New South Wales Bar Association v Cameron [2009] NSWADT 59 (23 March 2009)

Last Updated: 15 April 2009

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
New South Wales Bar Association v Cameron [2009] NSWADT 59


DIVISION:
LEGAL SERVICES DIVISION

PARTIES:
APPLICANT
Council of the New South Wales Bar Association

RESPONDENT
Robert William Cameron



FILE NUMBERS:
082010

HEARING DATES:
24, 25, 26 November 2008, 20 February 2009




DATE OF DECISION:
23 March 2009

BEFORE:
McGuire J - ADCJ (Deputy President)Blacket P SC - Judical MemberHayes E - Non-Judicial Member





LEGISLATION CITED:
Legal Profession Act 1987
Legal Profession Act 2004

CASES CITED:
Ziems v Prothonotary of the Supreme Court of New South Wales(1957) [1957] HCA 46; 97 CLR 279
Murphy v New South Wales Bar Association [2002] NSWCA 138; 55 NSWLR 23
New South Wales Bar Association v Hamman [1999] NSWCA 404; (1999) 217 ALR 553
New South Wales Bar Association v Somosi [2001] NSWCA 285; (2001) 48 ATR 562
New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279
Council of the New South Wales Bar Association v Li [2005] NSWCA 415; (2005) 64 NSWLR 603
Incorporated Law Institute of New South Wales v Mahon [1909] HCA 87; (1909) 9 CLR 655
In re Davis [1947] HCA 53; (1947) 75 CLR 409
A Solicitor v The Council of the Law Society of New South Wales [2004] HCA 1; (2003) 216 CLR 253

TEXTS CITED:


APPLICATION:
Barrister – Disciplinary application- Tax Offences

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
CE Adamson SC
P Brereton, barrister
On 20 February: M Avenell, barrister
DF Rofe QC
AJ Tudehope, barrister


ORDERS:
The orders that the Tribunal makes are as follows:
1.A finding that Robert William Cameron has been guilty of professional misconduct with respect to the conduct contained in the Grounds set out in application filed 3 June 2008
2.A finding that Robert William Cameron is not a fit and proper person to remain on the Roll of Legal Practitioners
3. An order that the name of Robert William Cameron be, and hereby is, removed form the Roll of Practitioners
4.An order that a local practising certificate not be issued to Robert William Cameron before 20 February 2011
5.An order that the decision of the Tribunal be published
6.No submissions were made in relation to costs in this matter.
The provisional view of the Tribunal is that the Respondent should pay the costs of the applicant of these proceedings. The Tribunal grants liberty to apply in respect of such question for seven days. If there is no such application the order will be that the respondent pay the costs of the applicant of these proceedings.


Reasons for Decision:


REASONS FOR DECISION

1 On 3 June 2008 the applicant, who the Tribunal will hereinafter refer to as "the Bar Association" sought orders made pursuant to section 562(2) or (4) of the Legal Profession Act 2004 against a barrister, Mr Robert William Cameron ("the Barrister"). The Bar Association, in particular, sought an order that the Barrister has been guilty of professional misconduct with respect to the conduct contained in the grounds for application and sought that a finding be made that he is not a fit and proper person to remain on the Roll of Legal Practitioners and accordingly he be removed from the roll and that there be consequential orders for relief including publication of the Tribunal’s decision and an order that the Barrister pay the costs of the Bar Association for these proceedings.

2 The matter was listed for hearing before the Tribunal on 24 November 2008 and was adjourned on that day at the request of the parties so that some discussion could take place with a view to shortening the issues. It resumed on 25 November 2008.

3 The application in its amended form alleged:

Grounds for Application (including Particulars)

4 In respect of each of the grounds set out below, the Barrister acted in disregard of his lawful, civic and/or professional obligations:

Ground 1 = ground (v) of the Bar Council complaint
1.The barrister committed offences under the provisions of the Income Tax Assessment Act and the Tax Administration Act 1953 by failing to comply with notices to furnish tax returns and failing to comply with court orders to furnish tax returns.

Particulars

Date of conviction	Offence
27 June 1984	Failure to comply with a notice to lodge his 1983 return.
8 March 1985	Failure to comply with a court order to lodge his 1983 return.
22 August 1985	Failure to comply with a notice to lodge his 1984 return.
20 February 1987	Failure to comply with a notice to lodge his 1986 return
6 June 1989	Failure to comply with a notice to lodge his 1988 return.
22 September 1989	Failure to comply with a court order to lodge his 1988 return.
12 November 1996	Failure to comply with a notice to lodge his 1995 return.
27 May 1997	Failure to comply with a court order to lodge his 1995 return.
8 November 2000	Failure to comply with a notice to lodge his 1999 return.

Ground 2 = ground (vi)(a) and (b) of the Bar Council complaint.
2.The barrister made misleading statements in 2001 in communications with the Applicant in the course of its investigation into the matters the subject of notification under Part 3 of the Legal Profession Act 1987 as to:

a)the number and dates of convictions for tax offences; and

b)his level of compliance with the obligation to pay tax.

Particulars of (a)

Statement made on 1 November 2001 re lodgement of tax returns

1)In 2001, when the barrister knew that the Applicant was considering whether the tax offences and acts of bankruptcy were committed in circumstances that showed that he was not a fit and proper person to hold a practising certificate within the meaning of section 38FC of the Legal Profession Act 1987, he made a statement on 1 November 2001, which he provided to the Applicant, in which he said:

"All my taxation returns for each year were filed.

On two occasions I was late in filing the returns, viz the returns for the financial years ended 30/6/95 and 30/6/99."

2)At the time at which the barrister made the statements set out in (1) above, it was the case, to the barrister’s knowledge, that:

i)He was late in filing his returns for the years ended 1983, 1984, 1986 and 1988 years.

ii)He had been convicted of failing to comply with a notice to lodge his 1983, 1984, 1986 and 1988 returns.

iii)He had been convicted of failing to comply with court orders to lodge his 1983 and 1988 returns.

3)The statements made by the barrister set out in (1) above were misleading in that they tended to convey the false impression that the barrister filed all his tax returns on time apart from those for the years ended 30 June 1995 and 30 June 1999, when the fact was that he had filed late returns at least for the financial years 1983, 1984, 1986 and 1988.

4)The barrister was neither careful nor candid at the time he made the statement set out in (1) above.

Particulars of (b)

Statements re inability to pay tax made on 1 November 2001

1)In 2001, when the barrister knew that the Applicant was considering whether the tax offences and acts of bankruptcy were committed in circumstances that showed that he was not a fit and proper person to hold a practising certificate within the meaning of section 38FC of the Act, he made a statement on 1 November 2001, which he provided to the Informant, in which he said:

"For reasons which I have endeavoured to place before the Council, I was unable to pay my taxation assessments in full for several years from about 1984 to about 1990."

2)At the time at which the barrister made the statements set out in (1) above, it was the case, to the barrister’s knowledge, that:

i)Between 25 February 1980 and 13 November 1992 the barrister made no voluntary payments of income tax (which in this Application should be taken to mean that he made no direct payments of income tax to the Deputy Commissioner of Taxation of his own volition).

ii)Between 25 February 1980 and 30 October 2001, the Deputy Commissioner of Taxation credited Cameron’s account with the following payments:

No.	Date of payment	Amount of payment
1	25 February 1980	$1544.08
2	13 November 1992	$400.00
3	6 January 1993	$200.00
4	12 February 1993	$200.00
5	4 March 1993	$200.00
6	16 April 1993	$200.00
7	17 May 1993	$200.00
8	7 June 1993	$16,194.00
9	24 March 1994	$4,948.09
10	27 April 1998	$904.66
11	15 October 1999	$1,290.43
12	27 October 2000	$1,240.76
13	27 November 2000	$7,980.98
14	8 May 2001	$1,823.35
15	15 June 2001	$22,567.75
16	20 June 2001	$5,534.76
17	30 October 2001	$186,201.65

iii)Of the payments in the table above, only those set out at numbers 1 to 8 and 17 were voluntary payments of tax.

iv)Of the payments in the table above, that which is set out at number 15 was paid by a third party in response to a notice issued pursuant to section 218 of the Income Tax Assessment Act.

v)The other payments set out in the table above were payments that Cameron made through his trustee in bankruptcy.

vi)The payment at number 17 was made in response to a creditor’s petition issued by the Deputy Commissioner of Taxation.

3)The statement made by the barrister set out in (1) above was misleading in that it tended to convey the false impression that the only years in which the barrister was unable to pay his tax assessments in full were the years from 1984-1990 but that he had been able to pay, and had paid, his assessments in part during these years, when the fact was that, apart from the total amount of $1,400 paid in instalments set out in (2) above he had not made any voluntary payments at all subsequent to 25 February 1980 for a significantly longer period than that specified in his statement.

4)The barrister was neither careful nor candid at the time he made the statement set out in (1) above.

5 An amended Reply was filed on 20 August 2008. The Respondent denied that the facts of the specified tax return convictions, or any of them, are the products of any act done by the Respondent in disregard of his lawful civic and/or professional obligations and in the circumstances do not justify any of the orders sought by the applicant. As it is a matter of some significance in these proceedings the amended Reply is reproduced in part.


Ground I

The Respondent denies that the facts of the specified tax return convictions, or any of them, are the products of any act done by the Respondent in disregard of his lawful civil and/or professional obligations and in the circumstances do not justify any of the orders sought by the Applicant.
Particulars

1.1 For the reasons set forth in comprehensive communications with the NSW Bar Association and in the Affidavits specified in the Schedule hereto:­

a)The Respondent was unaware until about September 1989 that any of his tax returns for the years 1975 to 1989 inclusive were not being filed within the time allowed either by the Act or by extension of time arranged by his Accountant and that he had in fact been charged with and convicted of the offences relating to any of those years;

b)Upon becoming aware of the fact that convictions had been made and fines imposed, the Respondent took all reasonable measures, including the employment of a full time secretary, to attend to the Respondent's business and business records whereby no further infractions occurred until November 1996 by which time, the Secretary had had to cease working full time for personal reasons and was unable to attend to his taxation records;

c)The circumstances which led to the 1996 tax return conviction were several, the principal being the Respondent's failure to have ensured that his Accountant secured an extension of time due to the difficulties the Respondent was having in compiling his records to give to the Accountant;

d)The circumstances that led to the conviction of 27.5.1997 were serious and completely unexpected given that the Respondent had gathered the material necessary to compile his books for the Accountant and the Court had given him the time sought by the Respondent that he believed was all the time required to do the work, having regard to the time also required to do the work for the 1996 return;

e)The circumstances which led to the failure to file the 1999 return on time were two-fold: one was that the Respondent was misled as to the state of readiness of a multi million dollar insurance claim case (it was not ready for hearing at all) and the Respondent's failure to have obtained an extension of time beyond an extension obtained by his Accountant until May 1999.

Schedule

Affidavit of RW Cameron 26.11.01, paras 3, 4, 5, 6 & 11

Affidavit of RW Cameron 26.11.01, para 11 Annexure "A"

Affidavit of RW Cameron 4.3.02

Affidavit of RW Cameron 4.12.02, para 1-6

Affidavit of RW Cameron 13.8.03, para 3

1.2 None of the convictions made before 1.1.88 are legally capable of constituting "unsatisfactory professional conduct" because that is a new category which was not introduced until 1.1.88 (cf s.37 Legal Profession Act 1987).

1.3 None of the convictions made after 1.1.88 are legally capable of constituting "unsatisfactory professional conduct" because they are not connected to the practice of law or the expertise of a competent legal practitioner and thus do not fall within the relevant definition.

Ground 2

The Respondent denies that the facts particularised are the products of any act done by the Respondent in disregard of his lawful civil and/or professional obligations and in the circumstances do not justify the making of any of the orders sought by the Applicant,
Particulars

2.1 For the reasons set forth in the communications and Affidavits by the Respondent set forth in the Schedule hereto:­

a)Respondent had no means of establishing the number and nature of the tax return convictions which were the subject of the warrant which the Police sought to execute in September 1989 until he was provided with an "antecedents sheet" at Court on 8.11.2000;

b)The Respondent had no time to read the sheet at Court (he was self represented and was called upon to address the Court as he was presented with the document) and upon the Respondent’s returning to Chambers he was distracted from studying the sheet in consequence of which it was misplaced and was not located until 6.12.01;

c)The antecedent sheet was only discovered after extensive search for the same occasioned by the knowledge obtained by the Respondent a few days before 6.12.01 that the Act had been amended in July 2001 so as to require all tax return offences to be notified no matter when made;

d)Because of the materials and information provided to all members of the Bar by the then President of the Bar Association and there being no such information provided as to the relevant amendments to the Legal Profession Act contradicting that position which took effect in July 2001, the Respondent properly held the opinion that any tax return convictions before March 1991 were to be ignored;

e)That opinion was subsequently acknowledged by the Applicant in a letter to the Respondent dated 10.9.02 wherein the Applicant stated:­

"... the Bar Council accepts that you were not obliged to notify these offences pursuant to the Legal Profession Amendment (Notifications), Regulation 2001":

f)As soon as the Respondent became aware of the obligations to notify the Applicant about the Tax Return convictions made before 199E the Respondent immediately took all necessary steps to notify the Applicant thereof and to obtain all available information for the Applicant as might shed light on the circumstances relating to the convictions. The Respondent notes that obtaining that information took about six weeks.

g)On 1.11.01 the Respondent did not know the particulars alleged by the Applicant in paragraph 4(2) of the particulars concerning Ground 2.

The Respondent adheres to the clarification made by him at paragraph 4(e) of Exhibit 13 to his Affidavit of 13.8.03.

2.2 -As to the (vi)(b) Ground, the Respondent:

a)Denies he intended to mislead the Applicant during 2001 or at any other time;

b)During the period from April 2001 to November 2001 the Respondent had provided to the Applicant all such materials as showed the level of payment by the Respondent of income tax before 1984, from 1984 to 1990 and post 1990;

c)The material included:­

i)bankruptcy petitions;

ii)proof of debt provided for the Taxation Commissioner;

d)In about December 2001, the Applicant advised the Respondent that by arrangement it had made with the Deputy Commissioner of Taxation, a special projects office had been established to provide privileged taxation information upon request by the Barrister concerning the Barrister;

e)By letter dated 11.12.01 the Respondent requested all relevant information concerning him for release to the Applicant. The information was provided to the Respondent by letter dated 11.12.01 and given by the Respondent to the Applicant forthwith upon receipt;

f)The statement under reference was in the Respondent's belief, and to the best of the Respondent's ability to establish its veracity, and in the context it was made true as of 1.11.01 when it was made;

g)It remains clear from the materials the Respondent had provided as of 1.11.01 that the statement under reference was not misleading. Apart from the assessments for 1984 to 1990, the Respondent was not able to pay and thus did not pay all the tax owed by him;

h)Further, when the statement is read in the context in which it was made, as it should, it should be read as a statement by the Respondent by which the Respondent was seeking to rebut the suggestion that the Respondent's statements about the period before 1984 and the period after 1990 were misleading and not as suggesting that the Respondent did in fact pay his assessments from 1984 to 1990 (cf Reasons for Bar Council's decision 14.6.2007 para 63).

Schedule

Affidavit of RW Cameron 13.8.03 , paras 3, 4 & 5.

Affidavit of RW Cameron 26.11.01, para 11; Annexure "A"

Affidavit of RW Cameron 4.12.02, para 1-6 inc.

6 On Tuesday, 25 November 2008 on the advice of his senior counsel the Barrister admitted that he has been guilty of professional misconduct with respect to the conduct contained in the Grounds for Application set out above. In particular he admits under Ground 1 that he committed offences under the provisions of the Tax Administration Act 1953 by failing to comply with notices to furnish tax returns and failing to comply with orders to furnish tax returns as particularised.

7 Further, in respect of Ground 2 paragraph 2, the Barrister admits that he, a barrister, made misleading statements in 2001 in communications with the Bar Association in the course of its investigations into the matters that are subject to notification under Part 3 of the Legal Profession Act as to:

a)the number and dates of convictions for tax offences; and

b)his level of compliance with the obligation to pay tax.

8 The statement the Barrister made on 1 November 2001 to the Bar Association which is referred to in the particulars:

"All my taxation returns for each year were filed.

On two occasions I was late in filing the returns, viz the returns for the financial years ended 30/6/95 and 30/6/99."

he admits is misleading and in particular at the time the Barrister made the statement, it was the case to the Barrister’s knowledge that Particulars 2(i) (ii) and (iii) of subparagraph 2.2 were misleading in that they tended to convey the false impression that the Barrister filed all his tax returns on time apart from those for the years ended 30 June 1995 and 30 June 1999, when he fact was that he had filed late returns at least for the financial years 1983, 1984, 1986 and 1988.

9 The Barrister further admits that he was neither careful nor candid at the time he made the statements set out above.

10 Under the heading "Statements re Inability to Pay Tax" made on 1 November 2001, Particular B, the Barrister, again on the advice of his senior counsel, admitted paragraphs 1, 2, 3 and 4.

11 The Barrister specifically did not admit the first part of the Bar Association’s allegation bracketed below in paragraph 4 at the foot of p5, namely:

["The barrister either intended to mislead the Applicant by failing to disclose the full extent of his non-compliance with his obligation to pay tax in the period 1984 to 1990 and by implying that his compliance was better than was the fact, or in the alternative] the barrister was neither careful nor candid at the time he made the statement set out in (1) above."

but admits the balance of the sentence.

12 Apart from the evidence of the Barrister, the case mounted by the Bar Association and the evidence of the Respondent was entirely documentary. The Bar Association’s case consisted principally of an affidavit of its executive director, Mr Philip Selth, sworn on 3 June 2008 and annexing or exhibiting correspondence passing between the Barrister and the Association. The Bar Association also tendered as Exhibit "A" an evidentiary certificate relating to previous convictions committed by the Barrister being antecedents relied upon by the prosecutor at the prosecution of the Barrister on 8 November 2000 before a magistrate for breach of section 8F of the Taxation Administration Act and Exhibit "B" being an ATO statement of account for the Barrister showing a summary of his taxation history going back to between June 1981 and October 2001.
13 The Bar Association also tendered three letters which became Exhibit "C" bearing dates 23 July 2001 and 31 July 2001 addressed to the Barrister and his response addressed to the solicitor Mr James Macken dated 10 August 2001. Exhibit "D" was the notice of penalty tendered to prove that the Barrister was fined the maximum $5,000 on 8 November 2000 and that it was paid to the Clerk of the Court on 18 October 2001.
14 The Respondent tendered a voluminous bundle of documents in relation to dealings with the Association and the Australian Taxation Office. It will be necessary to refer to this material in more detail.

Background

15 The Barrister was admitted to the Bar of New South Wales on 22 November 1968. He thereafter worked as a legislative draftsman in the Parliamentary Counsel’s Office until approximately 1975. He thereafter practised continuously as a barrister until 2 December 2001.

16 The voluminous material tendered discloses the regrettably long history of non-compliance on the part of the barrister with his obligations under Australian taxation legislation. Not only was he prosecuted for the matters set out in the information but he also was the subject of no less than the presentation of three creditors’ petitions, the first on 4 December 1990 in respect of two judgments entered on 29 November 1985 and 12 March 1986 respectively, being judgments for $13,551.22 and $70,673.76 (see Exhibit "B" p1).

17 The Barrister was again bankrupted on 23 February 1995 as a result of a creditors’ petition filed on behalf of the Deputy Commissioner of Taxation from which he was discharged on or about 28 November 2000.

18 As to the first bankruptcy, the debt to the Commissioner was approximately $300,000 and a dividend of 1.61 cents in the dollar was paid to creditors.

19 As to the second bankruptcy, it was over $80,000 and dividends of 4.42 cents in the dollar were paid to creditors. The Barrister was discharged from this bankruptcy on 28 November 2000. Almost immediately on 8 December 2000 a creditors’ petition was filed again by the Deputy Commissioner of Taxation for unpaid taxes and interest of $157,401.

20 On 30 October 2001 the Barrister paid the sum of $186,200 to the ATO in full discharge of the debt the subject of the petition.
Legislative History

21 On 9 March 2001 the Legal Profession Amendment (Notification) Regulation of 2001 under the Legal Profession Act 1987 was gazetted. The explanatory note provided:

The object of this regulation is to require a barrister to notify the Bar Council and a solicitor to notify the Law Society Council if:

(a) he or she becomes bankrupt, is the subject of a bankruptcy petition or applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of his or her remuneration for their benefit, or

(b) he or she is found guilty of an offence (other than certified specified traffic and parking offences), ..."

Similar disclosures are required to be made in any application for a practising certificate as a barrister or a solicitor if the disclosures have not already been made. Within 28 days after the commencement of this regulation, similar disclosures are also required to be made in respect of incidents referred to in paragraph (a) occurring at any time before the commencement of this Regulation and offences referred to in paragraph (b); committed at any time before that commencement (in the case of indictable offences) or committed within the period of ten years immediately before that commencement (in any other case).

In the case of disclosures relating to an incident referred to in paragraph (a), the barrister or solicitor concerned is, in addition, to provide a statement as to why, despite the incident, he or she is a fit and proper person to hold a practising certificate.

The Bar Council or Law Society Council (as appropriate) may require further information relating to disclosures.

This Regulation is made under the Legal Profession Act 1987, including sections 30 and 216 (the general regulation-making power).

22 The insertion of the provisions in clause 6 and in particular clause 69D and E are of great relevance to the Barrister as he was obliged to notify the Bar Association in writing of the finding and nature of offences committed within the period of ten years occurring immediately prior to 9 March 2001. By virtue of that provision it did not catch the seven offences disclosed in Exhibit "A" between 27 June 1984 and 22 September 1989.

23 On 17 July 2001 the Legal Profession Amendment (Disciplinary Provisions) Act 2001 No 53 was assented to. By section 38FB of that Act entitled "Requirements to show cause – bankruptcy, indictable offences, tax offences and failures to notify" it was provided:

"1. An application for a practising certificate who, since being admitted as a legal practitioner:

(a) has committed an act of bankruptcy, or

(b) has been found guilty of an indictable offence or a tax offence

must provide a written statement, in accordance with the regulations, showing why, despite the act of bankruptcy or finding of guilt and any circumstances surrounding the act or finding, the applicant considers that he or she is a fit and proper person to hold a practising certificate.

2. An applicant for a practising certificate who has failed to notify a matter as required by the Regulations (being a failure declared by the Regulations to be professional misconduct) must provide a written statement, in accordance with the Regulations, showing why, despite the failure to notify, the applicant considers that he or she is a fit and proper person to hold a practising certificate.

24 Subsection (3) provided:

A barrister or solicitor who, since being admitted as a legal practitioner:

(a) has committed an act of bankruptcy, or

(b) has been found guilty of an indictable offence or a tax offence

must provide a written statement in accordance with the regulations, showing why, despite the act of bankruptcy or finding of guilt and any circumstances surrounding the act or finding, the applicant considers that he or she is a fit and proper person to hold a practising certificate.

25 Subsection (6) provided:

"Subsection (1) and (3) extend to acts of bankruptcy occurring before the commencement of this section."[ie before 17 July 2001]

26 "Tax offence" was defined in section 3(1) to mean "any offence under the Taxation Administration Act 1953 of the Commonwealth. An extended definition was also given to what constitutes an act of bankruptcy by amendment of section 3 of the Legal Profession Act 1987.

27 It was the statutory responsibility of the Council under section 38FC to refuse to issue, cancel or suspend a practising certificate if it is aware that the application for or holder of the practising certificate has since being admitted as a legal practitioner committed an act of bankruptcy or been found guilty of a tax offence. Further it was the responsibility of the Council to give notice in writing to the applicant or the holder.

28 On 6 April 2001 the Barrister furnished the Bar Association with what is described as "compliance material" in relation to the Legal Profession Amendment (Notification) Regulation of 2001. He did not disclose the offences committed prior to 12 November 1996 and it is conceded by the Bar Association that at that time he was not under any statutory obligation so to do.

29 He also disclosed the pending creditors’ petition and indicated that he had made an arrangement with the Commissioner to grant a liberal time for him to raise the money from the outstanding moneys that were due to him in professional fees. In support of his contention that he was a fit and proper person to hold a practising certificate despite the existence of his creditors’ position, he submitted references from two senior barristers, one of whom was his counsel in this matter, Mr Rofe QC.

30 In anticipation of the July 2001 amendments the Deputy Professional Affairs Director of the Bar Association, Mr Macken, wrote to the Barrister. The letter provided inter alia:

"As you may be aware, the above Act will commence on 27 July 2001. The "show cause" provisions in the Bill will have application to matters notified under the Legal Profession Amendment (Notification) Regulation 2001. As you are a person who made a notification under that regulation, it is important that the provisions of the legislation, so far as they have an impact on your earlier notification, are known to you.

All notifications made under the Legal Profession Amendment (Notification) Regulation 2001 are deemed to have been given to Bar Council under the new Act on the day of commencement of the Act.

The new Act will require the Bar Council to provide the Legal Services Commissioner with a copy of any notification and statement made under the Regulation within 14 days of the date of commencement of the new Act (s. 59E).

The new Act will require the barrister to provide a written statement showing cause why, despite the notified Act (or despite a failure to notify), the barrister considers that he or she is a fit and proper person to hold a practising certificate (s. 38FB). Under the transitional provisions of the new Act, any written statement as to fitness to practice provided to Bar Council prior to the commencement of the Act is taken to be a statement under that section.

Section 38FC of the new Act will require the Bar Council to make a determination about the barrister's fitness to practice in certain circumstances.

There is an automatic suspension of a barrister's practising certificate if Bar Council fails to determine the issues raised by the notification within three months from the date of the notification. As noted above, in the case of prior notifications, that period commences on the date of commencement of the Act.

The three month period can be extended to four months in certain circumstances (s. 38FA). However, the Bar cannot act on the assumption that any extensions will be granted by the Legal Services Commissioner.

This letter should be read as informing you of the fact that -Bar Council is required to make a determination under s. 38FC within the period of three months from the date of the commencement of the Act and that a failure by the Bar Council to do so for any reason will result in the automatic suspension of your practising certificate. As you will appreciate, the Bar Council's determination can only be made on the information available to it during the three month period.

For the above reasons it is imperative, in your own interests, that, if you have not already done so, you co-operate fully with the requests previously made to you for information touching your notification and provide us with any necessary authorities to contact your trustee or the Australian Taxation Office so that Bar Council will have all relevant information within the time allowed by the Act.

You should also consider whether you are satisfied that you have made any statement you wish to make in respect of your earlier notification as to why, despite the matter notified, you consider you are a fit and proper person to hold a practising certificate.

You should provide any further information or statement as soon as possible and in any event within 14 days.

This letter does not of course constitute legal advice. You are strongly advised to obtain a copy of the new Act and take any advice you require concerning its terms so far as they affect you."

31 On 31 July 2001 a further letter was written to the Barrister in the following terms.

"As you are aware, on 27 July 2001 the Legal Profession Amendment (Disciplinary Provisions) Act 2001 came into force. You should have received a letter from the Bar Council prior to the commencement of the new Act informing you that, as you are a person who made a notification under the Legal Profession Amendment (Notification) Regulation 2001, the amendments to the Legal Profession Act effected by the new Act have an impact on you,

A matter of particular importance to you is the fact that s. 38FB(3) of the Legal Profession Act 1987 (inserted by the new Act) provides that a barrister who, since being admitted as a legal practitioner, has committed an act of bankruptcy or has been found guilty of an indictable offence or a tax offence must show cause why, despite that matter, the barrister or solicitor considers that he or she is a fit and proper person to hold a practising certificate. Section 38FC of the Legal Profession Act requires the Bar Council to cancel or suspend a practising certificate if the Council considers that the act of bankruptcy or indictable offence or tax offence was committed in circumstances that show that the holder is not a fit and proper person to hold a practising certificate.

Under the transitional provisions of the amended legislation, any written statement as to fitness to practice which you have previously provided to the Bar Council prior to the commencement of the new provisions is taken to be a statement under s. 38FB.

The Professional Conduct Committee investigating matters notified to the Bar Council under the Legal Profession Amendment (Notification) Regulation 2001 proposes, in the case of any barrister who may be the subject of an adverse decision as to fitness to practice, to provide to the barrister a copy of the report of the Professional Conduct Committee to Bar Council and to afford the barrister an opportunity to respond to the report.

Nonetheless, in light of the confined timeframe within which at-Council is required to make its determinations under the amended legislation, it would be prudent for you to take this opportunity to turn your mind to whether you have provided to Bar G-1-1.61 all information upon which you would wish to rely on the issue of whether, despite the matter, you notified under the Legal Profession Amendment (Notification) Regulation 2001, you consider that you are a fit and proper person to hold a practising certificate."

32 Importantly on 10 August 2001 the Barrister replied (our emphasis):

"Thank you for your letter under reference [being the letter of 23 July 2001]. I have now acquired a copy of the legislation to which you refer. It has only just become available apparently due to high demand. Your advice is noted and the matter has been referred by me to senior counsel for his attention.

For myself, there are two matters about which I would be pleased to have the benefit of your counsel:

One, concerns the authorities to the Australian Taxation Office and the Trustee. What should those entities be authorised to do? What legal basis exists to compel them to do anything? Could the information sought by you be obtained through the Freedom of Information Act?

Two, is the ambiguity in the phrase "despite the matter notified". Which particular one of the matters are you referring to? Do I assume that any of the matters of itself automatically results in a consequence of being 'unfit" and "improper"? Is this is a prima facie position or does it simply raise a "seriously arguable case"? What is the criteria to be met to answer either position? Is there &relevant difference between for example, a low range PCA and a "low range" bankruptcy? Is perhaps the real disqualification criteria a failure to have paid money that was lawfully due? Or is it only where the failure is by an insolvent person? Is the "event' in reality becoming insolvent, whether or not a bankruptcy or creditors arrangement results? Or is it that behind the errant driver ties an alcoholic?

If one had some standard point which the "fitness" to hold the practising certificate could be measured, perhaps one would not be running aimlessly around looking under rocks and cabbages to see if anything of possible interest exists. In short, one has the impression that at the moment everyone is caught in a large "black hole".

Is it possible for someone to shed some light on the situation by establishing a set of guidelines? We are, after all, barristers-at-law with some appreciation of the rule of law." [Our emphasis]

33 The Barrister’s reference to the phrase "despite the matter notified" picks up the language of subsection 38FB(3), (4) and (5).

34 It appears from Annexure 54 to the Barrister’s affidavit sworn 26 November 2001 that the Bar Association also circularised all holders of New South Wales practising certificates with details concerning the gazettal of the regulation of 9 March 2001 to which was appended a statement of the then President Ruth McColl SC (as she then was) addressing the importance of the change of procedure to members of the Bar.

35 On 5 June 2001 in response to his letter of 6 April 2001 enclosing the compliance schedule the Barrister was asked the following question:

"4. Please confirm that the three matters in Part 1 of your disclosure are the only offences under the Taxation Administration Act of that kind of which you have been found guilty."

36 On 14 June 2001 he responded:

"I can confirm that such has been the case during the last preceding period of ten years. As I read Regulation 6(1A)(f), and the bold type note on the front of the renewal application form, you are only concerned with the last ten years."

37 On 14 September 2001 the Barrister received a notice under section 38FI of the Legal Profession Act from the Bar Council requesting inter alia various documents relating to his business activity statements and instalment activity statements under the taxation legislation together with proof of payment. This was responded to by the Barrister and on 5 October 2001 what is described as a draft interim report was forwarded from Mr Macken on behalf of the Bar Association to the Barrister. The Barrister was invited to review the draft interim report and advise Mr Macken if:

"(1) you consider it contains any errors of fact or emphasis; or

(2) there are any other facts that are material to the subject matter of the interim draft report you would wish Bar Council to consider.

As has been indicated by letters of 23 and 31 July, the obligation is upon you to satisfy the Bar Council that you are a fit and proper person to hold a practising certificate notwithstanding the notifiable event. You should carefully consider the amendments introduced into the Legal Profession Act 1987 by the Legal Profession Amendment (Notification Disciplinary Provisions) Act 2001 before you respond to this letter. ... You should be aware that section 38FH(2) of the Legal Profession Act 1987 provides for the automatic suspension of your practising certificate on 27 October 2001 .... if Bar Council has not by then been able to form an opinion that you are a fit and proper person to hold it."

38 The draft report itself was lengthy and recommended that the Bar Council should consider that the matters notified by the Barrister disclosed by the Barrister were committed in circumstances which show that the Barrister is not a fit and proper person to hold a practising certificate and recommended that it be cancelled.

39 The Barrister responded at length by letter dated 16 October 2001 which may have been submitted with an accompanying handwritten letter to Mr Macken on 20 October 2001.

40 On 24 October 2001 the Bar Council resolved, inter alia, to cancel the Barrister’s practising certificate and so advised him on 26 October 2001. As the cancellation was not to take effect until 2 November 2001 Bar Council invited further submissions which were supplied in the form of a statutory declaration from the Barrister and submissions prepared by Mr Rofe QC in which he sought to distinguish the position of the Barrister from the cases of Somosi and Cummins.

41 Mr Rofe submitted to the Bar Council on 1 November 2001 that in the Barrister’s case there was and is (a) no systematic course of tax evasion, (b) no deliberate conduct which had the effect of concealing his income and paying no tax, (c) no failure to lodge returns for 17 or 38 years, (d) no deliberate and complete disregard of his legal and civic obligations (as in Somosi and Cummins), (e) no hypocrisy of putting himself in a position as a legal practitioner in which he advocated that other people should perform their legal obligations while systematically failing to perform his own, (f) no absence of information concerning the Barrister’s attempts to rectify his failure to discharge his obligations to the ATO, (g) no rich life style at the expense of his taxation obligations.
42 Rofe QC pointed out that on 30 October 2001 the Barrister was able to pay to the ATO his outstanding tax indebtedness, viz $186,200.

43 The Bar Association has submitted to the Tribunal that the fact of that payment was simply an inevitable condition precedent to the Barrister being granted a practising certificate and that of itself is not of significant probative effect.

44 It was his statement of 1 November 2001, paragraphs 4 and 5, that formed the basis for the particulars set out paragraph 2(1) of Ground 2 of the application for original decision.

45 On 26 November 2001 the Barrister commenced proceedings in the Supreme Court by way of an appeal against the decision of the Bar Association to cancel his practising certificate.

46 As part of his preparation for that appeal it was the Barrister’s evidence that he conferred with Rofe QC on or about 6 December 2001. The Barrister’s evidence concerning his state of mind and knowledge at the time he made the statements was as follows:

"I made that statement on 1 November 2001. At that point in time my state of mind, my absolute belief was that I only had to deal with the taxation defalcations or for filing returns in respect of the previous ten years but that – in December I realised to my shock that was totally wrong and consequently this statement here to my eternal regret is misleading." [T11 line 47]

47 At T12, line 26 he was asked what was the basis of his belief from a legislative point of view.

Answer: Well, I misread that amending Act in 2001 completely and my state of belief was that nothing had changed since the requirement of the Regulations that were referred to in March or February when it was in earlier that year. I knew that because I’d seen that antecedent sheet in November 2000 I knew there were a lot of other convictions that, you know, I wasn’t sure what, you know, when they were made and in respect of which returns. I knew that all of my returns had always been filed and that some were late, that’s all, in so far as the previous ten years that those were the two years concerned. But I did know that there were others, I just didn’t think I had to do anything about them until December. And that was, you know, something that I should have taken a lot more care about and it’s, you know, been sort of around my shoulders ever since then.

48 In assessing the error he told his counsel:

"It was extremely careless of me and wrong, I mean, having regard to my background or whatever this shouldn’t have happened but it did and I deeply regret that.

Question: You say having regard to your background, what do you mean by that?

Answer: Well, I totally misread that Act, I’ve been trained and used to draft legislation, train legislative drafts and I know how to read an Act but I just didn’t, I don’t know why and I didn’t read it up until I was in your room in December when the three of us went through the thing.

Question: Was the error that you didn’t look at the section or what was it?

Answer: I looked at it, I got as far I think that there was a subsection there that said that you didn’t have to worry about previous conduct before 2001 in respect of the bankruptcy offences and Jim Macken or Mr Macken had been writing letters to me which I thought where he wanted me to tell him more information about the bankruptcy and for the life of me I couldn’t think of anything more to say so I wrote back in probably, maybe terms I should have, maybe I could have written that a bit better too as well but I was in effect asking what in the hell I’m supposed to be, what can I possibly say?

49 In cross-examination the Barrister was invited to reread the statement submitted to the Bar Association under the heading "Further compliance schedule":

"On Friday 7 December 2001 I read section 38FB(3) and (7)(f) of the Act for the first time and realised that as from 27 July 2001 the requirements of Regulation 69D had been extended so as to require me to notify you of all other offences whenever they occurred.

3.This realisation was not only surprising but was devastating to me and compelled me to discontinue my appeal fixed for hearing to commence on 11 December 2001 against the New South Wales Bar Association’s determination of 1 November 2001 to cancel my 2001/2002 practising certificate.

4.I had to discontinue the appeal because I did not tell my senior counsel DF Rofe QC of those other convictions. Until 7 December 2001 I was not aware that Regulation 6D [sic]requirements had been extended and therefore mistakenly thought that earlier convictions were not relevant to my appeal. I do not offer my ignorance as an excuse but merely as an explanation. I fully appreciate now that I should have told Mr Rofe. I did not intend to mislead him or anyone else. Why I allowed that to occur I just don’t know. I certainly was not thinking clearly at the time and have to concede that I was emotionally troubled about the whole situation, particularly the way in which the media was treating me, my family and the New South Wales Bar. But nevertheless, the omission was folly and, in hindsight irrational and very wrong."

50 In cross-examination by Ms Adamson the Barrister was asked:

"When did you first form the view that these grounds amounted to professional misconduct?

Answer: I think in December 2001 in respect of the taxation conviction that’s why I withdrew the appeal.

Question: So you say do you that in December 2001 you took the view that the number of tax convictions which were recorded in the particulars to Ground 1 of the information made you guilty of professional misconduct?

Answer: Yeah because of the extraordinarily high number of them

[the Tribunal has corrected the transcript reference which reads "May" instead of "made" in the 14th line on T21].

51 At T23 the Barrister admitted because of the number of offences it would demonstrate some sort of pattern that he wasn’t paying attention to things that should have been paid attention to and it was this pattern or what was referred to as multiplicity, pattern of convictions showed a disregard of his lawful civic and professional obligations, which he admitted to.

52 Having discontinued the Supreme Court proceedings seeking restoration of his practising certificate the Barrister then on 13 February 2002 submitted to the Association a further compliance schedule which is reproduced at 104 of the Respondent’s tender bundle in which he for the first time disclosed to the Association the offences committed between 1984 and 1989.

53 In his explanation in the form of a statutory declaration made on 14 March 2002 reproduced at pp108 and following of the bundle he provided an explanation as to failure to notify the Bar Council between 7 December 2001 and 13 February 2002 of the tax offences. He says at paragraph 6 of that statutory declaration:

"At all times after March 2001, I was aware that I had been found guilty of ‘tax offence’ before 12 November 1996 but I did know the number or details of those convictions.

7.I was so aware because when I attended at the Local Court on 8 November 2000 I was given a document by the prosecutor which detailed particulars of the offences and which I read.

8.On 6 December 2001 I found the document and on 7 December, gave a copy to my counsel.

54 He thereafter sets out an explanation for his delay in disclosing matters to the Bar Association between 7 December 201 and 13 February 2002 in some detail.

55 Exhibit "A" was the antecedents sheet tendered by the Association that the Barrister had been provided with by the prosecutor at the Local Court on 8 November 2000. Page 2 of that document contains a notation which the Barrister admitted was in his own handwriting recording his conviction on 8 November 2000 and recording that he was fined $5,000 plus court costs of $94.50.

56 The Barrister was challenged strongly in cross-examination concerning his precise knowledge of the convictions, their number, their timing and their relevance to his disclosures to the Bar Association. He was shown the statement that he made to the Bar on 1 November 2001 and admitted that that was at a time when he appreciated that unless he could persuade the Bar Council to the contrary, his practising certificate and therefore his right to practise would be cancelled. That statement was made approximately one year after he had appeared before the magistrate, been fined $5,000 and received the sheet in the form of Exhibit "A" setting out what is described as a very long list of antecedents.

57 Ms Adamson pointed out to the Barrister that in March 2001, four months after he had appeared in court and been fined $5,000, he was acutely aware that he was required to notify tax convictions and knew that his convictions in the 1980s were even more numerous than his convictions in the 1990s.

58 The Barrister maintained at all times that after receiving the antecedents sheet recording his convictions, Exhibit "A", on 7 December 2001 he mislaid the antecedents sheet. The Barrister maintained in cross-examination that at the time he was required to notify the Bar of tax offences that he had an antecedents sheet which had been given to him by the prosecutor in the Local Court on 8 November 2000 and that that was the document that had been marked Exhibit "A" in the Tribunal. He was then asked:

Question: And that would have been a convenient way would it not of your ascertaining the details of those offences in order to provide that information to the Bar?

Answer: It would have been very valuable but I didn’t have it.

Question: When you say you didn’t have it what do you mean by that?

Answer: Well I couldn’t find it.

Question: Where did you look for it?

Answer: Everywhere.

Question: Where did you ultimately find it when you found it in December 2001?

Answer: It was in the back of one of the diaries.

Question: I see and you knew though didn’t you that you could simply go to the Local Court where you had been convicted in 2000 and ask the police for a list of antecedents didn’t you?

Answer: No I didn’t.

Question: So you thought that information was lost for ever when you lost that antecedents sheet, is that right?

Answer: I, I didn’t think it was relevant, all I was concerned with was the, the, the three offences I’ve got down here which concern the ten year period.

59 The Barrister had been asked to identify the documents produced in answer to a summons which he used to give the details in the notification of 6 April 2001 which of course was the notification that only contained the offences that occurred in the preceding ten years. The Barrister indicated that details of the sections of the Taxation Administration Act which had been breached as disclosed in the April notice had been obtained from the summons. However they were also noted in the diary. He however claimed that he was unable to find the documents or indeed the folder that had contained them. The folder had apparently been kept in dealing with the 2001 compliance issues with the Bar Association.

60 The Tribunal does not accept that at the time the Barrister prepared his disclosure to the Bar Association in March 2001 he did not have in his possession and utilize the antecedents sheet disclosing precisely the dates of offences, the relevant section of the Income Tax Assessment Act or the Taxation Administration Act and the penalties for the purposes of disclosure to the Bar Association. It follows that the Tribunal is also satisfied that as at the date of introduction of the amendments to the Legal Profession Act that the Barrister was acutely aware that he had not disclosed the prior convictions.

61 The Tribunal is also unable to accept that having been specifically advised in July 2001 by the Bar Association to examine his own personal situation closely, in view of his March 2001 disclosure to the Association, that the Barrister was not aware of the prior antecedents and their relevance to his situation, particularly as it was a period of approximately eight months since he had appeared at the Local Court. The Tribunal finds following his appearance at the Local Court that not only was he aware of the prior tax offences, he was aware that he had not paid the fine. He was also aware that there was an outstanding creditors’ petition against him claiming a very large sum of money in unpaid tax. It is clear from the Barrister’s own statement that he purchased a copy of the Act and instructed counsel as to his position.

62 Furthermore, it is abundantly clear that the Barrister misled Mr Rofe who made detailed and comprehensive submissions on his behalf on 1 November 2001. The Barrister misled his own counsel and misled the Bar Association in his own statement at paragraphs 4 and 5, made on the same day.

63 But for the advice of Mr Rofe QC in conference on or about 6 December 2001, it is by no means clear that the Barrister would have disclosed the prior convictions.

64 The Tribunal is unable to accept the Barrister’s evidence concerning the reasons why he did not disclose to the Association relevant tax offences when invited to do so after his correspondence Exhibit "C" was received from the Association.

65 The Barrister has not conceded that he ever intentionally misled the Bar Association. For reasons which the Tribunal has indicated on critical matters relating to the credibility of the Barrister in his dealings with the Association we have regrettably concluded that his conduct in the following respects was intentional:

(a)He at all times knew at the latest by 8 November 2000 that he had been convicted of a number of tax offences set out in Exhibit "A";

(b)Thereafter the antecedents remained in his possession until provided to his counsel in conference on or about 6 December 2001;

(c)He was able to respond to the Bar Association’s request for particulars of taxation offences occurring in the last ten years in March 2001 because he had those antecedents in his possession and utilised them with a view to particularising offences going back to 1996.

We are unable to accept that he had in his possession details of those convictions and has now lost them and been unable to produce them on summons to the Tribunal.

66 Further, the Tribunal is persuaded in the light of the Barrister’s knowledge as found by the Tribunal that he deliberately did not inform Rofe QC of the matter and permitted Rofe QC to make submissions to the Bar Association in a state of ignorance concerning those earlier convictions. Further, whether or not he knew the precise number of tax convictions, and it is our view that he did, he permitted the submissions to go to the Bar Council and be made knowing that they were false. These are matters that go solely to the credit of the Barrister and are of course highly relevant to the question of his fitness from a professional point of view.

67 The Tribunal was troubled by the inability of the Barrister to adequately explain how it was that he came to only recognise his disclosure obligation concerning tax offences when he asserts that he read the legislation for the first time in December 2001.

68 As a former parliamentary draftsman and experienced commercial lawyer and barrister of many years standing, it is quite apparent that the Barrister had read the legislation prior to December 2001. His statement that he only partially read the provisions but did not read subsection (f) of clause 69D is rejected by the Tribunal.

69 The Bar Association has submitted that the Barrister’s credibility is an issue in the case. It submits that it is relevant to at least the following issues:

(a)whether the Tribunal accepts the context or explanation given by the Barrister for the conduct underlying convictions:

(b)whether the Tribunal considers that the explanations given for the admittedly misleading statement in Ground 2(a) ought to be believed;

(c)whether the statement in Ground 2(b) was intentionally misleading (since this is the only part of the application which is not admitted);

(d)whether the admissions made by the Barrister of the particulars in the application are a reflection of a true acknowledgement of guilt, or an opportunistic forensic ploy designed to reduce the chance of the Tribunal removing his name from the local roll; and

(e)the appropriate consequential order to be made by the Tribunal.

70 The Bar Association submits the primary matter that the Barrister is an unreliable witness who ought not to be believed except when he makes a statement against interest or is otherwise corroborated. It further submits that his evidence in the proceedings before the Tribunal far from demonstrating that he has rehabilitated himself following the misleading statements in Ground 2, demonstrates the very same traits that are exhibited in the conduct in Ground 2.

71 It is common ground between the parties that as the Barrister has admitted that the conduct alleged against him in the application constitutes professional misconduct the Tribunal does not have to concern itself with the question of whether the conduct constitutes unsatisfactory professional misconduct and the technical defences that were raised in the amended reply were abandoned.

72 The Bar Association points to the amended reply filed on 26 November 2008 as containing a number of purported justifications and excuses for his conduct. It suggests that this is entirely inconsistent with any true contrition or acknowledgement of wrongdoing. It points to the assertions on paragraph 1.1(a) that he was unaware until about September 1989 that any of his tax returns for the years 1975 to 1989 were not being filed within the time either allowed by the Tax Administration Act or by extension of time arranged by his accountant and was further unaware that he had been charged with and convicted of offences relating to any of those years. The Bar Association further submits that the Barrister’s assertion that he was unaware of convictions is inconsistent with his statutory declaration made on 14 March 2002, annexed as p111 to his affidavit sworn on 4 December 2002 being Exhibit 1:

"I am not saying that I was never informed or served with notice of the court cases or fines. I have no memory of having received such notice or service and have not been able to find any record whatsoever concerning the failures, court hearings, convictions, orders or penalties."

73 It is submitted that an inability to deny in March 2002 that he had received the relevant documents ought to be accepted. The Tribunal further accepts that the Barrister was arrested on a warrant by police for failing to pay outstanding taxation fines in or about September 1989. The Bar Association asserts that his preparedness to pay a large fine without inquiry following his apprehension indicates that he knew that he had been in gross dereliction of his legal obligations and that he needed to pay up or be arrested. In the Tribunal’s view it also indicates that as at that date he knew that he had a large number of taxation convictions and was apparently prepared to pay the amount demanded without further itemisation or explanation. The Bar Association asserts that the fact that the police prosecutor in November 2000 sought a custodial sentence for the Barrister’s failure to lodge a return on time was an indication that those charged with the responsibility for enforcement of the Taxation Administration Act considered that drastic action was required to incline the Barrister to comply with his legal and civic obligations.

74 The Bar Association further submitted that it was only after the Legal Profession Act 1987 amendments that threatened to deprive the Barrister of the right to practise that he began to take his obligations more seriously. It submits that it is telling that what occurred in that regard in 2001:

(a)the Barrister filed his 1999 return about a month before 21 March 2001 and his 2000 return about a month before 23 March 2001;

(b)he paid $186,201.65 on 30 October 2001 in response to a creditors’ petition. The Bar Association says the motive for the payment is obvious;

(c)on 18 October 2001 the Barrister paid the fine imposed by the magistrate on 8 November 2000 which was due on 8 December 2000 as set out in Exhibit "D".

75 The Bar Association submits in effect that the Barrister’s admissions in the Tribunal made on advice at the commencement of the hearing were belated and should not be taken as evidence of contrition. The Bar Association asserts that the Barrister’s admission that he was neither careful nor candid at the time he made the statements in 2001 correctly shows that as at that date not only were his statements to the Bar Association deliberately not candid but demonstrated a sustained period of conduct of dilatoriness, non-payment of tax, late lodgement of returns that extended back over many years.

76 The Barrister blamed in his evidence his troubles on inability on his part to keep and secure records: see Transcript T19.

77 The Tribunal having seen and heard the Barrister in the witness box accepts that he was disorganised in the conduct of his affairs. Whether that was deliberate, inadvertent, careless or otherwise is beside the point. The Tribunal, however, does not accept as he asks us to do for instance that he had no means of establishing the number and nature of the tax return convictions until he was given the antecedents sheet on 8 November 2000. For a barrister to put that seriously forward as an explanation is unacceptable, particularly a barrister of his years standing. Further, his assertion, for example, that upon his arrest by police when taken to Dee Why Police Station he made no inquiry before paying the fines as to the number and nature of offences is also not credible.

78 Further, on being cross-examined about whether he had read the antecedents sheet Exhibit "A" we accept the Bar Association’s submission that it was a matter that the Barrister only admitted with considerable reluctance.
79 We accept the Bar Association’s analysis of the Barrister’s conduct as submitted at paragraph 30 to 32.

30.First, Mr Cameron was reluctant to admit that he had "read" the antecedents sheet (Exhibit A), since he presumably knew that once he admitted reading it, it would be perfectly obvious that his statement to the Bar Council on I November 2001 was intentionally misleading. Although he admitted in his statutory declaration of 14 March 2002 (Exhibit 1, page 108) that he had read the document ("I was given a document by the Prosecutor which detailed particulars of the offences and which I read."), he later said, in a letter dated 28 July 2003 to the Bar Council (Exhibit 1, page 171, at page 1.74) that: "On 7 December 2001 1 first became aware of the dates, details and particulars of the first six convictions which took place in 1984, 1985, 1987 and 1989." In his evidence before the Tribunal, he refused to accede to the proposition that he had read the document, and preferred to maintain that he had "glanced" at it (see 26/11/08, tr. 45.19-48.12). When reminded that he had sworn in his statutory declaration that he had read it, he agreed that he had, but immediately sought to undermine the admission by repeating that he had glanced at it. In his Amended Reply he says, at paragraph 2.1(b): "The respondent had no time to read the sheet at Court (he was self represented and was called upon to address the Court as he was presented with the document) and upon the respondents returning to Chambers he was distracted from studying the sheet in consequence of which it was misplaced and was not located until 6.12.01."

31. Since Mr Cameron was given Exhibit A in the course of a hearing in which a police prosecutor was asking for a custodial sentence, it can reasonably be inferred that he attended to its contents, that he read it and that he addressed the court on the basis of it.

32.Secondly, the inference is available, and ought be drawn, that Mr Cameron used Exhibit A to prepare the notification which he made on 6 April 2001 (Exhibit 1, page 68). The proposition was put to Mr Cameron at 26/11/08, tr. 30.4 and rejected by him, although he admitted that he has produced no other document that would have enabled him to give the detail about the offences of which he was convicted in the 1990's save for Exhibit A. When cross-examined about what documents he used to prepare the notification of 6 April 2001, Mr Cameron acknowledged that the documents he had produced in answer to the summons contained no document apart from Exhibit A which contained the details that were contained in his notification." He said, that he had been able to fill in the notification, in part from Exhibit D, and from other documents which were in his possession at the time of the notification but of which he had subsequently disposed. The detail on Exhibit D is insufficient even for the notification in respect of the offence of which he was convicted on 8 November 2000, since it does not identify the provision of the Taxation Administration Act that was breached or the return the subject of the conviction. It reveals (relevantly) only the date of conviction (8 November 2000) and the amount of the fine ($5,000). By contrast all of the information in the notification of 6 April 2001. (and the notification in February 2002) was readily ascertainable from Exhibit A, apart from the date on which the 1.999 return was filed (17 October 2000).

80 We are unable to accept that at all material times between November 2000 and December 2001 and in particular from July onwards the Barrister did not have in his possession Exhibit "A", it was not lost or mislaid and that he was aware of the information contained therein. We do not accept, even if he did not have the document, that he did not know of the details of the convictions as they must have been still fresh in his mind from November 2000 and in any event he had the means and would have had no difficulty in establishing the precise nature of those convictions had he wished to do so.

81 The Bar Association submits that the Barrister’s evidence, Transcript 60.38, 62.27 to .50, that he read section 38FB(1) to (6) and did not read the rest of the section is relevant not only to credit but also to the question of contrition as he sought to explain his behaviour as simple misinterpretation of an amendment to a statute rather than as the professional misconduct that he through his senior counsel admitted.

82 His qualified response in the letter dated 14 June 2001 Exhibit 1 p70 at 71 referred to above was misleading, a further matter that was submitted by Bar Association as demonstrating that he lacked insight and contrition in respect of the matters alleged against him in the application.

83 The Tribunal has indicated that it does not accept the Barrister’s evidence that he had not read section 38FB(7) until 7 December 2001. This conclusion by the Tribunal involving as it does an acceptance of the analysis put forward by the Bar Association at paragraphs 43 and 44 of the primary submissions demonstrates also that the Barrister still does not recognise what is required now when considering the Bar Association’s application to remove him from the Roll. The Tribunal is also further unable to accept the Barrister’s reading of the legislation as being relevantly not retrospective in its operation. The Tribunal does not accept that his explanations for not disclosing his convictions involved:

(a)only partly reading the legislation;

(b)misreading the legislation;

(c)being careless in his reading of it.

84 The Bar Association points to the amended reply filed in 2008 as further evidence of lack of contrition in so far as the Barrister continued to maintain the assertion in paragraph 2.1(d) that he:

". . . properly held the opinion that any tax return convictions before March 1991 were to be ignored".

85 The Bar Association has submitted and maintained that whatever version we accept in explanation of the Barrister’s conduct ought to be seen as an opportunistic acknowledgement of guilt made in order to minimise the consequences that would otherwise almost inevitably flow from continued denial or non-admission of the allegations in the application.

86 The Barrister’s submissions filed on 16 February 2009 make the following important points which, absent our findings relating to the Barrister’s conduct before the Tribunal, would be of importance:

(a)the matters of complaint took place no later than December 2001, that is seven years ago;

(b)as a result of those matters the Barrister lost his practising certificate from 31 December 2001 until 9 May 2002 and then from 31 December 2002 to date. That is, he was unable to practise as a legal practitioner for a little over seven years apart from a period of seven and a half months when he regained his practising certificate following a direction of the Court of Appeal on 9 May 2002;

(c)that by a special meeting of the Council on 23 September 2004 it was resolved that upon the Barrister satisfying the Council that he had reached an arrangement with the Deputy Commissioner of Taxation regarding payment of all outstanding tax liability, the Council as then constituted:

"is minded to grant Cameron’s application for a practising certificate subject to certain specified conditions being attached."

87 It is submitted that while not binding on the Tribunal this attitude of the Bar Association is a matter to which the Tribunal should give considerable weight.

88 Since 23 September 2004 it is further submitted that the Barrister took every possible step to pay all outstanding tax liablities and finally succeeded in doing so on 4 July 2008.

89 In order to do so the Barrister accessed the whole of his superannuation savings of $54,600, a matter that it was submitted went to the question of his sincerity to pay in fulfilling his social responsibilities.

90 In contrast to other disgraced barristers including Cummins, Hamman and Somosi, he has lived up to his statutory responsibilities. Mr Rofe submitted, citing the comments of Fullagher J in Ziems v Prothonotary of the Supreme Court of New South Wales[1957] HCA 46; (1957) 97 CLR 279 the possibly disastrous consequences of disbarment to the individual concerned, that the Tribunal must take into account. A special feature that the Bar Council in this case resolved to be minded in 2004 to grant a practising certificate on certain conditions. A further factor which it relies on in militating against a strike-off application is the unexplained length of time it says passed from the Council’s first resolution on 31 July 2003.

91 The Barrister through his counsel submits:

"Cameron does not put himself forward before this Tribunal as a ‘paragon of perfection’ who was never careless or never makes mistakes or errors, and gives perfect evidence. On the contrary he was not a good witness. Like most of us Cameron is capable of all the former deficits. A barrister at the end of the day is a human being equipped with the weaknesses and strengths in the varying degree of all human beings but is required to have perhaps a high level of integrity and honesty when directly or indirectly discharging his professional duties or duties associated with same: and citing Ziems ‘It cannot be that every proof which he may give of human frailty so disqualifies him. The ends which he has to serve are lofty indeed, but it is with men and not with paragons that he is required to pursue them.’ Per Kitto in Ziems, supra at 298.5."

92 Mr Rofe QC submits that the Barrister admits his errors in the past, says he has made peace with the Tax Commissioner, has learned at considerable cost both emotionally and financially and cannot see how he will fall into the errors that he made in his earlier years if he is permitted back on the Roll. He says that there is no attack on his competency as a barrister and that must be a positive in his favour to weigh up against the mistakes and shortcomings.

93 The Respondent relied on the passage of Mr Justice Giles in Murphy v New South Wales Bar Association [2002] NSWCA 138; 55 NSWLR 23 at pp62 and 63, paragraph 171 where it was said:

"If the respondent were to be judged unfit to hold a practising certificate, it would be because his failing so reflected upon his ability to act in the affairs of his clients that protection of the public warranted cancellation of his practising certificate."

94 It is suggested there was no such material before this Tribunal in his case.

95 The Barrister also submits that there was considerable confusion in the legal profession between March and July 2001 about what the legal requirements were in relation to notifications and that the July 2001 amendment was not prominently circularised amongst the Bar. We do not accept this submission. The Bar Association was at pains to notify the Barrister that they considered his case required special attention, drew attention to the impending legislation. As a result of it the Barrister sought counsel’s advice. In our submission whatever confusion may have existed in the other parts of the profession it was absent in the case of the Barrister. He had a copy of the Act, he sought the advice of counsel, he was aware of his prior convictions; on any reasonable reading of the Act with or without advice, those convictions were relevant and ought to have been disclosed to any person giving advice to confirm the situation. The Barrister’s submissions recognise that the failure to tell Rofe QC and Tudehope of the earlier pre-ten year tax convictions was clearly wrong and poor judgement. The Tribunal, however, does not accept the Barrister’s evidence that he did not intentionally attempt to mislead Mr Rofe about this. The Barrister concedes that the omission was folly and in hindsight irrational and wrong. We conclude that it was also deliberate.

96 The Barrister’s submissions point to a number of factors in mitigation to distinguish the Barrister’s position from that of Hamman, Somosi and Cummins: New South Wales Bar Association v Hamman [1999] NSWCA 404; (1999) 217 ALR 553; New South Wales Bar Association v Somosi [2001] NSWCA 285; (2001) 48 ATR 562; New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279. In particular the Barrister submits he was not guilty of a systematic course of tax evasion. Analysis of his behaviour in relation of tax returns and payment of tax liablities falls very clearly into two periods; the first up until the amendments to the legislation in March 2001, the second thereafter. The Barrister’s behaviour prior to the amendments of the legislation shows persistent failure to comply with the provisions of Commonwealth taxation legislation between 1984 and 2000, a period of sixteen years. Further, there was a protracted period of time as reflected in Exhibit "B" when he was dilatory paying his tax and where, despite incurring a substantial tax liability, almost no tax was paid. The Deputy Commissioner of Taxation’s attempts to recover tax resulted in the issuing of two creditors’ petitions. For example, the proof of debt lodged under the Bankruptcy Act in respect of proceedings no. 2328 of 1990 claimed tax of $278,109.84 for a period between 30 June 1979 and 1989. The Barrister’s letter to the Bar Association as set out in the draft report of 5 October 2001 records debts owed to the Commissioner of $54,117.19 due on judgment obtained in the District Court on 2 December 1993 together with quarterly provisional tax instalments for the years ended June 1993 and June 1994. The Barrister disputed the liability in his submissions to the Bar Council, saying he was obliged to pay tax in excess of what was due of $12,270 but did not lodge any objections at the time. On 8 December 2000 a further petition was presented by the Deputy Commissioner of Taxation seeking sequestration of the Barrister’s estate with the debt claimed being $157,401.

97 The position subsequent to 2000 reflects a determination on the Barrister to repay the Commissioner and Exhibit 4 reveals a position of the Barrister being in credit with the Commissioner of Taxation.

98 The Tribunal, while it accepts that the repayment of the tax was always foreshadowed by the Bar Association as a condition precedent to readmission, it also does reflect on the positive side of the ledger to the Barrister’s credit that at age 70 and without having practised since December 2002 he has attempted successfully to fulfil his civil and moral obligations.

99 The Bar Association’s response to the Barrister’s repayment of the tax is that this was simply forensic necessity and does not constitute any acknowledgement or understanding of what he has done. The Bar Association contends that the acknowledgement on 23 September 2004 that it was minded to grant him a practising certificate until the determination of the complaint only as long as he repaid his tax liablities in full was consistent with their view that the tax convictions as particularised in Ground 1 and the acts of bankruptcy were not sufficiently serious of themselves to deprive the Barrister of the right to practise as long as he paid his tax liablities in full.


100 The Bar Association stresses that it is the Grounds 2(a) and 2(b) of the application, being the making of misleading statements to the Bar in breach of his duty of candour, are of much greater significance since the need for candour and trustworthiness is paramount in the practice of law.

101 The Bar Association draws attention to the powers under the Legal Profession Act Division 1AA to cancel or refuse to issue a barrister with a practising certificate. They are relevantly confined to tax convictions and acts of bankruptcy (the Ground 1 matter). It is not open to the Bar, it submits, to use its power to cancel or not to issue a practising certificate to pre-empt a decision by the Tribunal where the professional misconduct concerns making misleading statements or breaches of the duty of candour (the Ground 2 matters in this case).

102 Accordingly in circumstances where the Bar knows of conduct which it considers to be professional misconduct then unless Division 1AA of the 1987 Act applies the courses open to it are to make a complaint, investigate it and then if it reaches the appropriate state of satisfaction to make a resolution under section 155(2) of the 1987 Act and commence proceedings in the Tribunal. Once such a resolution has been made then the matter must be determined by the Tribunal and the Bar has no jurisdiction to deal with it: see Council of the New South Wales Bar Association v Li [2005] NSWCA 415; (2005) 64 NSWLR 603 at 610 [36] per Spiegelman CJ. Accordingly it submits that no adverse inference may be drawn against the Bar Council for not taking into account the matters in Ground 2 when it foreshadowed the conditions subject to which it was minded to grant the Barrister a practising certificate in 2003. It is, however, curious that they would reach that conclusion knowing that the Barrister had been neither candid nor careful in making statements to the Association.

103 Mr Tudehope in response to the written and oral submissions of the Bar Association submitted that even if the Barrister’s conduct was intentional, the relevant conduct and misleading of the Bar Association was confined as to the disclosure of tax offences to a period between 1 November 2001 and his further notification to the Association on 13 February 2002 when he disclosed under Regulation 69D the offences that occurred between 27 June 1984 and 22 September 1989.

104 The Barrister further submits that having regard to the fulfilment by the Barrister of his taxation obligations and subject to conditions being imposed upon his certificate relating to re-education and the like because of his long period without practising, that he should be permitted to practise at the Bar. It would be proper to find that professional misconduct has occurred on the part of the Barrister. However, he is not presently unfit.

105 The Bar Association says that the conduct alleged and admitted to in Ground 2 goes to the very heart of fitness to practise since it touches and concerns the requirements for honesty and integrity. The combined effects of Grounds 1 and 2 and the absence of any persuasive evidence of rehabilitation makes removal from the Roll the appropriate order. The Association relies upon passages in the judgment of Isaacs J in Incorporated Law Institute of New South Wales v Mahon [1909] HCA 87; (1909) 9 CLR 655 at 681 which stresses the importance of honesty in the following terms:

"The errors to which human tribunals are inevitably exposed, even when aided by all the ability, all the candour and all the loyalty of those who assist them, whether as advocates, solicitors, or witnesses, are proverbially great. But if added to the imperfections inherent in our nature, there be deliberate misleading, or reckless laxity of attention to necessary principles of honesty on the part of those the courts trust to prepare the essential materials for doing justice, those tribunals are likely to become mere instruments of oppression, and the creator of greater evils than those they are appointed to cure. There is therefore a serious responsibility on the court – a duty to itself, to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit an person as worthy of public confidence who cannot satisfactorily establish his right to that credential."

106 Legal practitioners have a duty of candour to their professional association, breach of which amounts to professional misconduct, which may warrant removal from the Roll: see In re Davis [1947] HCA 53; (1947) 75 CLR 409 at 426 per Dixon J; A Solicitor v The Council of the Law Society of New South Wales [2004] HCA 1; (2003) 216 CLR 253 at [30].

107 The Tribunal accepts that the duty of candour as formulated by the Bar Association and accepts that the subjects of the misleading statements in Grounds 1 and 2 were germane to the decision the Bar Council had to make whether to cancel the Barrister’s practising certificate. His deliberate withholding of information from the Bar Association about his convictions in circumstances where they had no right under the Tax Act to obtain the information let alone had the knowledge to seek it out in the first place had the potential to compromise the Bar Council’s ability to make a decision.

108 Once the Tribunal concludes that it is unable to accept the Barrister’s evidence concerning the reasons for the non-disclosure (and by that we mean acceptance of not just his statements but also the evidence that he gave before the Tribunal in relation to those matters) then we inevitably must come to the view that the Barrister’s character is so flawed that he should not be permitted to practise.

109 The Respondent through his counsel suggests that the Barrister is not a good witness. That may be so, however we are unable to accept that his conduct as at 2001 was not sufficiently serious to justify his removal from the Roll. We are also persuaded that his explanations to the Tribunal for his failure to disclose his tax offences and for the misleading of the Bar Council were not inadvertent, not as a result of careless behaviour but were deliberate. His explanations concerning Exhibit "A" as to why he did not draw it to Mr Rofe’s attention until December 2001 we do not accept. We find that at all material times he knew that he had a number of convictions and because of his recent prosecution in November 2000 we are of the view that those facts would have been fresh in his mind at all material times up until December 2001. Further, we are of the view that the probabilities are that, applying the principles in Briginshaw v Briginshaw he had not mislaid Exhibit "A" as he has suggested.

110 We are of the view that he has not been candid about those matters and the lack of candour that he demonstrated in his answers to the Bar Association’s request demonstrated a lack of candour then. We are not persuaded that he has sufficiently changed his character that he could safely continue to practise as a barrister. Duties of candour to a professional association are of paramount importance. The Tribunal is not satisfied that the Barrister has relevant insight into his behaviour nor that the admissions he made were dictated other than by the exigencies of his situation before the Tribunal.

111 The orders that the Tribunal makes are as follows:

1.A finding that Robert William Cameron has been guilty of professional misconduct with respect to the conduct contained in the Grounds set out in application filed 3 June 2008;

2.A finding that Robert William Cameron is not a fit and proper person to remain on the Roll of Legal Practitioners;

3. An order that the name of Robert William Cameron be, and hereby is, removed form the Roll of Practitioners;

4.An order that a local practising certificate not be issued to Robert William Cameron before 20 February 2011;

5.An order that the decision of the Tribunal be published;

6.No submissions were made in relation to costs in this matter. The provisional view of the Tribunal is that the Respondent should pay the costs of the applicant of these proceedings. The Tribunal grants liberty to apply in respect of such question for seven days. If there is no such application the order will be that the respondent pay the costs of the applicant of these proceedings.