Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Council of the New South Wales Bar Association v John Peter Hart [2011] NSWCA 64 Hearing dates: 21 March 2011 Decision date: 21 March 2011 Before: McColl JA [1], [26] Macfarlan JA [24] Handley AJA [25] Decision: 1 Declare that the respondent is guilty of professional misconduct. 2 Declare that the respondent is not a fit and proper person to remain on the Roll maintained by the Supreme Court of New South Wales under s 32 of the Legal Profession Act 2004 (NSW) ('the Roll'). 3 Order that the name of the respondent be removed from the Roll. 4 Order the respondent to pay the applicant's costs of and incidental to these proceedings. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: LEGAL PRACTITIONERS - removal from the Roll of Local Lawyers -application to have legal practitioner struck off the Roll - whether fit and proper person to remain on the Roll - professional misconduct- making false statements to the Court - practising without holding a current practising certificate - Legal Profession Act 2004 (NSW) ss 14, 15, 25, 32, 47, 497, 590 Legislation Cited: Legal Profession Act 2004 (NSW) Cases Cited: A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 Council of the New South Wales Bar Association v Power [2008] NSWCA 135; (2008) 71 NSWLR 451 Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 Prothonotary of the Supreme Court of New South Wales v Nikolaides [2010] NSWCA 73 Prothonotary of the Supreme Court of NSW v Alcorn [2007] NSWCA 288 Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 Category: Principal judgment Parties: Council of the New South Wales Bar Association - Appellant John Peter Hart - Respondent Representation: Counsel: C E Adamson SC with K Williams - Appellant Respondent - no appearance Solicitors: Hicksons Lawyers - Appellant Respondent - no appearance File Number(s): Judgment 1McCOLL JA : The Council of the New South Wales Bar Association, the applicant, moves the Court for the following orders: "1 A declaration that the respondent is guilty of professional misconduct. 2 A declaration that the respondent is not a fit and proper person to remain on the Roll maintained by the Supreme Court of New South Wales under s 32 of the Legal Profession Act 2004 (NSW) ('the Roll'). 3 An order that the name of the respondent be removed from the Roll. 4 An order that the respondent pay the applicant's costs of and incidental to these proceedings. 5 Such further or other orders as the Court thinks fit." 2The respondent was admitted to the Bar on 19 December 1986. He has held practising certificates for various periods (but not continuously) since 1 February 1989, both unconditionally and subject to restrictions. On 1 October 2009 the applicant cancelled his practising certificate following its consideration of the conduct the subject of these proceedings. His name remains on the Roll. 3These reasons do not identify the exact address of the respondent or the persons named in the Schedule in conformity with the Court's policy of reducing the risk of identity theft through the Court's published judgments. 4The respondent does not oppose the application. However shortly before 9am this morning the applicant's solicitors, Hicksons Lawyers, received by facsimile a handwritten letter from the respondent purporting to be a copy of a letter faxed to the Supreme Court. As far as the members of the Bench are aware that facsimile has not been received in any of our Chambers. 5Nevertheless, in short, the respondent says that he received a notification from the Court that his matter was listed for hearing on 9 June 2011, following which he arranged for legal representation for that date. He also said that medical appointments had been made to obtain specialist reports for the Court on that date. The letter refers to the fact that his health has deteriorated subsequent to treatment for cancer and that he has treatment arranged at a dentist in Queensland for the week commencing 21 March 2011. It says he has been away and on 19 March 2011 became aware that "for some reason my matter has been relisted for 21 March 2011". He says he will be unable to attend but confirms his availability and intention to attend with legal representation on 9 June 2011. 6The matter was listed for hearing on 14 December 2010. It was adjourned on that day essentially on the respondent's application for the reasons set out in an affidavit he swore dated 13 December 2010. It was listed before the Registrar of the Court of Appeal on 10 February 2011 on which date it was set down to be heard on 9 June 2011. A letter to that effect was sent to the respondent. However on 15 February 2011 the 9 June 2011 date was vacated and the Registrar of the Court of Appeal fixed the matter for hearing today as a two hour matter. 7The Registrar of the Court of Appeal sent a letter to the respondent at his address in Tecoma Street, Heathcote, on 17 February 2011 advising him that the matter was listed for hearing today at 10.15am. The address in Tecoma Street, Heathcote, is one which has been consistently given by the respondent as his address. It is the address which appears at the top of the letter of today's date which has become Exhibit B in the application. 8Although there is no express request for an adjournment in that letter, the Court has considered it as in effect amounting to an application for an adjournment to the June date. There is nothing in the letter which indicates what purpose the specialist reports to which the letter refers would serve in relation to the orders the applicant seeks which the respondent, as I have said, does not oppose. The letter does not also explain why he was unaware of the changed court date. The respondent says he has been away. Nevertheless, a letter forwarded to him on 17 February 2011 somehow did not come to his attention until last Friday. In the light of those reasons, the Court was not minded to accede to the implicit request for an adjournment in that letter and, as is apparent, is now proceeding to deliver its reasons. 9The factual basis for the application is found in the agreed statement of facts set out in the Schedule to these reasons. Fact 44 was not the subject of agreement by the respondent but was, in my view, proved by the affidavit of Philip Alan Selth sworn 26 October 2010 as amplified by his affidavit of 23 February 2011, a copy of which was served on the respondent under cover of Mr Blanch's (the applicant's solicitor) letter of 25 February 2011. The statement of agreed facts in its original form (without the inclusion of fact 44) was forwarded to the respondent on 25 June 2010 and his acceptance that it accurately set out the facts was communicated by him in his letter to Messrs Hicksons of 25 October 2010. 10In summary, the application is made on two bases. The first is that the respondent has knowingly made false statements to three courts with the intention of misleading the presiding judicial officer and, it is agreed, in two cases (Wheaton and Smith) in order to achieve a more favourable result for his client. The same purpose may, in my view, be inferred in the third matter, Bleckman. The second is that on one occasion following the cancellation of his practising certificate, he engaged in legal practice and held himself out as a barrister notwithstanding that he did not then have a current practising certificate contrary to s 14 and s 15 of the Legal Profession Act 2004 (NSW) (the "2004 Act"). LEGAL PRINCIPLES 11The applicant invokes the Court's inherent jurisdiction and powers with respect to the control and discipline of lawyers. That jurisdiction is not affected by the enactment of a statutory jurisdiction to deal with complaints about and the discipline of the legal profession: see s 590, 2004 Act. However in considering the application, the Court accepts that regard may be had to the matters that would be considered under ss 25 or 42 of the 2004 Act for the purposes of a finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in s 497(1) of the 2004 Act: s 497(2) of that Act: Prothonotary of the Supreme Court of New South Wales v Nikolaides [2010] NSWCA 73 (at [20]). Those provisions deal with suitability for admission and suitability to hold a local practising certificate. Each refers to a "suitability matter", a term defined by s 9. That definition of "suitability matters" includes: (a) whether the person is currently of good fame and character; ... (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..." 12In exercising the inherent jurisdiction, the Court must satisfy itself that it is appropriate to make orders removing the respondent's name from the Local Roll, even if he concedes that the orders should be made: Council of the New South Wales Bar Association v Power [2008] NSWCA 135; (2008) 71 NSWLR 451 (at [9]); Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 (at [12]). 13Where an order for removal from the Roll is contemplated, the ultimate issue is whether, at the time of the hearing, the practitioner is shown not to be a fit and proper person to be a legal practitioner of the Supreme Court upon whose Roll the practitioner's name presently appears: A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 (at [14] - [15], [21]). 14In exercising its inherent jurisdiction to discipline legal practitioners the Court is not bound by any statutory definition of "professional misconduct". Rather "it has the capacity to determine, and act on the basis of, unfitness, where appropriate, without any need to stretch the concept of professional misconduct beyond conduct having some real and substantial connection with professional practice": Prothonotary of the Supreme Court of NSW v Alcorn [2007] NSWCA 288 per Hoeben J (Beazley and McColl JJA agreeing), referring to A Solicitor v The Council of the Law Society of NSW (at [21]). 15As I said in Prothonotary of the Supreme Court of New South Wales v McCaffery (at [46]) (with Sheller and Beazley JJA's agreement): " 'Professional misconduct' at common law is said to connote "conduct which would reasonably be regarded as disgraceful or dishonourable" by one's peers: see Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 and other authorities collected by Spigelman CJ (with whom Mason P and Handley JA agreed) in New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [36] ff. Allinson was adopted in relation to the legal profession in In re a Solicitor; Ex parte Law Society [1912] 1 KB 302 at 311-312: see A Solicitor v Council of the Law Society of New South Wales , above, at [13]." 16The applicant submits that the nature of the wrongdoing in this case is so antithetical to the practice of law that the Court would readily conclude that the orders sought are appropriate. It draws attention to Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 (at 681) where Isaacs J said: "The errors to which human tribunals are inevitably exposed, even when aided by all the ability, all the candour, and all the loyalty of those who assist them, whether as advocates, solicitors, or witnesses, are proverbially great. But, if added to the imperfections inherent in our nature, there be deliberate misleading, or reckless laxity of attention to necessary principles of honesty on the part of those the Courts trust to prepare the essential materials for doing justice, those tribunals are likely to become mere instruments of oppression, and the creator of greater evils than those they are appointed to cure. There is therefore a serious responsibility on the Court - a duty to itself, to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential." 17The applicant submits that having regard to the respondent's dishonest conduct, it is impossible to conceive that any Court, legal practitioner or client could ever trust him. The instances of dishonesty in the context of court proceedings in which the respondent appeared are undoubtedly of sufficient seriousness to warrant removal of his name from the Local Roll. 18In my view the Court should make the orders the applicant seeks. 19The Court has emphasised the need to make findings of fact in appropriate detail on significant matters concerning the conduct which is the subject of the complaint as to the basis of its orders, particularly as this could be of significance in the event that there is a subsequent application for readmission: Council of the New South Wales Bar Association v Power (at [10] - [11]). 20It is sufficient compliance with that obligation in this case to say that I find the facts upon which the parties have agreed as set out in the Schedule to these reasons under the heading "Circumstances calling for removal" as well as an additional fact 44 which, as I have said, I have found the applicant has proved. They demonstrate that in relation to three matters in which he was briefed to appear in Local Court proceedings between October 2008 and May 2009 the respondent made false statements to the presiding judicial officer with the intention of misleading the Court. As recently as 21 October 2009 he engaged in legal practice and held himself out as a barrister notwithstanding that he did not then have a current practising certificate. 21The pattern of conduct revealed in those facts is such that, in my view, the respondent's conduct would reasonably be regarded as "disgraceful or dishonourable" by his peers. He would not be regarded as a person of good fame and character for the purposes of admission, not merely because of the nature of his conduct in misleading courts, but also because by engaging in legal practice and holding himself out as a barrister notwithstanding that he did not then have a current practising certificate he breached ss 14 and 15 of the 2004 Act. 22The comparative recency of the facts found is such that I have no hesitation in finding that as at today's date the respondent is not a fit and proper person to remain on the Roll maintained by the Supreme Court of New South Wales under s 32 of the 2004 Act. Orders 23I propose the following orders: 1 Declare that the respondent is guilty of professional misconduct. 2 Declare that the respondent is not a fit and proper person to remain on the Roll maintained by the Supreme Court of New South Wales under s 32 of the Legal Profession Act 2004 (NSW) ('the Roll'). 3 Order that the name of the respondent be removed from the Roll. 4 Order the respondent to pay the applicant's costs of and incidental to these proceedings. 24MACFARLAN JA : I agree. 25HANDLEY AJA : I also agree. 26McCOLL JA : The orders of the Court therefore are as I have proposed. ******** SCHEDULE AGREED STATEMENT OF FACTS Background 1. Mr Hart was born on 25 November 1955. 2. Mr Hart was called to the Bar in New South Wales on 19 December 1986. 3. Mr Hart was admitted to the bar on 19 December 1986. He has held practising certificates for various periods (but not continuously) since 1 February 1989, both unconditionally and subject to restrictions. 4. On 30 September 2009, following its consideration of the conduct the subject of these proceedings, the Claimant resolved to suspend the Opponent's practising certificate pursuant to s. 78 of the Legal Profession Act 2004 (the Act) and to invite him to request the Claimant to cancel his practising certificate under s. 63 of the Act. Mr Hart acceded to that request and the Claimant accordingly cancelled his practising certificate on 1 October 2009. 5. Mr Hart's name remains on the Local Roll (within the meaning of the Legal Profession Act 2004). 6. Mr Hart is not a fit and proper person to engage in legal practice. 7. Mr Hart does not oppose the application by the Bar Council for his name to be removed from the Local Roll. Circumstances calling for removal The Wheaton matter 8. Mr Hart was engaged by Mr Wheaton to act on his behalf in relation to an offence of driving when his blood was in excess of the prescribed concentration of alcohol (PCA Offence). 9. In the course of a telephone conversation on 10 July 2008, Mr Wheaton told Mr Hart that he lived in Bondi. 10. In the course of a telephone conversation on 23 July 2008, Mr Hart told Mr Wheaton that it would be to Mr Wheaton's advantage if the matter were transferred from the Downing Centre Local Court to the Camden Local Court. 11. The PCA Offence was listed for hearing at the Downing Centre Local Court on 7 October 2008, at which time Mr Hart appeared for Mr Wheaton and entered a plea of guilty to the PCA offence on his behalf. The Magistrate then adjourned the matter for sentence on 17 October 2008. 12. On 17 October 2008: a. Mr Hart appeared for Mr Wheaton at Downing Centre Local Court; b. Mr Hart told the magistrate that Mr Wheaton was working at Oakdale and his address was [XXX], Oakdale; c. Mr Hart asked for the matter to be transferred to Camden Local Court on the basis of b. above. d. As a result of Mr Hart's statement in b. and his request in c., the Magistrate listed the matter for sentencing in Camden Local Court on 11 November 2008. 13. At the time Mr Hart made the statement in 12b above, he knew it to be false. 14. At the time Mr Hart made the statement in 12b above he: a. Intended to mislead the Court; b. Did so in order to transfer the matter to a court, the location of which was unrelated to the defendant, where he considered that he could achieve a more favourable result for his client. 15. In the course of a telephone conversation between Mr Hart and Mr Wheaton on 20 October 2008: a. Mr Wheaton told Mr Hart that he was living in Bondi and working in North Ryde; b. Mr Hart told Mr Wheaten that he should obtain references which indicated, contrary to the fact, that Mr Wheaton lived and worked at Oakdale; c. Mr Hart told Mr Wheaten that, for the purposes of the court proceedings, he should say that his address was [XXX], Oakdale. 16. On 25 November 2008: a. Mr Hart appeared for Mr Wheaton at the Camden Local Court; b. Mr Hart told the magistrate that Mr Wheaton's current address was [XXX], Oakdale; 17. At the time Mr Hart made the statement in 16b above, he knew it to be false. 18. At the time Mr Hart made the statement in 16b above he: a. Intended to mislead the Court; b. Did so in order to ensure that Mr Wheaton would be sentenced in a court where he considered that he could achieve a more favourable result for his client. The Bleckman matter 19. Mr Hart was engaged by, or on behalf of, Mr Bleckman to act on his behalf in relation to a PCA Offence. 20. On 3 March 2009 in the course of a telephone conversation between Mr Hart and Ms Deborah Graham (Mr Bleckman's mother): a. Ms Graham told Mr Hart that Mr Bleckman lived at Revesby and walked to work; b. Ms Graham told Mr Hart that she lived at Engadine; c. Mr Hart told Ms Graham that he intended to inform the Court that Mr Bleckman lived at Engadine. 21. At the hearing of Mr Bleckman's matter before the Sutherland Local Court on 23 April 2009, Mr Hart told the magistrate that: a. as a result of this matter, Mr Bleckman had not been able to afford to pay his rent because he had lost his Saturday job driving a forklift; b. Mr Bleckman had moved back home to live with his parents at Engadine; c. it took Mr Bleckman over two hours to get to work in Milperra each morning; and d. depending on the connections, it took Mr Bleckman at least two hours to get home from work each evening. 22. At the time Mr Hart made each of the statements referred to in 21 above he knew it to be false. 23. At the time Mr Hart made the statements in 20 above he intended to mislead the Court. The Smith matter 24. Mr Hart was engaged by Ms Smith to act on her behalf in relation to a PCA Offence. 25. On 19 March 2009, Mr Hart: a. appeared in Sutherland Local Court on behalf of Ms Smith; b. formally entered a plea of guilty to a PCA offence; c. told the Court that Ms Smith was a special needs teacher who had been transferred to Wagga Wagga; d. asked for the matter to be adjourned to the Local Court at Wagga Wagga for sentencing on 14 April 2009. 26. At the time Mr Hart made the statement in 25c. above, he knew it to be false. 27. At the time Mr Hart made the statement in 25c. above, he: a. Intended to mislead the Court; b. Did so in order to have the matter transferred to a court where he considered he could achieve a more favourable result for his client; c. Did so in order to create a false impression of his client's occupation with a view to increasing his chances of obtaining the adjournment sought. 28. As a result of Mr Hart's statements referred to in 25 above, the matter was adjourned to the Local Court at Wagga Wagga for sentencing on 14 April 2009. 29. In the course of a telephone conversation between Mr Hart and Ms Smith on 6 April 2009 Mr Hart told Ms Smith that she should obtain references which indicated, contrary to the fact, that she had been transferred to Wagga Wagga. 30. In the course of a further telephone conversation between Mr Hart and Ms Smith on 6 April 2009 Ms Smith asked Mr Hart whether she was obliged, in order to fulfil the request he had made earlier that day, to get people to lie on the references they gave her. Mr Hart did not answer this question but said that he would talk to her on the following day. 31. On 7 April 2009, Ms Smith left a voicemail message for Mr Hart asking what she needed to include in her testimonials about working in Wagga Wagga. 32. At about 8.30 am on 14 April 2009, being the date on which Ms Smith's matter was listed at the Local Court at Wagga Wagga for sentencing, Mr Hart rang Sergeant Turner, a Police Prosecutor at Wagga Wagga Local Court. In the course of the conversation, Mr Hart: a. enquired which Magistrate would hear the matter; b. told Mr Turner that he would not be in Wagga Wagga until after lunch that day; and c. asked Mr Turner to mention the matter on his behalf before the Magistrate. 33. Shortly after the conversation referred to in 32. above, Mr Hart: a. telephoned Ms Smith, who told him that she was at the airport and her flight had been delayed until 9.30am; b. told Ms Smith that she should not come to Wagga Wagga that day as his preferred Magistrate was off sick. 34. At about 9 o'clock on 14 April 2009, Mr Hart had further conversation with Sergeant Turner in the course of which: a. Mr Turner told Mr Hart that Magistrate Dare would be the only Magistrate sitting at the Local Court at Wagga Wagga in the week commencing 4 May 2009; b. Mr Hart told Mr Turner that he wanted the matter adjourned because Ms Smith had a blood alcohol reading of .115 and he had some expectation that Magistrate (Peter) Dare would give him an order under section 10 (of the Crimes (Sentencing Procedure) Act 1999); c. Sergeant Turner agreed that he would mention the matter on behalf of Mr Hart and seek to have the matter adjourned to 4 May 2009; d. Mr Hart said that he would send a letter to the Wagga Wagga Local Court confirming that he wanted to have the matter adjourned to 4 May 2009; e. Mr Hart told Mr Turner that Ms Smith had gone home to the Gold Coast on the weekend and could not get a flight which would enable her to get to Wagga Wagga for the hearing on 14 April 2009. 35. At the time Mr Hart made the statement in 34e above he knew it to be false. 36. Shortly after the conversation referred to above, Mr Hart telephoned Ms Smith. In the course of the telephone conversation: a. Ms Smith told him she was upset that the matter had been adjourned because the tickets were non-refundable and she had taken the day off work; b. Mr Hart told her that if her matter had remained in the Sutherland Local Court, she would have been disqualified from driving for six months; c. Mr Hart told her that the matter would be adjourned to 4 May 2009 and that he knew from having spoken with the police prosecutor that Mr Hart's preferred Magistrate would be sitting on that day. 37. Later on 14 April 2009, shortly after the conversation referred to above, Mr Hart rang Louise Grant (a secretary at a solicitors' firm in Wagga Wagga) and dictated a letter addressed to the Presiding Magistrate at Wagga Wagga Local Court requesting that Ms Smith's matter be adjourned until 4 May 2009. The letter, which was prepared according to Mr Hart's dictation, and sent to the Presiding Magistrate in accordance with Mr Hart's directions, contained the following statement: "Miss Smith contacted me yesterday to inform me that she was on the Sunshine Coast visiting her family for Easter and due to inclement weather is unable to be driven to Wagga Wagga today also." 38. The statement extracted from the letter set out in 37 above was false to Mr Hart's knowledge, in that: a. Ms Smith had contacted him that morning; b. Ms Smith was not on the Sunshine Coast and had not informed him that she was; c. Mr Hart knew that Ms Smith planned to fly to Wagga Wagga, rather than to be driven; and d. Mr Hart knew that Ms Smith had gone to the airport and was ready to depart for Wagga Wagga on 14 April 2009 on a flight which she expected to depart at 9.30 am. 39. On 2 May 2009, Mr Hart and Ms Smith had a telephone conversation about the hearing which had been set down for 4 May 2009 in the course of which Mr Hart confirmed that his preferred magistrate would be sitting and that, accordingly, they could expect the "best result possible". 40. At the hearing before Wagga Wagga Local Court on 4 May 2009, Mr Hart made the following statements to the magistrate: a. The matter had been transferred to the Wagga Wagga Local Court because Ms Smith worked as a special education teacher in Wagga Wagga from Tuesdays to Fridays; b. Ms Smith travels from Sydney to Wagga Wagga on Tuesday mornings and returns home on Friday night; c. Ms Smith's job in Wagga Wagga was for three months; d. Mr Hart had told the Sutherland Local Court that his client could appear at a sentence hearing that was listed on a Monday; e. Mr Hart had been informed by an officer or member of staff at the Sutherland Local Court that the Court did not list matters for sentence on Mondays; f. Ms Smith had been offered a full-time job in Wagga Wagga; g. If Ms Smith regained her driver's licence she would be able to transfer from Wollongong University to the local Wagga Wagga university [Charles Sturt University)] and do her honours starting in July 2009. 41. At the time Mr Hart made each of the statements referred to in 40 above he knew it to be false. 42. At the time Mr Hart made the statements in 40 above he intended to mislead the Court. 43. On the afternoon of 4 May 2009, Mr Hart left a voicemail message for Ms Smith warning her that she should not speak about what had happened in Court that day. Practising without a practising certificate and holding himself out as a barrister 44. On 21 October 2009 Mr Hart engaged in legal practice and held himself out as a barrister notwithstanding that he did not then have a current practising certificate in that he communicated with the Registrar of the Local Court at Balmain on behalf of a client contrary to s.14 and s.15 of the Legal Profession Act 2004. ********** 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. Decision last updated: 25 March 2011