Council of the New South Wales Bar Association v DEJ [2019] NSWCATOD 186

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the New South Wales Bar Association v DEJ [2019] NSWCATOD 186 Hearing dates: 17, 18 and 21 August 2017 Date of orders: 11 December 2019 Decision date: 11 December 2019 Jurisdiction: Occupational Division Before: M Craig QC ADCJ, Principal Member G Blake AM SC, Senior Member E Hayes, General Member Decision: (1) The proceedings are re-opened for the limited purpose of: (a) the Respondent tendering the redacted report of Dr Llewellyn-Jones dated 25 April 2019; (b) the Respondent filing Supplementary Submissions; (c) the Applicant filing Supplementary Submissions. (2) Subject to the receipt of the written material under order 1, this matter otherwise is to proceed on the basis of the evidence, submissions and decisions in relation to the matter that were given or made before the Tribunal was reconstituted without a further oral hearing; (3) The name of the Respondent is removed from the local roll of lawyers maintained by the Supreme Court of New South Wales; (4) The Respondent is to pay the costs of the Applicant of the proceedings; (5) For the purposes of these proceedings, the name of the Respondent is anonymised as DEJ and the name of the Respondent's wife is anonymised as DEK; (6) Subject to orders 8 and 9, the disclosure of the Respondent's name and the name of the Respondent's wife is prohibited; (7) Subject to orders 8, 9 and 10, access to and disclosure of documents and evidence filed with the Tribunal in this Application be restricted to the Legal Services Commissioner, the parties and their legal representatives and experts retained in the proceedings and the Respondent's trustee in bankruptcy; (8) Orders 6 and 7 do not preclude the Applicant or any member of the Applicant or the New South Wales Bar Association, or any of its officers or employees from disclosing: (a) the Respondent's name; (b) the decisions, reasons for decision and orders of the Tribunal in these proceedings; (c) documents and evidence filed with the Tribunal in these proceedings; and (d) information about the proceedings, decisions, documents and evidence referred to in (b) and (c) above to any of the persons, bodies or entities in the Schedule marked A in connection with the Applicant's exercise of its functions under the Legal Profession Act 2004 (NSW), the Legal Profession Uniform Law (NSW) and the Legal Profession Uniform Law Application Act 2014 (NSW) (as amended or substituted from time to time) and all regulations and rules made under or in connection with those Acts (as amended or substituted); (9) Orders 6 and 7 do not preclude the Applicant or any member of the Applicant or the New South Wales Bar Association, or any of its officers or employees or the Respondent from disclosing: (a) the Respondent's name; (b) the decisions, reasons for decision and orders of the Tribunal in these proceedings; (c) documents and evidence filed with the Tribunal in these proceedings; and (d) information about the proceedings, decisions, documents and evidence referred to in (b) and (c) above to any of the persons, bodies or entities in the Schedule marked B for the purpose of enforcing any costs order made by the Tribunal in these proceedings, assessing those costs and enforcing any judgment of a court that arises from the filing of a cost assessor's certificate or review panel's certificate and any judgment on appeal from a determination of a review panel); (10) Access to and disclosure of Exhibit 1 be restricted to the Applicant, the Applicant's legal representatives and the Respondent's legal representatives. Schedule A (a) the Supreme Court of New South Wales; (b) the Supreme Court of the Australian Capital Territory; (c) the Legal Profession Admission Board; (d) the Legal Services Council, and any member, committee, or delegate of the Legal Services Council; (e) the Commissioner for Uniform Legal Services Regulation, and any delegate of the Commissioner; (f) a local regulatory authority or corresponding authority within the meaning of the Legal Profession Uniform Law (NSW), and any member, committee, or delegate of any such authority; (g) a person who is a member of the staff of, or acting at the direction of, any of the entities or persons referred to in (a) to (c) above; (h) any Australian or foreign authorities or courts as referred to in ss 436 and 437 of the Legal Profession Uniform Law (NSW); (i) any Australian government authorities, professional associations or educational bodies as referred to in s 441 of the Legal Profession Uniform Law (NSW); (j) any medical practitioner and/or health professional nominated by the Bar Council, a local regulatory authority or corresponding authority within the meaning of the Legal Profession Uniform Law (NSW) for the purpose of s 95 of the Legal Profession Uniform Law (NSW) or any equivalent legislative provision, regulation or rule in any other State or Territory; (k) any person who, for the purpose of s 95(1) of the Legal Profession Uniform Law (NSW) or any equivalent legislative provision, regulation or rule in any other State or Territory, is identified as being in a position to provide documents or information to a local regulatory authority or corresponding authority within the meaning of the Legal Profession Uniform Law (NSW); (l) any person, body or entity to the extent that disclosure is permitted by s 462(2) and (3) of the Legal Profession Uniform Law (NSW); and (m) the Respondent's trustee in bankruptcy. Schedule B (a) any costs consultant, solicitor, counsel or process server engaged by or on behalf of the Applicant, the New South Wales Bar Association or the Respondent; (b) the Manager, Costs Assessment within the meaning of the Legal Profession Act 2004 (NSW) and/or the Legal Profession Uniform Law Application Act 2014 (NSW); (c) any costs assessor (whether acting alone, or as a member of a review panel); (d) any court in which any appeal from a determination of a review panel is instituted (including, for the avoidance of doubt, judges, officers and employees of such courts); (e) any court in which a certificate issued by a costs assessor or review panel is filed (including, for the avoidance of doubt, judges, officers and employees of such courts); (f) the Office of the Sheriff of New South Wales, and any officer or employee of that Office, and the equivalent Office in each State or Territory of Australia; (g) the Official Receiver and any court with jurisdiction under the Bankruptcy Act 1966 (Cth) (including, for the avoidance of doubt, judges, officers and employees of such courts); and (h) any other person, body or entity to whom it is necessary to disclose the information, decisions, documents, or evidence referred to in order 9(a) to 9(d) above for the purpose of the legislation, regulation and rules that apply from time to time to the assessment of costs and enforcement of judgments. Catchwords: CONDUCT – barrister failing to comply with conditions attached to practising certificate – barrister swore and filed untruthful affidavit in Tribunal – barrister giving false evidence before Tribunal – conduct constituting professional misconduct – appropriate penalty – removal from local roll – confidentiality – anonymisation Legislation Cited: Bankruptcy Act 1966 (Cth) Civil and Administrative Tribunal Act 2013 (NSW) Legal Profession Act 2004 (NSW) Legal Profession Uniform Law (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32 Clyne v New South Wales Bar Association (1960) 104 CLR 186 Council of the Law Society of New South Wales v A Solicitor [2002] NSWCA 62 Council of the New South Wales Bar Association v Barnett [2016] NSWCATOD 153 Davison v Council of the New South Wales Bar Association [2007] NSWCA 227 John Fairfax and Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 Johns v Law Society of New South Wales [1982] 2 NSWLR 1 Legal Services Commissioner v Thurairajah [2011] NSWADT 287 New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 New South Wales Bar Association v Quinlivan [2015] NSWCATOD 54 Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 Category: Principal judgment Parties: Council of the New South Wales Bar Association (Applicant) DEJ (Respondent) Representation: Counsel: K Richardson SC (Applicant) D Lloyd (Respondent)