Prothonotary of Supreme Court of New South Wales v Nicholas Luke McCaffery [2005] NSWSC 1240

New South Wales Supreme Court

CITATION : Prothonotary of Supreme Court of New South Wales v Nicholas Luke McCaffery [2005] NSWSC 1240

HEARING DATE(S) : 16 June 2005

JUDGMENT DATE : 16 June 2005

JUDGMENT OF : Latham J

DECISION : The defendant is guilty of contempt of the court, in that he acted as a barrister without holding a current practising certificate in contravention of s48B of the Legal Profession Act (1987) by appearing as a barrister in the absence of a current practising certificate on the 29 occasions set out in the summons filed on 19 October 2004. ; The defendant is convicted of 29 counts of contempt.

CATCHWORDS : Conviction - Contempt of Court - Acting as barrister whilst not the holder of a current practising certificate.

LEGISLATION CITED : Legal Profession Act (1987)

Plaintiff - Prothonotary of Supreme Court of New South Wales PARTIES : Defendant - Nicholas Luke McCaffery

FILE NUMBER(S) : SC 13397/2004

Plaintiff - R Cogswell SC / L Crowley COUNSEL : Defendant - Self-represented

Plaintiff - Ian Knight (Crown Solicitor) SOLICITORS : Defendant - Self-represented

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

LATHAM J

16 JUNE 2005

13397/2004 PROTHONOTARY OF SUPREME COURT OF NEW SOUTH WALES v NICHOLAS LUKE McCAFFERY

DECLARATIONS

1 LATHAM J: The plaintiff by summons filed on 19 October 2004 seeks a number of declarations that the defendant is guilty of contempt in that he acted as a barrister without holding a current practising certificate in contravention of s48B of the Legal Profession Act (1987) on 29 separate occasions by way of appearances in various courts of this State, including the Supreme Court, the District Court, and the Local Court of New South Wales. 2 The summons also seeks orders punishing or otherwise dealing with the defendant in respect of each instance of contempt of court, an order that the defendant pay the costs of the proceedings, and any other orders that the court sees fit to make. 3 The summons is supported by an affidavit sworn on 19 October 2004 by Maria Kelly filed on 20 October 2004. The affidavit annexes transcripts of a number of matters heard in the Supreme Court of New South Wales in which the defendant appeared and represented himself as a barrister at a time when he was without a relevant practising certificate. 4 The basis of the various contempts are set out in an agreed statement of facts, which is Ex A in these proceedings. 5 On 4 July 1986 the defendant was admitted as a solicitor of the Supreme Court of New South Wales. On 13 August 1993 the defendant's name was removed from the roll of solicitors at his own request and he was admitted as a barrister of the Supreme Court of New South Wales. The defendant practised as a barrister until 30 June 2002. As at 1 July 2002 the defendant failed to renew, or apply for, a practising certificate entitling him to practise as a barrister within New South Wales. 6 During the period 1 July 2002 and 11 December 2003 the defendant did not hold an approved indemnity insurance policy as required by s38R of the Legal Profession Act (1987). 7 Between 1 July 2002 and 11 December 2003 the defendant did not hold a practising certificate entitling him to practice as a barrister in the State of New South Wales. However, within that period he continued to practise as a barrister, acting as a barrister in the course of the various proceedings which, as I said, are annexed to the supporting affidavit. 8 In addition to those which are annexed to the supporting affidavit the defendant appeared and acted as a barrister on 8 August 2002 in the District Court, on 9 August 2002 in the District Court, and thereafter, on one occasion in the Compensation Court, and on 8 July 2003 at the Hornsby Local Court. 9 By appearing in court as a barrister on those occasions, set out more fully in the schedule attached to Ex A, the defendant represented expressly or impliedly to the public, the courts, his clients, and his professional colleagues that he was entitled to practise and appear as a barrister in the State of New South Wales. 10 On 19 December 2003 the New South Wales Bar Association wrote to the defendant indicating that it had come to the attention of that organisation that the defendant appeared as junior counsel in the Supreme Court on 8 December 2003, that is at a time when the records of the Bar Association revealed the defendant did not hold a practise certificate. 11 The letter referred the defendant to the various provisions of the Legal Professional Act (1987) and called for an explanation. The letter also asked the defendant to advise the Association whether, on any occasion since 1 July 2002 other than 8 December 2003, he had appeared in court, or acted, or held himself out to be a barrister. 12 On 5 January 2004 the defendant wrote to the New South Wales Bar Association acknowledging receipt of their letter of 19 December and made a number of formal admissions, including that he had appeared in court and practised as a barrister despite not holding a current practising certificate on a number of occasions other than that identified by the Bar Association. 13 The defendant offered an explanation of his conduct in the following terms: That whilst his lifestyle had been modest, the need of the defendant to maintain and support his wife and children and his failure to establish a profitable practice had led him to continue to practise the deception which had been identified. The defendant also indicated he was under treatment for clinical anxiety and depression. The defendant apologised to the Association's members and the profession, and indicated that he was anxious to address his conduct. 14 On 9 January 2004 the New South Wales Bar Association again wrote to the defendant asking for full details of each occasion on which the defendant had acted as, and held himself out to be, a barrister. The Association also asked for any psychiatric reports which might have assisted the Association. 15 In addition the Association asked for a written undertaking from the defendant that he would not again appear in court or practise as a barrister in any way in breach of the provisions of the Legal Profession Act. That undertaking was provided by the defendant in writing by way of a letter dated 12 January 2004. 16 On 19 January 2004 the defendant again wrote to the New South Wales Bar Association referring to the history of the matter and enclosing a schedule attaching various tax invoices referable to the occasions he had appeared and acted as a barrister. He indicated that his practice had collapsed and that he had appeared on the last three occasions noted in the schedule in an endeavour to assist a client to complete litigation which at that stage had not been resolved. 17 On 23 January 2004 the New South Wales Bar Association wrote to the Prothonotary of the Supreme Court of New South Wales enclosing a copy of transcripts of proceedings where the defendant had acted as a barrister, and indicating that the defendant had not held a practising certificate since 30 June 2002. Copies of correspondence between the Bar Association and the defendant were also provided to the Prothonotary. 18 On 24 May 2004 the New South Wales Bar Association issued a certificate pursuant to s213A(1) of the Legal Profession Act (1987). The certificate provided evidence of the fact that the defendant did not hold a practising certificate as a barrister for the period 1 July 2002 to 30 June 2003 and that he had not been issued with a practising certificate for the period 1 July 2003 to 30 June 2004. 19 On 7 December 2004 the New South Wales Court of Appeal ordered that the defendant's name be removed from the roll of legal practitioners on the ground that the defendant was declared not a fit and proper person by virtue of proven professional misconduct, that professional misconduct arising out of the defendant's appearances before the various courts as set out in Annexure A to Ex A in these proceedings. 20 The matters that I have just related are admitted by the defendant. He takes no issue with any aspect of the agreed statement of facts, nor any aspect of the affidavit of Ms Kelly sworn on 19 October 2004. 21 The defendant repeated this morning to this Court the apology that he had given in writing to the New South Wales Bar Association and accepted the judgment of the Court of Appeal to the effect that his conduct before the courts of this State amounted to a deliberate deception. 22 In those circumstances there would appear to be no doubt that the defendant has committed contempt for the purposes of the provisions of the Legal Profession Act (1987), in particular s48B(3) and the declarations sought by the summons are hereby made. 23 That is I declare the defendant is guilty of contempt of the court, in that he acted as a barrister without holding a current practising certificate in contravention of s48B of the Legal Profession Act (1987) by appearing as a barrister in the absence of a current practising certificate on the 29 occasions set out in the summons filed on 19 October 2004. 24 The defendant is, accordingly, convicted of 29 counts of contempt. 25 Just by way of brief amendment to the remarks appearing above I should indicate that annexed to the summons is a document headed "Statement of Charge" which sets out 29 separate charges of contempt by reference to the appearances of the defendant before the various courts of this State. Those charges relate to appearances in various matters on these respective dates, namely: 8 August 2002, 9 August 2002, 3 September 2002, 23 September 2002, 29 November 2002, 13 December 2002, 6 January 2003, 4 April 2003, 11 April 2003, 2 May 2003, 16 May 2003, 30 May 2003, 8 July 2003, 10 July 2003, 22 August 2003, 26 August 2003, 28 August 2003, 1 September 2003, 22 September 2003, 30 September 2003, 10 October 2003, 14 October 2003, 7 November 2003, 28 November 2003, 2 December 2003, 8 December 2003, 9 December 2003, 10 December 2003, and 11 December 2003. In respect of each of those 29 charges I find the elements of those offences proven beyond reasonable doubt and I convict the defendant in relation to each of those charges.