made on the papers. On 3 September 2003 the Tribunal ordered that the name of Michael Saadey Abdul-Karim be removed from the Roll of Legal Practitioners in New South Wales, that the practising certificate of Michael Saadey Abdul-Karim be cancelled and that Michael Saadey Abdul-Karim pay the costs of the Bar Association in the sum of $98,792 (see New South Wales Bar Association v Abdul-Karim [2003] NSWADT205). 11 At para 16 of its reasons the Tribunal said: The findings made against the Barrister involve conduct of grave impropriety which strike at the core of the relationship that ought to exist between a barrister on the one hand, the Court and the client. This is not one incident, but nine separate incidents of disgraceful or dishonourable conduct. It has extended over a considerable period of time. The Barrister has demonstrated a total failure to understand, practice or appreciate the required standard of conduct expected of a barrister. He has demonstrated, in the Tribunal's opinion, that he will in future if he thinks it appropriate engage in conduct which knowingly breaches the Legal Profession Act 1987 . The public requires to be protected against such conduct. The Barrister ought to be deterred from repeating such misconduct and other legal practitioners likewise ought to be deterred from falling far short of the high standards required of them. In this Tribunal's opinion, neither the courts nor the public nor other legal practitioners could repose confidence in the Barrister to adhere to the high standards expected of him. In this Tribunal's opinion he is not a fit and proper person to remain on the roll of legal practitioners. The Tribunal orders his name be removed from such roll. 12 Section 113(2) of the Administrative Decisions Tribunal Act 1997 conferred on the present appellant the right to appeal to the Tribunal constituted by an Appeal Panel. However subs (2) states that an appeal under this Part (a) may be made on any question of law, and (b) that the leave of the Appeal Panel may extend to a review of the merits of the appealable decision. The appellant purported to exercise his appeal rights by a notice of appeal which when amended raised the following grounds: