New South Wales Court of Appeal CITATION: COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION v PERRY [2007] NSWCA 111 HEARING DATE(S): 30 April 2007 JUDGMENT DATE: 30 April 2007 JUDGMENT OF: Mason P at 1; Hodgson JA at 28; Santow JA at 29 EX TEMPORE JUDGMENT DATE: 30 April 2007 DECISION: Opponent's name removed from the Roll and related orders. CATCHWORDS: PROFESSIONS AND TRADES – Lawyers – removal of name from Roll – misconduct, unfitness and discipline – other acts and omissions – practice as barrister without practising certificate LEGISLATION CITED: Legal Professional Act 2004, Legal Profession Act 1987 CASES CITED: Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470. Mee Ling v Law Society of New South Wales [1974] 1 NSWLR 490 PARTIES: COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION Mark Andre John PERRY FILE NUMBER(S): CA 40774/06 COUNSEL: Claimant: C Adamson SC/ P Brereton Opponent: In person SOLICITORS: Claimant: Eakin McCaffery Cox Opponent: In person IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40774/06 MASON P HODGSON JA SANTOW JA Monday 30 April 2007 COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION v Mark Andre John PERRY JUDGMENT 1 MASON P: The claimant seeks declarations that the opponent is guilty of professional misconduct in a number of specified instances. It also claims a declaration that the opponent is not a fit and proper person to remain on the roll of local lawyers of the Supreme Court of New South Wales, an order that his name be removed from that roll, an order restraining him from practising as a barrister in contravention of s 14(1) of the Legal Profession Act 2004 and costs. The nub of the complaint is that the opponent practised as a barrister without holding a practising certificate. The principles are discussed in Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470. 2 The opponent was first issued with a practising certificate entitling him to practise as a barrister on 3 August 2000. Certificates are renewable annually and the opponent thereafter sought and obtained annual practising certificates, the last one expiring on 30 June 2005. Since the Bar Association had not received an application for renewal, letters of advice were sent to the opponent by the Association in June and July 2005. 3 A letter of 1 July 2005 included a reminder that it was a breach of the Legal Profession Act 1987 to practise without holding a current practising certificate or to act or hold oneself out as a barrister without holding a current practising certificate. 4 The opponent was served with the process in these proceedings and he has appeared in person today. He has indicated that he is aware of the terms of the claimant's submissions. He has made a statement which has been transcribed indicating his response to the allegations made against him. He indicated there were reasons that in part may have informed his conduct but, and I make no comment either way about this, he has chosen not to elaborate them. He has indicated in effect that he does not oppose the relief that is sought. 5 The evidence shows that the opponent has engaged in practice as a barrister and also represented his entitlement to do so after 30 June 2005 notwithstanding that he had not sought or obtained a current practising certificate. The evidence is in the form of two affidavits of Mr M J Smith, a solicitor from the firm, Smith Reid, and an affidavit of Ms R McDougall, the claimant's solicitor, annexing copies of tax invoices issued by the opponent to the law firm, Vardanega Roberts, for work purporting to be done by him in the capacity as a barrister. 6 Mr Smith regularly briefed the opponent as a barrister over the period 2002 to September 2006. He first learnt that the opponent did not have a current practising certificate when informed of this by the Bar Association in September 2006. In June 2005 the opponent was briefed by Mr Smith to give advice to a client of Mr Smith, identified as "AF", who wished to claim under the Family Provision Act 1982. There were conferences in the matter in which the opponent gave legal advice on 4 August 2005 and 1 September 2005. The opponent rendered a memorandum of fees to the solicitor on 1 September 2005. He charged for his services at the conferences at the rate of $300 per hour. The opponent was paid on about 15 September 2005. 7 In September 2005 the opponent was briefed by Mr Smith to give advice to another client, identified as "SI P/L", who was involved in a commercial dispute. Advice in conference was provided by the opponent in September 2005. The opponent rendered a memorandum of fees to the solicitor on 19 September 2005 charging his services at the above rate. The memorandum was paid in part. 8 The two memoranda of fees mentioned above were rendered in the opponent's name without any attribution as to his professional status. Nevertheless, the services were provided in the capacity of a barrister and the solicitor obviously understood that they had been provided on this basis. 9 In July 2005 the opponent was briefed by Mr Smith to advise and appear for two clients identified as "SCB" and "FF P/L" who were defendants in proceedings in the District Court. As the matter developed, the opponent was briefed to draw and settle pleadings, settle correspondence and give advice as to matters concerning the litigation. The opponent appeared in the District Court at a status conference and on 10 November 2005 signed short minutes of order as "counsel for the defendant". 10 The opponent issued two memoranda of fees, one dated 24 February 2006 in the sum of $2695 for conferences and court appearances between 28 August 2005 and 9 December 2005, the other dated 3 May 2006 in a sum of $2365 for conferences, drafting pleadings, court appearances and a memorandum of advice for the period February to May 2006. These memoranda are headed "Mark Perry Barrister". The memoranda are addressed to the client c/- Smith Reid and were subsequently paid, according to the client. 11 The opponent was briefed by Mr Smith to give advice to another client in a lease matter. He attended Mr Smith's office for a conference in November 2005 for which he subsequently rendered a memorandum of fees that Mr Smith paid from his office account. That memorandum of fees is headed "Mark Smith Barrister". 12 Ms McDougall wrote to Vardanega Roberts asking them to produce any tax invoices issued by the opponent for the period 1 July 2005 to 18 September 2006 for work purporting to be done by the opponent in his capacity as a barrister. Nine invoices were forwarded spanning a period from 12 September 2005 to 9 June 2006. They all relate to work done as a barrister during the period in which the opponent has not held a practising certificate. The work includes participation in conciliation and arbitration conferences or an arbitration conference at the Workers Compensation Commission and drafting court process. Most of the memoranda describe the opponent as a barrister or barrister at law; all appear to have been paid. 13 The evidence supports the detailed declarations that the opponent proposes to be made in the amended summons. All of the work done by the opponent was done in New South Wales. Each of the tax invoices or memoranda of fees referred to above shows the opponent's address as either a post office box at Rozelle or a residence at Rozelle. 14 On 11 September 2006 the Bar Association wrote to the opponent advising him that information had been provided to it suggesting that he had been practising without being the holder of a practising certificate. The opponent's attention was drawn to ss14-16 of the Legal Profession Act 2004. The letter sought an undertaking. 15 The opponent replied by email dated 18 September 2006 acknowledging receipt of the letter and confirming that he undertook not to engage in legal practice in New South Wales or to represent himself as a barrister unless and until he has obtained a practising certificate. 16 The Legal Profession Act 2004 commenced on 1 October 2005 replacing the Legal Profession Act 1987. The opponent is on the roll of local lawyers under the 2004 Act and is taken to have been admitted under that Act on the day on which he was admitted as a legal practitioner under the 1987 Act (see the 2004 Act, sch 9, cll 5 and 6). 17 The opponent's obligation to have applied for a practising certificate for the twelve month period commencing on 1 July 2005 arose under the 1987 Act. Section 25 of the 1987 Act relevantly provides: 25. Requirement for practising certificate: (1) A legal practitioner whose sole or principal place of legal practice is this State must not practise as a barrister or solicitor and barrister without being the holder of a current practising certificate. (2) A legal practitioner whose sole or principal place of legal practice is this State must not hold himself or herself out to be a barrister without being the holder of a current practising certificate as a barrister... (4) A legal practitioner or interstate legal practitioner who contravenes this section wilfully and without reasonable excuse is guilty of professional misconduct. 18 The transactions already referred to as occurring between 1 July 2005 and 30 September 2005 involve contraventions of subss 25(1) and (2) of the 1987 Act. The breach of s 25(2) was established by the opponent continuing, as he had in the past, to accept briefs from Mr Smith notwithstanding that he no longer held a practising certificate after 1 July 2005; and rendering fees accordingly. Section 25(4) of the 1987 Act declares that a legal practitioner who contravenes that section wilfully and without reasonable excuse is guilty of professional misconduct. 19 The opponent's conduct was wilful and without reasonable excuse. He acted intentionally in practising as a barrister and holding himself out as a barrister. He knew of the obligation to obtain annual practising certificates, having done so prior to July 2005 and having been reminded of his obligations in the letters from the Bar Association of 20 June 2005 and 1 July 2005. Nothing suggestive of an excuse, let alone a reasonable one, is revealed in the evidence or has been proffered. As to "wilful" and "without reasonable excuse" see McCaffery at [29]-[35]. 20 The requirement to hold a current practising certificate serves important functions. The regime exists for the protection of the public: see Mee Ling v Law Society of New South Wales [1974] 1 NSWLR 490 at 497, 498. McCaffery at [36],[37]; see also s 13 of the 2004 Act. 21 The obligation to have a current practising certificate continued under the 2004 Act which, as indicated, effectively commenced on 1 October 2005. Sections 14 and 15 of the 2004 Act relevantly provide: 14. Prohibition on engaging in legal practice when not entitled: (1) A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner. Maximum penalty 200 penalty units... (4) A person is not entitled to recover any amount in respect of anything the person did in contravention of subsection(1) and must repay any amount so received to the person from whom it was received... 15. Prohibition on representing or advertising entitlement to engage in legal practice when not entitled: (1) A person must not represent or advertise that the person is entitled to engage in legal practice unless the person is a Australian legal practitioner. Maximum penalty 100 penalty units. "Australian legal practitioner" is defined in s 6(a) of the 2004 Act to mean: [A]n Australian lawyer who holds a current local practising certificate or current interstate practising certificate. Section 16(3) of the 2004 Act provides: For the purposes of s 15(1) (Prohibition on representing or advertising entitlement to engage in legal practice when not entitled), the taking or using of a name, title or description to which this section applies by a person who is not entitled to take or use that name, title or description gives rise to a rebuttable presumption that the person represented that they are entitled to engage in legal practice. Section 4 defines "barrister" to mean: (a) a local legal practitioner who holds a current local practising certificate to practise as a barrister, or (b) an interstate legal practitioner who holds a current interstate practising certificate that entitles the practitioner to engage in legal practice only as or in the manner of a barrister. 22 There is no suggestion that the opponent is or claims to be an interstate legal practitioner. 23 The importance of these obligations to obtain a current practising certificate is manifested by the case law already referred to; by s13 of the 2004 Act; by the fact that breaches of ss 14(1) and 14(1) are criminal offences' and by the civil remedies imposed by s 14(4). Contravention of the relevant part of the 2004 Act by an Australian lawyer who is not an Australian legal practitioner is also declared capable of being professional misconduct by s 21 of the 2004 Act. 24 Unlike the 1987 Act, the contravention does not have to be wilful or without reasonable excuse, not that this change makes any difference to the present case. The evidence already summarised shows that the opponent continued to engage in legal practice for a fee after 1 October 2005 in contravention of s14 of the 2004 Act. In doing that work he represented to clients, solicitors and the court that he was entitled to engage in legal practice in contravention of s15(1). 25 The circumstances where he provided fee notes identifying himself as a barrister or barrister at law and the occasion when he signed short minutes of order as "counsel for the defendant" are serious breaches of this last-mentioned obligation, all the more so because the opponent was on notice from the Bar Association as to his duty to comply with the 2004 Act. 26 Notwithstanding the undertaking proffered to the Bar Association it is in my view appropriate to grant the order sought pursuant to s720 of the 2004 Act restraining the opponent from practising as a barrister in contravention of s 14(1) of the 2004 Act. After all, the matter involves more than the private interests of the claimant. 27 I therefore propose that the court make the declarations claimed in paras 1 to 5 of the amended summons and the orders claimed in paras 6 and 7. The opponent should pay the claimant's costs of the proceedings. 28 HODGSON JA: I agree. 29 SANTOW JA: I agree. 30 MASON P: The orders of the court will be as indicated. 31 I will amend order 5 of the amended summons so that after the word opponent there appears in brackets and in quotation marks, ("Mark Andre Perry"). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.