Morrissey v The New South Wales Bar Association [2006] NSWSC 323

New South Wales Supreme Court

CITATION : Morrissey v The New South Wales Bar Association [2006] NSWSC 323

HEARING DATE(S) : 6 - 8 March 2006

JUDGMENT DATE : 26 April 2006

JURISDICTION : Civil

JUDGMENT OF : McClellan CJatCL

CATCHWORDS : APPLICATION REFERRED FOR DETERMINATION - application for admission made to the Legal Practitioner's Admission Board - disbarment in a foreign jurisdiction - disciplinary history in foreign jurisdiction - recent conduct - candour - disclosure - not a "fit and proper person" to be admitted as a legal practitioner

LEGISLATION CITED : Legal Profession Act 2004 (NSW)

Gersten v The Law Society of NSW (2002) 56 NSWLR 16 New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 CASES CITED : New South Wales Bar Association v Murphy (2002) 55 NSWLR 23 Re B [1981] 2 NSWLR 372 Re Davis (1947) 75 CLR 409 Re Evatt (1987) 92 FLR 380

PARTIES : Joseph Dee Morrissey (Pltf) The NSW Bar Association (Def)

FILE NUMBER(S) : SC 12969/05

COUNSEL : J L Glissan QC (Pltf) S D Robb SC/C A Webster/A Ryan (Def)

SOLICITORS : Stewart Cuddy & Mockler (Pltf) Hicksons Lawyers (Def)

SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

McCLELLAN CJ at CL

WEDNESDAY 26 APRIL 2006

12969/05 MORRISSEY v THE NEW SOUTH WALES BAR ASSOCIATION

JUDGMENT 1 HIS HONOUR: Joseph Dee Morrissey was, until he was disbarred on 25 April 2003, a legal practitioner in the State of Virginia in the United States of America. He now seeks to be admitted as a legal practitioner in New South Wales and to be permitted to practice as a barrister. 2 Mr Morrissey applied for admission in New South Wales in January 2005. His application has been the subject of a detailed report of 18 April and a supplementary report of 17 June 2005, to the Legal Practitioners Admission Board ("LPAB"). On each occasion it has been recommended that the Board "declare that Mr Morrissey is a person of good fame and character and otherwise fit to practice." 3 There is no question about Mr Morrissey's skill and experience as a legal practitioner, particularly as an advocate. The references tendered at the hearing spoke eloquently of his competence as an advocate and teacher. He has completed the New South Wales College of Law course. 4 The question raised in these proceedings is whether Mr Morrissey is a "fit and proper person" to be admitted "as a legal practitioner." Under the Legal Profession Act 2004 (NSW) that question is required to be determined by the Admission Board. However, as has happened in the present case, pursuant to s 27(1), the Admission Board may refer the issue to the Supreme Court for determination. 5 When deciding whether an applicant is a fit and proper person to be admitted the Board, and the Court if the matter has been referred, must follow the process provided by s 25 and accordingly: "(a) must consider each of the suitability matters in relation to the applicant to the extent a suitability matter is appropriate, and (b) may consider any other matter it considers relevant." 6 Section 25(2) provides a further qualification that the Board "may consider a person to be a fit and proper person to be admitted despite a suitability matter because of the circumstances relating to the matter." 7 Suitability matters are catalogued in s 9 which is in the following terms: (1) Each of the following is a suitability matter in relation to a natural person: (a) whether the person is currently of good fame and character, (b) whether the person is or has been an insolvent under administration, (c) whether the person has been convicted of an offence in Australia or a foreign country, and if so: (i) the nature of the offence, and (ii) how long ago the offence was committed, and (iii) the person's age when the offence was committed, Note. The rules may make provision for the convictions that must be disclosed by an applicant and those that need not be disclosed. Section 11 (References to convictions for offences) provides that reference to a conviction includes a finding of guilt, or the acceptance of a guilty plea, whether or not a conviction is recorded. (d) whether the person engaged in legal practice in Australia: (i) when not admitted, or not holding a practising certificate, as required under this Act or a previous law of this jurisdiction that corresponds to this Act or under a corresponding law, or (ii) if admitted, in contravention of a condition on which admission was granted, or (iii) if holding an Australian practising certificate, in contravention of a condition of the certificate or while the certificate was suspended, (e) whether the person has practised law in a foreign country: (i) when not permitted by or under a law of that country to do so, or (ii) if permitted to do so, in contravention of a condition of the permission, (f) whether the person is currently subject to an unresolved complaint, investigation, charge or order under any of the following: (i) this Act or a previous law of this jurisdiction that corresponds to this Act, or (ii) a corresponding law or corresponding foreign law,