Council of the New South Wales Bar Association v Annan [2014] NSWCATOD 109

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the New South Wales Bar Association v Annan [2014] NSWCATOD 109 Hearing dates: 26 August 2014 Decision date: 08 October 2014 Jurisdiction: Occupational Division Before: D Patten, Principal Member P Blacket SC, Senior Member C Bennett, General Member Decision: Orders: 1. That the name of John Ebow Annan be removed from the roll of local practitioners. 2. That Mr Annan pay the costs of the Bar Association as agreed upon or as assessed. Catchwords: Professional misconduct-Removal from Roll warranted. Legislation Cited: Legal Profession Act 2004 Cases Cited: Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 NSW Bar Association v Cummins [2001] 52 NSWLR279 NSW Bar Association v Sahade [2007] NSWCA 145 Category: Principal judgment Parties: Council of the New South Wales Bar Association John Ebow Annan Representation: M Johnston (Applicant) Hicksons Lawyers (Applicant) Annan (Respondent in person) File Number(s): 102013, 102023

reasons for decision 1In this matter for reasons published on 30 April last we found Mr Annan guilty of Professional Misconduct. On 26 August 2014 we heard argument as to the orders which should properly follow our finding. The applicant was again represented by Mr M Johnston of Counsel and Mr Annan again appeared in person. 2The finding of Professional Misconduct flowed from a number of factual conclusions expressed in paragraphs 34 to 36 of our reasons. We should also state in express terms the finding implicit in paragraph 35 that between November 2007 and January 2008 Mr Annan practised as a Migration Agent whilst disqualified from doing so and that he held himself out to Ms Ae Sook Kim as being a Migration Agent without disclosing his disqualification. His denials to the Federal Magistrate's Court of those matters were false. 3Mr Johnston submitted that the Tribunal should order the removal of Mr Annan's name from the roll. He cited a number of authorities which emphasised the very high standards of probity and character required of a member of the Bar. They included Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 and particularly the passage in the judgement of Kitto J ' ... the Bar is no ordinary profession or occupation. These are not empty words, nor is it their purpose to express or encourage profession pretensions. They should be understood as a reminder that a barrister is more than his client's confidant, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. He is by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations. If a barrister is found to be, for any reason, an unsuitable person to share in the enjoyment of those privileges and in the effective discharge of those responsibilities, he is not a fit and proper person to remain at the Bar." 4There was also reference to NSW Bar Association v Cummins [2001] 52 NSWLR 279 and particularly the remarks of Spigeman CJ at paragraph 19 and following: "[19] Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity." "[20] There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the work and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people". 5Mr Johnston accepting that the question of fitness to practice is to be decided at the date of hearing referred to NSW Bar Association v Sahade [2007] NSWCA145. 6In Sahade the Barrister unlike Mr Annan conceded his wrongful conduct and adduced affidavit evidence to the effect that he was a man of 'changed character'. 7Mr Annan has not conceded any wrong doing although he did attach to his submission some five references from persons who have for the most part known Mr Annan in a personal capacity. This was inappropriate. Mr Annan should have been aware that persons providing character evidence should have done so by affidavits upon which they could be cross examined by counsel for the Bar Association. We note incidentally that none of the references was provided by a colleague of Mr Annan at the Bar. 8Although we have had regard to the references we are not satisfied that it has been demonstrated that he is now a fit and proper person to practice as a Barrister. While mindful of the impact removal of his name from the roll of legal practitioners may have upon Mr Annan but also mindful of our responsibility to the community we have reached the conclusion on that removal from the roll is the only order appropriate to this case. That does not of course prevent Mr Annan from making an application for reinstatement at some time in the future. 9Although Mr Annan sought that there be no order for costs against him the provisions of the statute in effect require otherwise.(s566 Legal profession Act 2004 10We make these orders: (1)That the name of John Ebow Annan be removed from the roll of local practitioners (2)That Mr Annan pay the costs of the Bar Association as agreed upon or as assessed.