New South Wales Bar Association v Davis [1963] HCA 31; (1963) 109 CLR 428 (29 August 1963)

HIGH COURT OF AUSTRALIA

NEW SOUTH WALES BAR ASSOCIATION v. DAVIS [1963] HCA 31; (1963) 109 CLR 428

Legal Practitioners

High Court of Australia
Dixon C.J.(1), McTiernan(1) and Menzies(1) JJ.

CATCHWORDS

Legal Practitioners - Barrister removed from Roll - Conviction prior to admission on charge of breaking entering and stealing - Failure to disclose conviction on application for admission - Unseemly conduct after disbarment - Application for re-admission - Two previous applications refused - New evidence of mental condition at time of commission of offence - Circumstances in &which application for re-admission may be granted. - Whether applicant fit and proper person to be a barrister.

HEARING

Sydney, 1963, August 20, 21, 29. 29:8:1963
APPEAL from the Supreme Court of New South Wales.

DECISION

August 29.
THE COURT delivered the following written judgment:-
This is an appeal by special leave from an order of the Full Court of the be restored to the Roll of Barristers of the Supreme Court of New South Wales be allowed. The appeal is by The New South Wales Bar Association. The respondent, Sydney Samuel Wilton Davis, was admitted as a barrister of the Supreme Court of New South Wales on 15th February 1946. On 14th October 1947 an application was made to strike him off the Roll on grounds which related to his conduct before he was admitted, of which there had been no disclosure, and on 20th October 1947 he was struck off the Roll by the Full Court of the Supreme Court of New South Wales (1947) 48 SR (NSW) 33 . On 15th December 1947 an appeal to this Court was dismissed [1947] HCA 53; (1947) 75 CLR 409 . An application to the Full Court of the Supreme Court for restoration of his name to the Roll was made by the respondent in November 1949 and on 19th December 1949 was dismissed (1949) 50 SR (NSW) 158 . On 4th April 1956 another application to the Full Court of the Supreme Court of New South Wales for admission to the bar was dismissed and on 14th December 1956 an application to this Court for leave to appeal from that order was dismissed. (at p432)

2. On 5th June 1961 the application out of which this appeal arises was made to the Supreme Court of New South Wales and was heard by Evatt C.J., Sugerman and Wallace JJ. on 31st October 1961, when by a majority consisting of Evatt C.J. and Wallace J., Sugerman J. dissenting, the application was allowed. From that decision the present appeal comes by special leave. In the circumstances that the applicant had been disbarred upon compelling grounds and had twice been refused re-admission for reasons which took into account unseemly conduct occurring after his disbarment, the Full Court should have granted this application only were it completely satisfied that the applicant had become a fit and proper person to be a barrister. After a close examination of the elaborate judgments of the members of the Court we are satisfied that Sugerman J. alone concentrated his attention upon what, as we have said, was the critical question, viz. the applicant's proved fitness to be a barrister notwithstanding his past misconduct. Having regard to the judgments given in the Full Court and the judgments in prior applications given in this Court and the Supreme Court, it seems undesirable to go over the facts once again. It is sufficient to say that we have studied these judgments carefully and we agree with Sugerman J. that, upon the whole of the case and taking into account what is new both for and against the application, the re-admission of the applicant to the bar is not justified. We do not think that the further evidence of the applicant's mental condition or probable mental condition when he committed the offence before he was called to the bar can be regarded as of particular importance upon the critical question to be decided. (at p432)

3. It is therefore in accordance with the established principles upon which this Court does interfere with the discretion of the Supreme Court in a matter so peculiarly the concern of that Court that we have decided to allow the appeal and discharge the order of the Supreme Court. (at p433)

ORDER

Appeal allowed. Order of the Supreme Court discharged.