Smith v New South Wales Bar Association [1991] HCA 59; (1991) 104 ALR 386; (1991) 66 ALJR 219 (20 December 1991)

HIGH COURT OF AUSTRALIA

RALPH EDWARD SMITH v. NEW SOUTH WALES BAR ASSOCIATION
S. 91/006

High Court of Australia
Mason C.J.(1)

CATCHWORDS

HEARING

Canberra
20:12:1991

DECISION

MASON C.J. On 9 May 1991 the Court of Appeal of New South Wales found that the applicant, a barrister, was guilty of unprofessional conduct in that he sought to appear for Mr A. Knight without the intervention of an instructing solicitor and deliberately misled the Court by informing it that he was instructed by Malcolm McDonald and Co. when in fact he was not so instructed. The Court of Appeal further found that he said things in his defence in the Court of Appeal which he knew to be untrue.

2. The Court, by majority (Mahoney and Meagher JJ.A.; Samuels J.A. dissenting), ordered that the applicant's name be removed from the roll of barristers. Samuels J.A. thought that a censure and an order for payment of the costs of the proceedings would have been an appropriate and sufficient order in the circumstances. It seems that the majority thought that the applicant's untruthful evidence to the Court of Appeal required his disbarment.

3. The applicant subsequently applied to the Court of Appeal for a review of its judgment. In his application, the applicant did not contest the finding of unprofessional conduct but sought, in effect, a rescission of the order for disbarment. The application for review was based, amongst other things, on evidence designed to show that the applicant had honestly, or honestly and reasonably, believed as a result of a conversation with Mr McDonald, a solicitor, that he had instructions to act in the relevant matter.

4. On 4 July 1991 the Court of Appeal rejected the claim of honest, or honest and reasonable, belief though Samuels J.A. was not persuaded that the applicant's claim that there was such a conversation was a deliberate invention. However, Mahoney and Meagher JJ.A. found that it was. The Court, by majority, made a further order removing the applicant's name from the roll of barristers.

5. The applicant, having obtained a limited stay from the Court of Appeal, then applied for special leave to appeal from the order removing his name from the roll of barristers and sought a stay of the orders made by the Court of Appeal. On 29 July 1991 Gaudron J. made an order staying the orders made by the Court of Appeal until the determination of the special leave application upon the applicant undertaking that he would not "accept fresh briefs or other professional engagements pending the hearing of the application for special leave to appeal".

6. On 15 November 1991 this Court granted special leave to appeal and extended the stay pending the hearing of the appeal by the Full Court upon a continuation of the existing undertaking given by the applicant to Gaudron J. The applicant now applies for the following orders:
1. That the undertaking given by him on 29 July 1991 and renewed
on 15 November 1991 be discharged.
2. That he be permitted to accept fresh briefs and professional
work pending the hearing of the appeal.
he will not accept any brief or professional engagement extending beyond the disposition of the proceedings in this Court. The applicant has not accepted fresh briefs since giving his undertaking. He has completed all briefs accepted before that date and has therefore exhausted all the work which is available to him. He has no income, apart from a limited superannuation pension, and his rent in respect of his chambers is substantially in arrears. It is likely that his appeal will not be heard until 30 April to 1 May 1992.

7. The grounds of the applicant's appeal are directed to the order for removal. They seek to challenge the majority finding concerning the deliberate untruthfulness of the applicant's evidence before the Court of Appeal by showing that Mahoney J.A. misapprehended the effect of the evidence on one aspect of the matter. The grounds of appeal also raise a question relating to the admissibility of certain testimonial evidence which, it is suggested, the majority rejected. Otherwise, the notice of appeal challenges the exercise of discretion by the Court of Appeal in deciding that disbarment was the appropriate course that should be followed.

8. Mr Cowdery Q.C. for the respondent submits that no stay should be granted unless exceptional circumstances are shown to exist and that means that the applicant must show that the subject-matter of the appeal will be destroyed unless a stay is granted. He relies on the judgment of Brennan J. in Beljajev v. Director of Public Prosecutions. (1) [1991] HCA 16; (1991) 65 ALJR 400, at p 401. Beljajev was a criminal case in which a stay was sought pending the hearing of a special leave application at a stage when it is clearly established that exceptional circumstances must be shown to exist. The position is different, in my opinion, in a case such as the present when special leave has been granted and an appeal is pending. In such a case, the Court has a discretion to grant a stay unqualified by the restraint of exceptional circumstances.

9. I acknowledge that the evidence establishes that, apart from the conduct which is now in question, the applicant is a person of good character and that he has no other blemish on his professional reputation. I acknowledge also the very considerable hardship that he will sustain if he is not released from the present undertaking and the effect that compliance with that undertaking will have on his professional practice and livelihood, even if he ultimately succeeds in having the orders of the Court of Appeal set aside. However, there are other factors which must be taken into account.

10. Apart from concluding that the applicant's case on the appeal is arguable, I am unable to form an opinion as to its prospects of success. I am left with an unchallenged finding that the applicant was guilty of unprofessional conduct in a respect which would not, on its own, warrant disbarment and it is accompanied by a finding, challenged in the pending appeal, that the applicant knowingly gave untruthful evidence to the Court of Appeal. Even if the applicant succeeds in his appeal to this Court, the matter will be remitted to the Court of Appeal to be dealt with on the footing, inter alia, that the applicant was guilty of unprofessional conduct and, depending on the fate in this Court of the first ground of appeal, that he knowingly gave untruthful evidence to the Court of Appeal. In this situation I do not have a firm impression that the applicant will succeed in his appeal or, if he succeeds in his challenge to the exercise of discretion by the Court of Appeal, that that success will necessarily lead to an ultimate outcome of the proceedings which will be favourable to the applicant.

11. Furthermore, and more importantly, having regard to the Court of Appeal's majority finding concerning the untruthfulness of the applicant's evidence before that Court, I do not consider that it would be correct to allow him to practice pending the appeal. The majority evaluation of that finding as one which, in the circumstances, warranted the applicant's disbarment necessarily must undermine and set at risk the confidence which the Bench, the profession and the public are entitled to have in his probity and integrity as a barrister. The effect of the Court of Appeal's evaluation of the applicant's conduct must, it seems to me, continue to subsist until such time as that Court's orders and findings are set aside.

12. In the result I refuse the application.

ORDER

Application refused.