Council of the New South Wales Bar Association v Nash (No 2) [2013] NSWADT 64

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Council of the New South Wales Bar Association v Nash (No 2) [2013] NSWADT 64 Decision date: 26 March 2013 Jurisdiction: Legal Services Division Before: P Blacket SC, Judicial Member R J Wright SC, Judicial Member J Tingle, Non-judicial Member Decision: The Tribunal: 1.Orders that the name of the respondent Christine Nash be removed from the Local Roll. 2.Directs that the respondent pay two thirds of the applicant's costs Catchwords: Legal Practitioners - Disciplinary Proceedings; Barrister - Professional Misconduct - Giving Knowingly False Evidence Legislation Cited: Legal Profession Act 2004 (NSW) Cases Cited: Coe v New South Wales Bar Association [2000] NSWCA 13 Category: Principal judgment Parties: Council of the Bar Association of New South Wales (Applicant) Christine Nash (Respondent) Representation: Counsel M Johnson (Applicant) P Taylor SC and A Horwarth (Respondent) Hicksons Lawyers (Applicant) Moray & Agnew (Respondent) File Number(s): 112007

REASONS FOR DECISION 1The Tribunal initially heard this matter over five days in June 2012 and on 29 December 2012 handed down its decision on whether the Respondent had engaged in professional misconduct: see Council of New South Wales Bar Association v Nash [2012] NSW ADT 220. 2The Tribunal found that the Respondent had engaged in professional misconduct on the bases set out in Grounds 1(b), 1(c) and 1(d) in the amended Application for Original Decision. 3In the light of those findings the matter was relisted for submissions and argument on the question of what orders should be made by the Tribunal and was heard on 22 February 2013. These reasons for decision must of course be read in conjunction with the findings made by the Tribunal in its earlier decision and our reasoning that led to those findings. 4At the hearing a further affidavit from the barrister affirmed 30 January 2013 together with further testimonials by members of the legal profession were received by the Tribunal. That material and some which had previously been utilized was relied upon by the Respondent as demonstrating her current fitness to practise. 5Additionally written submissions on orders that should be made were relied on by both parties and there were further oral submissions in amplification of those matters. 6The Respondent acknowledged, as she had to, that the Tribunal's findings that she knowingly gave false evidence in three respects, set out in short form as: Ground 1(b) that the Respondent did not have an interest, in the sense of a personal or financial interest, in the Balmain project or a reason to give a guarantee in relation to it; Ground 1(c) that Mr Ferizis had not asked for guarantees; and Ground 1(d) that Mr Lahoud had witnessed her signature on the four signature page, are not open for re-examination before this Tribunal. 7It was submitted however that the weight of those expressed and reasoned findings made by the Tribunal is of critical importance in the light of other evidence of Ms Nash's contemporary fitness, particularly the support of her informed professional colleagues. Mr Taylor SC acknowledged at 12.1: "There is no dispute that the Tribunal's findings of testimonial dishonesty merit characterization of that conduct as professional misconduct." 8He further accepted: "There is no dispute that it is of fundamental importance that the person who practises as a legal practitioner must be a person whose current and prospective good character can be accepted, and accepted notwithstanding the act and the nature of any past misconduct. In some cases and perhaps in the typical case, where misconduct has been established satisfactory and contemporary and perspective fitness is unlikely to be reached unless the practitioner demonstrates appropriate insight, and a sustained capacity to comply with the requisite standard of conduct. Insight for contrition and remorse can be powerfully persuasive towards a finding of contemporary fitness, provided the proven past misconduct can be properly characterized as an aberrant episode in a history of satisfactory conduct. Ms Nash does not accept the Tribunal findings. But her non-acceptance involves neither disrespect, self-interested delusion nor indifference. On the contrary, Ms Nash concedes that her recollection may be faulty. She concedes her recollection may be distorted - by either (or both) the passage of time and periods of extreme personal stress that the events have involved. But she says that her memory, and belief, is that she gave her evidence honestly. 9Against that background the Respondent through her counsel submitted: "Contritional insight cannot reasonably be expected nor can its absence be a material adverse factor where the contention issue is wholly one of subjective belief, and the practitioner adheres to a belief in the honesty of their evidence." 10The Respondent further acknowledged that the purpose of the jurisdiction is entirely protective. Its exercise depends on positive satisfaction of the legal practitioner's probable permanent unfitness: Prothonotary v Richard NSWCA 31 July 1987 per McHugh JA cited in New South Wales Bar Association [2001] 52 NSWLR 279 per Spigelman CJ at 285. The Respondent submitted that it is a conclusion that the Tribunal ought not reach in Ms Nash's case. Her conduct over thirty years of professional practice has demonstrated her general and sustained fitness. That fitness is vouched for by informed and long-standing colleagues. The Respondent submitted that Ms Nash's conduct in 2006 as found by the Tribunal was an aberration and that we ought to be comfortably satisfied now that despite its potential implications the Tribunal's findings about that conduct does not justify an affirmative conclusion that Ms Nash is now unfit to remain as a legal practitioner. 11When invited by the Tribunal to say what if any sanctions should be applied, it was suggested that a reprimand was appropriate. 12The Tribunal acknowledges the difficulty confronted by the Respondent's counsel when the impugned conduct as found by the Tribunal is not accepted by the Respondent. 13The Tribunal does not propose to recanvass its findings. For the purposes of considering what orders ought to be made in the light of those findings, it is the Tribunal's view that the conduct of the Respondent before the District Court taken with the evidence which she gave before the Tribunal is of direct contemporary relevance to the question of her fitness to practise at the present time. 14The Applicant submitted: "The context of the conduct was clear. The Respondent knew her evidence was false. The false evidence was not the product of a lack of recall or mistake but rather the motivation of self-interest. The Respondent submitted the Respondent's false evidence in relation to the denial of the request for a personal guarantee went to the very heart of the District Court proceedings. The Respondent put personal interest before her duty to the court to tell the truth. In that context she is not a fit and proper person to engage in legal practice." 15Mr Taylor in his oral submissions acknowledged the difficulties posed by the Respondent's position whose memory, though found by the Tribunal to be false, nevertheless as far as concerns the Respondent is real and is a matter of subjective belief she still adheres to. 16Mr Taylor submitted that when the Tribunal engages in a process of evaluation the Tribunal ought to be sufficiently satisfied that Ms Nash's reputation could not have endured unless her intrinsic character was sound. Looking at the position now, she was fit to remain as a member of the profession. He submitted that everything persuasively points to the condition of personal turmoil in 2005 to 2009 from which no reliable implication can be drawn about her conduct from the point of view of her professional fitness. 17Further amplification of this was submitted, both in the written submissions and oral submissions, that she was aware of the evidence of Mr Lahoud that both Judge Rein (as he then was) and the Tribunal gave little or no weight to. 18The Tribunal considers that her assertion that it had influenced her recollection is problematical. She deposed to a state of affairs. She subsequently reaffirmed that the contents of the affidavit that she swore for the purposes of the District Court proceedings were true at the time that she gave evidence. She then read Lahoud's affidavit and was influenced by it. When it became apparent that Lahoud's affidavit was hopelessly wrong and that he had not witnessed her signature but that it was somebody else, as the Applicant pointed out, she then sought refuge in an intermediate position that it was somebody in Mr Lahoud's office who had executed the relevant documents. 19The overwhelming impression that the Tribunal has, reading the transcript of the District Court proceedings and then viewing the Respondent and reading her evidence before the Tribunal was that she was at all times seeking to avoid an outcome that would implicate her in the transaction which was the subject matter of the District Court proceedings rather than seeking to tell the truth. 20The Applicant's Submissions In Reply, in the Tribunal's view, deal with the factual matters which we believe have adequately been dealt with in the principal Reasons. The Applicant submits that the conduct of the Respondent in relation to each of the successful grounds is individually sufficient for a finding that the Respondent is not fit to practise. The Bar Association points out that the acts occurred on different dates during the District Court proceedings which were heard initially in October 2006 and then continued in early 2007. The Association submits that they indicate a considered pattern of misconduct and should be considered cumulatively. If this is done there is no other option but to find that the Respondent is unfit to remain as a legal practitioner. 21The Tribunal views this case as similar to that of Coe v New South Wales Bar Association [2000] NSWCA 13. The events that transpired and formed the subject matter of the charges were all matters that were peculiarly within her knowledge. The only explanation for her lack of candour to the court was that she was self-interested due to her potential liability under the guarantee. Unlike Coe, the Respondent did try to explain the circumstances of her conduct but in the Tribunal's view regrettably her explanations fell far short of what is to be expected by a barrister of good standing and repute. 22The Respondent's submissions in relation to Ms Nash's professional career between 1981 and the present day are set out. Some of her referees had read the Bar Association's complaint or read Rein DCJ's judgment, or both. As indicated before, the Tribunal has not read Rein DCJ's judgment, as set out in our earlier decision. The Tribunal has, however, read the transcript and material that Judge Rein had before him and has had an opportunity to consider that evidence in the light of the further evidence given by the Respondent before the Tribunal. It has also seen and heard Mr Ferizis whose evidence we accept and who we have preferred to the evidence of Ms Nash where the two have been in conflict. 23We note that Ms Nash is no longer practising and apparently does not intend to practise in the future. Ms Nash was overseas at the time of the further hearing and of course has not been cross-examined on her further affidavit. 24The Tribunal has considered and taken into account her otherwise unblemished career as a barrister and advocate, her energies in furtherance of continuing legal education and the approbation of her colleagues. Even accepting these matters, the Tribunal's concern is that when the Respondent's personal and financial interests came into conflict with her duty to give honest and truthful evidence to a Court, she preferred her personal and financial interests. The Respondent's otherwise unblemished career, her commitment to legal education and assistance to junior practitioners are not necessarily inconsistent with her conduct in the proceedings in the District Court, if her career, participation in legal education and assistance to other practitioners did not involve a similar conflict of interest and duty., The material relied upon by the Respondent does not establish that if she were once again put in a position where her interest and duty conflicted, she would now behave differently. In all the circumstances, the Tribunal does not believe that any other order is appropriate other than removal from the Roll in accordance with section 562 of the Legal Profession Act 2004. 25Suffice to say that the Tribunal is of the view that a reprimand would be totally inappropriate. 26The Respondent has pointed out that the Association has only been partially successful in so far as three of the complaints were withdrawn at the commencement of the hearing: Grounds 2(a), 2(b) and 3, on the basis that they occurred on or before 20 June 2003, which was more than three years before the complaint initiated by the Legal Services Commissioner on 30 July 2007. Whilst that concession was no doubt properly made and occupied little time at the hearing, we have no doubt that, having regard to the amount of material in the Respondent's affidavit that was no longer rendered relevant, considerable preparatory time that was spent on this matter. Additionally we have found that Grounds 1(a) and 1(e) in the amended Application for Original Decision were also not sustained. In the circumstances it is appropriate that the Respondent have some relief on the question of costs. 27Whilst it may be true that of the five grounds proceeded on numbered 1(a) to 1(e) from the hearing, they all had to be dealt with in an evidentiary sense in the preparation for the hearing and, like the three dismissed complaints that were dismissed at the outset, they could not be ignored by the Respondent's legal advisers. 28In the circumstances it is appropriate that the Respondent pay two-thirds of the Association's costs.